Asylum Seekers and Refugees - Protection Visas
- Seeking Protection in Australia
- The Refugee Convention
- Complementary Protection
- How claims are assessed
- Merit review decisions
- Status while processing
Protection law is the most complex area of immigration law and had given rise to more litigation in the courts than all other areas of immigration laws combined. As specialists in this area we maintain extensive databases of decisions and applicable country information which assists case officers to make the most accurate assessment on the case of our clients.
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.
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
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.
Applications for protection visas are assessed by trained departmental officers.
All claims for protection are assessed confidentiality 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.
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.
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 conducts a new assessment and examines the applicant's claims against the Refugees Convention and the complementary protection criteria, providing an informal, non-adversarial setting to hear evidence.
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.
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.
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.