Refugee And Protection Visas
This visa allows the applicant to live and work in Australia as a permanent resident. The Protection visa may be relevant if the applicant is currently in Australia, engages Australia’s protection obligations, and did not arrive in Australia as an illegal maritime arrival.
This 202 visa (humanitarian visa) is a permanent visa that is for those who are subject to discrimination and human rights abuses in their home country, but are not officially registered with the UNHCR as a refugee.
Protection Refugee Information
The Meaning Of ‘Protection Obligations’
Not all people who seek Australia’s protection, known as ‘asylum seekers’, are found to engage Australia’s protection obligations. You will engage Australia’s protection obligations if you are found to be a refugee or meet complementary protection grounds.
The Meaning Of Refugee
To be a refugee in Australia, an asylum seeker must be assessed as meeting certain legal criteria. The meaning of a ‘refugee’ in the Migration Act 1958 (the Act) is a person in Australia who is:
- Outside their country of nationality or former habitual residence (their home country) and
- Owing to a ‘well-founded fear of persecution’, is unable or unwilling to return to their home country or to seek the protection of that country
This definition is forward-looking. Even if a person has suffered persecution in the past, they are not a refugee by the meaning in the Act unless they have a well-founded fear of persecution and there is a real chance they will be persecuted in their home country now, if they were to return. However, past events could establish a real chance of persecution if the person were to return.
A person might become a refugee after arriving in Australia. This could occur if there is a change of circumstances in their home country or a change in personal circumstances after they left that gives them a well-founded fear of persecution if they were to return.
Well-Founded Fear Of Persecution
The Act states that a person has a well-founded fear of persecution if:
- They fear persecution for at least one of five reasons specified in the Act
- There is a real chance that, if the person returns to their home country, they would be persecuted for one or more of those reasons
- The real chance of persecution relates to all areas of their home country
- At least one of the five reasons must be the essential and significant reason for the persecution
- The persecution involves both ‘serious harm’ to the person and ‘systematic and discriminatory conduct’
The Five Reasons
To have a well-founded fear of persecution, a person must fear serious harm because of their:
- Membership of a particular social group, or
- Political Opinion
A person who leaves their home country for reasons of war, famine or because they are seeking better economic opportunities might not be a refugee according to the definition in the Act. They must have a well-founded fear of persecution for one of the above reasons to be a refugee and must meet other requirements.
Particular Social Group
There are two types of particular social groups described in the Act. One provides criteria to be met if a person claims to have a well-founded fear of persecution because they are a member of a particular social group that consists of their family.
The other type provides that a person will be a member of a particular social group if:
- Each member of the group shares a characteristic
- The person shares, or is perceived as sharing, the characteristic
- Any of the following apply:
- The characteristic is innate or immutable (cannot be changed)
- The characteristic distinguishes the group from the rest of society and
- The characteristic is not a fear of persecution
To have a well-founded fear of persecution, the persecution feared must involve serious harm to the person. Serious harm includes, but is not limited to:
- 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 (ability to survive)
- Denial of access to basic services, where the denial threatens the person’s capacity to subsist (ability to survive)
- Denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist (ability to survive)
Systematic And Discriminatory Conduct
To have a well-founded fear of persecution, the persecution feared must also involve systematic and discriminatory conduct.
- Systematic means the harm is not random or generalised, but is targeted against the person
- Discriminatory means the conduct of the persecutor affects the person or members of a group in a way that singles that person or a group out from the rest of the community
This means that if the serious harm feared by the person is not directed at them or a group to which they belong, for one of the five reasons above, the person does not have a well-founded fear of persecution and will not be a refugee.
Real Chance Of Persecution
For the fear of persecution to be well founded, there must be a ‘real chance’ that the persecution would happen in the reasonably foreseeable future if the person was to return to their home country. Real chance means that the fear of persecution is not remote or far-fetched.
If there is a place in their home country where the person can live without a well-founded fear of persecution, they will not be a refugee. However, they must be able to safely and legally access that place.
Seeking Protection From Authorities In Home Country
If the government or other parties that control all or a large part of the person’s home country is willing and able to offer effective protection to the person, they might not meet the definition of refugee. However, the person must be able to access the protection and the protection must be of a durable nature (provided on an ongoing basis). If the protection is able to be provided by the government, the protection must also include an appropriate criminal law, a reasonably effective police force and an impartial judicial system. If this protection is able to be provided, the person does not have a well- founded fear of persecution and will not be a refugee.
A Right To Enter And Reside In Another Country
If a person has a right to enter and reside in another country in which they do not fear persecution or significant harm, they must take all possible steps to exercise that right. If they do not, they might not be a refugee.