The off-shore resettlement program

Contributed by Philippa Martin and Mary-Anne Kenney and current to 1 September 2005

ELIGIBILITY

People from outside Australia applying for a visa under the off-shore resettlement program must generally be outside their home country. To be successful, they must also be unable to return to their home country because they fear human rights abuses there.

Applicants may be assessed as:

• refugees or of concern (by the United Nations High Commission for Refugees), or

• at risk of persecution or ‘substantial discrimination amounting to a gross violation of human rights’ in their home country (by immigration officers at the overseas post; for example, the embassy or high commission); or

• Immediate family members of persons who have received visas under the refugee and humanitarian program.

WHO IS A REFUGEE?

The United Nations Convention and Protocol Relating to the Status of Refugees defines a refugee for the purposes of international law as:

‘a person who is outside their country of nationality or usual residence, and is unable or unwilling to return because of a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion’.

Women at risk

Women at risk of persecution in both their home country and the country to which they have fled (because, for example, they lack the protection of a traditional male head of household) are also eligible for a visa in this program.

TEMPORARY AND PERMANENT VISAS

People applying from outside Australia may be granted either a temporary or permanent visa. The immigration officer at the overseas post will decide which visa is granted (including whether it is temporary or permanent), depending on:

• the level of harm feared in the person’s home country;

• whether the person has support from the United Nations High Commission for Refugees; and

• whether they could have sought and obtained protection in a country other than Australia.

One application serves as an application for all visas in the off-shore program.

Assessment by the United Nations

In countries that have not signed the Convention and Protocol, people can be assessed as being refugees, or of concern (and therefore in need of protection and resettlement) by the United Nations High Commission for Refugees.

People excluded from refugee status in Australia

Some people cannot obtain refugee status in Australia. People who have committed war crimes, crimes against humanity or serious non-political crimes, for example, are seen not to be deserving of protection.

People with access to protection in another country

People who have access to ‘effective protection’ in a country other than their home country cannot obtain it in Australia.

QUOTAS

There are annual quotas limiting the number of off-shore resettlement visas. Within these, priorities are set for particular regions (such as Africa, Europe, the Middle East) in consultation with the United Nations High Commission for Refugees.

For each applicant the immigration officer assesses whether resettlement in Australia is the most appropriate course, taking into account such factors as:

• the person’s connection, if any, with Australia;

• the degree of mistreatment feared or experienced; and

• their situation in the country to which they have fled.

TYPES OF VISA AVAILABLE

There are a number of visas available in the off-shore resettlement program. Which is appropriate depends on the circumstances of the person concerned.

Temporary visas

SECONDARY MOVEMENT RELOCATION VISAS

Secondary movement relocation visas are granted to people who have left their country of origin and who have been through another country where they resided for more than seven days, and, while in that country, they could have sought and obtained the effective protection of either:

• that country, or

• the United Nations High Commission for Refugees.

These are temporary visas, valid for five years, which allow the holder to travel to and enter Australia. Once in Australia the person may apply for a protection visa (see ‘The onshore protection program’ on page 548) or a limited range of other types of permanent and temporary visas. Protection visas cannot be granted until four and a half years from the date the person was granted the temporary visa.

SECONDARY MOVEMENT OFF-SHORE ENTRY VISAS

Another category of temporary visa is for people who arrive in Australia by boat but cannot make a valid application for a protection visa because they landed at an excised off-shore place (such as Christmas Island or Ashmore Reef). These people are categorised as off-shore entry persons.

A person in this category who is assessed as being at risk of persecution or substantial discrimination in their home country may be granted three year temporary visas to travel to and enter Australia.

People granted these visas can apply for further protection in Australia, but may not be granted permanent protection visas unless the minister considers it to be in the public interest. There is also a limited range of other types of permanent and temporary visas that they may be eligible for.

TEMPORARY SAFE HAVEN VISAS

Australia has a history of offering short-term protection to people from countries experiencing a crisis, such as civil war. Temporary safe haven visas were created largely in response to the numbers of people fleeing Kosovo in early 1999.

Applications for these visas are by invitation only. Currently there are two kinds:

• a visa specifically for Kosovars from the Federal Republic of Yugoslavia;

• a general visa, to be used only in limited circumstances, for people who:

– are outside Australia;

– have been or are likely to be displaced;

and

– are in grave fear for their safety.

People who come to Australia on a temporary safe haven visa are prohibited from applying for any other visa unless the Minister decides that it is in the public interest to allow them to do so.

Permanent visas

People are eligible for permanent visas if they:

• meet all the visa criteria; and

• are not caught by the seven day rule.

REFUGEE AND WOMEN AT RISK VISAS

If the person has registered successfully with the United Nations High Commission for Refugees, they are granted refugee or women at risk visas.

GLOBAL SPECIAL HUMANITARIAN VISAS

The person is granted a global special humanitarian visa if:

• they are assessed by the immigration officer as being at risk of substantial discrimination in their home country; and

• they have been proposed by an Australian citizen, permanent resident or community group.

Other people eligible for global special humanitarian visas are:

• immediate family members of people granted protection visas in Australia; and

• people holding the old special assistance category visas.

These applicants do not have to be outside their country of origin, and do not have to be in any danger there.

IN COUNTRY SPECIAL HUMANITARIAN VISAS

In country special humanitarian visas are permanent visas available for some people who are still in their home country and are in fear of persecution for one of the reasons listed in the United Nations Convention and Protocol Relating to the Status of Refugee.

EMERGENCY RESCUE VISAS

Emergency rescue visas are permanent visas for refugees:

• who are in immediate or life-threatening danger; and

• for whom there are compelling reasons for urgent resettlement in Australia.

Applications may be made from inside or outside the country of origin.

NO RIGHT OF REVIEW

Applicants for humanitarian visas in the off-shore resettlement program have no right of review on the merits of the case if the application is rejected.