Fact Sheet 65 - New Humanitarian Visa System
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Against the background of high numbers of illegal boat arrivals, the Australian Parliament passed a series of new laws in September 2001 designed to strengthen Australia's territorial integrity and to reduce incentives for people to make hazardous voyages to Australian territories.
The laws are an important step towards the objective of deterring the activities of people smugglers.
The new laws include:
- Migration Amendment (Excision from Migration Zone) Act 2001 - prevents people who arrive at an ‘excised offshore place’ from making a valid visa application and allows for the possible detention and removal from those places of unauthorised arrivals; and
- Migration Amendment (Excision from Migration Zone) (Consequential Provisions Act) 2001 - measures to strengthen deterrence in relation to unauthorised arrivals, including the introduction of a new humanitarian visa system and minimum terms of imprisonment for people smugglers.
Australia's primary obligation under the Refugees Convention is not to refoule a person, either directly or indirectly, to a country where the person has a well-founded fear of persecution for a Convention ground. The legislative changes in no way detract from these obligations.
This fact sheet provides information on the humanitarian visa system introduced under the new legislation.
See also: Fact Sheet 70 Border Control
Excised offshore places
The legislation identifies and defines those parts of Australian territory which have been excluded from the migration zone for the purposes of prohibiting people who arrive at such places from making a valid visa application.
Such places are called ‘excised offshore places’, and include the Ashmore and Cartier Islands, Christmas Island, Cocos (Keeling) Islands, Australian offshore resource and sea installations and other parts of Australia's territory which may be prescribed in the future under the Migration Act 1958 (the Act).
People who unlawfully enter Australia at these places are prevented from making a valid application for any visa for Australia.
The Minister for Immigration and Citizenship has a discretionary and non-compellable power under section 46A of the Act to allow a valid application to be made by a person who arrives on an excised offshore place, if he considers that it is in the public interest to do so.
Offshore entry person
An offshore entry person is a person who arrives on an excised offshore place without authority to enter Australia.
Such persons cannot make a valid visa application while they are in Australia unless the Minister exercises his power under section 46A of the Act to allow an application to be made.
Arrangements are in place to actively explore the circumstances of any unlawful non-citizen on an excised offshore place to provide information to the Minister in relation to possible use of his section 46A power to allow an application to be made.
Declared country
The new legislation also allows for people who arrive on an excised offshore place to be taken to a declared country.
A declared country is a country which the Minister declares in writing under s198A of the Act.
In order for a country to be declared by the Minister, the Minister must be satisfied that the country can:
- provide access for persons seeking asylum, to effective procedures for assessing their needs for protection; and
- provide protection for persons seeking asylum, pending determination of their refugee status; and
- provide protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
- meet relevant human rights standards in providing that protection.
This declaration process ensures that the Minister is satisfied that appropriate arrangements are in place to prevent the expulsion or return of an individual where his/her life or freedom would be threatened (refoulement) of any persons removed from Australia for processing in another country.
The new humanitarian visa system
The new humanitarian visa system is designed to encourage asylum seekers to remain in their country of first asylum, rather than seeking the assistance of people smugglers to abandon or by-pass effective protection opportunities in order to obtain a preferred migration outcome.
The system provides for a hierarchy of benefits depending on where they have made their application and whether a person has moved from a country of first asylum.
This is done in order to create further disincentives to a person who abandons effective protection opportunities in a country of first asylum and travels to another country or seeks unauthorised arrival in Australia by using people smugglers with the aim of gaining a resettlement place they may well not need - a place taken from refugees with no other options available to them.
The new system retains the suite of permanent Refugee and Humanitarian visas, but restricts access to those people who have resided for less than 7 days in a country in which they could have sought and obtained protection.
The system provides for two new temporary Refugee and Humanitarian (Class XB) visa subclasses for those people who have moved on from a country(ies) in which protection could have been obtained:
- Secondary Movement Offshore Entry (Temporary) Subclass 447; and
- Secondary Movement Relocation (Temporary) Subclass 451.
Secondary Movement Offshore Entry (Temporary) Subclass XB447
The subclass 447 visa is a temporary visa available to an offshore entry person who:
- is outside their home country;
- meets standard offshore health and character requirements;
- has entered Australia unlawfully at a place outside Australia's migration zone; and
- is subject to persecution or substantial discrimination in their home country or is a female who is registered as being of concern to UNHCR.
The subclass 447 visa is valid for three years. Holders of this visa will not be entitled to permanent residence.
If there is a continuing protection need, holders of the subclass 447 will be eligible for successive temporary protection visas.
Secondary Movement Relocation (Temporary) Subclass 451
The subclass 451 visa is an offshore temporary visa available to a person who:
- is outside their home country;
- is not an offshore entry person;
- has left their country of first asylum where they had effective protection;
- has not entered Australia; and
- is subject to persecution or substantial discrimination or is a female who is registered as being of concern to UNHCR.
The subclass 451 visa is a five year visa which enables a person to gain access to a permanent protection visa after four and a half years if there is a continuing need for protection.
Entitlements
Holders of a subclass 451 visa or a subclass 447 visa are:
- eligible for Special Benefit, Rent Assistance, Family Tax Benefit, Child Care Benefit, Double Orphan Pension, Maternity Allowance and Maternity Immunisation Allowance. (Any Special Benefit entitlement is stringently means-tested and is reviewed every 13 weeks);
- able to gain access to Medicare benefits;
- eligible for referral to the early health assessment and intervention program;
- eligible for torture and trauma counselling;
- able to work and receive Job Matching from Centrelink.
These arrangements are consistent with Australia's international obligations under refugee-related conventions and protect refugees against refoulement.
They retain Australia's long-standing commitment to the protection of refugees while they are in need of such protection.
For example, unauthorised arrivals and those who leave countries of first asylum where they have effective protection may be granted temporary visas only in the first instance and will have no access to permanent residence.
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 65. Produced by the National Communications Branch, Department of Immigration and Citizenship, Canberra.
Revised 30 January 2007.
© Commonwealth of Australia 2007.