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Fact Sheet 61 - Seeking Protection 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)
  • are owed protection under other international human rights treaties and conventions which give rise to complementary protection obligations.

The majority of people in need of protection in Australia are resettled from other countries through Australia's offshore humanitarian resettlement programme.
See: Fact Sheet 60Australia's Refugee and Humanitarian Programme

However, people already in Australia make applications for protection each year.

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 may be granted a permanent protection visa, provided they meet health and character requirements.

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 legal 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 people at risk of persecution have a right to choose their preferred country of protection.

Complementary protection

From 24 March 2012, complementary protection claims have been considered as part of the protection visa assessment process. Complementary protection is the term used to describe a category of protection for people who are not refugees but cannot be returned to their home country, in line with Australia’s international obligations, because there is a real risk that the person will suffer certain types of harm.
See: Fact Sheet 61aComplementary Protection

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 the complementary protection criteria, 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. Most 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 adversely on the outcome of their assessment. Where needed, the department arranges qualified interpreters for any interviews.

People who are found to be owed protection are eligible for the grant of a protection visa in Australia, provided they satisfy health, character and security checks.

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 examines the applicant's claims against the Refugees Convention and the complementary protection criteria, providing an informal, non-adversarial setting to hear evidence.

Reviews by the RRT 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 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 62Assistance for asylum seekers in Australia
  • help in preparing and lodging protection visa applications through the Immigration Advice and Application Assistance Scheme
    See: Fact Sheet 63Immigration advice and application assistance scheme

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: Bridging Visas

Fact Sheet 61. Produced by the National Communications Branch, Department of Immigration and Border Protection, Canberra.
Last reviewed January 2014.

Last reviewed Monday 20 January 2014

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