When asylum seekers and refugees come to Australia the Government has obligations under various international human rights treaties to ensure that human rights are respected and protected.
According to Australian law a refugee is a person who has a real chance of being seriously harmed in their country of nationality because of their ethnicity, religion, political opinion, nationality or membership of a particular social group.
Australia and Refugees in recent history
Since the end of the 2nd World War, Australia has accepted more than 760,000 people in humanitarian need. Large groups of people seeking humanitarian assistance arrived from Europe in the late 1940s and 1950s, however Australia did not have a comprehensive policy relating to the status of refugee people until 1977 when many people were arriving from the Indo-China region. It has been acknowledged, that refugees have contributed in positive ways both economically and culturally when they’ve been allowed to live and work in Australia. On the other hand, Australia has resisted the influx of such immigrants in recent times for various reasons.
With the notable influx of refugees from the Middle East and North Africa, Europe has recently faced a major immigration crisis. Many of these persons are considering other safe havens, such as Australia. Germany alone reportedly accepted more than 800,000 refugees last year whereas Australia has granted only 6501 refugee visas in each of the past two years. Therefore it is no surprise that Australia is and will be under increasing pressure both from within and outside the country to “do its bit” by accepting more legitimate asylum seekers from all troubled parts of the world.
Australia’s obligations under the Refugee Convention
Australia is a signatory to the United Nations 1951 Convention relating to the Status of Refugees (The Refugee Convention) and to the subsequent 1967 Protocol. As such Australia is legally obliged to develop law and according to The Refugee Convention. Australia is also subject to various other International Conventions which can affect Refugees, such as the International Covenant on Civil and Political Rights , the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child.
The Migration Act 1958 (Cth) forms the legislative basis for all forms of migration and visa applications in Australia, including humanitarian assistance.
Article 1A(2) of the Refugee Convention defines a refugee as a person who, owing to 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 former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
What needs to be established to obtain a Protection Visa?
To be granted a Protection visa (subclass 866) an asylum seeker will need to be found to engage Australia’s protection obligations because they either:
- are a refugee as defined by the Migration Act 1958 (Cth); or
- meet the complementary protection criteria in the Migration Act 1958 (Cth).
Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the protection of their governments, are unwilling to return to the countries of their nationality.
Types of Protection Visas in Australia
Australia has three types of protection visas available for people onshore who want to apply for protection.
- If the person arrived legally: The Protection visa (subclass 866) is a permanent visa. This visa allows the applicant to live and work in Australia as a permanent resident and to have access to Medicare and Centrelink services.
- If the person arrived illegally: A Temporary Protection visa (TPV) is a temporary type of protection visa that is valid for up to three years.
- In addition a Safe Haven Enterprise visa (SHEV) is a temporary type of protection visa that is valid for five years. It encourages people to work and study in regional Australia.
The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) removed access to the Refugee Division of the Administrative Appeals Tribunal for boat arrivals and only temporary visas (either a TPV or a SHEV would be possible for those asylum seekers coming by boat, regardless of date of arrival.
The Migration (Protection and Other Measures) Act 2015 provides that unfavourable inference is to be drawn where new claims or evidence introduced at the review stage. The Act also provides that burden of proof in relation to establishing protection obligations rests with the asylum seeker.
Need to show real chance of “serious harm”
In order to be recognised as a refugee under Australian law, the applicant must demonstrate that there is a real chance that they will be seriously harmed in their country of origin because of their:
- political opinion; and/or
- membership of a particular social group.
In order to be recognised as a person owed complementary protection by Australia, the applicant must prove that as a necessary and foreseeable consequence of their removal to their country of origin, they would face a real risk of one or more of the following forms of “serious harm”:
- arbitrary deprivation of life;
- the death penalty;
- cruel or inhuman treatment or punishment; and/or
- degrading treatment or punishment.
A non-exhaustive list of instances of “serious harm’ is provided in s 91R(2) of the Migration Act 1958 (Cth), including:
- a threat to the person’s life or liberty;
- significant physical harassment of the person;
- significant physical ill-treatment of the person;
- significant economic hardship that threatens the person’s capacity to subsist; and
- denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
As an illustration, in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1. Ms Khawar fled Pakistan to Australia with her three daughters, after years of abuse from her husband and his family. She claimed asylum on the basis that the Pakistani authorities and police had failed to provide her protection and that failure was sanctioned by the state. It was argued her well-founded fear of persecution was based on the lack of state protection for reasons of her membership of a particular social group, “women in Pakistan”.
The definition of a refugee says that the risk of harm must exist in all parts of the person’s country, not just their home area or areas where they lived before coming to Australia. If there is another part of their country that they could safely move to where they would not be harmed, then the applicant may not be able to meet the definition of refugee.
The applicant needs to also show that the persecution they fear is unavoidable. If the person could take reasonable steps to modify their behaviour to avoid persecution, then they may not be eligible for protection.
If the person fears harm in their country because of things that they have done in Australia, the person needs to show they did those things not simply for the purpose of strengthening their claim to be a refugee.
The person’s fear of harm needs to be substantiated by evidence. In most cases, news or research reports are used to support or refute the claims of the applicant.
Judicial Review of Refugee Decisions
A Decision of the Department of Immigration and Border Protection or the Immigration Assessment Authority may be appealed to the Refugee division of the Administrative Appeals Tribunal (Tribunal). A decision of the Tribunal may be further appealed in the Federal Court or Federal Circuit Court on the basis of jurisdictional error, rather than simply on merit grounds.
Some examples of jurisdictional error include:
- Identifying a wrong issue;
- Asking a wrong question;
- Ignoring relevant material; and
- Relying on irrelevant material,
- Incorrect interpretation or application of the facts in regard to the applicable law.
In addition, the appellant may in some circumstances raise an appeal due to a lack of procedural fairness, sometimes referred to as Natural Justice.
The fundamental rules comprising the various limbs of the procedural fairness doctrine are:
- Rule against bias. This rule provides that the decision maker must be impartial, fair minded and informed. The courts have adopted a test to determine the question of bias – that of the “fair minded and informed observer”, which has been universally adopted.
- The hearing rule – the decision maker is obliged to afford the applicant a fair hearing. The more significant the decision is in terms of its effect on the person’s interests, the greater the care the decision maker should take to provide that person with an opportunity to be heard.
In Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh  HCA 20 the High Court found procedural fairness will be breached where a person has a “legitimate expectation” that a decision maker will fully consider the person’s circumstances, but fails to do so to the person’s detriment. Mr Teoh, a Malaysian citizen, was granted a temporary entry permit to Australia. He married Jean Lim, an Australian citizen who was the de facto spouse of his deceased brother. Mrs Teoh had four children. Subsequently, Mr and Mrs Teoh had three children together. Prior to the expiry of the permit, Teoh applied for a grant of resident status. Meanwhile Teoh was convicted on charges of heroin importation and possession and was notified his application for resident status had been refused on the ground that he could not meet the good character requirement as he had a criminal record pursuant to the Migration Act. Teoh applied for a review of the decision, providing evidence that he was the only person who could properly support the large family. The Immigration Review Panel and the Minister rejected the review and an order was made that Teoh be deported. Teoh sought a review of the decision and on appeal the Federal Court found that the decision-maker’s power had been improperly exercised because it had failed to make appropriate investigations into the hardship to Teoh’s wife and her children if Teoh was to be refused resident status. The court ordered a stay of the deportation. The Immigration Minister appealed against the decision to the High Court of Australia, where the majority agreed with the Federal Court decision that there had been a breach of natural justice, as the Immigration department had failed to invite Teoh to make a submission on whether a deportation order should be made, contrary to the Convention on the Rights of the Child, which provides that in any administrative decision concerning a child, the child’s best interests must be a primary consideration.
Discretion of the Minister of Immigration
Apart from judicial review, an applicant for a Protection visa may appeal to the Minister of Immigration and Border Protection. Section 417 of the Migration Act 1958 (Cth) gives the Minister the power to grant a visa to a person who was refused by the Tribunal if the Minister thinks it is in the “public interest” to grant them a visa.
Section 417(1) of the Migration Act 1958 (Cth) provides that “the Minister may substitute for a decision of the Tribunal (under s415) another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision”.
Under Section 48B, the Minister can allow the applicant to make another Protection visa application if there is significant new information about the person’s case which was not available at the time of first application and this new information demonstrates that the person may now be a person to whom Australia owes protection obligations.
It should be noted that the Minister has no obligation to intervene and only intervenes in a small number of cases each year. Before making a request to the Minister under s417, the applicant should consider all other available options.
Immigration Lawyers Sydney at Pavuk Legal can assist you with various kinds of immigration applications, court review of application and seek ministerial discretion on your behalf.
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