Australian Protection Visa subclass 866: The Refugee Convention, Complementary Protection, and some recent changes

People who apply to the Department of Immigration and Border Protection (DIBP) in Australia for protection from harm in their home country are known as “asylum seekers”.

People who have been granted a Protection Visa (Subclass 866 visa) in Australia, or an offshore Refugee visa, will most often be known as “Refugees”, because they have been assessed against the United Nations Refugee Convention (which is an international law document) as it is applied under Australian local law, and been found to fit the criteria needed for recognition as a refugee.

However, some other people who have been granted Protection Visas in Australia under Australia’s “Complementary Protection Provisions” (which have been operating since 24 March 2012) are given protection from harm in different circumstances and are not known as “Refugees”.

Whilst this difference may be a little confusing, and the things that need to be proved to achieve protection under the Complementary Protection rules are a little different, the effect of a successful application is the same: If you have been granted a Protection Visa (with some exceptions, relating mainly to people who arrived in Australia by boat), you will become an Australian Permanent Resident. You will usually be able to sponsor certain family members to Australia if they are not already here, and you will be able to access many benefits of life in Australia, including of course the right to live in a country which is economically and politically stable and largely tolerant of racial, religious and cultural differences.

For a time, following litigation in 2013, it was possible for people who had already applied for and been refused a Protection Visa, to make a new application and have another opportunity to have the case assessed. For example, people whose cases had been previously considered under only “Refugee Convention” guidelines, could reapply, to have the case reconsidered under “Complementary Protection” guidelines. Other situations also allowed for a renewed application. However, since 28 May 2014, Australian law has overruled the possibility to reapply for a Protection Visa, if a person has previously applied for such a visa in Australia, unless the Minister for Immigration personally allows this. Sometimes people in this situation may have some other options open to them that they have not yet considered; other times, they will be unable to remain in Australia.

Australia’s Migration Act operates to provide the criteria that must be satisfied for a person to be grated a Protection visa:

MIGRATION ACT 1958 – SECT 36

Protection visas–criteria provided for by this Act

          (1A)  An applicant for a protection visa must satisfy:

                     (a)  both of the criteria in subsections (1B) and (1C); and

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

          (1B)  A criterion for a protection visa is that the applicant is not 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 ).

          (1C)  A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

                     (a)  is a danger to Australia’s security; or

                     (b)  having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note:          For paragraph (b), see section 5M.

             (2)  A criterion for a protection visa is that the applicant for the visa is:

                     (a)  a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; [Refugee Convention grounds] or

                    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied 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; [Complementary Protectio grounds]or

                     (b)  a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

                              (i)  is mentioned in paragraph (a); and

                             (ii)  holds a protection visa of the same class as that applied for by the applicant; or

                     (c)  a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

                              (i)  is mentioned in paragraph (aa); and

                             (ii)  holds a protection visa of the same class as that applied for by the applicant.

          (2A)  A non-citizen will suffer significant harm if:

                     (a)  the non-citizen will be arbitrarily deprived of his or her life; or

                     (b)  the death penalty will be carried out on the non-citizen; or

                     (c)  the non-citizen will be subjected to torture; or

                     (d)  the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

                     (e)  the non-citizen will be subjected to degrading treatment or punishment.

          (2B)  However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

                     (a)  it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

                     (b)  the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

                     (c)  the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

Ineligibility for grant of a protection visa

          (2C)  A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

                     (a)  the Minister has serious reasons for considering that:

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

                             (ii)  the non-citizen committed a serious non-political crime before entering Australia; or

                            (iii)  the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or

                     (b)  the Minister considers, on reasonable grounds, that:

                              (i)  the non-citizen is a danger to Australia’s security; or

                             (ii)  the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

Protection obligations

             (3)  Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

             (4)  However, subsection (3) does not apply in relation to a country in respect of which:

                     (a)  the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

                     (b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

             (5)  Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

                     (a)  the country will return the non-citizen to another country; and

                     (b)  the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

          (5A)  Also, subsection (3) does not apply in relation to a country if:

                     (a)  the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

                     (b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

Determining nationality

             (6)  For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

             (7)  Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

If you are a Protection Visa applicant and your case is currently before the DIBP or the Administrative Appeals Tribunal (AAT) it’s usually a good idea to get some professional advice from a representative who is experienced in Protection Visa applications as soon as possible, if you have not already done so. Protection visa applications can be quite complicated. Ask your chosen representative if they have experience in Protection Visas. If so, they should be able to help you maximise your chances of a successful application.

Michele Clayton MARN 0957773

Legal Practitioner NSW 55486

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