Humanitarian Requests to the Minister for Asylum Seekers:
(section 417 applications)

A Practical Guide for refugee lawyers

A publication of the Asylum Seeker Resource Centre Inc. ã

Edition 1

Australia’s largest asylum seeker aid, health and advocacy organization

Written by: Kon Karapanagiotidis

Solicitor/Social Worker/Registered Migration Agent

September 2003

Disclaimer:

Immigration law constantly changes and you should check the accuracy of this information by always consulting the Migration Act and Migration Regulations before advising clients. Please note you must be a registered migration agent to provide immigration advice. The Asylum Seeker Resource Centre does not accept any liability to any person for the information or advice (or the use of such information or advice) which is provided in this publication.

Humanitarian requests to the Minister for asylum seekers:

A practical guide

1. Introduction: Frequently asked questions

2. Doing a humanitarian audit: how to prepare a humanitarian request
3. Structuring and Writing your Humanitarian request

1. Introduction to making a Humanitarian Request to the Minister for Immigration for asylum seekers: FAQ’s

What is a humanitarian request to the Minister for Immigration?

A humanitarian request to the Minister is where a person makes a request to the Minister on behalf of an asylum seeker requesting the Minister to intervene on the basis that there exists exceptional or unique circumstances that warrant in the public interest the Ministers intervention. The Minister has the discretion to intervene and grant any visa that he deems appropriate.

The Minister may wish to consider exercising his public interest powers under s345*, 351*, 391*, 417 or 454 of the Migration Act 1958, as the case may be, to substitute for a decision of the relevant decision maker, a decision more favourable to the person concerned in a particular case.

The relevant section for a humanitarian request for asylum seekers is Section 417 of the Migration Act:

417.    (1)  If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
…

When can the Minister consider intervening for asylum seekers?

The Minister can only consider intervening after the Refugee Review Tribunal has made a determination and affirmed the decision of DIMIA to not find the asylum seeker to be a refugee.

Under what section of the Migration Act does one make the request?

Humanitarian requests to the Minister are made under section 417 of the Migration Act 1958.

What criteria do you address in a Humanitarian Request?

The Minister sets out his guidelines for considering humanitarian requests under Migration Series Instruction 225. These guidelines can be obtained on – line from the Australian Lawyers for Human Rights website (www.alhr.asn.au).

Whilst one does not have to strictly adhere to just these guidelines, it is recommended that you structure your request in accordance with these guidelines. Please note that you do not have to address all the guidelines and should address only those guidelines that are relevant to your client’s situation.

If the Minister refuses to intervene can I appeal this decision?

No. Unlike all other stages of the refugee determination process, the Minister’s decision to not intervene is non – reviewable. The Minister’s intervention is discretionary and he cannot be compelled to intervene. All previous appeals to the High Court seeking to compel the Minister to intervene have failed, as the High Court has consistently held that they have no jurisdiction to intervene.

Where do I send a request to the Minister for Immigration?

Humanitarian requests to the Minister are to be addressed and sent to the following address:

Honourable Minister for Immigration MP Phillip Ruddock

Suite MF 40

Parliament House

Canberra 2600

Fax: (02) 6273 4144

If the asylum seeker I am assisting is in the community are they eligible for a Bridging Visa?

Yes. Asylum Seekers are eligible for another Bridging Visa if they are in the community, which will allow them to lawfully remain in the community whilst the Minister considers whether to intervene

However to be eligible for a Bridging Visa the following criteria must be met:

1. It is their 1^st Humanitarian Request to the Minister*

2. They have made the request to the Minister within 28 days of the decision of the Refugee Review Tribunal or within 28 days of their appeal to the Federal Court being unsuccessful.
3. An asylum seeker must make the request to the Minister whilst their current bridging visa has yet to expire.

* DIMIA has the discretion if they wish to grant an asylum seeker another Bridging Visa on second or subsequent requests to the Minister but rarely do so and are not required to.

What type of Bridging Visa does an asylum seeker in the community receive when they make a request to the Minister?

Regardless of what bridging visa they were previously on, all asylum seekers who make a request to the Minister are only eligible for the grant of a Bridging Visa E. So for example if an asylum seeker was on a Bridging Visa A they would be placed onto a Bridging Visa E.

This visa denies asylum seekers the following important rights:

· No right to work

• No right to a Medicare Card

How does an asylum seeker get a new Bridging Visa?

Firstly, It is critical that the request to the Minister must be made whilst the asylum seeker’s current Bridging Visa has not expired to make them eligible for a Bridging Visa.

Secondly, asylum seekers must go in person to DIMIA On Shore Protection Department to get a new Bridging Visa issued.

You must have lodged the request to the Minister already by fax or post (always send a copy by post) before going to DIMIA and bring to DIMIA evidence of the request to the Minister, namely a copy of the Humanitarian request that has been made.

Can an asylum seeker be deported whilst the Minister is considering whether to intervene?

This depends on whether it is your first request to the Minister. If it is your 1^st humanitarian request to the Minister an asylum seeker cannot be deported. However, if it is the second or subsequent request to the Minister an asylum seeker can be deported at anytime by DIMIA.

Can an asylum seeker make more than one request to the Minister?

Yes. However, in making any further requests to the Minister one is required to provide new relevant evidence/information that previously has not been put before the Minister. A failure to do so will result in a quick rejection of the request to intervene.

If the Minister refuses to intervene what options does an asylum seeker have left?

The options available to an asylum seeker are very limited if the Minister refuses to intervene.

· After the minister has refused to intervene they must make acceptable arrangements to depart the country before their current Bridging Visa expires, otherwise they will become unlawful and subject to detention and deportation; or

· Make a second request to the Minister (however this does not prevent them being detained or deported; or

· If an asylum seeker has not sought judicial review before and there appear grounds for an appeal against the original decision of the RRT on the basis of jurisdictional error, you can appeal to the High Court seeking an extension of time to lodge. An appeal to the High Court if done before the current bridging visa expires makes them eligible for a Bridging Visa E and they cannot be deported or detained whilst the appeal is being considered.

How long does the Minister take to make a decision as to whether to intervene?

The Minister receives thousands of requests to intervene each year. It is impossible to state exactly how long one will wait for a decision. It can take anywhere from approximately 1 month to a year. In most cases the Minister will make a decision within 2 to 6 months.

What happens next if the Minister writes and states they are considering intervening?

If the Minister is considering intervening you will receive a letter that states that the request has reached the stage where Federal Police checks and health checks are required.

Whilst this is a positive sign with the chances of the Minister intervening being good, it does not guarantee that the Minister will grant the asylum seeker a visa. This will be subject to the results of health and character checks and the visa that the Minister is considering granting.

What are my chances of success in a humanitarian request to the Minister?

One cannot generalize or estimate the likelihood of success. Each case is assessed on its’ individual merits. However, if one looks at the rate of successful cases since 1996, the overall figure is 6.9%, meaning that over 93% of humanitarian requests to the Minister do not succeed.

2. Humanitarian Requests to the Minister: Doing a Humanitarian audit

This is a guide solely on how to prepare to do a humanitarian request to the Minister, outlining the groundwork you should first do. When you are preparing a humanitarian request to the Minister begin by doing a Humanitarian Audit. A humanitarian audit is an initial assessment of all possible evidence that could be used to assist a humanitarian request. It is critical to ascertain what possible evidence is available to use at first instance. We have set out a list of areas to focus on that cover almost all possible grounds that you could make a humanitarian request on.

Remember when doing a humanitarian request you do not have to address all the guidelines and should focus only on those that are relevant and applicable.

Here is a checklist of questions to ask your client:

1. FAMILY

Partner

o Are you in a relationship with an Australian citizen or permanent resident?

• If so for how long have you been together?
• Are you living together/engaged or married?
• Can you provide any evidence of your relationship (eg. Marriage certificate, utility bills in both your names, assets, rental leases or bank accounts in both your names, letters from your families)
• How would your partner be affected if you were forced to leave?
• Are you willing to both do statutory declarations about the genuineness of your marriage/relationship?

Child

§ Have you had a child while in Australia?

• If so is the other person you had the child with an Australian citizen or permanent resident?
• Do you have a copy of the birth certificate?

Family

§ Do you have any family in Australia?

• If so who are they?
• Are you in contact with them?
• Could you get a letter of support from them?

7. HEALTH

§ How old are you?

• Are you seeing a doctor or counselor?
• Could you get a report from them?
• Can we have their contact details?
• Are you on any medication?
• Do you have any mental or physical health problems?

8. PERSECUTION

o What evidence (if any) did you provide DIMIA or the RRT that you were at risk of persecution?

• Do you have any new evidence that shows that you are in danger if you return to your country since the RRT decision?
• Has the situation in your country changed since you left?
• Do you face any danger of being tortured or mistreated if returned to your country?
• If so do you have any evidence to support your fears?
• If you have children will they be at risk if you are sent back to your country?
• Do you have any personal fears about returning? If so what are they?
• Do you have a copy of your Refugee Review Tribunal and DIMIA decision? If so can we please have a copy?

17.COMMUNITY INTEGRATION

o How long have you been in Australia for?

• If you have children how old are they?
• Have you ever been in immigration detention if so when and for how long?
• Are you working or have you worked while in Australia?
• If so where and for how long?
• Are you able to get references from any of your employers?
• Have you done any volunteer work?
• Could you get references regarding your volunteer work?
• Are you involved in any church, welfare, sporting or social groups?
• Could you get letters from them outlining your involvement with them?
• Do you have any friends in Australia? If so can they provide letters of support?

29.SKILLS

o Do you have any educational qualifications? If so what?

• Have you any experience in the area that you are qualified for?
• What type of work did you do in your country of origin?
• Are you or had you been studying whilst in Australia?
• Do you have any special talents, for example sporting or academic?

35.CHARACTER

o Have you always complied with your visa conditions? If not when and why did you breach your visa?

• Have you ever been in trouble with the law?
• Do you have any unpaid debts to the government eg. Fee for RRT decision ($1400), Federal Court costs or Detention costs? If so how much?

39.3^rd COUNTRY or RELOCATION OPTIONS

o Can you safely go and live in another part of your country?

• Are you a citizen of any other country apart from your country of origin?
• Do you have the right to enter any other country?
• Are you stateless?

44.LEGAL BACKGROUND

o Why were you originally rejected by the Refugee Review Tribunal?

• Did they make errors in not accepting your claims for refugee status?
• Have you applied to the Minister before? If so how many times and when?
• Did you apply before personally or did you have legal representation?
• Do you have a copy of this previous application?
• Do you not have copies of any important legal documents (eg. RRT decision, DIMIA decision and any decision of Federal Court or Minister)?
• Have you sought judicial review before?
• If so to where and what was the outcome?
• What bridging visa are you on at the moment?

3. STRUCTURING and WRITING YOUR HUMANITARIAN REQUEST

Step 1: Decide what the focus of your request should be on

When writing to the Minister focus only on these areas where there is strong evidence. It is important to be strategic about what you focus on, covering areas where there is no substance to your arguments only weakens and dilutes your overall case. Think carefully about what are the strength’s of your client’s case.

Here is a good rule of thumb of what not to do:

o Do not focus on guidelines where you have nothing to substantiate what you are saying except for broad generalized comments;

o Do not focus on issues such as risk of torture and denial of human rights if the person’s original claims for refugee status were very or there were serious credibility issues that cannot be properly explained away. To focus on such issues will only heighten the lack of credibility or concerns that the Minister will have about intervening;

o Do not just go and resubmit what was put to the Refugee Review Tribunal. Remember the Minister looks at issues more broadly then just whether or not a person is a refugee. Secondly, given they are writing to the Minister, the original submission to the RRT was unsuccessful and thus should just be solely relied upon.

o Do not focus on issues such as the age of the person unless they are a child or elderly and this has relevance to why they should not be returned; and

o Do not go into great detail about health and psychological issues unless you have medical or psychological reports to back you up. You are not able to make a psychological or medical assessment of your client;

Evaluating which guidelines to focus on

Minister’s Guidelines under Migration Series Instructions 225

4.2.1 Particular circumstances or personal characteristics that provide a sound basis for a significant threat to a person’s personal security, human rights or human dignity on return to their country of origin.

Ask yourself:

o Is there any substance to their original claims for refugee status regarding risk of persecution?

• Can you clearly identify circumstances or characteristics that would cause the person to be at risk for a refugee or non - refugee convention reason?
• Do you have any evidence to provide a basis for believing that their human rights or human dignity is at risk if they return? (eg. Documented evidence, history of persecution etc)
• Where they found credible by the Refugee Review Tribunal?
• If not can you provide any good explanations to counter these issues?
• Did the RRT believe them but did not think the reason was convention based?
• Has the situation in their country of origin worsened since they left?
• Does your client fit the profile of someone who would be persecuted in their country of origin?
• Has any new evidence arisen since the RRT decision that support’s their claims that they face danger in their country of origin?

Substantial grounds for believing a person may be in danger of being subject to torture if required to return to their country of origin, in contravention of the International Convention Against Torture.

Ask yourself:

o Has my client ever been tortured before, as this would provide a good objective indicator? If so were they believed by the RRT?

• Has your client ever been threatened with being tortured?
• Has your client any medical or psychological evidence of torture, eg. Medical reports/counseling reports?
• Is the country of origin that your client comes from known for it’s use of torture?
• Can you identify who would torture your client and for what reasons?
• Does your client fit the profile according to country information of someone who would be at risk of torture?

Circumstances that may bring Australia’s obligations as a signatory to the Convention of the Rights of the Child (CROC) into consideration.

o Look at the Convention on the Rights of the Child and identify what are the relevant areas that apply to the children

• Is there a child that is part of the asylum seeker family that you are assisting?
• Can you identify any ways in which this child’s rights would be breached under the convention if they were returned to their country of origin?
• Was this child born out of wedlock or have a parent that is not from the same country of origin or religion? This may place the child at risk.
• How old is the child?
• Does the country of origin of your client have particular policies that would place the child at risk, for example if your client is pregnant and already has one child and comes from China, there one child policy will be of great relevance.
• How does your client’s country of origin treat children? What does the country information say?
• Can you get any letters of support from welfare agencies concerning the safety and well – being of the child(ren) if they are returned to their country of origin?

Circumstances that may bring Australia’s obligations as a signatory to the International Covenant on Civil and Political Rights (ICCPR) into consideration.

o Go through the Covenant on Civil and Political Rights and begin by identifying what particular human rights and liberties are relevant to your client;

• Quote the relevant parts of the convention in your submission;
• Substantiate your claims with whatever evidence you have

Circumstances that the legislation could not have anticipated;

Clearly unintended consequences of the legislation;

Intended, but in the particular circumstances, particularly unfair or unreasonable, consequences of the legislation;

4.2.5 – 4.2.7 concern themselves with policy issues. One does not often utilize these grounds but they are worth focusing on when you have a client that has unique and unforeseen situations such as the plight of a stateless Palestinian asylum seeker, who has nowhere to go and the legislation did not intend for him to remain forever in limbo.

Strong compassionate circumstances such that failure to recognize them would result in irreparable harm and continuing hardship to an Australian family unit (where at least one member of the family is an Australian citizen or Australian permanent resident) or an Australian citizen;

o Is the asylum seeker married to an Australian citizen or in a defacto relationship?

• How long have they been together?
• Can you substantiate the relationship (eg. Marriage certificate, shared bank accounts, utilities in the same name, letters of support from family members, stat decs from your clients and their partner attesting to genuineness of relationship)?
• Does your client have a child, where the other parent is an Australian citizen?
• What role does your client play in the care of their child? Eg. Are they the sole carer?
• What would happen to the family if your client was forced to leave the country?

Exceptional economic, scientific, cultural or other benefit to Australia;

o Does the person have any special economic, scientific, cultural, sporting or academic benefit to Australia;

• Do they have a way of verifying this talent or ability;
• Is their skill in high demand in Australia

The length of time the person has been present in Australia (including their time spent in detention) and their level of integration into the Australian community

o Do they have any friends? Can they provide a letter of support?

• Do they have any involvement or ties with any church, welfare, social or ethnic groups?
• Could any of these groups/people provide a letter of support?
• How long have they been in Australia?
• Do they have any children? Did the children spend their formative years in Australia?
• Have they worked at anytime in Australia?
• Can they get a reference from their employer?

What involvement and ties do they have with the Australian community?

The age of the person;

o How old are they?

• If they are old, does this make them anymore vulnerable to harm if they return to their country of origin?
• Would their age make it more difficult for them to re – integrate or survive in their country of origin?
• If they are a child, did they spend their formative years in Australia?

The health and psychological state of the person

o Have they or are they seeing a doctor or psychiatrist/counselor?

• Do they have any medical or psychological condition?
• Are they receiving any treatment/medication, if so what?
• If so, could they receive the treatment they need in their country of origin?
• Can they obtain a report from their doctor/counselor?
• Do they have any fear about returning their country of origin?
• Does this affect their medical condition?

Other Considerations [if applicable to the case]

o Does the person pose a threat to an Australian or Australian society?

• Are there any relevant issues of character or criminality?
• Does there exist in this case no enforceable right of entry or stay in another country?
• Are they unable to safely re – locate themselves within their country?
• Has the person co – operated with DIMIA and complied substantially with all visa conditions?
• Does the person have a debt to the Commonwealth? (eg, RRT or Federal Court debt, if so acknowledge the debt and accept responsibility to pay for it when able to).

Step 2: Substantiate your arguments

Remember that you need to substantiate what you are saying, moreover you need to show that there exists unique or exceptional circumstances warranting the Minister to intervene on humanitarian grounds in the public interest.

You can draw on a range of sources such as:

o Country information (eg. Amnesty International reports)

• Statutory declarations
• Letters of support (friends, family, church)
• Official documents (eg. Warrants for arrest from country of origin, marriage certificates, birth certificates etc)
• Photo’s (marriage, child)
• Medical reports
• Employer references
• Academic Qualifications
• Letters from MP’s
• Reports from school teachers/welfare officers regarding children

Step 3: Writing your request: the structure

1. Identify at the beginning that it is a request to the Minister under section 417 of the Migration Act (make sure you say request and not application);

2. Outline what supporting documents you are attaching to your submission;

3. Start with a brief background about the person (when they came, their family make – up, what legal proceedings preceded this request);

4. Then structure the request by utilizing the humanitarian grounds you are focusing on - use them as headings for each section of your submission;

5. Interweave your submissions with supporting documentation, use this documentation to substantiate your claims;

6. Quote extensively any relevant letters/ documents/reports that substantiate your arguments; and

7. Aim for a story telling approach, clear, structured, linear and one that places a human face on your client, it should be a balance between legal arguments and social, medical and community based information to reinforce your arguments.