As a result of a dramatic recent court decision, refugee law has been turned upside down. Many unsuccessful asylum seekers in Australia will suddenly be able to get around the “rule against further refugee visa applications” (RAFRA). They will be able to try again. 

This has defeated the Immigration Minister’s apparent efforts to stop repeat applications.

The case turned on the questions of, “What does it really mean to make a Protection visa application?” or “What really is a Protection visa application?” The point being, if you made a Protection visa application before, you were not allowed to make another one, unless you first obtained special permission from the Minister himself. But if the rules about what was needed for a successful Protection visa application changed – as they in fact did – then did it mean that what you made before really was still a Protection visa application? Or was it now something else, despite having the same name?

The case also depended on what the government was trying to achieve in its legislation.

The court held that due to a change in the rules, a new application based on the changed rules could actually be made, and RAFRA would not apply.

This decision is likely to have far-reaching implications; people who were denied bridging visas may have been unlawfully kept in detention. Some may suddenly have become eligible to get permanent residence. But they will need to take care with the wording of their applications. The same words they used before may not be enough.

The decision was made on 3 July by the Full Bench – 3 judges sitting together – of the Federal Court. If the Minister appeals to the High Court, the decision could be reversed and the law could go back to the way it was before. We will have to wait and see. It will not be particularly surprising if the Minister does decide to appeal.