Ruqayyah Snyder
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. To become a refugee in Australia, the Australian Government must decide that you meet the legal definition of a 'refugee' or that you need complementary protection. Seeking asylum in Australia involves claiming refugee status and applying for a protection visa. People who are outside Australia can apply to the United Nations High Commissioner for Refugees (UNHCR), while those in Australia apply to the Australian Department of Immigration and Border Protection to have their status assessed.
Requirements for Applying for Asylum in Australia
| Characteristics | Values |
|---|---|
| Who can apply? | People who have fled their country and applied for protection as a refugee. |
| Definition of a refugee | 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 race, religion, nationality, membership of a particular social group or political opinion. |
| Who decides if someone is a refugee? | The Department of Home Affairs assesses whether someone is a refugee. |
| What happens if someone is found to be a refugee? | If the person satisfies health, identity, and security requirements, they will be granted a protection visa. |
| What if someone is not a refugee but may face human rights abuses if returned? | The Department of Immigration and Citizenship (DIAC) will assess whether the person meets complementary protection criteria, i.e., whether they are owed protection under the ICCPR, CAT, or CRC. If they are owed protection and meet the requirements, they will be granted a protection visa. |
| What if someone is refused protection? | They can seek an independent merits review by the Refugee Review Tribunal (RRT) or, in some cases, the Administrative Appeals Tribunal (AAT). In some circumstances, they can also seek judicial review of these decisions or Ministerial intervention on humanitarian or compassionate grounds. |
| What if someone is outside Australia and wishes to seek asylum? | They can apply to the United Nations High Commissioner for Refugees (UNHCR) in the country they are currently in. |
| What if someone seeking asylum is already in Australia? | They can apply to the Australian Department of Immigration and Border Protection to have their status assessed. |
| What if someone seeking asylum does not have a valid visa? | They will be detained in immigration detention facilities or the community while their application is processed. |
| Are there any financial support services available for asylum seekers? | Yes, the Australian government provides Status Resolution Support Services payments for those who are unable to support themselves while resolving their immigration status. There are also payments and services for newly arrived refugees, humanitarian entrants, and asylum seekers. |
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What You'll Learn
Refugee status requirements
To be granted refugee status in Australia, a person must meet the legal definition of a "refugee" or be in need of ""complementary protection". According to the United Nations Convention relating to the Status of Refugees, as amended by its 1967 Protocol (the Refugee Convention), a refugee is 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 race, religion, nationality, membership of a particular social group, or political opinion.
As a party to the Refugees Convention, Australia has agreed not to send people who meet the United Nations definition of a refugee back to a country where their life or freedom would be threatened. This is known as the principle of non-refoulement. Australia also has obligations under the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), and the Convention on the Rights of the Child (CRC) not to return people who face a real risk of human rights violations or to send them to third countries where they would face such risks.
The Department of Home Affairs assesses whether a person is a refugee in accordance with Australian law. The Department of Immigration and Citizenship (DIAC) will make a primary assessment of whether the asylum seeker is a refugee against the criteria set out in the Refugees Convention. If a person is found to be a refugee and satisfies health, identity, and security requirements, they will be granted 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.
If an asylum seeker is found not to be a refugee, DIAC will assess whether they meet complementary protection criteria – that is, whether they are owed protection under the ICCPR, CAT, or CRC. If a person is found to be owed complementary protection and satisfies health, identity, and security requirements, they will be granted a protection visa. People who are refused protection at the primary stage can appeal the decision through an independent merits review by the Refugee Review Tribunal (RRT) or, in some circumstances, the Administrative Appeals Tribunal (AAT). In exceptional circumstances, they can seek Ministerial intervention to be allowed to remain in Australia on humanitarian or compassionate grounds.
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Protection visas
Seeking asylum in Australia involves claiming refugee status and applying for a protection visa. People who are outside Australia can apply to the United Nations High Commissioner for Refugees (UNHCR). People who are in Australia 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 for the entitlements and rights afforded to refugee status. In Australia, having refugee status means someone may be issued 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.
To become a refugee in Australia, the Australian Government must decide you meet the legal definition of a ‘refugee’ or that you need ‘complementary protection’. According to the United Nations Convention relating to the Status of Refugees, as amended by its 1967 Protocol (the Refugee Convention), a refugee is 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 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 Australia, 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. Australia also has obligations not to return people who face a real risk of violation of certain human rights under the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), and the Convention on the Rights of the Child (CRC). These obligations also apply to people who have not been found to be refugees.
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Human rights obligations
Australia has several human rights obligations regarding asylum seekers and refugees. Firstly, according to the United Nations Convention relating to the Status of Refugees, as amended by its 1967 Protocol (the Refugee Convention), Australia has agreed not to send back refugees to a country where their life or freedom would be threatened. This principle is known as non-refoulement.
Secondly, Australia is obliged to protect the human rights of all asylum seekers and refugees who arrive in the country, regardless of their mode of arrival or visa status. This includes ensuring that people who meet the United Nations definition of a refugee are protected from persecution due to their race, religion, nationality, membership of a particular social group, or political opinion.
Thirdly, Australia has obligations under the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), and the Convention on the Rights of the Child (CRC). These treaties provide protections for refugees and asylum seekers, such as the right to life, liberty, and security, prohibiting arbitrary detention, and ensuring humane treatment during detention.
Additionally, Australia must not return people who face a real risk of human rights violations under these instruments to their country of origin or send them to third countries where they would face such risks. The Australian government has obligations under various international treaties to ensure that the human rights of asylum seekers and refugees within its jurisdiction are respected and protected.
The regional processing regime, established by the Australian government, has raised concerns about potential human rights violations. The regime aims to implement the principle of 'no advantage', meaning asylum seekers who come to Australia by boat gain no benefit in terms of waiting time for claim assessment. However, this practice has been criticized for potentially violating core human rights principles, including the prohibition on arbitrary detention and the right to claim asylum.
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Application assessment
- Refugee Status Determination: The refugee status determination process is a critical step in assessing asylum applications. The Department of Home Affairs evaluates whether an asylum seeker meets the criteria set out in the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugee Convention). This involves assessing if the individual has a well-founded fear of persecution in their home country due to factors such as race, religion, nationality, political opinion, or membership in a particular social group.
- Procedural Safeguards: Australia has moved towards a single statutory system for processing asylum seeker claims, ensuring procedural fairness. The Migration Act outlines the procedures, providing a clear framework for assessment.
- Health, Identity, and Security Checks: As part of the assessment process, applicants must satisfy health, identity, and security requirements. These checks are conducted to ensure the safety and well-being of both the applicants and the Australian community.
- Complementary Protection Criteria: Even if an individual does not meet the refugee definition, the Department of Immigration and Citizenship (DIAC) assesses whether they meet complementary protection criteria. This involves evaluating if the person would face significant human rights abuses, such as violations under the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), or the Convention on the Rights of the Child (CRC), if returned to their country of origin.
- Appeal and Review Processes: Asylum seekers who are refused protection at the primary stage have access to independent merits review by the Refugee Review Tribunal (RRT) or, in certain circumstances, the Administrative Appeals Tribunal (AAT). They can also seek judicial review of decisions made by these tribunals. In exceptional cases, they may request Ministerial intervention to remain in Australia on humanitarian or compassionate grounds.
- Support Services: Australia provides support services for asylum seekers transitioning to a permanent refugee visa. These services include payments, assistance with interpretation, and help from humanitarian settlement providers.
The application assessment process in Australia aims to balance the need for procedural fairness with the protection of human rights, ensuring that those seeking asylum have their claims thoroughly evaluated. It is important for asylum seekers to seek advice from registered migration agents or legal organisations specialising in refugee and asylum law to navigate the application process effectively.
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Available support
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 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.
If you are an asylum seeker, you can talk to the Department of Home Affairs to see if you are eligible for a refugee or humanitarian visa. If you are unable to support yourself while resolving your immigration status, you may be able to get a Status Resolution Support Services payment. The Department of Home Affairs will determine your eligibility for this payment.
Asylum seekers who arrive in Australia by plane have their claims for protection assessed through the refugee status determination and complementary protection system that applies under the Migration Act. On 24 March 2012, asylum seekers who arrived in Australia by boat at an 'excised offshore place' (such as Christmas Island) also became eligible to have their claims processed under the system that applies under the Migration Act, if the Minister exercises personal discretion to allow them to submit a valid visa application.
If you are outside Australia and wish to seek asylum, you should contact the United Nations High Commissioner for Refugees (UNHCR) office in the country you are in. The UNHCR recommends seeking the advice of a lawyer or registered migration agent in preparing your claim. A list of registered migration agents is available at the Australian Migration Agents Registration Authority. The Refugee and Immigration Legal Service is a legal organisation that helps refugees in Queensland.
If you have been granted a refugee, humanitarian, or protection visa, you can claim a payment. Your humanitarian settlement provider can help you complete the necessary form before your interview. You can also join a free English language class to help you settle in Australia.
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Frequently asked questions
Asylum seekers in Australia need to apply for refugee status and a protection visa. The Department of Home Affairs assesses whether an individual meets the legal definition of a refugee and is therefore eligible for a visa. People outside Australia can apply to the United Nations High Commissioner for Refugees (UNHCR), while those already in Australia apply to the Australian Department of Immigration and Border Protection.
To be granted refugee status, an individual must satisfy health, identity, and security requirements. They must also meet the United Nations definition of a refugee, i.e., someone 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 race, religion, nationality, membership of a particular social group, or political opinion.
Those who are refused protection have access to an independent merits review by the Refugee Review Tribunal (RRT) or, in some cases, the Administrative Appeals Tribunal (AAT). They can also seek judicial review of decisions made by the RRT or AAT and, in exceptional circumstances, Ministerial intervention to remain in Australia on humanitarian or compassionate grounds.
