Leslie Massey
Australia is not unique in having a protection program for refugees and asylum seekers, and in 2023, it granted 20,000 refugee and humanitarian visas. Seeking asylum in Australia is not illegal, and the country has committed to protecting the human rights of asylum seekers and refugees, regardless of how they arrive in the country. However, the Australian government has a 'no advantage' principle for asylum seekers who arrived by boat on or after 13 August 2012, meaning they will not be granted a protection visa until they would have been resettled under normal regional arrangements.
| Characteristics | Values |
|---|---|
| Seeking asylum in Australia is illegal or not | No, it is not illegal. It is a basic human right. |
| Asylum seekers in Australia | 23,266 in 2019-20 |
| Asylum seekers from outside Australia | 70,621 in 2019-20 |
| Asylum seekers from outside Australia in 2020-21 | 39,461 |
| Refugee and humanitarian visas granted by Australia in 2023-24 | 20,000 |
| Australia's obligation to asylum seekers | Australia has obligations 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 arrive with or without a visa. |
| Asylum seekers in immigration detention | Majority of people in immigration detention in Australia are asylum seekers. |
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What You'll Learn
Seeking asylum in Australia is not illegal
The United Nations Convention relating to the Status of Refugees, as amended by its 1967 Protocol (the Refugee Convention), defines a refugee as a person who is outside their own country and is unable or unwilling to return due to a well-founded fear of being persecuted because of their identity. Australia, as a party to the Refugee Convention, has agreed to ensure that people who meet the UN definition of a refugee are not sent back to a country where their life or freedom would be threatened. This is known as the principle of non-refoulement.
The Universal Declaration of Human Rights (UDHR), of which Australia is an author and signatory, enshrines in Article 14 the right of every human being to seek asylum and the protection of another nation. According to the Australian Parliamentary Library, there is no offence under Australian law that criminalizes the act of arriving in Australia or seeking asylum without a valid visa. While most asylum seekers in Australia are held in immigration detention, this is not always the case, and the Australian Human Rights Commission works to ensure the protection of the human rights of all people held in immigration detention.
Australia's protection program offers 20,000 places per year, available to people via resettlement from other countries or by granting protection to those who apply for asylum within Australia. Asylum seekers in Australia can apply for a refugee or humanitarian visa through the Department of Home Affairs, which assesses whether they meet the legal criteria to be considered a refugee. During this process, asylum seekers may be eligible for Status Resolution Support Services payments if they are unable to support themselves while resolving their immigration status.
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Asylum seekers are not illegal immigrants
Seeking asylum in Australia is not illegal. According to the Australian Human Rights Commission, seeking asylum is a basic human right. All people are entitled to protection of their human rights, including the right to seek asylum, regardless of how or where they arrive in Australia or any other country.
An asylum seeker is a person who has fled their own country and applied for protection as a refugee. Refugees, as defined by the United Nations Convention relating to the Status of Refugees, as amended by its 1967 Protocol (the Refugee Convention), are people who are outside their own country and are unable or unwilling to return due to a well-founded fear of being persecuted because of their race, religion, nationality, membership of a particular social group, or political opinion.
Australia has obligations 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 arrive with or without a visa. As a party to the Refugees Convention, Australia has agreed to ensure that people who meet the United Nations definition of a refugee are not sent back to a country where their life or freedom would be threatened. This is known as the principle of non-refoulement.
Under the Migration Act 1958 (Cth), asylum seekers who arrive in Australia without a valid visa must be held in immigration detention until they are granted a visa or removed from the country. There is no limit under Australian law to the length of time for which a person may be held in immigration detention. Asylum seekers can apply for a refugee or humanitarian visa by talking to the Department of Home Affairs to see if they are eligible.
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Australia's protection program offers 20,000 places per year
It is not illegal to seek asylum in Australia. According to the Australian Human Rights Commission, seeking asylum in Australia or elsewhere is not illegal. This is a basic human right. All people are entitled to the protection of their human rights, including the right to seek asylum, regardless of how or where they arrive in Australia or any other country.
Australia has a long history of humanitarian resettlement, providing safety to more than 970,000 people since World War II. In 2023, Australia granted 20,000 refugee and humanitarian visas for people under their financial year quota. This is in line with Australia's protection program, which offers 20,000 places per year, available to people via resettlement from other countries or by granting protection to those who apply for asylum within Australia.
The onshore component of the Humanitarian Program offers protection to people who have arrived in Australia, lodged an asylum claim, and been granted protection. Onshore humanitarian entrants may have been found to be refugees under the United Nations Convention relating to the Status of Refugees, also known as the Refugee Convention, or they may otherwise engage Australia's protection obligations under other human rights conventions.
As a party to the Refugees Convention, Australia has agreed to ensure that people who meet the United Nations definition of a refugee are not sent back to a country where their life or freedom would be threatened. This is known as the principle of non-refoulement. Australia has obligations 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 arrive with or without a visa.
The Department of Home Affairs assesses whether an asylum seeker qualifies as a refugee. Until they make their assessment, the individual is considered an asylum seeker. Asylum seekers can talk to the Department of Home Affairs to see if they are eligible for a refugee or humanitarian visa.
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Asylum seekers are entitled to human rights protection
Seeking asylum in Australia is not illegal. Asylum seekers are people who have fled their country and applied for protection as refugees. Refugees, as defined by the United Nations Convention relating to the Status of Refugees, are those who are outside their own country and unable or unwilling to return due to a well-founded fear of persecution.
Australia has obligations to protect the human rights of asylum seekers and refugees who arrive in the country, regardless of how or where they arrive and whether they have a visa or not. This is in accordance with various international treaties, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture, and the Convention on the Rights of the Child. These rights include the right not to be arbitrarily detained.
The Australian Human Rights Commission works to promote and protect the rights of asylum seekers and refugees in the country. They advocate for the assessment of asylum claims on the Australian mainland through the refugee status determination and complementary protection system under the Migration Act. The Commission has also welcomed the increased use of alternatives to closed immigration detention, such as community detention and the granting of bridging visas.
Asylum seekers and refugees in Australia may be eligible for payments and services, such as the Status Resolution Support Services payment, to help support themselves while resolving their immigration status. They can also access multilingual phone services and interpreters to assist them in the process.
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Asylum seekers can apply for a protection visa
It is not illegal to seek asylum in Australia. Asylum seekers can apply for a protection visa, but the type of visa they are eligible for depends on how they entered the country. Those who entered Australia by boat after 13 August 2012 are subject to the 'no advantage' principle, meaning they will not be granted a protection visa until they would have been resettled under 'normal regional arrangements'. This waiting period is expected to be around five years.
Asylum seekers who entered Australia by boat without a valid visa are not eligible for a permanent protection visa. They can apply for a Temporary Protection Visa (TPV) or a Safe Haven Enterprise Visa (SHEV). A TPV is valid for up to three years and provides access to work, Medicare, social security benefits, job matching, and short-term counselling for torture or trauma. People under 18 can access education, while adults do not have supported access to education except for the Adult English Migrant Program (AMEP). Those with a TPV cannot sponsor family members for a visa and are not eligible to apply for another type of visa while remaining in Australia.
The SHEV is a form of temporary protection visa that lasts for five years. SHEV holders have the same access and limits to support as TPV holders, but they can apply for other types of immigration visas if they meet certain requirements, such as working or studying in regional Australia for 3.5 of the five years.
Asylum seekers who arrived by plane with a valid visa and were immigration-cleared are still eligible to apply for a permanent protection visa. Permanent protection visa holders become permanent residents of Australia and have access to health, social security, education, and employment services. They can also apply for Australian citizenship and sponsor eligible relatives for permanent residence.
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Frequently asked questions
No, it is not illegal to seek asylum in Australia. According to the Australian Human Rights Commission, seeking asylum in Australia or elsewhere is not illegal.
An asylum seeker is a person who has fled their country and applied for protection as a refugee. A refugee is someone who meets the United Nations definition of a refugee and is unable or unwilling to return to their country due to a well-founded fear of persecution.
Asylum seekers in Australia should have their claims assessed on the Australian mainland through the refugee status determination and complementary protection system under the Migration Act. The Department of Home Affairs assesses whether an asylum seeker qualifies as a refugee. Until this assessment is made, the individual is considered an asylum seeker.
Asylum seekers in Australia may be eligible for a refugee or humanitarian visa. They can also receive support and payments from the Department of Home Affairs and the Status Resolution Support Services. Multilingual phone services are also available to assist asylum seekers in accessing these services.
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