Last updated 20 March 2020
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 are frequent, and applicants, migration agents and legal representatives should ensure that they have access to up-to-date sources of law.
Fast track assessment process
People who arrived by boat without a visa between 13 August 2012 and 1 January 2014 and who were not taken to Nauru or Papua New Guinea for offshore processing are described as ‘fast track applicants’. Unlike asylum seekers who arrive with a valid visa and who have access to the ordinary refugee status determination processes, fast-track applicants have access to a limited form of review by the Immigration Assessment Authority (IAA).
A referral to the IAA for a review will be automatic; however, the authority will only consider information that was available to the original decision maker. New information will only be allowed in exceptional circumstances.
Onshore protection visas
There are three 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).
‘Unauthorised maritime arrivals’ (asylum seekers who arrive by boat) may be removed from Australia to a country designated by the Minister for Home Affairs as a regional processing country. Government policy is that asylum seekers who arrive in Australia by boat will never be settled in Australia. In recent years, some of these asylum seekers were sent to Papua New Guinea and Nauru on the basis of regional settlement arrangements. Many others have had their claims for protection processed in Australia.
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 is satisfied that the applicant is a person to whom Australia has protection obligations (s 36(2) Migration Act 1958 (Cth) (Migration Act)). Those protection obligations are now codified in the Migration Act, and 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 from other international instruments as reflected in complementary protection provisions.
Article 1A(2) of the United Nations Convention Relating to the Status of Refugees states a refugee is 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 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 36(2)(a) of the Migration Act states that criteria for a protection visa are that the applicant satisfies the minister 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 that 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 that 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 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 establish 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, a Safe Haven Enterprise Visa (subclass 790) can be granted to people who arrived unauthorised by sea for up to five years if claims for protection are established, and who express 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 some 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 have:
- lived in certain regional areas of Australia
- have not accessed certain Centrelink payments and
- have 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 the Migration Regulations 1994 (Cth) (reg 2.06AAB).
Other onshore protection
Territorial asylum (subclass 800) is also commonly referred to as ‘political asylum’ and is granted by instrument by the Minister for Foreign Affairs. 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. Territorial asylum is different from refugee status and is rarely granted. Most requests for territorial asylum have been processed as requests for protection.
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.
Offshore protection 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).
Holders of all permanent refugee and humanitarian visas granted offshore in the previous five years can propose immediate family members in the same subclass without having to establish that the applicant faces persecution or discrimination.
Holders of permanent onshore protection visas may or may not be able to propose immediate family through this avenue, depending on the applicant’s age when they arrived in Australia and whether or not they arrived in Australia by sea. There are no review rights for offshore refugee and special humanitarian applications.
The following refugee and resettlement visas issued offshore through the humanitarian program 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).
The Refugee Visa (subclass 200) 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 (subclass 201) 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 (subclass 202) 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
The Emergency Rescue Visa (subclass 203) 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
The Woman at Risk Visa (subclass 204) 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.