29.4 The Refugee and Humanitarian Program

Under Australia's humanitarian program approximately 13,000 visas are made available to people recognised as refugees or humanitarian migrants. This includes refugees applying from 'off-shore' (usually referred by United Nations High Commission for Refugees (UNHCR) or sponsored by family members in Australia) and those applying for asylum after arriving in Australia. Australia is a signatory to the United Nations 1951 Geneva Convention relating to the Status of Refugees and the 1967 Protocol, which means that Australia is required to give protection to recognised refugees who are in Australia. Although not obliged under the Convention, as a humanitarian response, Australia also allows some recognised refugees from overseas to migrate to Australia.

The term 'refugee' is defined in international law as follows:

A refugee is a person who is outside their country of nationality or usual residence, and is unable or unwilling to return because of a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

The UN definition excludes certain people from obtaining refugee status, such as people who have committed war crimes or crimes against humanity. People who can access 'effective protection' in a third country will generally not be recognised as refugees in Australia.

A person who meets the UN definition of 'refugee' must still meet the criteria for the specific subclass of visa as set out in the MA and MR.

Applying for entry outside Australia

Persons outside Australia may apply for one of five permanent visa subclasses. The most common visas are Refugee [subclass 200], global special humanitarian [subclass 202] and woman at risk [subclass 204]. The quotas applying to each visa subclass are adjusted annually. For all the categories, DIAC also assesses whether resettlement in Australia is the most appropriate course for the applicant. DIAC also considers the resettlement priorities set by the UNHCR.

Humanitarian applicants from outside Australia have no right of review on the merits of the case if their application is rejected.

The Refugee visa is for those who fit the UN refugee definition and have been identified in conjunction with the UNHCR or Red Cross as in need of resettlement. The 'women at risk' visa is for women who have fled their home countries or 'of concern' to UNHCR, and who are in dangerous or vulnerable situations in the country to which they have fled because they do not have the protection of a traditional male 'head of household'.

People who were granted a subclass 200 or 204 visa and migrated to Australia may sponsor 'immediate family members' for the same visa subclass as they hold, without their family member having to meet the definition of 'refugee' or to be a woman of concern to UNHCR. The special rules are referred to as the 'split family provisions'. They only apply to reunite spouses or dependent children with their parents. The application must be made within five years of the grant of the sponsor's visa and the relationship between the applicant and sponsor must have been declared to DIAC before the grant of the sponsor's visa.

The global special humanitarian visa is for people who have fled their home country and fear substantial discrimination amounting to a gross violation of their human rights if they are returned. This is a broader definition than that contained in the UN Convention definition of a refugee. Applicants may be proposed by an Australian. Immediate family members of people granted permanent protection visas [subclass 866, see below] in Australia may also migrate under this category, under 'split family provisions'.

Applications made from within Australia

People who meet the UN definition of 'refugee' may be able to apply for protection within Australia. They may be lawful or unlawful non-citizens. Most applicants arrive with valid visas, such as a tourist visa or student visa, and then apply for a protection visa. Some applicants wait until their other visa expires or even until they are placed in immigration detention before applying for a protection visa. Some people arrive by boat or plane with no documents at all and apply for a protection visa at this point. Persons who are able to claim the protection of a safe third country will not be able to lodge a valid application [MA ss.91A-91G, 91M-91Q]. Holders of temporary safe haven visas or temporary humanitarian concern visas cannot lodge a valid application either. Successful applicants are granted protection visas [subclass 866], which give them permanent residence status.

A person may not meet the requirements for the permanent protection visa, even though they are recognised as refugees, because they did not arrive in Australia with genuine travel documentation or because they lived for more than seven days in a country where they could have sought protection. In this case the person may be granted a temporary protection visa [subclass 785].

Appeals to the Refugee Review Tribunal

The Refugee Review Tribunal (RRT) is an independent body which deals with appeals against the refusal or cancellation of protection visas. An appeal to the RRT must be lodged within 28 days of receiving DIAC's rejection notice, or within seven days if the person is in immigration detention. Time limits are strictly enforced.

The RRT makes a fresh assessment of whether the person meets the UN refugee criteria as interpreted in Australia's domestic law. If the RRT is considering rejecting the application it must give the applicant an opportunity to comment on information that might lead the tribunal to make that decision. This will usually be done in a hearing but may be done in writing.

Humanitarian consideration

Anyone in Australia who has had their application rejected by the RRT or MRT can write to the Minister to request them to issue a visa in the 'public interest', that is on compassionate or humanitarian grounds. The Minister has the discretion to issue the visa, but is not compelled to do so. This discretion is only exercised in exceptional circumstances. If the Minister decides to exercise discretion, they will issue the visa considered the most appropriate. The Minister has issued guidelines for the exercise of this discretion. These include circumstances where the person is at risk of human rights abuses in their country of origin, has significant family ties in Australia, where there are particularly unfair consequences of the legislation, or where there is an exceptional benefit to Australia. Consideration may be also given to the length of time the person has been in Australia, and their age, health and psychological state.

A person can only apply to the Minister after an application has been rejected by the MRT or the RRT. There is no form or application process. Applicants should write to the Minister of Immigration and Citizenship at Parliament House, Canberra. Permission to work will generally not be given while the applicant is waiting for a response. There are no rights of appeal from the decision of the Minister.