Protecting Vulnerable Refugees: Procedural Fairness in the Australian Fast Track Regime

41 Pages Posted: 27 Nov 2018

See all articles by Emily McDonald

Emily McDonald

Emily McDonald

Maria O'Sullivan

Monash University - Faculty of Law

Date Written: October 15, 2018

Abstract

Refugee Status Determination is a powerful example of the way in which vulnerability and the law interact. This article examines this interaction by analysing a case study: the special protection visa application procedure in place for certain asylum seekers in Australia (the ‘Fast Track Assessment’ process) and the implications of this for procedural fairness. We conclude that the current legislative framework for the Fast Track Assessment process operates to exacerbate the circumstances of vulnerability of asylum seekers. Efficiency measures are an important way of avoiding delays in decision-making. However it also increases the propensity of such measures to lead to serious legal errors. Considering the serious consequences of an improperly made decision in this context, we argue that high standards of procedural fairness and an oral hearing are required. The paper also demonstrates that a central purpose of due process should be to mitigate (rather than exacerbate) circumstances of vulnerability or marginalisation.

Keywords: procedural fairness, natural justice, due process, fast track, refugee status decision making

JEL Classification: K10, K37, K40

Suggested Citation

McDonald, Emily and O'Sullivan, Maria, Protecting Vulnerable Refugees: Procedural Fairness in the Australian Fast Track Regime (October 15, 2018). University of New South Wales Law Journal, Vol. 41, No. 3, 2018. Available at SSRN: https://ssrn.com/abstract=3277196

Emily McDonald

Emily McDonald ( email )

Melbourne
Australia

Maria O'Sullivan (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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