Labor has been accused of attempting to sneak through changes limiting the ability to seek merits review from immigration detention, overturning the effect of a recent high court decision.
Refugee advocates and the Greens have warned changes in a bill helping to establish the administrative review tribunal (ART) could see applications from people seeking asylum thrown out for minor technicalities including late payment of fees.
Under the current law, people in immigration detention wanting to overturn some migration decisions such as refusal of a refugee protection claim have seven days to apply for merits review. Applications must be accompanied by a statement of reasons and a fee.
In April 2024, the high court softened the possible effect of those requirements. It ruled in a visa cancellation case that a failure to include a statement of reasons within a statutory timeframe was not fatal to an application because the law was not clear enough.
The bill, introduced in August and currently being considered by the Senate’s legal and constitutional affairs committee, proposes to add a note that “if the application is not properly made, the ART must not review the decision”.
The deputy chief executive of the Refugee Council, Adama Kamara, said “preventing the tribunal from reviewing decisions that are outside of the timeframe is both bad policy and counterproductive to the government’s own agenda in addressing the backlog”.
If applicants are forced to seek a review in court instead of the tribunal, it will increase the cost and delays.
“It also risks sending people with strong claims of persecution back into the hands of their persecutors,” Kamara said. “Australia should be ensuring every person has a chance to have their claims fairly reviewed.”
Senator David Shoebridge, the Greens immigration spokesperson, said: “This was a sneaky move from the Albanese Labor government, hiding amendments that will overturn a high court decision that gave people seeking asylum greater rights in a highly complex and technical amendment bill.”
He said the bill set “punitive timeframes” for people seeking asylum and “if they miss this deadline, their whole application is thrown out”.
“If the application is filled out incorrectly or if the fees are slightly late, the entire case is rejected,” he said.
“If this bill becomes law, it will mean people seeking asylum without any legal assistance will have their cases thrown out, not on merit, but on a technicality. That isn’t justice, it’s ugly politics.”
The bill’s explanatory memorandum acknowledges it may limit “the right to an effective remedy and right to a fair hearing … by defining the requirements to make a valid application to the tribunal”.
It said the amendments are “reasonable” and “proportionate, because there is a high volume of applications for review of … migration and protection matters and it is necessary to have certainty as to when a valid application has been made, as this triggers the entitlement to a bridging visa”.
“They are necessary to maintain the integrity of the immigration framework and ensure the efficiency and effectiveness of tribunal review. In addition, they promote clarity and certainty for applicants.”
Refugee Advice & Casework Service said the deadlines for applications place “such burden on the applicants … [exacerbating] access issues for those in immigration detention and [limiting] their ability to receive any kind of justice”.
“Our whole immigration system is riddled with arbitrary deadlines and rights curtailed based on arrival type, arrival period and whether a person is detained or not.”
The attorney general, Mark Dreyfus, declined to comment.
