Fact Sheet 75 - Processing Irregular Maritime Arrivals
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The number of irregular maritime arrivals by boat to the Australian mainland has remained low.
Against the background of high numbers of irregular maritime arrivals, the Federal Government passed a series of laws (the excision legislation) in September 2001 designed to further strengthen Australia's territorial integrity and to reduce incentives for people to make hazardous voyages to Australian territories with the assistance of people smugglers. The effect of the excision legislation is to prevent unlawful non-citizens who have first entered Australia at an excised offshore place from making valid visa applications in Australia. This bar on the visa application process can only be lifted at the discretion of the minister if he considers it to be in the public interest.
The retention of the excision zone does not prevent Australia fulfilling its international obligations under the Refugees Convention and under other relevant international instruments. Regardless of where, and how, unlawful non-citizens arrive in Australia, those who claim asylum have their protection claims assessed and are provided with protection in Australia if found to be owed protection.
People who arrive without authority by boat in Australia, either on the mainland or at an excised offshore place, are detained and transferred to Christmas Island while their reasons for being in Australia are identified.
This practice is consistent with the fundamental legal principle, accepted in Australian and international law, that as a matter of national sovereignty, the State determines which non citizens are either admitted or permitted to remain and the conditions under which they may be removed.
Irregular maritime arrivals, regardless of whether they arrive on the mainland or at an excised offshore place, undergo a comprehensive and thorough assessment process, including security checking, to establish if they have a legitimate reason for staying in Australia. This process includes:
- assessing identities, as many people dispose of all personal papers en route to Australia
- assessing whether the person is raising claims which may engage Australia's protection obligations
- obtaining formal police clearances from countries of first asylum in which they have resided for at least 12 months in the past ten years.
Irregular maritime arrivals are interviewed to establish their identity, where they are from, their reasons for being in Australia, and any reasons why they may not be able to return to their home country.
An interpreter is used whenever needed throughout the process. The report of the interview is considered by a senior departmental officer who has appropriate training and experience in matters relating to Australia's international obligations including the United Nations 1951 Convention and 1967 Protocol relating to the Status of Refugees ('the Refugees Convention').
If the senior departmenal officer considers the person is raising claims which, prima facie, may engage Australia's protection obligations, the person will have their claims assessed under the non-statutory refugee status assessment (RSA) process.
Those people who arrive unauthorised on mainland Australia and raise claims which, prima facie, may engage Australia's protection obligations are eligible to make an application for a protection visa through the onshore protection visa process. Further information is available on the department's website.
See: Fact Sheet 61 – Seeking asylum within Australia
Any irregular martime arrival who is found not to raise claims which, prima facie, may engage Australia’s protection obligations is subject to removal from Australia under the provisions of the Migration Act 1958 and is removed as soon as practicable. The removal process will take into account Australia’s non-refoulement (non-return) obligations under the various international human rights instruments.
This process applies to people who are interviewed prior to 1 March 2011. Information is available on the department's website in relation to the High Court decision on 11 November 2010 and changes to the refugee determination process.
See: Protection Obligations Determination
People who arrive unauthorised at an excised offshore place and seek to engage Australia's protection obligations under the Refugees Convention are prevented by the Migration Act 1958 from lodging a visa application. They are, however, able to have their protection claims examined by the department under the non-statutory Refugee Status Assessment (RSA) process. The department's refugee status assessment officers (RSA officers) are responsible for assessing protection claims.
The RSA process is a non-statutory process and is not bound by the Migration Act 1958, however, it does closely mirror the onshore protection visa process in that asylum seekers are assessed against the criteria set out in the Refugees Convention. The RSA process also builds in common law requirements of procedural fairness throughout the process.
Significant steps have been taken to improve the RSA process to ensure fairer and more independent and transparent processing. On 29 July 2008, the Minister for Immigration and Citizenship announced enhancements to the non-statutory RSA processing arrangements:
- provision of publicly funded independent advice and assistance under the Immigration Advice and Application Assistance Scheme (IAAAS). This assistance is available for the initial assessment of the RSA and any subsequent request for independent merits review
- independent merits review for people receiving unfavourable refugee status assessments
- improved procedural guidance for departmental officers conducting RSA
- external scrutiny of the RSA process by the Commonwealth and Immigration Ombudsman.
All asylum seeker claims are treated in confidence and assessed on their merits by an experienced RSA officer against criteria set out in the Refugees Convention.
RSA officers conduct interviews in a non-adversarial setting, using interpreters and drawing on all available and relevant information concerning the human rights situation in the applicant's home country. The department's Country Information Service (CIS) provides RSA officers with up to date information from a wide range of sources on the political, social and human rights conditions in the applicants' countries of claimed persecution.
Once the department has completed an RSA, those people found to be refugees (under the Refugees Convention) are referred to the minister for him to consider exercising their non-compellable power if it is in the public interest to allow them to apply for a visa (by 'lifting the bar'). If the minister 'lifts the bar', they are eligible to make a valid application for a visa which is granted as soon as possible thereafter. The client also needs to satisfactorily complete all relevant public interest criteria which includes health, character and security checks.
Public interest criteria requirements apply to everyone seeking to enter Australia as migrants, humanitarian entrants or long-term temporary residents. They are not exclusive to people seeking protection.
People who have either arrived at an excised offshore place and raise protection claims or made an application for a protection visa whilst in detention are provided publicly funded independent advice and assistance during the processing of their refugee claims at both the primary and merits review stages.
The department has a comprehensive process for checking the health of irregular maritime arrivals. An Induction Health Assessment is conducted to identify conditions that will require attention. This assessment includes the collection of personal and medical history, a physical examination and formalised mental health screening and assessment.
Treatment management is coordinated through the department's contracted health services provider for all people who have a clinically identified need for ongoing medical treatment. As well as the induction health assessment there are mechanisms in place to identify health needs that may emerge during a person's time in detention. All irregular maritime arrivals can access appropriate health care commensurate with the level of care available to the broader community.
A health discharge assessment is completed for each person leaving an immigration detention placement. This assessment includes the provision of a health discharge summary from the health services provider to the individual, which informs future health providers of relevant health history, treatment received during detention and any ongoing treatment regimes. Where appropriate, linkages are made with relevant community health providers to facilitate ongoing care beyond discharge.
The Migration Act 1958 contains a character test to ensure that visa applicants, visa holders, relevant non-citizen sponsors, and non-applicant family members are of acceptable character.
The onus is on clients both outside and in Australia to satisfy the department that they are of good character.
Unauthorised arrivals who apply for a protection visa are required to supply police clearances from previous countries of residence. Where the applicant has been assessed as a refugee under the Refugees Convention, they are not required to provide police clearances for the country from which they are seeking protection.
Such checks can bring to light information, which means that a person is not a refugee under the Convention or fails the character standards required for the grant of a visa.
See: Fact Sheet 79 – The Character Requirement
Arrivals at excised offshore places
Under the enhanced processing arrangements announced by the minister in July 2008, people who receive an unfavourable RSA outcome.
Example: A person is found not to be a refugee, can request independent merits review of that assessment.
An independent merits review is conducted by a qualified and experienced person who is independent of the department. The independent reviewer will take a fresh look at the person's claims for protection and make a recommendation to the minister as to whether the person is owed protection obligations by Australia. The minister may then consider whether it is in the public interest to lift the bar and allow the person to apply for a protection visa.
Where an application for protection is refused, a person can seek a merits review of that decision from an independent tribunal– either the Refugee Review Tribunal (RRT) or the Administrative Appeals Tribunal (AAT), depending on the basis for refusal. More information is available on the department's website.
See: Fact Sheet 61 – Seeking asylum within Australia
Judicial review of the Tribunal decisions may be available in the Federal Magistrates Court, Federal Court and the High Court. If the decision contains a jurisdictional error, the Court may send the decision back to the decision-maker to be reconsidered.
More information is available on the department's website.
See: Fact Sheet 9 – Litigation Involving Migration Decisions
Further information is available on the department's website.
The department also operates a national general enquiries line.
Telephone: 131 881
Hours of operation: Monday to Friday from 8.30 am to 4.30 pm (recorded information is available outside these hours).
Fact Sheet 75. Produced by the National Communications Branch, Department of Immigration and Citizenship, Canberra.
Last reviewed 18 February 2011.
© Commonwealth of Australia 2010.