Last updated 30 September 2024

The Department of Home Affairs administers an onshore and offshore refugee and humanitarian program.

The refugee and humanitarian program is a highly political area of immigration law. Law and policy changes can be frequent and dramatic, and applicants, migration agents and lawyers should ensure that they have access to up-to-date sources of law and policy.

Onshore protection visas

There are four types of protection visas that can be granted onshore to people who are recognised as refugees in Australia:

  • permanent protection visa (subclass 866)
  • temporary protection visa (subclass 785)
  • safe haven enterprise visa (subclass 790)
  • resolution of status visa (subclass 851).

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, Citizenship and Multicultural Affairs (minister) is satisfied that the applicant is a person to whom Australia has protection obligations (s 36(2) Migration Act 1958 (Cth) (Migration Act)). Protection obligations take one of two forms: refugee protection or complementary protection.

Refugee protection

Refugee protection derives from the Convention Relating to the Status of Refugees as amended by the 1966 Protocol but is now codified (and restricted somewhat) in the Migration Act. Section 5H of the Migration Act defines a refugee as a person who:

  • in a case where the person has a nationality—is outside the country of their nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country
  • in a case where the person does not have a nationality—is outside the country of their former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Section 5J of the Migration Act stipulates that a fear of persecution is ‘well-founded’ if there is a ‘real chance’ of it occurring, and if the reason for that risk is the person’s race, religion, nationality, membership of a particular social group or political opinion. Furthermore, accessible and durable protection must not be available within the person’s home country (ss 5J(2), 5LA) and the risk of persecution must exist in all areas of the country. A number of other provisions clarify and, in some cases, limit the breadth of the definition: persecution is defined as ‘serious harm’ involving ‘systematic and discriminatory conduct’ (s 5J(4) and a non-exhaustive list of instances of serious harm is set out in s 5J(5)). Sections 5K and 5L of the Migration Act places limitations on what can be considered persecution on account of a person’s particular social group.

Complementary protection

Complementary protection derives from Australia’s non-refoulement obligations under the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights, among others. It is defined, in s 36(2)(aa) of the Migration Act, as arising where ‘… as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm’. Section 36(2AA) states that ‘… a non-citizen will suffer significant harm …’ if they are arbitrarily deprived of their life, subjected to the death penalty, subjected to torture, to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. Complementary protection differs from refugee protection in that a person is taken to engage Australia’s protection obligations under this form if they have a real risk of significant harm and it would not be reasonable for them to relocate to another area of the country where they do not face such a risk.

Sections 5H(2) and 36(2C) of the Migration Act set out grounds upon which an applicant can be excluded from protection if 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 1994 (Cth) (Migration Regulations)
  • committed a serious non-political crime before entering Australia
  • has been guilty of acts contrary to the purposes and principles of the UN.

Protection can also be denied if the minister considers that the person applying:

  • 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 addition to demonstrating that they meet one or more of the grounds for protection, applicants must also pass the relevant identity, health and character checks.

If applying as a family group, only one member of the family needs to meet the refugee or complementary protection definitions. The others can be granted the same visa if they are members of the family unit of a person who engages Australia’s protection obligations.

A person will be barred from applying for a permanent protection visa 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
  • have protection in a prescribed safe third country
  • have ever held a temporary safe haven visa.

Review of permanent protection visa refusals

A person who is refused a permanent protection visa because they are considered not to engage Australia’s protection obligations is entitled to merits review. The body for this is the Administrative Review Tribunal (ART).

The form of review that the ART undertakes largely mirrors that of the AAT, historically. It is a de novo review where the member stands in the shoes of the original decision maker. Unlike most other types of decisions that the ART reviews, applicants cannot request that a matter be referred to the Guidance Appeals Panel (GAP) but the president may, on their own initiative, refer a protection matter to the GAP. There is a strict deadline to apply to the ART from a protection visa refusal of 28 days. That period cannot be extended.

Judicial review is also available to all protection applicants in the Federal Circuit and Family Court of Australia or High Court of Australia. Further detail on merits review and judicial review is set out later in this chapter.

Temporary protection visa

People whose temporary visa is cancelled at the airport before they pass out of immigration clearance cannot apply for a permanent subclass 866 protection visa. They may, however, be able to apply for a three-year temporary protection visa or a five-year safe haven enterprise visa.

A temporary protection visa (subclass 785) is a three-year visa, granted to people who are assessed as engaging Australia’s protection obligations under the same criteria as those set out above for subclass 866 permanent protection visas. Holders are entitled to Medicare, work rights and study rights (for tertiary study at international student fee rates). There is no right to family reunification and, after three years, they need to establish claims for protection again to qualify for a further temporary protection visa.

Safe haven enterprise visa

As with the temporary protection visa applications, a safe haven enterprise visa (subclass 790) can be granted for five years if claims for protection are established, and the person expresses an intention to work or study in a regional area of Australia while accessing minimal social security benefits.

Safe haven enterprise visa holders are entitled to Medicare, work and study. There is no right to family reunification and, after five years, they will have to again establish 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 and for at least three and a half years and has:

  • lived in certain regional areas of Australia
  • has not accessed certain Centrelink payments
  • has worked or studied full time at certain education institutions

they may also be eligible to apply for certain substantive visas, including specific permanent visas listed in Migration Regulations (reg 2.06AAB).

Review of temporary protection visa and safe haven enterprise visa refusals

Prior to 14 October 2024 refusals of these visas were reviewed on the papers by the Immigration Assessment Authority (IAA). Strict limitations prevented new information from being provided, in most instances, and oral hearings were rarely provided. From 14 October 2024 onwards, review will lie with the ART and any matters still on hand with the IAA will be transferred to the ART and conducted in the same way as other protection visa matters.

Resolution of status visa

Between 2017 and 2023, people who came to Australia by boat between 31 August 2012 and 31 December 2013, without a valid visa and who were not taken to an offshore processing facility in Nauru or Papua New Guinea were also restricted to applying for temporary protection visas and safe haven enterprise visas. From 14 February 2023, amendments to the Migration Regulations are progressively leading to those visas being replaced by permanent subclass 851 resolution of status visas for that group.

In order to be granted a resolution of status visa through this process, a person must have arrived in Australia by boat during the relevant time period and have met the criteria for a temporary protection visa or safe haven enterprise visa, meaning that Australia has protection obligations towards them. They also must not have had a temporary protection visa or safe haven enterprise visa cancelled. They also need to meet the health, security and character requirements of the resolution of status visa.

As permanent residents, people with resolution of status visas are able to sponsor family members for visas in the family stream such as partner visas and child visas. However, they cannot propose family members for humanitarian visas (see below) because they remain ‘unauthorised maritime arrivals’.

Offshore refugee visas

Australia has one class of visas in the offshore humanitarian program, the refugee and humanitarian visa (class XB). The class XB visa covers two groups of people:

  • refugees—people who are subject to persecution and have been identified in conjunction with the United Nations High Commissioner for Refugees as in need of resettlement
  • people involved in the special humanitarian program—for those who have experienced or fear substantial discrimination amounting to a gross violation of their human rights and who have strong support from an Australian citizen or resident, or a community group in Australia (proposer).

Humanitarian visas are subject to annual quotas and each year many thousands more applications are made, than visas available. A complex system of priorities and quotas determine which applications are successful in any given year.

Holders of all permanent refugee and humanitarian visas granted offshore in the previous five years can propose immediate family members (partners and dependent children, or parents and siblings if the proposer is under 18) in the same subclass without having to establish that the applicant faces persecution or discrimination.

Holders of subclass 866 permanent protection visas can propose immediate family through this avenue, however, as noted above resolution of status visa holders, cannot. There are no review rights for offshore refugee and special humanitarian applications.

The following refugee and humanitarian visas are issued offshore through the humanitarian program and are permanent:

  • refugee visa (subclass 200)
  • in-country special humanitarian visa (subclass 201)
  • global special humanitarian visa (subclass 202)
  • emergency rescue visa (subclass 203)
  • woman at risk visa (subclass 204).

Refugee visa

The refugee visa is for people who are subject to persecution in their home country and are outside of their home country and in need of resettlement. The majority of applicants who are considered under this category are identified by the United Nations High Commissioner for Refugees and referred to the Australian Government for resettlement consideration.

In-country special humanitarian visa

This visa offers resettlement to people who have suffered persecution in their country of nationality or usual residence, and who have not been able to leave that country to seek refuge elsewhere. It is for those living in their home country and subject to persecution in their home country. This visa is not often granted.

Global special humanitarian visa

The global special humanitarian visa is for people who, while not being refugees, are subject to substantial discrimination and human rights abuses in their home country and are outside their home country. People who wish to be considered for this visa must be proposed for entry by an Australian citizen or permanent resident over the age of 18, an eligible New Zealand citizen or an organisation operating in Australia.

Emergency rescue visa

This visa offers an accelerated processing arrangement for people who satisfy refugee criteria and whose lives or freedom depend on urgent resettlement. It is for those subject to persecution in their home country and assessed to be in a situation such that delays due to normal processing could put their life or freedom in danger. It is a rarely used visa category.

Woman at risk visa

This visa is for women outside Australia, living outside of their home country, without the protection of a male relative and in danger of victimisation, harassment or serious abuse because of their gender. The United Nations High Commissioner for Refugees would usually refer cases to the Australian Government for resettlement.

Community support program

The community support program allows individuals, businesses or community organisations to pay for many of the costs associated with resettling a humanitarian entrant, in return for a greatly enhanced chance of the visa being successfully granted. Applications must be made through an approved proposing organisation (APO). Proposers agree to provide the successful applicant with employment and accommodation, and to pay the visa application charges, APO costs and charges, an assurance of support and the cost of settlement services.

Applicants must be outside their home country and Australia, be subject to substantial discrimination in their home country, satisfy all the other criteria for a subclass 202 humanitarian visa, be aged between 18 and 50, have adequate Englis, and have either a job offer or the attributes necessary to become self-sufficient within 12 months.

A component of the humanitarian quota is set aside for community support program visas each year. If the criteria are met and the costs paid, the overall likelihood of success is far higher than for other humanitarian visas but there is a still a delay of years because demand exceeds the annual quota amount.