This article will discuss the fast track review of certain protection visa decisions. This is a process for reviewing decisions made by the Department of Home Affairs (DHA) to refuse protection visas to certain applicants. This process is faster and more efficient than the traditional merits review process.
The DHA grants protection visas in Australia to people who are refugees or who are in need of protection from persecution. Refugees are people who have fled their home country because of a well-founded fear of persecution on the basis of:
- Race
- Gender
- Religion
- Nationality
- Membership of a particular social group; or
- Political opinion
Read on to learn about provisions of the fast track review of certain protection visa decisions under the Migration Act 1958.
Section 473BA: Simplified Outline of Fast Track Review of Certain Protection Visa Decisions
Section 437BA provides a limited form of review for certain decisions to refuse protection visas. These decisions are “fast track decisions” and they apply to a specific group of people, including unauthorised maritime arrivals :
- Who entered Australia on or after 13 August 2012, but before 1 January 2014; and
- Who have not been taken to a regional processing country.
Fast track reviewable decisions are referred to the Immigration Assessment Authority (IAA) by the Minister. This includes the fast track review of certain protection visa decisions. Furthermore, they do this as soon as reasonably practicable after a decision is made.
The IAA is an independent body that reviews these decisions on the papers that are provided to it, and it does not hold hearings. In reviewing fast track reviewable decisions, the IAA 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 of the Migration Act (Conduct of review).
The IAA may affirm a referred decision or may remit the decision for reconsideration in accordance with directions. Moreover, the IAA may also give directions restricting the disclosure of information.
Section 437BB: Definitions Under Fast Track Review of Certain Protection Visa Decisions
Here are important terms under Section 437BB:
- Division head: The head of the Migration and Refugee Division of the Administrative Appeals Tribunal.
- Fast track reviewable decision: A decision to refuse to grant a protection visa to a fast track review applicant, or a decision determined to be a fast track reviewable decision under section 473BC of the Migration Act 1958. A fast track reviewable decision does not include a decision in relation to which the Minister has issued a conclusive certificate under section 473BD of the Act.
- New information: Information that is relevant to a fast track reviewable decision and that was not available to the Minister at the time they made the decision.
- President: The President of the Administrative Appeals Tribunal.
- Referred applicant: An applicant for a protection visa in respect of whom a fast track reviewable decision has been referred to the Immigration Assessment Authority under section 473CA of the Act.
Other Definitions
- Reviewer: A person engaged as a Reviewer in accordance with Division 8 of Part 473 of the Act, including the Senior Reviewer.
- Review material: The material the Immigration Assessment Authority receives when they have to review a fast track reviewable decision.
- Senior Reviewer: The Senior Reviewer appointed under section 473JC of the Act.
- Tribunal: The Administrative Appeals Tribunal.
- Excluded fast track review applicant”: An excluded fast track review applicant is a person who:
- The Minister believes has already had a fair chance to have their protection claim reviewed in Australia or another country;
- Has provided false information to support their claim;
- Has made a claim that is clearly not true; or
- Is in a group of people that the Minister has said should not be eligible for fast track review of certain protection visa decisions
- Fast track decision: A fast track decision is a decision to refuse to grant a protection visa to a person who is eligible for fast track review, except for the following decisions:
- Decisions based on the applicant failing the character test (section 501 of the Migration Act 1958).
- Decisions based on certain other grounds listed in the Migration Act 1958, including:
Section 473BC: Minister May Determine That Certain Decisions Are to Be Reviewed Under This Part
Section 473BC of fast track review of certain protection visa decisions outlines more of the Minister’s powers. Additionally, the Minister can make a law to say that certain fast track decisions, or a certain type of fast track decisions, for excluded fast track review applicants should be reviewed under this part of the Act.
Section 473BD: Minister May Issue Conclusive Certificate in Relation to Certain Decisions
Section 473BD of fast track review of certain protection visa decisions sets out additional powers of the Minister. The Minister can stop the review of a decision if the Minister believes that it would not be in the national interest to change the decision or to have it reviewed.
Notes:
- The Minister should only use this power in rare cases.
- If the Minister issues a conclusive certificate, the fast track decision review cannot occur.
Our Expert Migration Lawyers
Seeking legal advice from a migration lawyer is important for matters related to the fast track review of certain protection visa decisions because:
- The process is complex and there are many strict deadlines that one must meet.
- The stakes are high, as a negative decision could result in the applicant facing deportation from Australia.
- A migration lawyer can help the applicant to gather and prepare the necessary evidence, and to submit a strong and compelling case to the IAA or DHA.
- A migration lawyer can also represent the applicant at their hearing, and advocate on their behalf.
JB Solicitors is an experienced migration law firm that has a proven track record of success in helping clients with fast track review matters.
Contact us today for more information about fast track procedures for Australian visa matters.
