Refugee and Humanitarian Program (HSC SSCE Legal Studies): Revision Notes

Refugee and Humanitarian Program

Overview

Australia's Refugee and Humanitarian Program provides protection to people who face persecution or serious human rights violations in their home countries. The program operates under both international obligations (particularly the UN Refugee Convention) and domestic legislation (the Migration Act 1958 (Cth)). The Department of Immigration and Border Protection (DIBP) administers the program through two main pathways: offshore and onshore components.

Understanding key concepts

What is a refugee?

Under the UN Convention and Protocol Relating to the Status of Refugees (1951, 1968), a refugee is defined as:

The five grounds for persecution can be remembered as RRNSMP:

• Race
• Religion
• Nationality
• Social group membership
• Political opinion

Refugees vs migrants

It is crucial to understand the distinction between refugees and migrants:

Migrants:

• Choose when to leave their country
• Choose where to go
• Choose when to return
• Make voluntary decisions about migration

Refugees:

• Seek asylum (protection granted by a state) for their own safety
• Cannot return to their home country unless circumstances improve
• Are forced to leave due to persecution or danger
• Have no real choice in leaving

What is asylum?

Asylum means protection granted by a state to someone who has fled their home country. Asylum seekers are people who have applied for asylum but are awaiting a decision on their refugee status.

Offshore component

The offshore component applies to people who are outside Australia and also outside their home country. This component comprises two main categories:

Refugee category

This category covers people who:

• Meet the UN Convention definition of refugee
• Need resettlement because they face persecution in their home countries
• Cannot return home safely
• Cannot remain where they currently are

To qualify, applicants must demonstrate a well-founded fear of persecution based on one of the five grounds (race, religion, nationality, social group membership, or political opinion).

Special Humanitarian Program category

This category applies to people who:

• Do not meet the strict criteria for refugee status under the Convention
• Nevertheless face substantial persecution or discrimination in their home country
• Experience treatment that amounts to a gross violation of human rights
• Can demonstrate family or other connections with Australia

Offshore resettlement

The offshore resettlement program was implemented for refugees and humanitarian entrants who applied for a visa from outside Australia while already outside their home country. Several visa types were available under this program:

Refugee visas

These visas are granted to people who:

• Fall under the Refugee Convention definition
• Are in need of resettlement
• Can neither return to their home country nor remain in their current location safely

Refugee visa holders receive permanent residency in Australia and can access settlement services.

Special humanitarian program visas

These visas require:

• Evidence of substantial discrimination in the home country
• Discrimination amounting to a gross violation of human rights
• Support from an Australian citizen, permanent resident, or eligible New Zealand citizen for the application

Temporary offshore humanitarian visas

In September 2001, the Migration Act 1958 (Cth) was amended to create two new types of temporary offshore humanitarian visa. The purpose was to encourage people who had left their home country to remain in the first country where they could gain protection, rather than continuing to move toward Australia.

These visas were only available to people who had spent fewer than seven days in a country where they could have requested and gained asylum.

Secondary movement relocation visa:

• For people who had left a safe first country of asylum but had not yet entered Australia
• Valid for five years
• After four and a half years, holders could apply for a permanent protection visa if they continued to need protection

Secondary movement offshore entry visa:

• For people who entered Australia somewhere outside the migration zone (such as Christmas Island, Ashmore Reef, or the Cocos Islands)
• Valid for three years
• Holders were not entitled to permanent residence
• Could apply for a further temporary protection visa if protection was still needed

Offshore processing

The Pacific Solution (2001–2008)

Between 2001 and 2008, the Howard government implemented a policy known as the "Pacific Solution." Under this policy:

• People who arrived without a visa at an excised offshore place were detained on Christmas Island or transferred to offshore processing centres
• Processing centres were established in Nauru (September 2001) and Manus Island, Papua New Guinea (October 2001)
• The governments of Nauru and Papua New Guinea cooperated with Australia, receiving assistance in return
• Asylum seekers were granted special purpose visas by these countries while awaiting processing
• They were not detained under Australian law or the laws of Nauru or Papua New Guinea
• Claims were assessed by either the UN High Commission for Refugees (UNHCR) or the Australian Government
• Successful applicants were resettled in countries such as Australia, New Zealand, Sweden, Canada, Denmark, and Norway

The Rudd Labor government wound up the Pacific Solution in 2008, and the last remaining asylum seekers on Nauru were relocated to Australia.

Policy debates and changes (2008–2014)

Following the closure of offshore processing centres, asylum seeker policy became highly contentious:

2011: The Gillard Labor government held discussions with Malaysia about processing refugees there, but the "Malaysian solution" was challenged in the High Court and deemed unconstitutional. The proposal did not pass through parliament, creating a policy stalemate.

Late 2012: As boat arrivals increased, the Gillard government and Opposition reached an agreement to reinstate offshore processing in Nauru and Manus Island.

2013–2014: The Abbott Liberal government implemented the controversial "Turn back the boats" policy under Operation Sovereign Borders. This policy involved:

• Turning back boats attempting to reach Australia by sea
• Maintaining offshore processing centres
• Implementing tough border protection measures

While this policy stemmed the flow of unauthorised arrivals, it attracted significant criticism both domestically and internationally regarding human rights concerns.

Onshore component

The onshore component applies to people who are already in Australia, either on temporary visas or without a visa, and who are found to be entitled to protection under the Refugee Convention.

Application process

When a person is already in Australia, they can apply for a protection visa to be recognized as a refugee. The process involves:

1. Application submission: The asylum seeker applies for a protection visa (PV)

2. Assessment criteria: The application is assessed to determine whether the person:

• Satisfies the definition of 'refugee' under the Refugee Convention
• Has a well-founded fear of persecution on grounds covered by the Convention
• Cannot be given effective protection in another country
• Is not excluded from the Convention's operation (e.g., due to security concerns)

3. Information gathering: The decision-maker considers all available information about conditions in the person's country of origin

4. Decision: The DIBP makes a decision to grant or refuse the protection visa

Merits review

If an application is refused, the applicant can seek a merits review of the decision.

Powers of the reviewing tribunal:

• Exercise all powers of the original decision-maker
• Agree with the original decision
• Make changes to the decision
• Send matters back for reconsideration
• Set the decision aside and substitute a new decision

Challenges in proving refugee status

Onshore protection visas

The type of protection visa granted depends on how the person entered Australia. There are two main types:

Permanent Protection Visa (PPV)

Who is eligible:

Permanent Protection Visas are for people who:

• Came to Australia on a valid temporary visa (such as a student or tourist visa)
• Then claimed refugee status while in Australia

Process while application is being assessed:

When someone lodges a PPV application, they receive a bridging visa.

Rights if PPV is granted:

PPV holders have access to:

• Adult Migrant English Program – language classes to help integration
• Age or disability pensions – social security support
• Family tax benefit – financial assistance for families
• Family sponsorship – ability to sponsor family members through the offshore humanitarian program
• Permanent residency – full rights to live and work in Australia indefinitely

Temporary Protection Visa (TPV)

Historical background:

The Temporary Protection Visa has a controversial history in Australian migration policy:

1999: The Howard government introduced a three-year TPV for people who:

• Arrived in Australia without a valid visa (often called "boat arrivals" or "unauthorised maritime arrivals")
• Then claimed refugee status
• Met health and character requirements

2008: The Rudd government abolished TPVs, meaning all border applicants found to meet refugee criteria received a Permanent Protection Visa instead.

December 2014: The Abbott Liberal government reinstated TPVs despite opposition from other political parties.

Features of TPV:

• Valid for three years of temporary residence
• After three years, holders could reapply for another TPV
• In some cases, holders could apply for a PPV
• Limited access to government settlement assistance compared to PPV
• No automatic right to sponsor family members to join them in Australia
• Required special approval to re-enter Australia if they left the country

Remember!