Types of protection visas
Australia has a long history of welcoming those who have been displaced from their homes because of conflict, persecution, and human rights abuses.
The Protection Visa regime was introduced as part of Australia’s international obligations under the 1951 Convention relating to the Status of Refugees Convention 1951 (‘Convention’) and many other international treaties. These treaties are ratified under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth), providing asylum for refugees who cannot return to their home country for fear of being persecuted.
Types of protection visas
Protection Visa Subclasses
Subclass 866 is an onshore protection visa application that allows individuals who cannot return to their home country because of the fear of persecution to remain in Australia permanently.
Subclass 785 is a temporary protection visa that enable individuals without a visa to remain in Australia for three years and seek asylum. Successful applicants can work, study, and have access government services such as Centrelink.
Subclass 785 is another temporary protection visa that enable individuals without a visa to remain in Australia for five years and seek asylum. Applicants for this visa must intend to intend to work or study in regional Australia. You may be eligible for permanent residency.
Who is a Refugee?
Migration Act 1958 defines ‘refugee’ as a person in Australia who is:
- outside their country of nationality or former habitual residence (their home country) and
- owing to a ‘well-founded fear of persecution, is unable or unwilling to return to their home country or to seek the protection of that country
What is Well-founded fear of persecution?
The Act states that a person has a well-founded fear of persecution if:
- They fear persecution for at least one of five reasons specified in the Act
- There is a real chance that, if the person returns to their home country, they would be persecuted for one or more of those reasons
- The real chance of persecution relates to all areas of their home country
- At least one of the five reasons is the essential and significant reason for the persecution
- The persecution involves both ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.
frequently asked questions
- membership of a particular social group, or political opinion.
For the fear of persecution to be well founded, there must be a ‘real chance’ that the persecution would happen in the reasonably foreseeable future if the person was to return to their home country. Real chance means that the fear of persecution is not remote or far-fetched.
A person is not considered a refugee, even if they meet all the other criteria, if there are serious reasons for considering that they have:
- committed a crime against peace, a war crime, or a crime against humanity;
- committed a serious, non-political crime before they entered Australia, or
- been guilty of acts contrary to the purposes and principles of the United Nations.
A person does not have a well-founded fear of persecution if they can:
- Take reasonable steps to modify their behaviour to avoid a real chance of persecution in their home country or
- due to fears over issues such as threats from a common criminal gang over unpaid debts or family disputes.
Complementary protection is protection for those who are not refugees according to the Act, but who can’t return to their home country because they will suffer certain types of harm which engage Australia’s other protection obligations. Significant harm is different to serious harm. It is defined as:
- arbitrary deprivation of life
- the death penalty
- cruel or inhuman treatment or punishment, or
- degrading treatment or punishment.
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