Refugees must establish well-founded fear of persecution. Onshore and offshore refugee programs, and an additional humanitarian program, admit far fewer refugees than apply. Refugees can apply for refugee status at the border but those who arrive by boat are removed, processed overseas and not allowed to settle in Australia.
Refugee settlement and the Convention
The United Nations Convention relating to the Status of Refugees (1951) (“the Convention”), as amended by the United Nations Protocol on the Status of Refugees (1967) (“the Protocol”), 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.
Australia became a party to the Convention in 1954 and acceded to the Protocol (to remove time and geographical limitations from the Convention’s definition of a refugee) in 1973.
As the number of refugees seeking to come to Australia is greater than the number of places available, not all persons who match the United Nations definition meet Australia’s own criteria for determining refugee status and satisfy the prevailing program selection criteria. Home Affairs administers both an onshore and an offshore program.
A Special Humanitarian Program (SHP) has been established to provide entry for people who do not meet the strict definition of a refugee, but are subject to gross discrimination or persecution and have close ties with Australia. In most cases the people will have left their home country, but this is not necessary. The connection with Australia is usually through a relative resident here, but may be through their own former residence here or through membership of an ethnic or religious community established in Australia.
Applications under the SHP are initiated by an Australian citizen or permanent resident nominating a person for entry. The person nominated will not be assessed under the points test, but must be capable of settling reasonably well in Australia.
For refugee settlement in Australia generally, Home Affairs has extensive details on its website (www.homeaffairs.gov.au). SHP visas normally lead to the grant of permanent residence. People applying for these visas can only do so from outside Australia.
It is possible to apply for refugee status within Australia or at the border. The criteria are stated in the Convention.
A successful applicant is granted a subclass 866 protection (residence) visa (note that refugees applying from outside Australia are also granted permanent residence upon arrival). An unsuccessful applicant in Australia may appeal to the Administrative Appeals Tribunal (the Migration and Refugee Division). If, on appeal, the applicant is found not to be a refugee, the minister may still overrule the regulations and grant a protection visa under section 417 of the Migration Act if there are humanitarian grounds for entry.
Exceptions to this are people classified as Irregular Maritime Arrivals (IMA) and Unlawful Maritime Arrivals (UMA) and Unauthorised Air Arrivals (UAA), due to the manner of their arrival. Depending on when they arrived, they are not allowed to apply for refugee status and are subject to mandatory detention and removal from Australia to a processing centre in Papua New Guinea or Nauru. At present, some 31 000 IMAs, UMAs and UAAs who were admitted to the Australian mainland (as part of various rules under different governments) are being invited to apply for a temporary protection visas (subclasses 785 and 790). These applicants form part of the “legacy caseload” and the 785 visa is only granted for three years and the subclass 790 visa for five years, whereupon they need to prove again, that they are still refugees under the Convention, or, if they hold a 790 visa, they meet the skill or other criteria of other mainstream visas after working or studying for at least 42 months in a regional area of Australia. Home Affairs’ Procedures Advice Manual divides these people into the following groups:
• pre-13 August 2012 arrivals;
• post-13 August 2012 arrivals;
• post-19 July 2013 arrivals.
People who arrived illegally before 13 August 2012 (including IMAs and UAAs) who lodged a valid application for a permanent protection visa (subclass 866) that had not been finally determined on 16 December 2014 are taken to have, and to always have, made a valid application for only a temporary protection visa (subclass 785) instead of a valid application for a permanent protection visa. In other words, parliament has created a legal fiction and applied it retrospectively. The application will accordingly being assessed against the criteria for a temporary protection visa. For more information, refer to the Conversion Regulations for the legacy caseload.
IMAs and UAAs who arrived on or after 13 August 2012 who have not been permitted to lodge a valid application for a protection visa prior to 18 April 2015. Individuals making up the legacy caseload are only eligible to apply for a TPV or SHEV – refer to subclass 785: temporary protection (class XD) visa, and subclass 790: safe haven enterprise (class XE) visa – and are not eligible to apply for a permanent protection visa. The majority of IMAs will be processed under the fast track assessment process – refer to Part 2: The fast track assessment process.
As a matter of policy, anyone who arrived as an IMA after 19 July 2013 but before 1 January 2014 who has not been transferred to a regional processing country will have their protection claims assessed in Australia. This is despite being liable for transfer to a regional processing country. Such people may meet the definition of a fast track applicant (refer to the definition of fast track applicant in section 5(1) of the Act) and therefore eligible for processing under the fast track assessment process. For further information, refer to Part 2: The fast track assessment process.
Those who are residing in a regional processing country will have their protection claims assessed in that country. If they are found to meet the requirements of the relevant criteria for protection in that country, they will be eligible for settlement in that country.
Asylum seekers who were transferred to a regional processing country but who have since returned to Australia may be eligible to apply for a TPV or SHEV once relevant application bars are lifted. Currently, members of this cohort are not subject to the fast track assessment process as they do not meet the definition of fast track applicant.
There is significant confusion surrounding refugee decision making at the present time, as policy is still being formulated and the roadmap for applicants towards permanent visas is unclear.