Fact Sheet 61 - Seeking Asylum within Australia
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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 (Refugees Convention).
The majority of people in need of protection in Australia are resettled from
other countries through Australia's offshore humanitarian resettlement program.
In the 2009–10 program year, 67 per cent of visas were granted to people offshore under the offshore humanitarian resettlement program.¹
See: Fact Sheet 60 – Australia's
Refugee and Humanitarian Program
Each year however, several thousands of people already in Australia make applications for protection (refugee status).
These include people who arrived lawfully and who have been staying in the Australian community, and people who have arrived unlawfully in Australia by sea or air.
If found to be owed protection through an assessment of their claims for asylum, these applicants will be granted a permanent protection visa, provided they meet health and character requirements.
¹Source: DIAC systems, as at end of year 2009–10
Background
Until mid 1989, there were fewer than 500 refugee applications a year from people in Australia.
Over the following two years there was an increase in people claiming refugee status due primarily to the Tiananmen Square incident in the People's Republic of China (PRC) in June 1989. Refugee status (protection visa) applications peaked at 16 248 during 1990–91, with about 77 per cent coming from PRC nationals.
The present system for processing protection visa applications in Australia was developed during the 1980s and 1990s in response to the increased number of asylum seekers.
The Refugees Convention
Australia is one of 147 signatory countries to the Refugees Convention.
The Refugees Convention defines a refugee as a person who:
- is outside their country of nationality or their usual country of residence
- is unable or unwilling to return or to seek the protection of that country due to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion
- is not a war criminal and has not committed any serious non-political crimes or acts contrary to the purposes and principles of the United Nations.
The Refugees Convention does not oblige signatory countries to provide protection to people who do not fear persecution and have left their country of nationality or residence on the basis of war, famine, environmental collapse or in order to seek economic opportunities.
Protection obligations may also not be owed to a person who already has effective protection in another country, through citizenship or some other right to enter and remain safe in that country.
International law recognises that people at risk of persecution have a right to flee their country and seek refuge elsewhere, but does not give them a right to enter a country of which they are not a national. Nor do refugees have a right to choose their preferred country of protection.
Temporary protection visa abolition and creation of Resolution of Status visa
On 9 August 2008 temporary protection visas (TPVs) were abolished. This means that all applicants for a protection visa who are found to engage Australia’s protection obligations now receive a permanent protection visa.
See: Fact Sheet 68 - Abolition of the Temporary Protection visa (TPV) and Temporary Humanitarian visas (THVs)
How claims are assessed
Applications for protection visas are assessed by trained departmental officers.
All claims for protection are assessed on an individual basis against the criteria contained in the Refugees Convention, and in accordance with Australian legislation, case law and up-to-date information on conditions in the applicant's country of origin.
Applicants are expected to put their claims in writing. All applicants are asked to attend an interview to discuss their claims and provide further information if required. Procedural fairness is afforded to all applicants in responding to information that may impact on the outcome of their assessment. Where needed, the department arranges qualified interpreters for any interviews.
All protection visa decisions are to be made by the department within 90 days of receipt of the application. The average 90 day processing rate in the 2010–11 program year was 60.7 per cent.² Cases where these time limits are not met are the subject of periodic reports to the minister and are tabled in parliament.
People who are found to be refugees are eligible for protection in Australia, provided they satisfy health, character and security checks.
²Source: DIAC systems, as at end of year 2010–11
Merits review of decisions
Where an application by a person in Australia is refused by the department, that person can seek a merits review of that decision from an independent tribunal—either the Refugee Review Tribunal (RRT) or the Administrative Appeals Tribunal (AAT), depending on the basis for refusal.
The RRT also examines the applicant's claims against the Refugees Convention, providing an informal, non-adversarial setting to hear evidence.
Reviews by the Refugee Review Tribunal must occur within three months of application. Cases where these time limits are not met are subject to periodic reports to parliament.
If the RRT is unable to make a decision favourable to the applicant on the written evidence available, it must give the applicant the opportunity for a hearing. A fee of $1400 becomes payable by the applicant if the RRT affirms the original refusal decision.
People granted a protection visa as a result of an RRT decision and people
on whose behalf the minister intervenes in the public interest do not have
to pay the fee.
See: Ministerial intervention
Protection visa applicants who have been rejected by the RRT (and who have no other legal reason to be in Australia) have 28 days to depart Australia. If they stay beyond this 28-day period, they may be removed from Australia.
Services for asylum seekers
The government provides a number of services for asylum seekers. These include:
- financial assistance to eligible protection visa applicants who are unable
to meet their basic needs for food, accommodation and health care while
their application is being processed
See: Fact Sheet 62 – Assistance for asylum seekers in Australia
- help in preparing and lodging protection visa applications through
the Immigration Advice and Application Assistance Scheme
See: Fact Sheet 63 – Immigration advice and application assistance scheme.
Statistics
In the 2009–10 program year, the Humanitarian Program delivered 13 770 visas. This number included 9236 visas granted to persons offshore and 4534 program countable visas granted to people seeking protection in Australia.³
For further information, see the department's annual report 2009–10.
See: Departmental Annual Reports
³Source: DIAC systems, as at end of year 2009–10
Status during processing
Asylum seekers that have arrived in Australia legally and subsequently apply for protection may receive a bridging visa upon lodging a protection visa application. In most cases, the bridging visa allows the applicant to remain lawfully in the community until the protection visa application is finalised.
Some bridging visas allow the applicant to work in Australia. Other bridging visas do not have work rights attached.
See: Fact Sheet 62 – Assistance for asylum seekers in Australia
A bridging visa ceases in the following circumstances:
- once the protection visa is granted
- when another bridging visa is issued in respect of that protection visa application
- 28 days after withdrawal of a protection visa application
- if the holder leaves Australia (this applies to Bridging visas A, C, D and E)
- upon cancellation of any substantive visa held (this applies to Bridging visas A, B and C only)
- on the cease date if the bridging visa was granted for a particular period of time
- if the protection visa is refused, 28 days after notification of the primary decision by the department (unless the applicant seeks merits review of the decision) or
- if the applicant seeks merits review, 28 days after notification of the decision of the review authority
- if the applicant seeks judicial review of a primary decision, or tribunal decision, the bridging visa held for that period will not remain in effect for judicial review. In this case, the applicant must apply for another bridging visa to maintain their lawful status for the duration of judicial review.
Further information is available on the department's website.
See: www.immi.gov.au
The department also operates a national general enquiries line.
Telephone: 131 881
Hours of operation: Monday to Friday from 8.30 am to 4.30 pm (recorded information is available outside these hours).
Fact Sheet 61. Produced by the National Communications Branch, Department of Immigration and Citizenship, Canberra.
Last Reviewed 07 November 2011.
© Commonwealth of Australia 2009.