Permanent Visas: Humanitarian and Refugee Visas

Based on the contribution of Michael Clothier, Accredited Immigration Law Specialist, as amended by Er-kai Wang, registered migration agent and Associate Lecturer at the ANU College of Law and current to 19 July 2018

NOTE: The Immigration and Refugees chapter is under substantial revision. The information in the following section may not be accurate. Readers should be aware that the Migration Regulations change rapidly. Before using the information listed here, we recommend that you check if the law is still current by seeking advice from a migration agent or visiting the Department of Home Affairs' website.

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 of refugee status can be settled in Australia. The Department determines the number of refugee and humanitarian visa granted each year and administers both the onshore protection and offshore re-settlement program.

The Special Humanitarian Program

The Special Humanitarian Program (SHP) is part of Australia's offshore re-settlement program. It has been established to provide entry for people who are subject to substantial discrimination amounting to a gross violation of human rights in their own country and are proposed by a person or organisation In Australia. The applicant must satisfy the Department that there are compelling reasons for the grant of the visa taking into account four factors:

• The degree of discrimination the applicant faces In their home country
• The extent of their links to Australia
• whether they have other re-settlement options
• the capacity of the Australian community to provide for their re-settlement

Applications under the SHP are initiated by an Australian citizen or permanent resident or a community organisation proposing, a person for entry. the person must satsify health and character requirements and be capable of settling reasonably well in Australia.

For refugee settlement in Australia generally, the Department has extensive details on its website. Persons applying for these visas can only do so from outside Australia.

Protection Visa Application in Australia

It is possible to apply for refugee status within Australia or at the border. The criteria are stated in the Migration Act and Regulations.

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) have been 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. The Department’s 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.

Pre-13 August 2012 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.

Post-13 August 2012 arrivals

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 are currently being processed under the fast track assessment process (as of 20 April 2018).

Post-19 July 2013 arrivals

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.

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.

Other Special Visas

Subclass 800: Territorial asylum visa

This visa is available to an applicant in Australia who has been granted territorial asylum by a government minister such as the Minister for Foreign Affairs. (This is different from refugee status, and is very rare; see subclass 800, sch 2 Migration Regulations.)

Subclass 785 and 790: TPV & SHEV

The subclass 785 and 790 visas were created to allow a three to five year temporary stay for certain asylum seekers who arrived by boat during certain periods in the past and certain holders of temporary safe haven visas. They are currently in use for some asylum seekers who arrived by boat, who are found to be refugees prior to certain dates.

The present federal government has adopted a harsher attitude towards asylum seekers who arrive by boat without visas (as opposed to asylum seekers who arrive on tourist visas). The government has moved asylum seekers who arrive by boat “offshore” to regional refugee processing centres, which will be expected to house them until various countries are willing to take them.

Recently, the minister lifted the bar on applying for a visa for certain asylum seekers who managed to reach Australia but held no entry visa and engaged Australia’s obligations under the Refugee Convention. Approximately 30,000 people are in Australia in this category and they are barred from accessing permanent protection. Two temporary visas have been created for them: a temporary protection visa (subclass 785) and a safe haven enterprise visa (subclass 790). The latter visa allows for a stay of five years before re-assessment of Australia’s obligations and if an applicant can live and/or study for 42 months in a regional area of Australia, the possibility of applying for a permanent visa is opened up. It is only a possibility because an applicant must meet the skills or other criteria of mainstream visas. There is no possibility of them getting a permanent protection visa (subclass 866).

Subclass 852: Stay permanent visa

This permanent visa (previously called the witness protection (trafficking) (permanent) visa) allows a person who is a human trafficking victim to stay in Australia after giving evidence against a trafficker. If the Attorney-General certifies that the person has made a significant 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.