Media Statement: Federal Court improves pathways to protection for more than a thousand asylum seekers taken to Ashmore reef

More than 1,000 asylum seekers have a greater ability to apply for protection in Australia following a landmark judgment by the Federal Court on Tuesday.

“When a person seeks asylum in Australia, it’s vital that their application be processed quickly, fairly and transparently. This judgment will remove administrative barriers for a vulnerable group of people who have been waiting too long to have their claims assessed,” Human Rights Commissioner Edward Santow said.

The Australian Human Rights Commission was granted leave to appear as an amicus curiae. It made submissions based on human rights principles to help the Court.

Who could this case affect?

The case is likely to benefit people who:

• arrived in Australia by boat before 1 June 2013
• were taken to Ashmore reef before being brought to the mainland
• were granted a Temporary Safe Haven (TSH) visa
• have not since left Australia.

The Department of Home Affairs has estimated that there are 2,200 people in Australia who arrived by boat before 1 June 2013 and were taken to Ashmore reef. It says that the majority of these people were granted a TSH visa.

What does the case mean for these people?

Since November 2019, the Department has been progressively notifying people in this group that they have ministerial approval to apply for a visa. However, the Federal Court’s decision means that this approval is no longer necessary. The decision also has broader consequences.

The likely outcomes of the case for this group are as follows:

• they will no longer be prevented from applying for a visa without ministerial approval
• if they have not already applied for a protection visa, they may now do so
• if they previously applied for a protection visa and their application was refused on the basis that they were prevented from making an application, the Department of Home Affairs may now be required to process the application
• if they applied for a protection visa before 18 April 2015, they may have the benefit of a different test to determine whether they are a refugee
• when, in the future, any temporary visa they hold expires, they may not need to again seek permission from the Minister to apply for another visa.

People who think they may be affected by this judgment should get individual advice from a lawyer or a registered migration agent. The Refugee Council of Australia maintains a list of services around Australia that provide free legal advice to asylum seekers.

What did the Court say?

This test case involved a Vietnamese man referred to as CBW20. Like many others, he arrived in Australia by boat and asked for protection as a refugee. Between 2011 and 2013, the Government had a practice of intercepting asylum seeker boats travelling from Indonesia and escorting them to a lagoon at Ashmore reef before bringing them to the mainland.

Ashmore reef is a small coral reef system in the Timor Sea that is part of Australian territory but, at the time, was not part of Australia’s migration zone. The Government considered that by taking a detour through the lagoon, the asylum seekers would become ‘offshore entry people’ and would not be allowed to apply for a visa without approval from the Immigration Minister.

In 2018, the Federal Court disagreed with the Government’s position. It found that asylum seekers taken to Ashmore reef do not need ministerial approval to apply for a visa.

However, when some of these people applied for a protection visa, the Department of Home Affairs refused to process their applications for a different legal reason. The case on Tuesday considered whether this refusal was lawful.

When the asylum seekers in this group were first brought to Australia, they were placed in immigration detention. In most cases, the Immigration Minister then granted them a TSH visa valid for one week.

The Minister did this so that the asylum seekers could be released from detention while maintaining the position that they could not apply for a protection visa unless they obtained ministerial approval. Once a person has been granted a TSH visa, they cannot apply for any visa in the future, other than another TSH visa, unless they either obtain ministerial approval or leave Australia.

The Federal Court held that the Minister’s decision to grant CBW20 a TSH visa was invalid because it was based on an error of law. The error was the mistaken belief that CBW20 was an ‘offshore entry person’ and that he was already prevented from applying for a visa. The Court’s decision meant that his more recent application for a protection visa was valid.

As it has done in other recent cases, the Commission will continue to identify and intervene in proceedings where it believes that the human rights of vulnerable groups are at risk.