An overview of the current legal situation for asylum seekers
This factsheet sets out the current legal situation for asylum seekers who come to Australia by plane
or boat and considers the impact of the current immigration policies.
What does it mean to be a refugee?
A person may be owed protection obligations by Australia where they are either a refugee, owed
complementary protection obligations, or are the spouse, dependent child, or various other
dependents as prescribed of the family head who is either a refugee or owed complementary
protection obligations.
There are two different definitions of what it means to be a refugee currently operating in Australia.
For applications decided by the Department before proclamation of the changes made by the Legacy
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Caseload Act , 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 (the Refugee Convention). This definition is further refined by certain provisions of
Australian immigration law which is contained in the Migration Act 1958 (especially s36(3) and ss91RU) and the decisions of Australian Courts.
Article 1A(2) of the Refugee Convention defines a refugee as a person who:
“owing to a 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. . .”
For applications lodged on or after 16 December 2014 and decided after the date of proclamation or
failing proclamation the 15 June 2015, the new definition of a refugee is contained in section 5H the
Migration Act 1958 where a person is a refugee if the person:
(a) in a case where the person has a nationality—is outside the country of his or her
nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail
himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality—is outside the country of his or
her former habitual residence and owing to a well-founded fear of persecution, is unable or
unwilling to return to it.
The two main ways in which the new definition alters the previous understanding of who is a refugee
are that:
•
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A person will only have a well-founded fear of persecution where the real chance of
persecution relates to all areas of a receiving country: s5J(1)(c). Previously decision makers
This has not yet occurred as at publication 18.2 but is expected to take place sometime in the first six months of
2015. In the absence of proclamation the changes come into effect 16 June 2015. Proclamation can be checked
here.
•
examined whether or not it would be reasonable to expect a person to relocate to other areas
to avoid persecution;
A person will not have a well-founded fear of persecution if they could take reasonable steps
to modify their behaviour to avoid persecution, other than modifications which would conflict
with a characteristic fundamental to their identity of conscience, or which would conceal an
innate or immutable characteristic of the person: s5J(3).
One of Australia’s core obligations under the Refugee Convention (Article 33) is that Australia will not
return a refugee who is at risk of persecution to their home country (i.e., the principle of nonrefoulement).
For applications for protection made by asylum seekers coming without a visa (including by boat or
plane) the protection Australia will provide will be temporary, which means a person must have a reassessment of whether they are owed protection obligations every three or five years. For more
information about this, please see our factsheets “Your rights if you came by boat” and “The Asylum
Legacy Caseload Act”.
Complementary protection
A person can still obtain protection in Australia where there are substantial grounds for believing that,
as a necessary and foreseeable consequence of the person being removed from Australia to their
home country, there is a real risk that the person will suffer significant harm. Significant harm includes
application of the death penalty, arbitrary deprivation of life, torture, cruel and inhumane treatment
and degrading treatment.
Complementary protection commenced in March 2012 and is intended to introduce greater efficiency,
transparency and accountability into Australia’s arrangements for adhering to its non-refoulment
obligations under the International Covenant on Civil and Political Rights, the Convention on the
Rights of the Child and Convention against Torture and Other Cruel and Inhumane or Degrading
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Treatment or Punishment. There is currently proposed legislation being considered by Parliament to
remove complementary protection from the Migration Act. If this happens, a person would need to
seek consideration of Australia’s obligations owed to them under these treaties exclusively by way of
a Ministerial request. For more information about this please see our factsheet “Changes to
Complementary Protection”.
Are there other criteria that Australia considers?
Yes. In addition to satisfying the protection criteria as a refugee or under complementary protection,
there are also public interest criteria that must be satisfied for a person to be granted a protection visa
in Australia, including security checks, criminal/character requirements and undergoing health
assessments.
How do refugees travel to Australia?
There are three main ways a person may come to Australia as a refugee:
1. arriving on short-term visas (e.g., tourist, student or business visa) by plane and then seek
protection;
2. arriving by boat without any visa for Australia;
3. having been assessed to be refugees while residing in another country and coming through
Australia’s offshore resettlement program.
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The Migration Amendment (Regaining Control over Australia’s Protection Obligations) Bill 2013
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Asylum seekers may also travel to Australia without a visa for Australia or a genuine passport by
plane, however this is more unusual then travelling to Australia without a visa or passport by boat.
Are asylum seekers treated differently depending on how they travelled to Australia?
Yes, Australia treats asylum seekers differently depending on their mode of arrival in Australia, that is,
whether they arrived in Australia with a valid visa for Australia by plane or arrived with no valid visa or
travel documents (generally by boat). Asylum seekers who arrive by boat are not accorded the same
rights as asylum seekers who arrive by plane.
It is legal to seek asylum regardless of a person’s mode of arrival. Article 31 of the Refugee
Convention states that penalties should not be imposed on refugees due to their unauthorised mode
of entry. This recognises that it may not be safe or possible for an asylum seeker to obtain travel
documents and the requisite authorisation to arrive in a country they seek protection.
What are the rules for asylum seekers who came by boat?
No permission to lodge a valid application for protection
Asylum seekers who arrive to Australia by boat with no visa are generally unable to make a valid
application for any visa, including for a protection visa, without the Minister for Immigration’s personal
approval. This is due to bars which exist in the Migration Act, however there are some circumstances
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where asylum seekers who arrived by boat are not barred.
The Minister for Immigration has indicated that asylum seekers who arrived after 13 August 2012 and
before 1 January 2014 will have their “bar lifted” from 2015 onwards. This does not include asylum
seekers who were previously transferred to Nauru or PNG and have returned to Australia, and it does
not include any asylum seeker who arrived by boat after 1 January 2014. These asylum seekers will
be transferred to Nauru or PNG for processing there.
Unfortunately, there are likely to be incredibly lengthy delays. The Department won’t be able to grant
permission to lodge applications to everyone at once. It is likely going to be done in stages across a
number of years. There is likely to be priority given to lifting of the bar based on the length of time a
person has been waiting, and based around indicators of vulnerability.
When a person’s bar is lifted, they will be notified in writing by the Department, so it is important that
they inform the Department every time their contact details change, and that if they receive a letter
they do not understand, they seek advice.
Rights while in Australia
Asylum seekers who arrive by boat are initially placed in an immigration detention facility.
The vast majority of asylum seekers who arrived by boat are no longer in Immigration detention, but
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have been permitted to live in the Australia community. Approximately 27,000 asylum seekers have
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arrived by boat since 13 August 2012 and the majority of this group of asylum seekers would be
living in the Australian community.
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For example, asylum seekers who arrived directly to the mainland, eg Darwin, before 1 June 2013 are not
barred under section 46A of the Migration Act.
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Department of Immigration and Border Protection Report, ‘Immigration Detention and Community Statistics
Summary’, 30 April 2014, available at http://www.immi.gov.au/managing-australiasborders/detention/_pdf/immigration-detention-statistics-feb2014.pdf
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Senate estimates dated 19 November 2013
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The rights that asylum seekers have while living in the Australian community vary and can often
depend on when the person arrived by boat in Australia. Asylum seekers who arrived before 13
August 2012 and were released from immigration detention on a bridging visa E as a whole have
been given permission to work. By contrast, asylum seekers who arrived after 13 August 2012 were
initially not been given work rights on their bridging visa E, but it has been reported that there has
been an agreement that as a matter of policy the government intends to grant work rights to those
who arrived by boat on or after 13 August 2012. We understand that these work rights grants may
currently be happening automatically without a person needing to apply. Where a person has not yet
been granted work rights, they should email [email protected] and include their name, date
of birth, boat ID and immi card number. They should indicate if there is any particular urgency (for
example if you have a job lined up). There is no need to complete a form 1005 or to attend a
Departmental Office unless a person has not yet signed a Code of Behaviour, which will be required
in order for work rights to be granted. A person should also make sure that they have maintained their
regular BVE reporting, as this has to be completed before work rights can be granted.
Since 14 December 2014 it has been a condition for the grant of a new bridging visa E that any
person aged 18 and over sign and not breach a Code of Behaviour. This currently mainly impacts
asylum seekers who arrived by boat after 13 August 2012. Contravention of the Code of Behaviour
could result in a person’s financial support being reduced or being re-detained upon cancellation of
their bridging visa E with very little prospect of being released from detention on another bridging visa
E.
The Code of Behaviour is broad and far reaching and people who have signed it can have their
bridging visa cancelled where they are accused or suspected (not convicted) of disobeying any
Australian laws (including road laws), undertaking any type of criminal behaviour (including giving
false identity documents or lying to a government official), or harassing, intimidating, bullying anyone
or engaging in any ‘anti-social’ or disruptive activities that are inconsiderate, or failing to co-operate
with a reasonable request from the Department of Immigration. For more information about this,
please see our factsheets “The Code of Behaviour and Bridging Visa conditions for people who came
by boat: Bridging Visa E”.
Temporary protection visas
Asylum seekers who arrived in Australia by boat or by air without a valid visa and who have not
previously been granted a permanent visa may currently only be granted a temporary protection visa
– either a Temporary Protection Visa (TPV) or a Safe Haven Enterprise Visa (SHEV). This is the case
for asylum seekers regardless of their date of arrival, regardless of whether they have had their bar
lifted, or an application lodged. On either a TPV or a SHEV it is not possible to apply for citizenship in
Australia or to have access to family sponsorship (sponsoring overseas family members to come to
Australia).
On a SHEV, where a person satisfies the work / study test they may apply for certain permanent visas
(not including a permanent protection visa). A person satisfies the work / study test by either working
without receiving any social security benefits or being enrolled in full-time study at an education
institutional or being involved in a combination of the above work and study for a total of 3.5 years
(which does not have to be continuous) in a designated regional area. For more information about
this, please see our factsheets “Your rights if you came by boat” and “The Asylum Legacy Caseload
Act”.
What are the rules for asylum seekers who came by plane?
How to make a valid application
Most asylum seekers who enter Australia by plane with a valid visa for Australia (e.g., tourist, student
or business visa) can make a valid protection visa application and if successful are eligible for a
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permanent protection visa. Permanent protection visas grant immediate permanent residency and
eventual access to Australian citizenship and family sponsorship for overseas family members.
Applications are made by lodging a Department of Immigration application form called an 866. A
separate written statement outlining an applicant’s protection claims may also be lodged with the
Department of Immigration. After submitting an application, a person is required to undertake a
health assessment and provide personal identifiers, and will generally have an interview with a
Delegate from the Department of Immigration in order to assess their protection claims.
The Minister for Immigration must consider a valid protection visa application and grant a permanent
protection visa if satisfied that all the visa criteria are met, or refuse the application if not so satisfied.
If the application is refused, the applicant may seek merits review of the decision by the Refugee
Review Tribunal within a strict time limit.
Bridging Visas and work rights
An application for a bridging visa occurs automatically when a protection visa application is lodged.
Those who lodge an application for a protection visa while holding a valid visa are generally entitled to
a bridging visa A with permission to work once their original visa expires. Those who lodge an
application for a protection visa after the visa they arrived on has expired will generally be granted a
bridging visa C with a mandatory “no work” condition attached to it. Work rights can be obtained if the
applicant makes a new application for a bridging visa and can show a compelling need to work and an
acceptable reason for the delay in applying for protection.
In other situations, bridging visas can also be applied for separately using a specific Department of
Immigration application form 1005.
Please note: This factsheet contains general information only. It does not constitute legal or migration advice. If
you would like more detailed information on any aspect, please refer to RACS fact sheets available at
www.racs.org.au. RACS is entirely independent of the Department of Immigration. All assistance is free. This
factsheet was prepared in February 2015.
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