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Australian
Lawyers for Human Rights
- Legal Options after being Rejected by the Refugee Review Tribunal
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:
click here
. 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
.
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.
-
JUDICIAL REVIEW
-
APPLY TO THE MINISTER OF IMMIGRATION TO ALLOW YOU TO STAY FOR HUMANITARIAN
REASONS
-
APPLY TO THE MINISTER TO LODGE A SECOND REFUGE APPLICATION
-
ANY OTHER IMMIGRATION OPTIONS
-
LEAVING AUSTRALIA
1.
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.
Internal Link: Instructions
for a Federal Court application
Internal Link: Sample Court forms
(Download Word Document)
Internal Link: Legal Assistance
You have 35 days from the date of actual notification of
the Tribunal's decision to apply to the High Court.
2.
APPLY TO THE MINISTER OF IMMIGRATION TO ALLOW YOU 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.
Internal Link:
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.
Internal Link: Example Letter
3.
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.
4.
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.
External Link: Immigration Advice
and Rights Centre
5.
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.
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