Protection, Refugee & Humanitarian Visas

Pursuant to the United Nations Convention Relating to the Status of Refugees 1951 (‘Refugee Convention’), as amended by the 1967 Protocol (‘the Protocol’), Australia offers different types of protection to non-citizens within Australia who can prove that they are a refugee. Generally, Australia has an obligation to provide protection to refugees within its territory, and not to return those people to a place where their lives/freedoms would be threatened on the basis of their race, religion, nationality, membership of a particular social group, or political opinion. Australia also offers ‘Complementary Protection’ to non-citizens within Australia who do not meet the definition of a ‘refugee’ but can demonstrate that they will suffer ‘significant harm’ if they are removed from Australia.

What is a refugee?

Refugee — is a person “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 or her habitual residence, is unable, or, owing to such fear, is unwilling to return to it.”(Article 1A(2) of the Refugee Convention). Therefore, to obtain refugee status, you must prove that you have a well-founded fear of being persecuted and the persecution feared is because of your:

• race, religion, nationality, membership of a particular social group or political opinion; and
• you are:
  • outside your country of nationality and unable or unwilling (due to the fear of persecution), to avail yourself of the protection of that country; or
  • without nationality and outside your country of former habitual residence and
  • unable or unwilling (due to their fear of persecution), to return to that country.

On 29th June 2015, the Australian Government has made several changes to Australia’s processes for assessing asylum claims, including shifting the burden of proof on to asylum seekers, removing the references to the Refugee Convention from Australia’s migration legislation, removing the reasonableness test from consideration of relocation options for people facing persecution, requiring the Administrative Appeals Tribunal to draw unfavorable inferences about the credibility of refugee claims in some circumstances and creating new grounds to deny Protection visas to people who provide false identity documents. Thus, a well-founded fear of persecution due to race, religion, nationality, membership of a particular social group, or political opinion is the basis of the new definition of a ‘refuge’. One of the stated bases for persecution must be essential and the significant reason for persecution The applicant cannot return to any part of their home country for fear of this persecution The persecution involves both ‘serious harm’ to the person and ‘systematic and discriminatory’ conduct The definition uses the context of what is occurring ‘today’ in the home country to assess the risk to applicants or membership of particular social group: Can be members of the same family – a member of the family unit is exposed to the persecution Each member of the particular social group share the characteristics and it is intrinsic and so fundamental to their identity, that it cannot or should not be forced to be changed. Distinguishes the group from the rest of society Cannot be a fear of persecution alone.

What is ‘Serious harm’?

‘Serious harm’ is defined as:

• A threat to life or liberty;
• Significant physical harassment or ill-treatment of the person;
• Significant economic hardship that threatens the ability to subsist;
• Denial of access to basic services that threaten the ability to subsist;
• Denial of capacity to earn a livelihood of any kind and threatens the capacity to subsist.

The ‘complementary protection’ definition of ‘significant harm’ includes:

• Arbitrary denial of life;
• Death penalty to be carried out;
• Torture;
• Cruel or inhumane treatment or punishment;
• Degrading treatment or punishment.

What is ‘complementary protection’?

Complementary Protection’ is an additional form of protection which was introduced into Australian legislation to reflect Australia’s obligations under various international treaties:

• The 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
• The 1966 Covenant on Civil and Political Rights;
• The 1989 Convention on the Rights of the Child;

The new ‘Complementary Protection’ legislation applies to all new protection visa applications made on or after the 24th of March 2012 (and to all applications which had not been finally determined by that date). Complementary Protection may be granted to: ‘[A] non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.’ Section 36(2)(aa) of the Migration Act 1958 (Cth) ‘Significant harm’ is defined as one of five things:

• Arbitrary deprivation of life;
• That the death penalty will be carried out;
• Torture;
• Cruel and inhuman treatment or punishment; and/or
• Degrading treatment or punishment.

There is no real risk of significant harm if:

• it would be reasonable for the applicant to relocate to another area of the country or;
• the applicant could obtain protection from an authority of the country or;
• the risk is one faced by the population generally and not the applicant personally.

What is the First asylum country?