Ruqayyah Snyder
If you are seeking asylum in Australia, you will need to apply for refugee status and a protection visa. This involves demonstrating that you meet the legal definition of a refugee and require protection. People outside Australia can apply to the United Nations High Commissioner for Refugees (UNHCR) or the Australian Government, depending on their circumstances. Those already in Australia should apply to the Australian Department of Immigration and Border Protection for an assessment. This article will outline the process for seeking asylum in Australia, including the eligibility criteria and application procedures.
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What You'll Learn
Refugee status determination
Australia's refugee status determination procedure involves four main steps. Firstly, the Department of Home Affairs makes the initial decision on an application. This is followed by a review from an independent tribunal that can reassess the facts. The courts can then review whether these decisions were lawfully made (judicial review). Since 2001, the procedures have differed for those arriving by boat and those arriving by plane with a valid visa.
The Refugee Council of Australia (RCOA) is an organisation that provides resources and support for refugees. They offer a mailing list service to keep those interested informed with active resources.
People outside Australia can apply to the United Nations High Commissioner for Refugees (UNHCR). Those in Australia should apply to the Australian Department of Immigration and Border Protection to have their status assessed. The refugee status determination process decides whether a person is recognised as a refugee and allows them to access the rights and entitlements afforded to refugee status. In Australia, having refugee status may result in the issuing of a protection visa. Most people seeking asylum in Australia arrive with a valid visa. Those who do not are detained in immigration detention facilities or the community while their applications are processed.
The Australian Government has developed procedures for determining whether persons claiming asylum are refugees. These procedures are administered by the Department of Home Affairs in accordance with Australian law. UNHCR is not involved in determining asylum claims in Australia and does not review individual cases. They recommend seeking the advice of a lawyer or registered migration agent when preparing a claim.
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Visa requirements
If you are outside Australia, you can apply for a refugee visa if you have been persecuted and are in need of resettlement. You can apply to the United Nations High Commissioner for Refugees (UNHCR) to have your status assessed. The UNHCR will determine whether you are recognised as a refugee, which will allow you to access the rights and entitlements afforded to refugee status.
In Australia, having refugee status means you may be issued a protection visa. Most people seeking asylum in Australia arrive with a valid visa. If you do not have a valid visa, you will be detained in an immigration detention facility or the community while your application is processed.
If you are in Australia, you can apply to the Australian Department of Immigration and Border Protection to have your status assessed. The refugee status determination process will determine whether you are recognised as a refugee, which allows for certain rights and entitlements. If you are found to meet the legal definition of a refugee, you may be issued a protection visa.
It is important to note that Australia has a regional processing regime, which means that asylum seekers who come to Australia by boat will not gain any advantage in terms of waiting times compared to if they had waited elsewhere to have their claims assessed. This waiting period is expected to be around five years. Additionally, under Australia's excision regime, asylum seekers who arrive at an 'excised offshore place' without a valid visa are barred from applying for a visa to remain in the country unless the Minister personally intervenes.
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Human rights obligations
As a Contracting State to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, Australia has developed procedures to determine whether persons claiming asylum are refugees. As a signatory to several international treaties, Australia is obliged to protect the human rights of all asylum seekers and refugees who arrive in the country, regardless of how or where they arrive, and whether they have a visa or not.
The Universal Declaration of Human Rights (UDHR) was the first internationally agreed statement of fundamental human rights and is considered the standard by which to measure compliance with human rights. The UDHR supports the right of all people to be able to seek asylum from persecution (Article 14).
The International Covenant on Civil and Political Rights (ICCPR) contains a number of protections for refugees and asylum seekers. Every person has the right to life (Article 6). Article 9 of the ICCPR provides for the right to liberty and security of the person and prohibits arbitrary detention. Article 10 of the ICCPR also provides that, where a person is deprived of their liberty, they must be treated with humanity and dignity.
The Convention on the Rights of the Child (CRC) imposes obligations on Australia to give all children, including asylum-seeking children, special treatment. The CRC contains several important rights relevant to child refugees, such as the obligation to make all decisions with regard to the best interests of the child (Article 3), the right of children to protection, registration after birth, and a nationality (Article 7), and the obligation not to separate children from their families (Article 9). The CRC also includes the obligation to protect children from all forms of violence or abuse (Article 19).
The Convention Against Torture (CAT) provides that no one – including refugees and asylum seekers – shall be subject to torture or other cruel, inhuman, or degrading treatment (Article 3). States are prohibited from removing a person to a country where they may be subject to torture.
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UNHCR involvement
UNHCR has a supervisory role in the implementation of the 1951 Convention relating to the Status of Refugees in Australia, to which the Australian government is a signatory. The UNHCR's Representation in Canberra is responsible for the promotion and protection of refugee rights in the region, which includes Australia and 15 other countries.
UNHCR is not directly involved in determining asylum claims in Australia and does not review individual cases. If you are seeking asylum in Australia, UNHCR recommends that you seek the assistance of a lawyer or registered migration agent to advise you on the appeal process and prepare your claim. A list of registered migration agents can be found on the Australian Migration Agents Registration Authority website.
If you are outside Australia and wish to seek asylum, you should contact the UNHCR office in the country you are in. Refugee visas are available for people outside Australia who have been persecuted and are in need of resettlement.
UNHCR in Australia cannot provide documentation or register you as an asylum seeker. If you need documentation from another UNHCR office, you should contact that specific office directly. Contact details for UNHCR offices worldwide can be found on the UNHCR website.
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Migration agents
If you are seeking asylum in Australia, it is recommended that you seek the advice of a registered migration agent or a lawyer. Migration agents are professionals who are authorized to provide immigration assistance and can help you with the preparation of your asylum claim. They can also advise you on the appeal process if your initial claim is denied.
Registered migration agents are different from immigration lawyers, who are legal practitioners specializing in immigration law and can provide legal advice and representation in court. Migration agents typically provide more administrative assistance with visa and immigration applications, and some may also offer limited legal advice. It is important to ensure that you are working with a registered migration agent, as there are penalties for providing immigration assistance without being registered or exempt. A list of registered migration agents can be found on the website of the Australian Migration Agents Registration Authority.
While migration agents can provide valuable assistance, it is important to note that they are not involved in determining asylum claims or reviewing individual cases. The decision-making authority on asylum claims lies with the Australian Government, specifically the Department of Home Affairs, which administers the procedures for determining refugee status in accordance with Australian law. Nonetheless, migration agents can play a crucial role in helping you navigate the asylum application process, ensuring that your claim is well-prepared and submitted correctly, and providing support throughout the process.
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Frequently asked questions
The process of applying for asylum in Australia involves claiming refugee status and applying for a protection visa. People outside Australia can apply to the United Nations High Commissioner for Refugees (UNHCR) and those in Australia can apply to the Australian Department of Immigration and Border Protection for a status assessment.
To be granted asylum in Australia, one must meet the legal definition of a 'refugee' and be in need of complementary protection. This means that a person is outside their own country and is unable or unwilling to return due to a well-founded fear of being persecuted based on their race, religion, nationality, political opinion, or membership in a particular social group.
If your asylum claim is refused, you can ask the Minister to intervene, apply to the courts, or seek advice from a registered migration agent or a lawyer.
While there is no clear information on working while seeking asylum, it is recommended that you seek advice from a registered migration agent or a lawyer to understand your rights and options.
