Who Can Apply For A Merits Review For A Protection Visa In Australia?

Asylum seekers have been offered protection in Australia since 1945 after around half a million men, women, and children were displaced by conflict in Europe. Around 1980, Australia's total refugee and humanitarian intake rose to around 22,000 per year, then fell to around 12,000 in the mid-1980s. And in 2018, the number rose to over 28,000 people. Unfortunately, many asylum seekers are unsuccessful in gaining protection in Australia; between 1 July 2014 and 19 August 2019, 62,732 persons (84.2%) had their application refused. One of the possible routes for those who are refused a Protection visa in Australia is a ‘merits review’. In this article, we will outline if a migrant who has been refused a protection visa can apply for a merits review and the timescales which apply.

What Is A Protection Visa In Australia?

A protection visa is intended for individuals who have arrived in Australia and need protection. If granted, protection visa holders can remain permanently in Australia to live, work, and study. In order to be granted a protection visa, applicants must have:

• Arrived legally in Australia (this route cannot be used for those arriving by boat without authorisation).
• be a refugee or
• meet the complementary protection criteria

A 'refugee' is defined in the Australian Migration Act 1958 as a person currently in Australia who is “outside their country of nationality or former habitual residence (their home country) and owing to a 'well-founded fear of persecution', is unable or unwilling to return to their home country or to seek the protection of that country”.

Complementary protection, on the other hand, applies to those who are not classified as refugees but “can't return to their home country because they will suffer certain types of harm which engage Australia's other protection obligations….A person can be granted a protection visa on the basis of complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer significant harm' if they were removed from Australia to their home country”. Significant harm in relation to complementary protection includes:

• arbitrary deprivation of life
• the death penalty
• torture
• cruel or inhuman treatment or punishment, or
• degrading treatment or punishment.

According to the Australian immigration rules, a migrant will not be considered to be at risk of significant harm if:

• it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm
• they could obtain protection from the authority of the country so that there would not be a real risk that they will suffer significant harm, or
• the real risk is one faced by the population of the country generally and is not faced by them personally.

What Is A Merits Review Of A Protection Visa Decision?

If a protection visa application is refused or a protection visa is cancelled, migrants are able to have the decision and case reviewed by an independent body; this is referred to as a merits review. Merits reviews are carried out by either the:

• Administrative Appeals Tribunal (AAT) in its Migration and Refugee Division (MRD) or General Division, or;
• Immigration Assessment Authority (IAA) (an independent office within the AAT).

The powers of the AAT to undertake merits reviews of protection visa refusals and cancellation decisions are given by the Migration Act 1958.

The AAT states that a merits review of a decision not to grant a protection visa can be carried out, except if:

• it is a ‘Part 7-reviewable decision, and the person was not in Australia’s migration zone at the time of the decision;
• it is a ‘fast track decision’ (these are normally reviewed by the IAA);
• it was made by the Minister personally under s 501 of the Migration Act 1958;
• it relied on s 36(1B) of the Act (concerning a national security risk), or;
• the Minister has issued a certificate preventing review.

In addition, the AAT can review a decision to cancel a protection visa, unless:

• it is a ‘Part 7-reviewable decision’ and the person was not in Australia’s migration zone at the time of the decision;
• it was made by the Minister personally;
• it was based on a national security risk;
• the Minister has issued a certificate preventing review;
• the decision is a mandatory cancellation under s 501(3A) of the Act.1

Migrants who have had their protection visa refused have nine days to lodge a request for a merits review with the AAT, and the AAT then has 84 days to hand down a decision.

Who Can Request A Merits Review Of A Protection Visa Application Refusal?

Any applicant who receives a refusal in response to their protection visa can request a merits review, or their visa is cancelled (assuming the above do not apply). The AAT guidance on this matter states that “for a decision to refuse or cancel a protection visa, only the non-citizen who is the subject of the primary decision can apply for a review, and they must be physically present in Australia’s migration zone when they apply”. Hence, those who refused a protection visa but have already returned home cannot request a merits review.

In circumstances where a decision has been made by the Australian immigration authorities not to revoke the mandatory cancellation of a protection visa, a merits review can be requested either by the person directly affected, or by someone on their behalf.

Final Words

If your Australian protection visa has been refused, and you are considering requesting a merits review, it is important to secure the services of an immigration lawyer who can assist you with your case. Simply asking for a merits review will not typically be sufficient to change the decision made in the first instance. An experienced immigration lawyer will review your case and try to identify new compelling information or arguments which can be used to have your decision overturned. While there is no absolute guarantee of success, this may increase your chances of achieving a positive outcome from your merits review, for your benefit, and that of your dependant family members.