Refugee and Humanitarian Visa | BMS Global

Refugee and Humanitarian Visa

Onshore Protection visa (Class XA) (Subclass 866)

Refugee and Humanitarian program aims to provide options for people who are in Australia and wish to apply for protection (or asylum). There is one visa available for people onshore who wish to apply for protection.

 

To be granted a Protection visa (subclass 866) you will need to be found to engage Australia’s protection obligations because you either: are a refugee as defined by the Refugees Convention or meet the Complementary Protection criteria in the Australian Migration Act 1958. You might also be eligible for a Protection visa if you are the family member of a person found to engage Australia’s protection obligations. You and any eligible family members included in the application must be in Australia when you apply for this visa. The Protection visa (subclass 866) is a permanent visa.

 

Temporary Protection visa (subclass 785) (onshore)

This visa allows you to:

  • stay in Australia for up to three years
  • work

 

Requirements

You might be eligible for this visa if:

  • you arrived in Australia illegally
  • you are invited to apply for a Temporary Protection visa
  • you lodged a valid Form 866 – Application for a protection visa
  • you are assessed as engaging Australia’s protection obligations
  • you meet other requirements, such as health, security, character and identity checks.

 

Safe Haven Enterprise visa (subclass 79) (onshore)

This visa allows you to:

  • stay in Australia for five years
  • work
  • study
  • apply for certain substantive visas if both the SHEV pathway and the substantive visa application requirements are met.

 

Requirements

You might be eligible for this visa if:

  • you arrived in Australia illegally
  • you are invited to apply for a Safe Haven Enterprise visa
  • you lodged a valid Form 790 – Application for a Safe Haven Enterprise visa
  • you or a member of your family unit declares an intention to work and/or study in regional Australia
  • you are assessed as engaging Australia’s protection obligations
  • you meet other requirements such as heath, security, character and identity checks.

 

 

“Refugees Convention”

means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951;

 

“Refugees Protocol”

means the Protocol relating to the Status of Refugees done at New York on 31 January 1967;

 

The Humanitarian Program of Govt. Of Australia

Australia’s Humanitarian Program is an important part of Australia’s contribution to the international protection of refugees and others in humanitarian need. The Humanitarian Program has two components:

  • the onshore component offers protection to people in Australia who engage Australia’s protection obligations.
  • the offshore component offers resettlement for people outside Australia who are in need of humanitarian assistance.

 

Australia’s non-refoulement obligations

A non-refoulement obligation is an obligation not to return, deport or expel a person to a place where the person will be at risk of a specific type of harm. Relevantly, Australia accepts that it has non-refoulement obligations that arise under international treaties to which it is a party. These include:

  • the Refugees Convention and its 1967 Protocol (Article 33(1))
  • the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (expressed in Article 3) and
  • the International Covenant on Civil and Political Rights (ICCPR or the Covenant) (implied in Articles 6 and 7)

 

The 1951 Convention and the 1967 Protocol

On 28 July 1951, the 1951 Convention relating to the Status of Refugees (the “Refugees Convention” or the “Convention”) was adopted by a Conference of Plenipotentiaries of the United Nations, in Geneva. Australia became a party (acceded) to the Convention on 22 January 1954. The Refugees Convention came into force on 22 April 1954.

 

As the Refugees Convention covered only persons who had become refugees due to events occurring before 1 January 1951, a protocol was drafted to extend the articles of the Convention to cover persons who became refugees as a result of events occurring on or after 1 January 1951. Australia acceded to the 1967 Protocol relating to the Status of Refugees (“the 1967 Protocol”) on 13 December 1973.

 

Definition of a refugee

Article 1A(2) of the Refugees Convention defines a refugee as any 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…’

 

Under Article 33(1) of the Refugees Convention, Australia has an obligation not to

‘expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’

 

However, Articles 32 and 33(2) (both of which are referred to below), provide limited qualifications to the non-refoulement obligation in the Refugees Convention.

 

If a PV applicant:

  • claims to be owed refugee protection but
  • is found not to be owed protection obligations under the Refugees Convention and the 1967 Protocol their claims should then be considered against the complementary protection criteria.

The complementary protection criteria (as incorporated in the Migration Act), allow for the consideration of Australia’s non-refoulement obligations under:

  • the International Covenant on Civil and Political Rights (ICCPR)
  • the Second Optional Protocol to the ICCPR Aiming at the Abolition of the Death Penalty (Second Optional Protocol) and
  • the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) during the PV process.

 

The Protection (Class XA) visa

Australia has developed its own system for processing onshore PV applications (with respect to refugee applicants), drawing on experience since the late 1980s when the number of onshore claims for refugee protection rose significantly. Under the complementary protection provisions of the Act, Australia has sought to incorporate (in part), other international treaty obligations.

 

Each PV application must, however, be decided individually on its merits, having regard to Australia’s protection obligations under the Refugees Convention and other international human rights treaties, as incorporated into the domestic legislative framework. In making a decision, the decision maker must be satisfied that they have all available relevant information needed to make a fair and lawful assessment of whether the applicant is a person to whom Australia has protection obligations.

 

Checklist for a valid Protection (Class XA) visa application

The following are criteria which MUST be satisfied in order for the application to be valid:

  • Application is on the approved form (Form 866)
  • The visa application charge ($30) has been received from applicants who are in the community (no charge is applicable if the applicant is in immigration detention and has not been immigration cleared)
  • The applicant has not previously been refused a PV, and is therefore not subject to s48A bar, unless the Minister has determined under s48B that the s48A bar does not apply
  • The applicant is physically present in Australia
  • The application includes the applicant’s current residential address
  • Part B of Form 866 includes the applicant’s personal details, including their current residential address (Regulation 2.07 (4))
  • Part C of Form 866 includes the applicant’s claims for protection (both refugee protection and / or complementary protection)

 

The following should, wherever possible, also be satisfied for a complete application:

  • All questions in Part B have been answered
  • The applicant has attached and signed any extra pages referred to in the application.
  • All appropriate documents referred to in the application have been submitted (for example, certified copies of birth certificate or notarial certificate, marriage certificate)
  • If the applicant has not supplied the above documents, he/she has explained the reason.
  • The applicant has listed the documents which are attached to the application and/or which will be provided separately.
  • A recent passport size photograph is attached to the application
  • The application form is signed.
  • The applicant’s declaration in Part C has been completed, including details and signature of the witness.
  • If applicable, the interpreter has completed and signed the interpreter’s declaration.

 

Decision maker

The applicant is not a national of two or more countries (s91N and s91P), unless the Minister has determined under s91Q that the s91P bar does not apply.

 

A Combined Application By A Family Unit:

Client Services officer

The following are criteria which MUST be satisfied in order for the application to be valid:

  • All members of the family unit included in the combined application are physically present in Australia.
  • Part B includes he applicant’s personal details and those details of family members included in the application.
  • The applicant has provided details of each of the applicant’s current residential address (regulation 2.07(4)).
  • Part C has been completed for each member of the family unit making their own claims for protection (both refugee protection and/or complementary protection)
  • No member of the family unit is a person who has previously been refused a PV. If so, that family member will be subject to the s48A bar).

NOTE – if a member of the family unit lodged an application previously without claims and was refused before 1 October 2001, this person is not subject to s48A bar.

 

The following should, wherever possible, also be satisfied for a complete application:

  • Part D has been completed for each member of the family unit who does not wish to submit claims.
  • The applicant has answered all questions in Part D and signed on behalf of any persons included in the application who are under 18 years of age.
  • All persons aged 18 years or over, who are included in the application (Part B, Q1), have answered and signed the declaration at the end of Part B.
  • All persons aged 18 years or over included in the application have answered and signed the Australian Values Statement either in Part C or D.
  • The applicant has signed the declaration at the end of Part B on behalf of any persons included in the application who are under 18 years of age (Part B, Q1), except in the case of unaccompanied minors who may sign on their own behalf.
  • Each person making their own protection claims has completed a Part C, answered all questions and signed the declaration at the end.
  • Each applicant included in the application has provided a recent passport sized photograph.
  • The applicant has provided certified copies of all pages of passports and other travel documents held by all the persons in the application, including those documents that were used to originally enter Australia.

 

The applicant has provided certified copies of birth certificates or notarial certificates for each person included in the application, and marriage certificates (or other evidence of the relationships between each person in the application).

 

Decision maker

No member of the family unit is a national of two or more countries (s91N and s91P) unless the Minister has determined under s91Q that the 91P bar does not apply to those members of the family unit.

 

Interviewing

Although there is no legislative requirement that a PV applicant be interviewed by a decision maker, unless there are substantial grounds for not doing so, it is departmental policy that PV applicants be offered an interview. The procedures outlined in this part should be followed when conducting an interview. The interview should:

  • explore claims/information raised
  • focus on specific issues that require clarification, and
  • provide an avenue for natural justice by enabling the applicant to respond to any adverse information and by giving them an opportunity for their claims to be heard.

 

The interview process is non-adversarial and decision makers are to explore claims and to satisfy themselves as to whether the applicant is a person to whom Australia has protection obligations.

Decision makers should be careful to consider cultural issues/differences in dealing directly with applicants.

 

The decision maker must ensure that, if an interpreter is engaged, the interpreter is impartial and professional and that there is no discussion with the interpreter on the merits of the case. Also, officers should be aware of cross-cultural issues in relation to interpreters. For example, a female applicant may not be comfortable in the presence of a male interpreter if the male interpreter is of a similar cultural background and the issues discussed are sensitive.

 

Requests by an applicant for attendance at the interview by friends/relative (as support) should be granted if possible. However, in some cases (for example, if that person is also a PV applicant), it may be appropriate not to allow the other person to attend. At the end of the interview, the applicant should be advised that an assessment may be made on the basis of the information on hand.

 

If the applicant requests time to provide further information after the interview, officers should allow it only if:

  • the information may be relevant to the assessment and
  • the officer is satisfied that the reason given for not providing it at the time of interview is reasonable.

 

Every effort should be made to decide the case as soon as possible after the interview or within the 90-day statutory timeframe.

 

Separate or joint interview of family members

If there is more than one person in the family unit, a decision needs to be taken as to whether family members are interviewed separately or together. Officers need to assess what is appropriate taking into account issues such as privacy, cultural sensitivity, gender, age, any claims of sexual violence and any disability issues. Requests for joint interviews should be considered carefully. However, a request for a joint interview can be refused if the officer considers that separate interviews are necessary.

 

Observers

A departmental observer or an observer from (for instance) the Commonwealth and Immigration Ombudsman’s office or the office of the UNHCR may also be present at the interview. However, the consent of the applicant must be sought for the presence of any observers prior to interview. The observer does not have any formal role in the interview and should not be actively involved in the process.

 

Recording the interview

Following consent received from the applicant, all interviews must be audio-recorded (though see discussion immediately below). Decision makers should explain the requirements for recording to the applicant and resolve any difficulties. The quality of the recording should be checked at the beginning of the interview before proceeding, and following the interview before the applicant leaves the interview room. If the recording is inaudible, the applicant should be interviewed again if possible.

If an applicant is late to an interview, the decision maker may need to consider for how long it is reasonable to wait and hold the interpreter. If the applicant does not attend the interview at all and fails to provide a reasonable explanation for their non-attendance, the decision maker need not reschedule the interview. Instead, in these circumstances, the decision maker may make an assessment based on the information already available, including information in the application and relevant country information.

 

Cases where the applicant claims to be a survivor of torture or trauma need to be handled with particular sensitivity. The degree of trust and confidence decision makers can develop with the applicant is a key factor in handling torture/trauma cases; and in so doing, providing the applicant

Survivors of torture/trauma may experience a wide range of responses. These may range from anger to fear and shame, or showing no emotion at all, and may affect their ability to discuss the situation. Therefore, decision makers should be patient and understanding when discussing traumatic incidents with applicants. If an applicant becomes distressed, it is important to give them a sense of control by (for instance) asking whether they would like to take a break in the proceedings.

 

In dealing with credibility issues during the interview, it may not be necessary to probe into the detail of a traumatic experience. Carefully considered questions about the peripheral circumstances will often be enough to demonstrate the veracity of the claims. Decision makers should also bear in mind that traumatic experiences including torture may impact on a number of aspects of an applicant’s case, including the consistency of their statements as to what occurred. Decision makers should not come to adverse credibility findings based solely on the demeanour of the applicant.

 

If reference to sensitive issues is material to the case, “yes/no” questions may be more appropriate than questions requiring the claimant to recount, and therefore relive, the experience. If the interview is unproductive or has stalled due to the claimant’s emotional state, and it is not reasonable to continue, the decision maker should consider:

  • ending the interview and scheduling another interview for a time better suited to the applicant’s frame of mind or emotional state (if this appears possible)
  • presenting the questions to the applicant in written form and allowing a written response in according with natural justice requirements seeking the mediation of any friend or relative of the applicant
  • seeking the assistance of trained professionals such as the Association of Services to Torture and Trauma Survivors (STARTTS) in NSW, the Victorian Foundation for Survivors of Torture Incorporated (VFST) or similar organisations in other states.

 

Decision makers should ensure that applicants claiming to have been victims of torture/trauma are aware that professional counselling is available. However, it is important that applicants are not given the impression that a finding on their PV application depends on whether they are victims of torture and trauma and/or whether they seek counselling.

 

It may be appropriate not to interview an applicant who is known to have suffered torture/trauma, especially if the applicant is supported by a reputable professional agency and the information already available indicates that the claims put forward by the applicant may probably lead to them engaging Australia’s protection obligations. They should still be provided with information about how to access counselling services in their State.

Should there be any need to seek clarification of specific issues in a case, it may be sufficient for the decision maker to write to the applicant’s representative to obtain written information regarding any areas of concern.

 

Interpreters

Effective communication is essential to the integrity of the interview process. As many PV applicants are from non-English speaking backgrounds, the department encourages the use of qualified interpreters and provides them free of charge. Decision makers are to utilise interpreters when an applicant requests same. Careful consideration must be given to using an interpreter if English is not the first language of the applicant (however, some applicants are sufficiently competent in the English language that an interpreter may not be necessary). A decision as to whether to use an interpreter must be considered in the circumstances of each case.

 

As a rule, TIS employs interpreters with professional accreditation from NAATI and operates under strict ethical standards governing the conduct and use of interpreters and translators. Given their professional standards of competence and integrity, the use of interpreters from TIS is encouraged and preferred where possible. The TIS policy of using accredited interpreters is the best assurance that interpreting will be of an acceptable standard (see the TIS leaflet: Bridge the communication gap – Use an interpreter and the TIS Professional conduct code).

 

It may be necessary to remind the interpreter of their role in the interview. They must be impartial and neither add to nor omit from the questions and answers provided at interview. Interpreters are not to provide immigration assistance or their personal views on the case. It may be necessary for the interpreter to be briefed on the general features of a case, particularly if they have little experience of protection interviews, or if the interview is likely to involve difficult, unusual or specific vocabulary, or difficult/sensitive subject matter. However, there should be no discussion between the officer and the interpreter as to the merits or the likely outcome of the case.

 

Prior to the interview, the interpreter should be asked how they wish to be identified in the introduction to the applicant and the audio recording. Interpreters who do not wish to use their names should be identified only by their interpreting agency identity card number. Decision makers should establish at the beginning of the interview process whether the applicant and interpreter know each other. If they do, officers will need to assess the nature of the relationship and the risk of any potential conflict of interest (though this may not arise even if an applicant and interpreter know each other). If there is such a risk, a substitute interpreter should be sought or, if necessary, the interview rescheduled with a new interpreter.

 

At the beginning of the interview, applicants should be asked if they agree to the use of the interpreter. The applicant may have heard of, or otherwise know, the interpreter, and may lack confidence in the impartiality of the interpreter or have concerns about the privacy of the information being presented. During the course of the interview, applicants and interpreters should be instructed to raise their hands when there is any difficulty in understanding each other or a need to clarify their understanding of a word or phrase.

 

The applicant may also object to the interpreter’s ethnicity, nationality, religion, gender or dialect. If the applicant disagrees with the use of the particular interpreter, officers should try to resolve the situation or make alternative interpreter arrangements if these can reasonably be made. Ultimately it is for the decision maker to be satisfied as to the effectiveness and appropriateness of the interpreter.

If it is established that errors in interpreting have occurred, a further interview should be considered only if it is considered that the integrity of the interview has been seriously compromised and that this would have significant bearing on the decision.

 

Assessing the case

The main issues to be considered when assessing whether protection obligations are owed to the applicant under the Refugees Convention are:

 

Issue Question/s to be considered Determination/finding
Country of reference Is the applicant outside their country of nationality or if stateless, their country of former habitual residence? Determination of country of nationality or if stateless, country of former habitual residence
Well-founded fear Does the applicant have a well-founded fear of persecution if returned?

Is there a real chance of persecution in the reasonably foreseeable future?

The existence of a subjective and an objective well-founded fear of persecution
Persecution Does the harm amount to serious harm? Is the harm systematic and discriminatory?

Does the harm fall within the non-exhaustive guidance provided in s91R(2) of the Act?

Whether the harm amounts to persecution
Convention grounds Is the essential and significant reason for the persecution feared one or more of the following reasons: race, religion, nationality, membership of a particular social group and/or political opinion? The existence and causal significance of Convention ground/s.
Effective protection Does the applicant have an existing legally enforceable right to enter and reside in a safe third country?

Does the applicant fear persecution in that country?

Does the applicant fear that country will return them to a country where they fear persecution?

Whether the applicant has statutory effective protection in another country as provided for in s36(3)-(7) of the Act.
Cessation clauses Does the applicant come within one of the cessation clauses in Article 1C? Whether the applicant falls, or does not fall, within Article 1C.
Exclusion clauses Does the applicant come within one of the exclusion clauses in Article 1D, 1E or 1F of the Refugees Convention? As relevant, findings on the applicability of the exclusion clause/s under the Refugees Convention.
Other character considerations Does the applicant come within one of the exceptions to non-refoulement in Article 33(2) of the Refugees Convention?

Does the applicant come within the character provisions of s501 of the Act?

As relevant, findings on the applicability of Article 33(2) ors501 of the Act

Protection obligations under complementary protection

The main issues to be considered in determining whether the applicant is entitled to a protection visa on complementary protection grounds under s36(2)(aa) of the Act are:

 

Issue Question/s to be considered Determination/finding
Receiving country Is the applicant outside their country of nationality or if stateless, their country of former habitual residence?

What is the applicant’s receiving country?

Determination of country of nationality or, if stateless, country of former habitual residence.

In most cases the receiving country will be the same as the country of reference.

Significant harm Will the applicant:

be arbitrarily deprived of their life or

have the death penalty carried out on them

Or will they be subjected to:

torture or

cruel or inhuman treatment or punishment or

degrading treatment or punishment ?

(defined in s5(1) and s36(2A) of the Act).

The definition of ‘torture’ ins5(1) of the Act requires the torture to be motivated for specified reasons

Cruel or inhuman treatment or punishment includes an act or omission that ’causes severe pain or suffering’whether physical or mental’ and that is ‘intentionally inflicted’ on the applicant.

Degrading treatment includes an act or omission that both actually causes and is intended to cause extreme humiliation that is unreasonable.

Real risk Is the decision maker satisfied Australia has protection obligations because they have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm? (see s36(2)(aa) of the Act) Under s36(2B) of the Act, a real risk is taken not to arise if:

it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm, or

the applicant could obtain protection, from an authority of the country, such that there would not be a real risk the applicant will suffer significant harm, or

the real risk is one faced by the population of the country generally and is not faced by the applicant personally.

Ineligibility Does the applicant come within any of the ineligibility provisions of s36(2C) of the Act? As relevant, findings on the applicability of the ineligibility provisions of s36(2C) of the Act.
Effective protection Does the applicant have an existing legally enforceable right to enter and reside in a safe third country?

Does the applicant fear significant harm in that country?

Does the applicant fear that country will return them to a country where they fear significant harm?

Whether the applicant has statutory effective protection in another country as provided for in s36(3)-(7) of the Act.
Other character considerations Does the applicant come within the character provisions of s501 of the Act? As relevant, findings on the applicability of s501

 

Decision making

Decision makers must have regard to the principles of good decision making in reaching and recording their decision. The applicant’s claims and any evidence taken into consideration are to be summarised and the findings against each time of application and time of decision criterion in Regulations Schedule 2 recorded. The decision record is to also clearly explain the reasons for each of the decision maker’s findings and for the decision reached as a result

 

For the decision record to be well-reasoned and be of the appropriate standard:

  • the points raised must be relevant and material
  • it must be logical and based on sound reasoning,
  • the conclusions or findings must be substantiated,
  • it must be succinct
  • it must be expressed in plain English, avoiding the use of derogatory expressions, emotive terms (such as “highly” or “very”), personal opinion, generalisations, unnecessary detail and jargon
  • relevant legislation must be quoted and not paraphrased and
  • information and findings must be presented in a clear and consistent structure.

 

If Refugess visa is refused, the applicant may have an appeal rights to lodge an appeal with RRT (Refugee Review Tribunal).

 

Offshore Humanitarian Program

As a member of the international community, Australia shares responsibility for protecting refugees and resolving refugee situations worldwide through the system of international refugee protection. The system of international protection has several elements. These include preventative measures such as temporary protection in a country of first asylum and the durable solutions promoted by the United Nations High Commissioner for Refugees (UNHCR). The three durable solutions to the protection needs of persons displaced by humanitarian crises are:

  • voluntary return (repatriation) to their home country once it is safe
  • local integration in the country of first asylum and
  • resettlement in a third country.

 

The humanitarian program is one element of the Australian Government’s approach to assisting persons affected by international humanitarian crises, which also involves the provision of aid, diplomatic initiatives and peacekeeping. The humanitarian program comprises onshore and offshore components. The onshore component fulfils Australia’s obligations under the United Nations 1951 Convention relating to the Status of Refugees (the Refugees Convention) and its 1967 Protocol by granting protection visas (XA-866 visas) to applicants within Australia who are found to be persons to whom Australia has protection obligations under the Refugees Convention. The offshore component offers resettlement to refugees and others in humanitarian need of resettlement for whom the other durable solutions are not feasible.

 

Class XB visa subclasses and forms

Class XB comprises the following visa subclasses – see Migration Regulations Schedule 1 item 1402(4):

200 – Refugee

201 – In-country Special Humanitarian

202 – Global Special Humanitarian

203 – Emergency Rescue

204 – Woman at Risk

 

The following forms are used in the offshore humanitarian program:

842 – Application for an offshore humanitarian visa:

Application form for a Class XB visa.

681 – Refugee and special humanitarian proposal:

Form to be completed when applicant is proposed for entry to Australia by an Australian citizen, an Australian permanent resident, an eligible New Zealand citizen or a body operating in Australia.

886 – Settlement details:

Should be completed by all humanitarian entrants before arrival in Australia.

1258- Agreement to undertake care of an unaccompanied humanitarian minor

Form to be completed by adult carer of an unaccompanied humanitarian minor.

1417 – Proposal for refugee and special humanitarian entrants by Approved Proposing Organisation

Form to be completed by an APO seeking to propose a visa applicant under the Pilot

1422 – Application for approval as an Approved Proposing Organisation under the Community Proposal Pilot

Form to be completed by organisations wishing to become an APO

 

The humanitarian program offers resettlement to persons in humanitarian need. The program is designed to ensure that the available visa places go to those in greatest need of resettlement and who do not have any other durable solution available to them.

 

The visa subclasses within Class XB are intended to assist persons who are subject in their home countries to persecution or substantial discrimination amounting to gross violation of human rights. They are also intended to allow immediate family members of persons who entered Australia on refugee or humanitarian grounds, or were granted an XA-866 Protection or CD-851 Resolution of Status visa in Australia, to be considered for entry to Australia. These are colloquially called “split family” cases.

 

Several Changes have taken place in Offshore Humanitarian Program of Australia. The best way to get up to date information will be to contact nearest Dept of Immigration of Australia to apply for offshore humanitarian visa.

 

If you wish to have consultation with us our initial consulting charges will be between A$200 to A$400 or more depending upon complexity of case. The Refugee law is a specialised are of practice and very complex and hence initial consulting becomes time consuming process for us and the initial consulting fee will be higher than our normal consulting fee.

Complementary Protection

 

Since 24 March 2012, there has been an additional basis for the grant of a Protection (Class XA) (subclass 866) visa. Whether a person is owed protection by Australia will depend upon an assessment of their claims under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention), together with an assessment of their complementary protection claims. Both assessments will be undertaken when processing applications for a protection visa.

Complementary protection is the term used to describe a category of protection for people who are not refugees as defined in the Refugees Convention, but who also cannot be returned to their home country, because there is a real risk that they would suffer certain types of harm that would engage Australia’s international non-refoulement (non-return) obligations.

 

Australia’s non-refoulement obligations, in addition to those under the Refugees Convention, are derived from international human rights conventions to which Australia became a party in the 1980s and 1990. These are:

  • the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol aiming at the abolition of the death penalty
  • the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

Non-refoulement obligations may be engaged under these treaties where there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

Significant harm is where a person will be subjected to:

  • arbitrary deprivation of his or her life
  • the death penalty
  • torture
  • cruel or inhuman treatment or punishment
  • degrading treatment or punishment.

 

Australia has previously met its non-refoulement obligations under these treaties through the Ministerial Intervention process, after an application for protection had been refused by both the department and the Refugee Review Tribunal.

 

Assessment of Complementary Protection

Assessment of complementary protection claims has now been incorporated into the existing primary protection assessment framework. This means that an assessment of applications for protection will consider refugee claims and complementary protection claims as part of one integrated process. This reflects the government’s commitment to ensuring that an applicant’s claims for protection are assessed in the shortest practicable amount of time.

 

To ensure the primacy of the Refugees Convention, an applicant’s claims for protection will first be considered against the existing refugee criteria set out in the Migration Act 1958 (the Migration Act). This means that their claims will be considered under the complementary protection criteria only if they have been found not to meet the definition of a refugee.

 

An applicant’s claims for protection will continue to be assessed individually. Where it is found that Australia has protection obligations to an applicant on the basis of the Refugees Convention or complementary protection, they may be granted a protection visa if all other visa requirements are met. Where Australia does not have a protection obligation to an applicant, the applicant should either seek advice about other visa options or depart Australia voluntarily. Failing this, they may be removed from Australia.

 

Since 24 March 2012, the department has assessed all new and unfinalised applications against the complementary protection criteria, in addition to the Refugees Convention, before an application is decided. All cases that did not have a determination on a primary assessment before this date will also be assessed against both the Refugees Convention and complementary protection criteria.

If an applicant is undergoing or scheduled to undergo a merits review of a decision by the department to refuse their application, and the merits review was not determined before 24 March 2012, their claims will be assessed against the complementary protection criteria by the merits reviewer.

If an applicant is found to be owed protection by Australia under the complementary protection criteria as set out in the Migration Act, and they satisfy health, character and security requirements, they may be granted a protection visa. This is the same visa granted to an applicant who is found to be owed protection in Australia under the Refugees Convention and the Migration Act.

 

Seeking Protection Within Australia

Australia provides protection for asylum seekers who:

  • meet the United Nations definition of a refugee, as defined in the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (Refugees Convention)
  • are owed protection under other international human rights treaties and conventions which give rise to complementary protection obligations.

 

The majority of people in need of protection in Australia are resettled from other countries through Australia’s offshore humanitarian resettlement programme.

However, people already in Australia make applications for protection each year.

These include people who arrived lawfully and who have been staying in the Australian community, and people who have arrived unlawfully in Australia by sea or air.

If found to be owed protection through an assessment of their claims for asylum, these applicants may be granted a permanent protection visa, provided they meet health and character requirements.

The Refugees Convention

 

Australia is one of 147 signatory countries to the Refugees Convention.

The Refugees Convention defines a refugee as a person who:

  • is outside their country of nationality or their usual country of residence
  • is unable or unwilling to return or to seek the protection of that country due to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion
  • is not a war criminal and has not committed any serious non-political crimes or acts contrary to the purposes and principles of the United Nations.

 

The Refugees Convention does not oblige signatory countries to provide protection to people who do not fear persecution and have left their country of nationality or residence on the basis of war, famine, environmental collapse or in order to seek economic opportunities.

Protection obligations may also not be owed to a person who already has effective protection in another country, through citizenship or some other right to enter and remain safe in that country.

International law recognises that people at risk of persecution have a legal right to flee their country and seek refuge elsewhere, but does not give them a right to enter a country of which they are not a national. Nor do people at risk of persecution have a right to choose their preferred country of protection.

 

Complementary protection

From 24 March 2012, complementary protection claims have been considered as part of the protection visa assessment process. Complementary protection is the term used to describe a category of protection for people who are not refugees but cannot be returned to their home country, in line with Australia’s international obligations, because there is a real risk that the person will suffer certain types of harm.

 

How claims are assessed

Applications for protection visas are assessed by trained departmental officers.

All claims for protection are assessed on an individual basis against the criteria contained in the Refugees Convention and the complementary protection criteria, in accordance with Australian legislation, case law and up-to-date information on conditions in the applicant’s country of origin.

Applicants are expected to put their claims in writing. Most applicants are asked to attend an interview to discuss their claims and provide further information if required. Procedural fairness is afforded to all applicants in responding to information that may impact adversely on the outcome of their assessment. Where needed, the department arranges qualified interpreters for any interviews.

People who are found to be owed protection are eligible for the grant of a protection visa in Australia, provided they satisfy health, character and security checks.

 

Merits review of decisions

Where an application by a person in Australia is refused by the department, that person can seek a merits review of that decision from an independent tribunal either the Refugee Review Tribunal (RRT) or the Administrative Appeals Tribunal (AAT), depending on the basis for refusal.

 

The RRT examines the applicant’s claims against the Refugees Convention and the complementary protection criteria, providing an informal, non-adversarial setting to hear evidence.

Reviews by the RRT must occur within three months of application. Cases where these time limits are not met are subject to periodic reports to Parliament.

 

If the RRT is unable to make a decision favourable to the applicant on the written evidence available, it must give the applicant the opportunity for a hearing. A fee of becomes payable by the applicant if the RRT affirms the original refusal decision.

 

People granted a protection visa as a result of an RRT decision and people on whose behalf the minister intervenes in the public interest do not have to pay the fee.

Protection visa applicants who have been rejected by the RRT (and who have no other legal reason to be in Australia) have 28 days to depart Australia. If they stay beyond this 28-day period, they may be removed from Australia.

 

The government provides a number of services for asylum seekers. These include:

  • financial assistance to eligible protection visa applicants who are unable to meet their basic needs for food, accommodation and health care while their application is being processed
  • help in preparing and lodging protection visa applications through the Immigration Advice and Application Assistance Scheme

 

Asylum seekers that have arrived in Australia legally and subsequently apply for protection may receive a bridging visa upon lodging a protection visa application. In most cases, the bridging visa allows the applicant to remain lawfully in the community until the protection visa application is finalised. Some bridging visas allow the applicant to work in Australia. Other bridging visas do not have work rights attached.

 

Assistance for Asylum Seekers in Australia

The United Nations High Commissioner for Refugees describes an asylum seeker as an individual who is seeking international protection.

 

‘In countries with discrete refugee assessment procedures, an asylum seeker is someone whose claim for protection has not been decided by the country in which she or he has submitted their claim. Not every asylum seeker will ultimately be recognised as a refugee, but every refugee is initially an asylum seeker.’

(United Nations High Commissioner for Refugees, Master Glossary of Terms, June 2006).

 

An asylum seeker in Australia is usually an applicant for a protection visa, who is assessed at the primary stage by the Department of Immigration and Border Protection, and at the merits review stage (for example, by the Refugee Review Tribunal).

 

The Australian Government administers programmes which provide assistance for eligible asylum seekers during the period in which their applications for protection are processed before being finally determined. This may include:

  • financial assistance under the Asylum Seeker Assistance Scheme (ASAS)
  • casework services through contracted service providers under ASAS
  • legal assistance for preparing an application for a protection visa under the Immigration Advice and Application Assistance Scheme (IAAAS)
  • providing permission to work in Australia
  • facilitating access to Medicare.

 

The Asylum Seeker Assistance Scheme (ASAS) is administered by the department’s contracted service providers. ASAS provides financial assistance to protection visa applicants, who satisfy specific eligibility criteria, to enable them to engage with the department in progressing their application for protection. The level of financial assistance offered to asylum seekers is less than that offered to Australian citizens under similar living arrangements. ASAS also facilitates casework assistance through professionals employed by the service provider to relieve difficulties experienced by vulnerable asylum seekers in the Australian community.

 

The ASAS eligibility criteria are described below. For those asylum seekers who arrived lawfully and wish to apply for ASAS, they should approach an office of the Red Cross in the capital city of their nearest state or territory.

 

An asylum seeker may be eligible for ASAS if they have a valid application for a protection visa lodged with the department and where:

  • the date of lodgement of the protection visa application is more than six months old and the applicant is waiting for a decision
  • the date of lodgement of the protection visa application is less than six months old, the applicant is waiting for a decision and meets one of the ASAS exemption criteria
  • the protection visa application was refused by the department and the applicant has lodged an application for review by the Refugee Review Tribunal and continues to meet the ASAS exemption criteria
  • the applicant is not in immigration detention
  • the applicant holds a current visa
  • the applicant is not eligible for either Australian or overseas government income support
  • the applicant who arrived unlawfully, for example, by boat without a valid visa, and has been granted a bridging visa to progress their application for protection.

 

Exemptions to ASAS eligibility criteria may be available to vulnerable asylum seekers who are suffering hardship and are unable to meet their basic needs because they lack adequate support within the community. These applicants may include:

  • unaccompanied minors
  • elderly persons
  • families with children under 18 years old
  • people who are unable to work due to a disability, illness, care responsibilities or the effects of torture or trauma
  • people experiencing financial hardship resulting from a change in circumstances since arriving in Australia.

Asylum seekers who are eligible for ASAS may receive payments of limited financial assistance through the department’s service provider to reduce the burden of everyday living expenses.

Recipients of ASAS may also receive payments to cover some of the costs associated with the processing of their application for a protection visa.

Financial assistance through ASAS ceases:

  • upon the grant of a protection visa
  • within 28 days after notification by the department that the application for a protection visa has been refused
  • when the recipient no longer meets eligibility criteria or fails to meet reporting obligations
  • where the recipient no longer needs support, has been re-detained, imprisoned, is admitted to a health care facility such as a hospital or leaves Australia.

 

Some asylum seekers whose application for a protection visa has been refused by the department may be eligible to continue receiving assistance through ASAS if they apply for review by the Refugee Review Tribunal and continue to meet ASAS eligibility criteria.

Asylum seekers who are eligible for ASAS may receive limited financial assistance to reduce the burden of expenses associated with health care.

 

Bridging visas and permission to work for asylum seekers

Protection visa applicants entering Australia may be granted a bridging visa to live lawfully in the Australian community while their application is being finalised. Failure to comply with the conditions on the visa may result in the applicant’s visa being cancelled and being placed in immigration detention.

 

The conditions on the visa may include permission to work, reporting requirements, and notification of change of address.

 

Most protection visa applicants who arrived lawfully are entitled to remain lawfully in the community on the visa they used to enter Australia, or on a bridging visa if their initial visa expires, until their application for a protection visa is finalised.

Some protection visa applicants may be eligible for Medicare, the Australian Government’s health insurance scheme.

 

Government Visa Fees (AUD)

Applicant outside Australia

 

Visa subclass Note Base application charge Non-internet application charge Additional applicant charge
18 and over
Additional applicant charge under 18
Refugee and Humanitarian visa (class XB – 200201,202203204)
applications made under the offshore component of the Humanitarian Program
nil N/A nil nil

 

Refugee and Humanitarian visa applications made under the Community Proposal Pilot in the offshore component of the Humanitarian Program

 

Visa subclass Note Base application charge Non-internet application charge Additional applicant charge
18 and over
Additional applicant charge under 18
Refugee and Humanitarian visa (class XB – 200201,202203204) 24a $2680 N/A nil nil

24a The second instalment payable before the visa is granted:

  • for main applicant $16 444
  • any secondary applicants included in your application $2680.

 

Applications Inside Australia

 

Visa Subclass Note Base application charge Non-internet application charge Additional applicant charge
18 and over
Additional applicant charge under 18
Protection visas lodged in Australia $35 N/A nil nil
Protection visas lodged in Australia by applicants who are in immigration detention but not immigration cleared nil N/A nil nil

 

 

Our processing fees vary case to case and are subject to the complexity of the case and amount of work involved. We also offer initial consultations for those who want to better understand the visa process and their options, after which we will advise of our charges if you wish to proceed with us. Consultations cost from A$100-$200 or more depending on the complexity of the case.

 

How BMS Global Can Help You

BMS Global can assist you in preparing and lodging your refugee visa application by providing the following immigration services:

  • We will liaise with the Department of Immigration and Border Protection on your behalf, managing all correspondence and requests they put to us
  • We will provide advice relating to the your migration goals for your selected visa category
  • We analyse current Immigration Law relating to your nominated visa category and keep you informed of any changes to Immigration Law that will affect your application as Australian Immigration laws are complex and frequently changing and should be constantly analysed
  • We assist in the completion and checking of the relevant application forms
  • Providing advice and assistance relating to documentation required to support the application Prepare any necessary supporting submissions to the Department of Immigration and Border Protection
  • Submit or lodge your application to the relevant Assessing Authority or Department for processing as soon as possible.
  • Wherever possible, supply any further documentation or information requested by the Department on receipt of documents from the applicant.
  • Wherever possible, assist you to comply with any request made by the Department
  • Successful obtainment of your refugee visas can give you the option to later apply for a permanent residency visa for Australia, and we will provide you the best possible advise for your dream to become a permanent resident of Australia

 

Please feel free to contact us anytime suitable to you and if you wish we can also provide you recruitment consulting service whereby you can target your prospective employer and we can discuss with your employer costs involved in applying for a refugee visa.