Any person who applies for refugee status in Australia (excluding those claims processed offshore) is subject to a process that includes assessment by the Department of Immigration and Citizenship (DIAC), the Refugee Review Tribunal (RRT), Federal courts and the Minister for Immigration.

Download our factsheet on Australia's refugee determination process (pdf 156KB)

All claims must fall under the Refugee Convention and are judged on whether the asylum seeker has "a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion" in her country of origin.

This assessment system currently fails those refugees who don't fall within the auspices of the Refugee Convention, including those who are:

  • At risk of torture or death and who could fall within other countries interpretation of ‘social group’ or 'political opinion' but not ours.
  • Rejected on the grounds of poor credibility.
  • Fleeing persecution for reasons outside the Refugee Convention definition, but nevertheless face torture or death on return to her home country.

In Australia, unlike in many other countries, there is no human rights protection in the form of a Human Rights Act or similar instrument and our domestic courts are limited to interpreting Australian law without recourse to international standards. As a result the treatment of asylum seekers falls under the Migration Act 1958 and is not necessarily consistent with international standards.

The process

To apply for refugee status in Australia an applicant must go through a number of steps in order to be classified as a refugee under the Refugee Convention and Australia's Migration Act 1958.

1. Invoke protection

Asylum seekers have to convince frontline officers they are making a valid application to 'invoke Australia's protection obligations' and that there is a genuine fear of persecution if they are returned to their home country.

If asylum seekers do not clearly indicate their fear of persecution or mention the words 'refugee' or 'asylum', they can be returned to their country of origin without ever going through the formal application process. Given that asylum seekers speak little or no English and the first officials they meet are from Border Protection or Customs, it is not surprising that this causes enormous confusion.

Amnesty International Australia is concerned that no legal or other assistance is provided to asylum seekers at this stage. Interviews are not always conducted in a fair and proper manner. In addition, there is little evidence that interview notes are an accurate record of events and that an applicant is aware that the interview may be relied on at a later date.

2. Decision by a delegate of the Minister for Immigration

Applicants who pass this screening process can lodge an application for a protection visa. A delegate of the Minister for Immigration reviews their case, but is not obliged to interview the applicants and may make a decision on the papers alone. As a result, genuine refugees may be refused protection at this stage resulting in unnecessary anxiety and costs for the refugee as they go through the appeal process.

3. Refugee Review Tribunal

An asylum seeker whose application is turned down can seek review by the Refugee Review Tribunal (RRT). However, the RRT often refers to evidence already given and if fresh or expanded evidence is given, the asylum seeker's credibility has sometimes been called into question. Findings on an applicant's credibility are often not revisable. Time limits for interviews and hearings are strict and RRT members are not necessarily experts in international refugee law and international human rights law.

A $1,400 fee must be paid following a negative decision by the RRT. This may restrict the willingness of asylum seekers to seek an RRT review of the initial decision by the Minister's delegate.

Many RRT applicants do not have permission to work and are reliant on community or family support and, in some cases, are trying to afford legal fees as well. Concerns about the impact of the fee were raised with the Australian government by Amnesty International Australia and other organisations in 2003 but were ignored and the fee was subsequently increased from $1,000 to $1,400.

4. Appeal to the Federal Court or the High Court of Australia

An asylum seeker may appeal a negative RRT decision at the Federal Magistrates Court, Federal Court and then the High Court of Australia. However the grounds of this appeal are restricted only to challenging an error of law the RRT might have made, for example not providing the required notification period for the date of a hearing. The Federal Court does not hear appeals relating to the actual asylum claims, facts or on issues of whether natural justice has been denied.

5. Appeal to the Minister

If an applicant is refused refugee status by the RRT or receives a negative decision from the Federal Court they can appeal directly to the Minister for Immigration for Ministerial discretion. The Minister has the power to grant a visa or allow a fresh application to be lodged.

Amnesty International Australia believes this 'safeguard' is fundamentally flawed in that the Minister does not have to examine all cases, or even substantiate refusals. A person at risk of persecution in their home country, but who cannot meet the technical definition of a refugee, may still face being forcibly returned.