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Refugee Law Developments: Processes, Laws, and Merits Review Issues in Immigration Law - February 2017 Conference

Ali Mojtahedi and Kerry Murphy discuss the latest developments in refugee law, including different processes and laws based on how and when individuals come, merits review issues, cancellations, character, and citizenship.

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Refugee Law Developments: Processes, Laws, and Merits Review Issues in Immigration Law - February 2017 Conference

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  1. LAW COUNCIL IMMIGRATION LAW CONFERENCE FEBRUARY 2017 REFUGEE LAW DEVELOPMENTS Presentation by Ali Mojtahedi of IARC and Kerry Murphy of D’Ambra Murphy Lawyers

  2. Refugee Law Developments 1.       Different processes and laws according to how you come and when 2.       Merits Review issues (AAT and IAA) 3.       Cancellations, character and citizenship

  3. Refugee Law Developments Article 1A of the 1951 Convention as amended by the 1968 Protocol A refugee is someone who 'owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

  4. Refugee Law Developments Article 1A annotated according to Migration Act 1958 A refugee (see s5H) is someone who 'owing to a well founded fear of being persecuted’ (see s5J) for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality (see sections 5K, 5L, and s5LA) and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; (subject to s36(3) ) or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

  5. Refugee Law Developments 16 December 2014 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 passed. This introduced major changes such as definitions of refugee, particular social group, well-founded fear, effective protection, TPV (785), SHEV (790), deeming children born here to be IMA, Fast track for post 12 Aug 2012 cohort. TPV, deeming children, capping power and other changes start from 16 December 2014. The TPV recommenced but the SHEV is not operational yet as no areas have been designated under regulations. 18 April 2015 S5AAA responsibility of applicants to present information to DIBP, no responsibility by DIBP. S423A – RRT to make adverse credibility finding where new information provided unless exceptional circumstances S91WA – mandatory refusal where a failure to establish identity Changes to RRT and MRT with Guideline decisions, oral decisions. Fast Track process to commence 1 July 2015 RRT and MRT merged into AAT. IAA commences. First SHEV areas designated

  6. Refugee Law Developments fast track applicant means: (a)    a person: (i)    who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and (ii)    to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and (iii)    who has made a valid application for a protection visa in accordance with the determination; or (b)    a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).

  7. Refugee Law Developments Section 5AAMeaning of unauthorised maritime arrival (1)  For the purposes of this Act, a person is an unauthorised maritime arrival if: (a)  the person entered Australia by sea:  (i)  at an excised offshore place at any time after the excision time for that place; or (ii)  at any other place at any time on or after the commencement of this section; and (b)  the person became an unlawful non-citizen because of that entry; and (c)  the person is not an excluded maritime arrival. (1A)  For the purposes of this Act, a person is also an unauthorised maritime arrival if: (a)  the person is born in the migration zone; and (b)  a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and (c)  the person is not an Australian citizen at the time of birth. (1AA)  For the purposes of this Act, a person is also an unauthorised maritime arrival if: (a)  the person is born in a regional processing country; and (b)  a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and (c)  the person is not an Australian citizen at the time of his or her birth.

  8. Refugee Law Developments Section 46A  Visa applications by unauthorised maritime arrivals (1)  An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who: (a)  is in Australia; and (b)  either; (i)  is an unlawful non-citizen; (ii)  holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph. (1A)  Subsection (1) does not apply in relation to an application for a visa if: (a)  either: (i)  the applicant holds a safe haven enterprise visa (see subsection 35A(3A)); or (ii)  the applicant is a lawful non-citizen who has ever held a safe haven enterprise visa; and (b)  the application is for a visa prescribed for the purposes of this paragraph; and (c)  the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of this paragraph. (2)  If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.

  9. Refugee Law Developments

  10. Refugee Law Developments

  11. Refugee Law Developments Case 1 Arrive with a visa and lodge a protection application before 14 December 2014 • Old law – reasonableness of relocation test • No modify behaviour requirement • AAT review • Permanent visa subclass 866

  12. Refugee Law Developments Case 2 Arrive without a visa by boat and invited to lodge a protection application before 13 August 2012 and grant before 18 September 2013 • Old law – reasonableness of relocation test • No modify behaviour requirement • AAT review • Permanent visa subclass 866

  13. Refugee Law Developments Case 3 Arrive without a visa by boat and invited to lodge a protection application before 13 August 2012 and grant after 18 September 2013 • Old law – reasonableness of relocation test • No modify behaviour requirement • AAT review • Temporary protection visa subclass 785 • No other visa can be applied for, unless SHEV exception applies (after 42 months on a SHEV) • No sponsorship of family members

  14. Refugee Law Developments Case 4 Arrive without a visa by boat and invited to lodge a protection application between 13 August 2012 and 15 December 2014 and grant after 18 September 2013 • Old law – reasonableness of relocation test • No modify behaviour requirement • IAA review for fast track cases • Temporary protection visa subclass 785 or SHEV subclass 790 • No other visa can be applied for, unless SHEV exception applies (after 42 months on a SHEV) • No sponsorship of family members

  15. Refugee Law Developments Case 5 Arrive without a visa by boat and invited to lodge a protection application after 15 December 2014 • new law – all areas of receiving country • modify behaviour requirement • IAA review for fast track cases • Temporary protection visa subclass 785 or SHEV subclass 790 • No other visa can be applied for, unless SHEV exception applies (after 42 months on a SHEV) • No sponsorship of family members

  16. Refugee Law Developments Case 6 Arrive with a visa and lodge a protection application after 14 December 2014 • new law – all areas of receiving country • modify behaviour requirement • AAT review • Permanent visa subclass 866

  17. Refugee Law Developments Case 7 Arrive without a visa or intercepted at sea from 19 July 2013 and transferred to regional processing country wither Papua New Guinea or Nauru • Determined under national law of PNG or Nauru • Temporary visa if accepted for protection

  18. Refugee Law Developments Review issues AAT v IAA AAT • is full merits review, with some procedural fairness provisions such as s425, s424A and s424AA • Limitations on lodgement times 7 working days if in detention and 28 days from notification outside detention • Requirements to have a hearing • No restriction on process unless s423A applies (since 18 April 2015) Section 423A   How Tribunal is to deal with new claims or evidence s423A (1)    This section applies if, in relation to an application for review of an RRT-reviewable decision (the primary decision) in relation to a protection visa, the applicant: (a)    raises a claim that was not raised in the application before the primary decision was made; or (b)    presents evidence in the application that was not presented in the application before the primary decision was made. s423A (2)    In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

  19. Refugee Law Developments IAA • Automatically referred for review unless an excluded fast track review applicant • No hearing required • New information must not be considered unless exceptional reasons for doing so • Little procedural fairness • No equivalent of s417 Ministerial

  20. Refugee Law Developments Immigration Appeals Authority s473BA In reviewing fast track reviewable decisions, the Immigration Assessment Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review). The Immigration Assessment Authority does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it. However, in exceptional circumstances the Immigration Assessment Authority may consider new material and may invite referred applicants to provide, or comment on, new information at an interview or in writing.

  21. Refugee Law Developments Section 473DB  Immigration Assessment Authority to review decisions on the papers (1)  Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB: (a)  without accepting or requesting new information; and (b)  without interviewing the referred applicant. (2)  Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

  22. Refugee Law Developments Section 473DD  Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a)  the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii)  is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

  23. Refugee Law Developments Cancellations, character and citizenship issues • Increased use of cancellation powers under s107-109 process, eg if return to visit home country, breach of condition 8559 – real chance test (see later slide) • Bridging visa E cancellations under s116 if breach Code of Behaviour meaning not able to apply for a new bridging visa E • Changes in character definition and Direction 65 means that international non-refoulement obligations are no longer a primary consideration for the exercise of the discretion • Delays in grants of citizenship, especially if you arrive by boat • Direction 62 from 19 December 2013 until 13 September 2016, now direction 72 means lowest priority in family visas, but can be considered in ‘compelling circumstances’.

  24. Refugee Law Developments 8559 (on 866 visas from 03 June 2013) The holder must not enter the country by reference to which: (a)  the holder; or (b)  for a member of the family unit of another holder — the other holder; was found to be a person to whom Australia has protection obligations unless the Minister has approved the entry in writing.

  25. Refugee Law Developments 8570 (on TPV & SHEV from 16 Dec 2014) The holder must not: (a)  enter a country by reference to which: (i)  the holder was found to be a person in respect of whom Australia has protection obligations; or (ii)  for a member of the family unit of another holder — the other holder was found to be a person in respect of whom Australia has protection obligations; or (b)  enter any other country unless: (i)  the Minister is satisfied that there are compassionate or compelling circumstances justifying the entry; and (ii)  the Minister has approved the entry in writing.

  26. Refugee Law Developments Real Chance test s5J (1)   For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if: (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and (c)   the real chance of persecution relates to all areas of a receiving country. Chan v Minister For Immigration And Ethnic Affairs (1989) 169 CLR 379. Justice McHugh considers the term ‘well-founded fear’ and comparative jurisprudence from the USA and the UK as well as other international commentary and analysis. The conclusion of his honour is at paragraph 35 of his judgement: 35. The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the U.S. Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his fear should be characterised as "well-founded" for the purpose of the Convention and Protocol.

  27. Refugee Law Developments The Refugee Law Guidelines: What constitutes a ‘real chance’ is not defined or given guidance in the Act. The EM to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 states (at paragraph 1180) that the incorporation of ‘real chance’ into s5J is meant to be consistent with Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62 (‘Chan’) and: … clarifies that the risk threshold for assessing Australia’s obligations in respect of a refugee under new section 5H is that there is a real chance of persecution for one or more of the reasons listed in paragraph 5J(1)(a) if the person returned to the receiving country … This is the same threshold that is currently being applied by decision makers in assessing claims under the Refugees Convention. It follows that in order to apply what is meant by ‘real chance’ in s5J(1)(b) decision makers need to be aware of how that term was given expression in Chan.

  28. Refugee Law Developments Questions?

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