Contact us on this issue. All requests regarding obtaining a refugee status in Australia are considered in the order of highest priority.
IMPORTANT! From 12th of March 2014, all requests regarding obtaining a refugee status, assessment of individual circumstances and assistance with the confirmation of a refugee status in relation to individuals and their family members are carried out only within the Detailed Migration Consultation in accordance with the requirements of Australia's immigration laws. Within the consultation we will review your circumstances and provide guidance of what is possible and necessary to do in your specific situation in order to prove your status to delegate of the Department of Home Affairs (DHA) and therefore to facilitate a pathway to permanent residence.
Pursuant to the United Nations Convention relating to the Status of Refugees 1951 (‘Refugee Convention’), as amended by the 1967 Protocol (‘the Protocol’ ), Australia offers different types of protection to non-citizens within Australia who can prove that they are a refugee.
Generally, Australia has an obligation to provide protection to refugees within its territory, and not to return those people to a place where their lives / freedoms would be threatened on the basis of their race, religion, nationality, membership of a particular social group, or political opinion.
Australia also offers ‘Complementary Protection’ to non-citizens within Australia who do not meet the definition of refugee, but can demonstrate that they will suffer ‘significant harm’ if they are removed from Australia.
What is a refugee?
Refugee — is a person “owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his or her habitual residence, is unable, or, owing to such fear, is unwilling to return to it.”(Article 1A(2) of the Refugee Convention)
Therefore, in order to obtain a refugee status, you must prove that you have a well founded fear of being persecuted and the persecution feared is because of your:
- race, religion, nationality, membership of a particular social group or political opinion; and
- you are:
- outside your country of nationality and unable or unwilling (due to the fear of persecution), to avail yourself of the protection of that country; or
- without a nationality and outside your country of former habitual residence and unable or
- unwilling (due to their fear of persecution), to return to that country.
IMPRANT! On 29th June 2015 the Australian Government has made a number of changes to Australia’s processes for assessing asylum claims, including shifting the burden of proof on to asylum seekers, removing the references to the Refugee Convention from Australia’s migration legislation, removing the reasonableness test from consideration of relocation options for people facing persecution, requiring the Administrative Appeals Tribunal to draw unfavourable inferences about the credibility of refugee claims in some circumstances and creating new grounds to deny Protection visas to people who provide false identity documents.
Thus, well founded fear of persecution due to race, religion, nationality, membership of a particular social group or political opinion is the basis of the new definition of a ‘refuge’.
One of the stated bases for persecution must be essential and the significant reason for persecution
The applicant cannot return to any part of their home country for fear of this persecution
The persecution involves both ‘serious harm’ to the person and ‘systematic and discriminatory’ conduct
The definition uses the context of what is occurring ‘today’ in the home country to assess the risk to applicants or membership of particular social group:
Can be members of the same family – a member of the family unit is exposed to the persecution
Each member of the particular social group share the characteristics and it is intrinsic and so fundamental to their identity, that it cannot or should not be forced to be changed.
Distinguishes the group from the rest of society
Cannot be a fear of persecution alone.
‘Serious harm’ is defined as:
- Threat to life or liberty;
- Significant physical harassment or ill-treatment of the person;
- Significant economic hardship that threatens ability to subsist;
- Denial of access to basic services that threatens ability to subsist;
- Denial of capacity to earn a livelihood of any kin and threatens capacity to subsist.
The ‘complementary protection’ definition of a ‘significant harm’ includes:
- Arbitrary denial of life;
- Death penalty to be carried out;
- Cruel or inhumane treatment or punishment;
- Degrading treatment or punishment.
What is ‘Complementary Protection’?
‘Complementary Protection’ is an additional form of protection which was introduced into Australian legislation to reflect Australia’s obligations under various international treaties:
The 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
The 1966 Covenant on Civil and Political Rights;
The 1989 Convention on the Rights of the Child;
The new ‘Complementary Protection’ legislation applies to all new protection visa applications made on or after the 24 March 2012 (and to all applications which had not been finally determined by that date).
Complementary Protection may be granted to:
‘[A] non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.’ Section 36(2)(aa) of the Migration Act 1958 (Cth)
‘Significant harm’ is defined as one of five things:
1. Arbitrary deprivation of life;
2. That the death penalty will be carried out;
4. Cruel and inhuman treatment or punishment; and/or
5. Degrading treatment or punishment.
There is no real risk of significant harm if:
- it would be reasonable for the applicant to relocate to another area of the country or;
- the applicant could obtain protection from an authority of the country or;
- the risk is one faced by the population generally and not the applicant personally.
What is First asylum country?
Due to the existing opportunities and circumstances, a person seeking refugee status can escape from a country of a usual residence in various ways: by crossing the physical border with neighboring country, taking refuge in the embassy of a foreign country on the territory of the country of a usual residence or by asking for protection from the country in which this person arrived as a visitor, student, etc. However, this does not provide grounds for asylum. Often countries refuse to accept a person on a long or permanent term, questioning the “criticality” of the person’s situation and person’s refugee status in general. After arriving somehow in the country of the first asylum, a person seeking refugee status may not always be granted asylum in this country due to the various factors:
- Domestic laws of this country recognize the right to seek asylum but does not oblige country to provide it;
- Economic, demographic, financial capabilities of this country;
- Civil conflicts, wars, and genocide taking place in this country;
- Ability to host large refugee populations, as a result of the mass flight to this country.
In such cases, refugee status determinations and resettlement are carried out by field offices of the United Nations High Commissioner for Refugees (UNHCR) who provide essential support in the countries of first asylum. Many refugees cannot return to their home country because of continued conflict, wars and persecution. Many also live in perilous situations or have specific needs that cannot be addressed in the country where they have sought protection. In such circumstances, UNHCR helps resettle refugees to a third country participating in the resettlement programme according to the United Nations Convention relating to the Status of Refugees 1951 (‘Refugee Convention’ ) according to the quotas allocated by these countries. Australia as one of the 144 resettlement countries takes part in UNHCR’s resettlement programme, providing a sizeable number of places annually. United Nations Convention relating to the Status of Refugees 1951 (‘Refugee Convention’ ) does not define how countries are to determine whether an individual meets the definition of a refugee. Instead, the establishment of asylum proceedings and refugee status determinations are left to each country to develop. That is why despite the fact that Australia has an obligation to provide protection to refugees within its territory, the Australian Government removed the references to the Refugee Convention from Australia’s migration legislation, thus making decisions based upon the specifics of its region and domestic legislation. Resettlement Countries provide the refugee with legal and physical protection, including access to civil, political, economic, social and cultural rights similar to those enjoyed by nationals. If the United Nations High Commissioner for Refugees (UNHCR) approves a person seeking refugee status as a First asylum country refugee, then this person will be indicated the resettlement country of further residence. It can be any of the 144 countries participating in the “Refugee Convention” – not necessarily Australia. This person will be obliged to agree with the UNHCR decision and will be relocated to this country. In case of objections from a person with a First asylum country refugee status regarding resettlement in the country designated as a permanent residence (asylum), the refugee status is cancelled with subsequent deportation to the country of the person’s initial stay.
What are the relevant refugee and humanitarian visa subclasses?
The Australian Humanitarian Programme consists of two components and has two important functions:
- The onshore component of the Refugee and Humanitarian component fulfils Australia’s international obligations by offering protection to people already in Australia and who wish to apply for protection (or asylum).
- The offshore resettlement component expresses Australia’s commitment to refugee protection by going beyond these obligations and offering resettlement to people overseas for whom this is the most appropriate option.
This page provides a summary information on 1st of February 2018. Australian immigration law is complex and it changes on a regular basis. If you have any additional questions or require further clarification, please, do not hesitate and contact me regarding this matter and, if appropriate, to arrange a mutually convenient time for an appointment.
Viktor Ovcharenko MARN 0964258