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 and 1967 Protocol relating to the Status of Refugees.
The majority of refugees in Australia have been and are resettled from other countries through Australia's offshore humanitarian resettlement program.
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, these applicants will be granted a permanent Protection visa, provided they meet health and character requirements.
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 (PV) applications peaked at 16,248 during 1990-91, with about 77 per cent coming from PRC nationals.
At that time, and until 1995, each PV application was counted as a single case and did not take account of the number of people included in the application. This meant a single application could include several members of a family or just one individual.
Since 1995, each person included in an application has been counted as making an individual application. This followed changes to migration law in 1994.
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 146 signatory countries to the United Nations 1951 Convention and/or 1967 Protocol relating to the Status of Refugees.
The Convention defines refugees as people who:
- are outside their country of nationality or their usual country of residence
- are 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
- are not war criminals or people who have committed serious non-political crimes.
The 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 a better life for themselves or their family.
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.
TPV abolition and creation of Resolution of Status visa
On 9 August 2008 temporary Protection visas (TPVs) were abolished. This means that all initial applicants for a Protection visa who are found to engage Australia’s protection obligations now receive a permanent Protection visa.
Certain temporary Humanitarian visas (THVs) granted to people outside Australia were also abolished on that date. These visas were Subclass 451 – Secondary Movement Relocation (Temporary) and Subclass 447 – Secondary Movement Offshore Entry (Temporary) visas.
Current and former TPV and THV holders still in Australia on 9 August 2008 now have access to a permanent visa with the same benefits and entitlements of the PPV. This visa is called the Resolution of Status (RoS) (subclass 851) visa.
See: Fact Sheet 68 - Abolition of Temporary Protection visas (TPVs) and Temporary Humanitarian visa (THVs), and the Resolution of Status (subclass 851) visa
How claims are assessed
When a PV application is made, a decision-maker from the Department of Immigration and Citizenship, acting as a delegate of the Minister, decides if the applicant engages Australia's obligations under the UN Refugees Convention. This is done by assessing the claims against the definition of a refugee set out in that Convention.
All applications are assessed on an individual basis. If the application is successful, the applicant is granted the a Protection visa.
All primary Protection visa decisions by the department must be made within three months of application. Cases where these time limits are not met are subject to periodic reports to Parliament.
Merits review of decisions
Where an application by a person in Australia is refused, 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 UN Convention definition, providing an informal, non-adversarial setting to hear evidence.
Reviews by the Refugee Review Tribunal must also 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 of a personal hearing. A fee of $1,400 becomes payable 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 (see below) do not have to pay the fee.
PV applicants 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.
The Minister has the power to intervene after an RRT or AAT decision relating to a Protection visa, but is not compelled to do so. The Minister may intervene to substitute a more favourable decision to the applicant if the Minister believes it is in the public interest.
Services for asylum seekers
The government provides a number of services for asylum seekers. These include:
- financial assistance to eligible PV 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 PV applications through the Immigration Advice and Application Assistance Scheme
See: Fact Sheet 63, Immigration advice and application assistance scheme.
Statistics
The number of PV applications received has been falling in recent years. In 2001-02 the figure was over 8400, while in 2004-05 the number of applications had fallen to around 3200.
Status during processing
The majority of asylum seekers are people who have arrived in Australia legally and subsequently apply for protection. Most of these applicants receive a bridging visa upon lodging a PV application. In most cases, the bridging visa allows the applicant to remain lawfully in the community until the PV 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:
- 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 & E)
- upon cancellation of any substantive visa held (this applies to Bridging Visas A, B & 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. 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 web site.
See: www.immi.gov.au
The department also operates a national telephone service inquiry line.
Telephone: 131 881
Hours of operation: Monday to Friday from 9am to 4pm (recorded information available outside these hours) for the cost of a local call anywhere in Australia.
Fact Sheet 61. Produced by the National Communications Branch, Department of Immigration and Citizenship, Canberra.
Revised 9 August 2008
© Commonwealth of Australia 2008.