Last updated 23 January 2017
Permanent Protection visa
A person who arrives in Australia as a valid visa holder may be able to make an application for a Permanent Protection visa (class XA, subclass 866).
The core criterion for the grant of this visa is that the Minister for Immigration and Border Protection is satisfied that the applicant is a person to whom Australia has protection obligations. Those protection obligations arise from the United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees as well as other international instruments as reflected in complementary protection provisions (ss 36(2)(a), 36(2)(aa) Migration Act 1958 (Cth) (Migration Act)).
Article 1A(2) of the Convention Relating to the Status of Refugees defines a refugee as a person who:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 36(2)(a) of the Migration Act states that criteria for a protection visa are that the applicant satisfies the Minister for Immigration and Border Protection that Australia has protection obligations because they are a refugee, or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm (s 36(2)(aa) Migration Act).
The applicant must also meet criteria which relate to the inability or unwillingness of the authorities in the country, to which they fear returning, to protect them from the relevant harm, as well as criteria which consider whether the applicant could safely relocate within that country and whether it would be reasonable to expect them to do so (s 36(2B) Migration Act).
Section 36(2C) of the Migration Act sets out grounds upon which an applicant can be excluded from protection:
- The applicant committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the Migration Regulations.
- The applicant committed a serious non-political crime before entering Australia.
- The applicant has been guilty of acts contrary to the purposes and principles of the UN.
Complementary protection can also be denied if the Minister for Immigration and Border Protection considers that the applicant:
- is a danger to Australia’s security
- has been convicted by a final judgment of a particularly serious crime
- is a danger to the Australian community.
In short, to be recognised as a refugee under Australian law, a person must demonstrate that there is a well-founded fear (s 5J Migration Act) that they will be seriously harmed (s 5J(5) Migration Act) in their country of origin because of their:
- political opinion
- membership of a particular social group or a combination of the above grounds.
In order to be recognised as a person owed complementary protection by Australia, a person must prove that as a necessary and foreseeable consequence of their removal to their country of origin, they would face a real risk of one or more of the following forms of significant harm:
- arbitrary deprivation of life
- the death penalty
- cruel or inhuman treatment or punishment
- degrading treatment or punishment.
In addition to demonstrating that they meet one or more of the grounds for protection, they must also pass the relevant identity, health and character checks.
A person will be barred from applying for permanent protection if they:
- entered Australia without a valid visa and/or were not immigration cleared (i.e. an offshore entry person, an unauthorised maritime arrival or unauthorised air arrival)
- have previously been refused a protection visa since their last arrival to Australia
- have had a protection visa cancelled since their last arrival to Australia
- are a national of two or more countries
- have protection in a prescribed safe third country
- have ever held a Temporary Safe Haven visa.
A good guide to refugee law can be found on the Administrative Appeals Tribunal (AAT) website.
Currently, merits review to the Migration and Refugee Division of the AAT is available to unsuccessful applicants for a subclass 866 Protection visa. Judicial review is available to all protection applicants through application to the Federal Circuit Court or High Court.
Temporary Protection visa
A Temporary Protection visa (subclass 785) can be granted to a person who arrived unauthorised by sea for up to three years if claims for protection are established. Holders are entitled to Medicare, work rights and some study rights. There is no right to family reunification, and after three years they will have to reprove claims for protection to qualify for a further temporary protection visa. The same legal principles for establishing a claim for protection applicable to a Permanent Protection visa apply to Temporary Protection visa applicants.
Safe Haven Enterprise visa
As with the Temporary Protection visa applications, Safe Haven Enterprise visas (subclass 790) can be granted to people who arrived unauthorised by sea for up to five years if claims for protection are established, who expressed an intention to work or study in a regional area of Australia and who will not apply for Centrelink payments.
Safe Haven Enterprise visa holders are entitled to Medicare, work and some study. There is no right to family reunification, and after five years they will have to reprove claims for protection. Depending on satisfaction of visa criteria, they will be eligible for a further Safe Haven Enterprise or Temporary Protection visa.
If an applicant has held a Safe Haven Enterprise visa for at least three and a half years and if, during that time, they:
- lived in certain regional areas of Australia
- have not accessed certain Centrelink payments
- have worked or studied full time at certain education institutions,
they may also be eligible to apply for a Substantive Permanent visa listed in the Migration Regulations 1994 (Cth) (reg 2.06AAB).
Territorial Asylum visa
This is different from refugee status and is rarely granted. Territorial asylum (subclass 800) is also commonly referred to as ‘political asylum’ and is granted by instrument by the Minister for Foreign Affairs. Persons who have been recognised as refugees have not been granted territorial asylum. Most requests for territorial asylum have been found to be requests for protection. There is no application form. It is a visa option that may be relevant for diplomats, or consular or foreign government employees who are in Australia.
From time to time, the government also utilises temporary humanitarian visas such as the Humanitarian Stay (temporary) visa (subclass 449). This visa requires an initial invitation from an Australian government official and that the applicant be in grave fear for their personal safety because of displacement or the likelihood of displacement. The Temporary (Humanitarian Concern) visa (subclass 786) is only available to holders of a subclass 449 visa. Holders of these visas are barred from applying for permanent protection.
The subclass 852 Witness Protection (Trafficking) (permanent) visa allows a person to stay in Australia after giving evidence against a trafficker. If the Attorney-General certifies that the person has made a contribution to the prosecution of a trafficker, and the minister is satisfied that the person’s life would be in danger upon return to their home country, this visa can be granted in the same way that a Protection visa is granted to a refugee.