Up to 71 asylum seekers who missed out on making an application for a protection visa were still entitled to a fair assessment of their claims the Full Federal Court has held.
The Court accepted submissions from the Australian Human Rights Commission that an internal process established by the Department of Home Affairs should have provided them with procedural fairness.
As a result of the judgment handed down on Tuesday these people may now be entitled to have their claims reconsidered by the Department and, as a result, may be permitted by the Minister to make an application for a protection visa.
"It is vitally important that refugee claims are properly assessed. If the process is not fair, then the wrong decision may be made and asylum seekers could be returned to situations of persecution," Commission President Rosalind Croucher said.
The people affected were part of a group the Government described as the 'Legacy Caseload'. Initially unable to apply for protection for many years, the Minister for Immigration and Border Protection 'lifted the bar' to allow them to make an application after the re-introduction of temporary protection visas in 2015. With the help of refugee agencies, thousands of asylum seekers successfully applied but a group of 71 missed a deadline of 1 October 2017 set by the Minister in May that year.
The Department of Home Affairs reviewed the circumstances of those who missed the deadline to determine whether to refer their cases to the Minister. However, the Department claimed that it was not required to ensure that this process was procedurally fair. The Federal Court disagreed.
The Court held that the Minister had made a decision to consider allowing those who missed the deadline to apply for a protection visa if they had substantial protection claims. The Department's internal assessment process was "a step along the way" to assisting the Minister and "it followed that the entire process had to be procedurally fair".
"A fair process would give asylum seekers the opportunity to make submissions about why they should be given protection, and also give them an opportunity to respond to adverse information relied on by the Department" President Croucher said.
"The appellant in this case was not given a chance to respond to adverse information and the process was therefore not fair".
