Protection Refugee Visa Australia Onshore - Victory Law | Barristers & Solicitors in Melbourne

The Australian Humanitarian Protection Refugee Visa Program is an important part of Australia’s contribution to the international protection of refugees and others in humanitarian need. Australian Migration Regulations prescribe validity requirements and grant criterian for a Subclass 866 permanent PV. The key criterion to be satisfied at time of decision relates to protection obligations. Section 5J(1)(a) of the Australia Migration Act provides an exhaustive list of the five reasons for which a person may claim that a persecutor is motivated to inflict harm upon them. Department must determine whether there is a well-founded fear of persecution in accordance with s5J(1) of the Migration Act. As the s5J(1)(a) reasons are not defined in the Act (with the exception of PSG in s5K and s5L) case law may assist in interpreting these terms. As s5J(1)(a) reflects the reasons outlined in Article 1A(2) of the Refugees Convention, case law relating to the Convention reasons will be applicable in interpreting the s5J(1)(a) reasons.

The Humanitarian Program has two components:

the onshore component offers protection to people in Australia who engage Australia’s obligations under legislative instruments – Non-refoulement obligations.
the offshore component offers resettlement for people outside Australia who are in need of humanitarian assistance.

This page provides guidance for the onshore component of the program only.

If you are already in Australia (onshore)

Your options will depend on whether you:

came through Australia’s border (were immigration cleared) on a valid visa, or
were refused immigration clearance at Australia’s border, or
entered Australia illegally

Came through Australia’s border on a valid visa

If you arrived in Australia with a valid visa and you were allowed to enter our border (immigration cleared) you may seek Australia’s protection through a permanent Protection visa (subclass 866).

Protection visa (subclass 866)

A permanent Protection visa (subclass 866) allows you to live and work in Australia as a permanent resident.

Summary of legislative requirements

1. Applications to be valid

Item 1401 in Schedule 1 to the Regulations and LIN 20/169 prescribe validity requirements for a Subclass 866 permanent PV.

Together:

s46 of the Migration Act
clause 2.07 of the Regulations and
Items 1401, 1403 and 1404 in Schedule 1 to the Regulations

prescribe requirements for PV applications to be valid.

In addition, s46AA(4)(a) provides that an application for a visa is invalid unless the applicant satisfies any criteria in the Act and Regulations for applications for visas of that class. Under s46AA(1), this provision only applies to specified classes of visas, which include:

permanent PVs (as provided for by s35A(2))
TPVs (as provided for by s35A(3))
SHEVs (as provided for by ss35A(3A)-(3B)).

2. Grant Criteria for PV applicants

To be eligible to be granted a PV, an applicant must meet the criteria in s36 of the Migration Act and the time of application and time of decision criteria in Schedule 2 of the Regulations for the subclass for which they have applied.

Under 36(1A) of the Migration Act, applicants must satisfy:

(a) the criteria in both s36(1B) and s36(1C), and

(b) the criteria in at least one of the subsections in s36(2).

For guidance on the criteria in s36(1B) and s36(1C) and the related provisions in the Migration Act, refer to Part 14 – Exclusion, ineligibility, character and security.

Protection obligations – key criterion

The key criterion to be satisfied at time of decision relates to protection obligations. Permanent PV applicants must satisfy either:

clause 866.221(2) – which requires an officer to be satisfied that the applicant meets the criterion in s36(2)(a) of the Migration Act (relating to Australia’s protection obligations under the statutory definition of a refugee) or s36(2)(aa) (relating to Australia’s complementary protection obligations) – for more information about these requirements, refer to Part 12 – Protection Obligations Assessment,

clause 866.221(3) – which requires an officer to be satisfied that the applicant is a member of the same family unit of another applicant who satisfies 866.221(2) and has been granted a Subclass 866 (Protection) visa – for more information about this criterion, refer to Part 7 – Members of the same family unit).

The equivalent provisions for TPV applicants are in clauses 785.221(1) – (3), and the equivalent provisions for SHEV applicants are in clauses 790.221(1) – (3).

The five s5J(1)(a) reasons for persecution

Overview of ‘well-founded fear’ under s5J

In informing the meaning of refugee in s5H of the Act, the phrase well-founded fear of persecution is given meaning in s5J, which describes:

three elements that incorporate what is a well-founded fear of persecution (s5J(1)(a), (b) and (c))
two elements that state when a person does not have a well-founded fear of persecution (s5J(2) and (3))
additional requirements for persecution other than a fear of it (s5J(4) and (5)) and
conduct that is to be disregarded in considering a well-founded fear of persecution (s5J(6)).

Overview of the five s5J(1)(a) reasons

Section 5J(1)(a) of the Act provides an exhaustive list of the five reasons for which a person may claim that a persecutor is motivated to inflict harm upon them. The five reasons are consistent with those in Article 1A(2) of the Refugees Convention. The reasons are:

race
religion
nationality
membership of a particular social group (PSG – family and non-family)
political opinion.
These five reasons will be referred to as s5J(1)(a) reasons.

As the s5J(1)(a) reasons are not defined in the Act (with the exception of PSG in s5K and s5L) case law may assist in interpreting these terms. As s5J(1)(a) reflects the reasons outlined in Article 1A(2) of the Refugees Convention, case law relating to the Convention reasons will be applicable in interpreting the s5J(1)(a) reasons.

In A v Minister for Immigration & Ethnic Affairs,40 McHugh J stated:

When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group. Discrimination – even discrimination amounting to persecution – that is aimed at a person as an individual and not for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on that person happens to be. The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return.

An applicant may not always express the harm feared as falling directly under one or more of the s5J(1)(a) reasons. Decision makers must consider the claims made by the applicant and determine if any of the s5J(1)(a) reasons are applicable. For example, an applicant may state that they fear harm on the basis that they exposed corruption of government officials. They may not align this statement to any of the s5J(1)(a) reasons in their application or their Protection visa interview. In such situations, decision makers should consider whether this claim falls under the ambit of any the s5J(1)(a) reasons. Usually, such a claim may fall within the s5J(1)(a) reasons of political opinion and/or membership of a PSG (non-family). Further guidance on the five s5J(1)(a) reasons is contained below in this chapter.

General principles in considering the s5J(1)(a) reasons are:

one or more s5J(1)(a) reasons may arise in the same application
a s5J(1)(a) reason may be imputed rather than actual
reasons for inflicting harm may change over time
fear of prosecution should be distinguished from fear of persecution

Well-founded fear – s5J

Department must determine whether there is a well-founded fear of persecution in accordance with s5J(1) of the Migration Act. The three elements of a ‘well-founded fear of persecution’ under s5J(1) are:

a subjective element – whether the applicant fears being persecuted for at least one of five specified
reasons, that is, their race, religion, nationality, membership of a particular social group or political opinion
an objective element – whether there is a ‘real chance’ of persecution
an internal protection/relocation element – which provides that the real chance of persecution must relate to all areas of a receiving country.

Meaning of persecution – s5J(4)

Under s5J(4)(a) of the Migration Act, one or more of the grounds listed in s5J(1)(a) must be the essential and significant reason for the persecution; that persecution must also involve serious harm to the person, and involve systematic and discriminatory conduct.

In determining whether there is a well-founded fear of persecution, an officer must establish whether, as

required by s5J(4)(b) of the Migration Act, the persecution feared involves serious harm. A non-exhaustive

list of what may constitute serious harm is in s5J(5) and includes:

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
denial of access to basic services, if the denial threatens the person’s capacity to subsist
denial of capacity to earn a livelihood of any kind, if the denial threatens the person’s capacity to subsist.

Department should make reference to which types of serious harm the applicant fears and to whether they are supported by relevant country information in the decision record.

Department must also determine whether, as required by s5J(4)(C), the persecution involves systematic and discriminatory conduct. ‘Systematic and discriminatory conduct’ refers to selective harassment rather than, for example, random acts of violence.

Legislation

Section 5H Meaning of refugee

(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a) in a case where the person has a nationality — is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b) in a case where the person does not have a nationality — is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note: For the meaning of well-founded fear of persecution, see section 5J.

(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:

(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(b) the person committed a serious non-political crime before entering Australia; or

Section 5J Meaning of well-founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

Note: For membership of a particular social group, see sections 5K and 5L.

(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b) conceal an innate or immutable characteristic of the person; or

(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii) conceal his or her true race, ethnicity, nationality or country of origin;

(iii) alter his or her political beliefs or conceal his or her true political beliefs;

(iv) conceal a physical, psychological or intellectual disability;

(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b) the persecution must involve serious harm to the person; and

(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to the person’s life or liberty;

(b) significant physical harassment of the person;

(d) significant economic hardship that threatens the person’s capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(5) In determining whether the person has a well -founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

Section 5K Membership of a particular social group consisting of a family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b) disregard any fear of persecution, or any persecution, that:

(i) the first person has ever experienced; or

(ii) any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

Section 5L Membership of a particular social group other than a family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a) a characteristic is shared by each member of the group; and

(b) the person shares, or is perceived as sharing, the characteristic; and

(i) the characteristic is an innate or immutable characteristic;

(ii) the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii) the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

Section 5LA Effective protection measures

Section 5B When personal identifier taken not to have been provided

A person is taken, for the purposes of section 257A not to have provided a personal identifier if:

(a) the personal identifier that is provided is unusable; or

(b) the Minister, an authorised officer or an officer is not satisfied:

(i) about the integrity or quality of the personal identifier that is provided; or

(ii) about the procedure followed to obtain the personal identifier.

Section 5C Meaning of character concern

(1) For the purposes of this Act, a non-citizen is of character concern if:

(a) the non-citizen has a substantial criminal record (as defined by subsection (2)); or

(b) the non-citizen has been convicted of an offence that was committed:

(i) while the non-citizen was in immigration detention; or

(ii) during an escape by the non-citizen from immigration detention; or

(iii) after the non-citizen escaped from immigration detention but before the non-citizen was taken into immigration detention again; or

(ba) the non-citizen has been convicted of an offence against section 197A; or

(bb) the Minister reasonably suspects:

(i) that the non-citizen has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

(ii) that the group, organisation or person has been or is involved in criminal conduct; or

(bc) the Minister reasonably suspects that the non-citizen has been or is involved in conduct constituting one or more of the following:

(i) an offence under one or more of sections 233A to 234A (people smuggling);

(ii) an offence of trafficking in persons;

(iii) the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;

whether or not the non-citizen, or another person, has been convicted of an offence constituted by the conduct; or

(i) the non-citizen’s past and present criminal conduct;

(ii) the non-citizen’s past and present general conduct;

the non-citizen is not of good character; or

(d) in the event that the non-citizen were allowed enter or remain in Australia, there is a risk that the non-citizen would:

(i) engage in criminal conduct in Australia; or

(ii) harass, molest, intimidate or stalk another person in Australia; or

(iii) vilify a segment of the Australian community; or

(iv) incite discord in the Australian community or in a segment of that community; or

(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or

(e) a court in Australia or a foreign country has:

(i) convicted the non-citizen of one or more sexually based offences involving a child; or

(ii) found the non-citizen guilty of such an offence, or found a charge against the non-citizen proved for such an offence, even if the non-citizen was discharged without a conviction; or

(f) the non-citizen has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

(i) the crime of genocide;

(ii) a crime against humanity;

(iii) a war crime;

(iv) a crime involving torture or slavery;

(v) a crime that is otherwise of serious international concern; or

(g) the non-citizen has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

(h) an Interpol notice in relation to the non-citizen, from which it is reasonable to infer that the non-citizen would present a risk to the Australian community or a segment of that community, is in force.

(2) For the purposes of subsection (1), a non-citizen has a substantial criminal record if:

(a) the non-citizen has been sentenced to death; or

(b) the non-citizen has been sentenced to imprisonment for life; or

(d) the non-citizen has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

(e) the non-citizen has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

(f) the non-citizen has:

(i) been found by a court to not be fit to plead, in relation to an offence; and

(ii) the court has nonetheless found that on the evidence available the non-citizen committed the offence; and

(iii) as a result, the non-citizen has been detained in a facility or institution.

Section 5CA Child of a person

(1) Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:

(a) someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);

(b) someone who is an adopted child of the person within the meaning of this Act.

(2) The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.

(3) Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.

Section 5CB De facto partner

De facto partners

(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

De facto relationship

(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

(a) they have a mutual commitment to a shared life to the exclusion of all others; and

(b) the relationship between them is genuine and continuing; and

(i) live together; or

(ii) do not live separately and apart on a permanent basis; and

(d) they are not related by family (see subsection (4)).

(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

Definition

(4) For the purposes of paragraph (2)(d), 2 persons are related by family if:

(a) one is the child (including an adopted child) of the other; or

(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or

For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

Section 5D Limiting the types of identification tests that authorised Department may carry out

(1) The Minister, Secretary or the Australian Border Force Commissioner may, in an instrument authorising an officer as an authorised officer for the purposes of carrying out identification tests under this Act, specify the types of identification test that the authorised officer may carry out.

(2) Such an authorised officer is not an authorised officer in relation to carrying out an identification test that is not of a type so specified.

Section 5E Meaning of purported privative clause decision

(1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:

(a) a failure to exercise jurisdiction; or

(b) an excess of jurisdiction;

in the making of the decision.

(2) In this section, decision includes anything listed in subsection 474(3).

Section 5F Spouse

(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

(2) For the purposes of subsection (1), persons are in a married relationship if:

(a) they are married to each other under a marriage that is valid for the purposes of this Act; and

(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

(d) they:

(i) live together; or

(ii) do not live separately and apart on a permanent basis.

Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.

Section 5G Relationships and family members

(1) For the purposes of this Act, if one person is the child of another person because of the definition of child in section 5CA, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.

(2) For the purposes of this Act, the members of a person’s family and relatives of a person are taken to include the following:

(a) a de facto partner of the person;

(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 5CA;

(c) anyone else who would be a member of the person’s family or a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family or a relative of the person.

This does not limit who is a member of a person’s family or relative of a person.

Section 5H Meaning of refugee

(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

Note: For the meaning of well-founded fear of persecution, see section 5J.

(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:

(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(b) the person committed a serious non-political crime before entering Australia; or

Section 5J Meaning of well-founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

Note: For membership of a particular social group, see sections 5K and 5L.

(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would: