An asylum seeker whose claim has been rejected may submit a subsequent application to the Refugee Commissioner.1 A person may apply for a subsequent application, if he or she can provide elements or findings that were not presented before – subject to strict interpretation – at first instance. This evidence would have to be proof of which the applicant was either not aware of, or, which could not have been submitted before. Such new elements need to be presented within 15 days of receiving the information.
RefCom will first assess the admissibility of the subsequent application and if the application is deemed admissible, the applicant may be called for an interview, at the discretion of the Refugee Commissioner. Once the application is evaluated, a decision on the case is communicated to the appellant in writing. Seeing that, at this stage of the proceedings there is no free legal aid, asylum seekers are almost entirely dependent on NGOs.
There is no limit as to the number of subsequent applications lodged, as long as new evidence is presented every time. Second, third and other subsequent applications are generally treated in the same manner.
Removal orders are only suspended once the applicant has formally been confirmed to be an asylum seeker by the Refugee Commissioner, since this confirmation triggers the general protection from non-refoulement guaranteed to all asylum seekers.
In the eventuality that a subsequent application is deemed admissible but is not accepted on the merits, there is the possibility of appealing this decision to the Refugee Appeals Board within 15 days, in the same way as with the regular procedure. The time limit within which to appeal is 15 days.2
There are two main obstacles faced by asylum seekers. The first is lack of information. Information on the possibility to lodge a subsequent application is never communicated to asylum seekers whose appeal at the RAB has been rejected. The other obstacle is the lack of free legal assistance when submitting a subsequent application. The only alternative for asylum seekers is to approach JRS which is the main NGO offering a free legal service in the field of asylum.
In 2016, 196 subsequent applications have been submitted to RefCom.