A refugee visa is a visa granted to a person who is outside their country of origin and fears persecution in that country. In Australia, refugee visas are now granted only to those applying from offshore. This page outlines the laws around refugee visas and seeking asylum in Australia.
Definition of refugee
Australia is a signatory to the Refugee Convention 1951.
Under the Convention, a refugee is a person who is outside their country of origin and has a well-founded fear of persecution in their country on the basis of one or more of the following:
- Race
- Religion
- Nationality
- Political opinion
- Membership of a social group
AND the government of their home country is unable or unwilling to protect them from that persecution.
Visa categories
Four categories of visas in Australia are relevant to people seeking asylum. These are
- Refugee Visa (subclass 200), which is granted to persons referred for resettlement by the UNHCR
- In-country Special Humanitarian Visa (subclass 201), which is granted to those who have been unable to leave their home country
- Emergency Rescue Visa (subclass 203), which is granted to those who are in immediate danger and have been referred by the UNHCR
- Woman at Risk Visa (subclass 204), which is granted to women who are in danger of victimization and do not have the protection of a partner
Refugee vs humanitarian visas
A person who is unsafe in their home country but is not facing persecution on the basis of a Refugee Convention ground may be eligible for a humanitarian visa.
If a person is facing persecution in their country but is still inside that country, they cannot be granted a refugee visa. Once the person has left their home country, they may be granted a refugee visa.
Applying for a refugee visa
A person applying for a refugee visa must satisfy the following requirements:
- They must be outside Australia
- They must face persecution in their home country
- They must meet the ‘compelling reasons’ criteria
- They must meet the health and character requirements
What is persecution?
A person faces persecution if their life or freedom is being threatened because of their race, religion, nationality, political opinion, religion or membership of a social group.
An applicant for a refugee visa must show that there is a ‘real chance’ that they would be persecuted if they returned to their home country.
Persecution must involve serious harm such as a threat to life or freedom, serious economic harm or significant physical harassment or ill-treatment.
Compelling reasons
The Immigration Department will grant a refugee visa only if satisfied that there are compelling reasons to do so considering:
- the extent of the persecution
- the extent of their connection to Australia
- whether there is any other country where they could be resettled
- the capacity of the Australian community to permanently resettle them
- whether granting the visa is in the public interest
Health and character
A person who is applying for a refugee or humanitarian visa must pass the health requirement and character test. The applicant must not have any disease or condition that will represent a significant burden on the Australian health system. They must not have a substantial criminal record or be likely to become involved in offending or provoke discord in the community.
Immigration detention
Under Australian law, any non-citizen who is unlawfully in the country will be detained. This means that persons who arrive without a valid visa and persons whose visas expire or are cancelled while they are in Australia will be arrested and taken to an immigration detention centre.
Asylum seekers are often held in detention for very long periods while their applications are being determined. There is no time limit on the period for which a person can be held in immigration detention. Many detention centres are located in remote parts of the country and there have long been concerns about the conditions under which detainees are held.
The long-term detention of asylum seekers in Australia has been the subject of a lot of controversy and a number of constitutional challenges. A recent high court decision established that immigration detention must not continue indefinitely where there is no real prospect of returning the detainee to their country.
Temporary protection visas
Between 1999 and 2008, Temporary Protection Visas (TPVs) were granted to asylum seekers TPVs were temporary refugee visas, which were valid for three years only. At the expiration of a TPV, the holder had to establish that their fears of persecution in their country of origin still existed in order to be granted a permanent visa.
TPVs were temporarily reintroduced during 2013 but disallowed by the Senate. They are no longer in use.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
