Legal options after being rejected by Refugee Review
Tribunal
If the Refugee Review Tribunal (RRT) has refused your refugee application
you have 28 days from the date of the decision letter before your
bridging visa expires. After this period of time you will become
an unlawful and may be detained or deported. These are some options.
Contents:
Judicial Review
An appeal to the Federal Court, Federal Magistrates Court or High Court
will only be successful if the Refugee Review Tribunal has made a specific
error of law in making its decision. It is very complex and difficult
to do without the assistance of a solicitor or barrister.
You have 28 days from the date of deemed notification of
the Tribunal's decision to apply to the Federal Court or Federal Magistrates
Court.
You have 35 days from the date of actual notification of the Tribunal's
decision to apply to the High Court.
Apply to Minister
of Immigration to stay for humanitarian reasons
If the Tribunal has found that you are not a refugee, but you believe
there are strong humanitarian reasons for giving you a protection visa,
then you can write to the Minister for Immigration asking him to allow
you to stay in Australia.
The Minister is sent hundreds of these letters and in most cases he will
not allow people to stay for humanitarian reasons, but this should not
discourage you from applying if you believe that your case is strong.
You should write to the Minister as soon as possible after the decision
of the RRT or finalisation of judicial review. The Minister will not
consider a letter while judicial review is ongoing.
The Minister will allow you to stay if he believes it is in Australia's
public interest to do so, but there are a number of factors he particularly
looks at. These are summarised in a sheet called Ministerial
Guidelines for the Identification of Unique or Exceptional Cases.
The Minister
has the power, but is not obliged, to exercise these guidelines issued
under section 417 of the Act. If your case involves 'unique or exceptional
circumstances' it may be in the public interest for the Minister to intervene
for compassionate reasons. The following factors may be relevant
in assessing whether your case involves unique or exceptional circumstances:
- Particular
circumstances that provide a sound basis for a significant threat to
your security or human rights.
- Particular
circumstances or characteristics including where it would be inhumane
to return you to a country where you have experienced torture and trauma
and would be likely to experience further trauma in that country.
- Where
there are substantial grounds for believing you may be in danger of
being subject to torture if required to return to your country of origin
in contravention of the International
Convention Against Torture.
- Circumstances that may bring Australia's obligations as a signatory
to the
Convention on the Rights of the Child into consideration, where
it is in the best interests of the child that you should remain in Australia.
If you have a child that is an Australian citizen (one of the child's
parents are an Australian citizen) you should emphasise this situation.
- Circumstances
that may bring Australia's obligations as a signatory to the
International Covenant on Civil and Political Rights
(ICCPR)
into consideration, where you would face a real risk of violation of
your fundamental human rights such as being subject to torture or the
death penalty (no matter whether lawfully imposed).
- Circumstances
that the legislation could not have anticipated.
- Intended,
but in the particular circumstances, particularly unfair or unreasonable
consequences of legislation.
- Strong
compassionate circumstances that would result in irreparable harm and
continuing hardship to an Australian family unit (where at least one
member of the family is an Australian citizen or permanent resident)
or an Australian citizen.
- Exceptional
economic, scientific, cultural or other benefit to Australia.
- The length
of time you have been present in Australia (including time spent in
detention) and your level of integration into the Australian community.
- Your age.
- Your health
and psychological state.
You should
try to show why you fall into one or more of these categories.
You should also collect as many letters of support for or proof of, your
situation as you can. These may come from Amnesty International,
community organisations, ethnic groups, religious bodies and local politicians.
Details of your involvement in Australian society are also relevant.
Include letters of support from any Australian permanent resident of citizen
family members especially children or partners. Included certified copies
of birth certificates, citizenship certificates or passports as evidence.
An example of a letter
is available. It is an example only, and must be written to suit
your circumstances.
Apply to the Minister
to lodge a second refugee application
You can only put in a second refugee application if the Minister gives
you permission. You can write to the Minister requesting he exercise
his discretion under s 48B to allow you to put in another application.
The Minister will only give his permission if there is new evidence
or new circumstances that apply to your case which were not available
or had not happened before the Tribunal made its decision. If the
information was available previously, you must show a very good reason
why it was not given to the Tribunal.
Other immigration
options
Once you have been rejected by the RRT, you are prevented from applying
for most other immigration categories in Australia.
For information about other immigration options, you can call IARC
(Immigration Advice and Rights Centre), a free immigration legal service,
on their advice line, (02) 9281 8355.
Leaving Australia
If you have not applied for any of the above options, or if any of the
above options are not successful, then in most cases you have 28 days
after the decision to leave Australia. You will need to confirm
this with the time limits on your bridging visa.
If you need some more time to make arrangements you should contact the
Immigration Department. If you do not leave Australia by this time,
then you are liable to be taken to Immigration Detention and deported.
Important Disclaimer:
Australian Lawyers for Human Rights Inc is not
registered as a migration agent. It is not a legal practice. The resources
for asylum seekers are provided to help people who want to research, or
take action in relation to, the legal situation of asylum seekers. Anyone
using these resources should obtain advice from a registered migration
agent or a practising lawyer. Legal advice is available from these
places. There may be errors or omissions
in the resources. Australian Lawyers for Human Rights Inc has attempted
to ensure that the resources are current and accurate, but it is not responsible
for the consequences of any errors or omissions.
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This page last updated 4th May 2004
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