Administrative Review in Refugee Cases: The Vulnerable Persons Guidelines and the Role of Legal Representatives

Abstract

In this article, we examine how the vulnerability of asylum seekers informs the refugee status determination process in Australia, focussing on administrative review. As vulnerability is not defined under Australian migration law, we turn to international law to explore its meaning and its relationship with international non- refoulement obligations. We then examine the Administrative Appeals Tribunal’s (‘AAT’) Guidelines on Vulnerable Persons and, following a systematic review of published AAT decisions between 2015 and 2022, explore its impact on decision-making. This analysis shows that identifying a person as ‘vulnerable’ can have significant procedural and substantive implications for the review process. With a significant backlog of protection visa cases at the AAT and the imminent establishment of the new Administrative Review Tribunal, finally, we consider the role of legal representatives in complex cases involving vulnerable persons.