The on-shore protection program

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

ELIGIBILITY

People can be granted protection visas if:

• they are already in Australia; and

• they are assessed as being owed protection obligations.

This involves an assessment of:

• whether they have a right of residence in a country other than their home country;and

• whether they are refugees according to the United Nations definition.

Whether protection visas are permanent or temporary depends on how the applicant arrived in Australia.

THE SEVEN DAY RULE

Temporary protection visa holders who did not lodge their application for a further protection visa before 27 September 2001 are affected by the seven day rule. If, on their way to Australia, they spent more than seven days in a country where they could have sought and obtained the effective protection of that country, or of the United Nations High Commission for Refugees, they cannot be granted permanent protection visas in Australia unless the Minister waives this prohibition on the ground that it is in the public interest to do so.

Temporary protection visa holders who lodged their application for a further protection visa before 27 September 2001 can obtain a permanent protection visa regardless of whether they meet the seven day rule, as long as they meet the other criteria for the grant of the visa; for example, they are still owed protection obligations.

APPLICATION

Protection visa applications are assessed by the Department of Immigration and Multicultural and Indigenous Affairs’ on-shore protection section.

Many applicants are not interviewed, so a written statement explaining why the person fears returning home, including a detailed description of their experiences before they left, is crucial. If they have lived in, or have the right to return to, a country other than their home country, they should state why they cannot go there to live.

Refugee applicants may be lawful or unlawful non-citizens (see ‘Unlawful non-citizens’ in IMMIGRATION ).

PERIOD OF STAY AND CHANGE OF STATUS

An application for a protection visa can be made at any time while a person is in Australia. Some applicants arrive with valid visas, such as visitor or student visas, and then apply for a protection visa. Others wait until their substantive visa expires, or even until they are detained, before applying. If they are successful, these applicants are granted permanent protection visas. People in this situation are usually granted a bridging visa while their application is being assessed.

Some protection visa applicants arrive by boat or plane with no documents at all; others arrive with false passports. People who arrive like this are generally put in immigration detention, where they must stay until a final decision is made on their protection visa application. If successful, they are granted temporary protection visas. Temporary protection visas generally last for three years from the date of grant. If the holder wishes to remain in Australia after that period they must apply for a further protection visa.

APPEALS

The Refugee Review Tribunal (RRT) is an independent body that handles appeals against the refusal or cancellation of protection visas by the Department of Immigration and Multicultural and Indigenous Affairs. The Tribunal will make a fresh assessment of whether the applicant is owed ‘protection obligations’, as interpreted under Australian law. If the Tribunal is considering rejecting the application, it must give the applicant an opportunity to comment on information that might lead it to do so. This usually occurs at the same time as a hearing, but it may be done in writing. Unlike the Migration Review Tribunal, these hearings are not in public, for reasons of confidentiality.

The time limits for lodging an application for review are set out in the Migration Act 1958 (s.412 & reg. 4.31). Appeals must be lodged within 28 days of receiving notification of rejection from the Department (or within seven working days if the person is in immigration detention).

Applications filed from Perth must be made by mailing or faxing the application to the RRT in Melbourne. The RRT is located at: Level 12, 460 Lonsdale Street, Melbourne VIC 3000, Ph: (03) 8600 5900, Fax: (03) 8600 5901. Its postal address is: PO Box 14422, Melbourne VIC 8001.

MINISTER’S RIGHT TO OVERRULE DECISIONS

Even after the RRT delivers its decision, the Minister retains the right to substitute a “more favourable decision” if he or she believes it is in the public interest, and is not bound by the Migration Regulations when doing so. This power is not compellable and the Minister must publish the reasons for intervening in the case with Parliament. Despite these seemingly high hurdles to the exercise of such power, it has been used rather frequently by the Minister, particularly as it has taken the place of the traditional “compassionate/ humanitarian” entry category that existed prior to 1989 but for which no specific visa now exists under the codified system; see: s.417 Migration Act.

FEDERAL COURT

The Migration Act attempts to impose severe restrictions on judicial review of decisions under the Act to the Federal Court. Section 474 states that most visa decisions of immigration officers or the portfolio tribunals (MRT and RRT) are to be called privative clause decisions and are “final and conclusive” and “must not be challenged, appealed against, reviewed, quashed or called into question in any court.” Hence the Administrative Decisions (Judicial Review) Act 1977 (Cth) no longer applies in the Federal Court – nor does the Judiciary Act (used to obtain prerogative writs).

However, the Federal Court’s jurisdiction is not affected in regard to appeals going to the Administrative Appeals Tribunal. Applicants also have the option of seeking judicial review of migration decisions directly in the High Court under section 75(5) of the Constitution.

Recent High Court rulings have thrown into doubt the immunity of “privative clause” decisions from judicial review. Only a specialist immigration lawyer could assist you in these circumstances as the law of judicial review is now extremely complex (see CHALLENGING GOVERNMENT DECISIONS ). For information regarding the Migration Agents’ Registration Scheme, see IMMIGRATION .

RIGHTS IN AUSTRALIA

The rights of people waiting for protection visa applications to be processed vary, depending on their circumstances. Some may be eligible for:

• bridging visas;

• permission to work (people who have been in Australia for more than 45 days in the 12 months before lodging the protection application will not get permission to work. People who apply within the 45 days but are unlawful at the time of application will not get it unless they can show a ‘compelling need to work’);

• financial support through the asylum seekers assistance scheme, administered through the Red Cross in all capital cities;

• Medicare;

• children’s education;

• free legal advice;

• access to torture and trauma services.

People who are granted permanent protection visas have the same rights as other permanent residents. Unlike most other migrants, they also have immediate access to all Centrelink payments.

Before becoming Australian citizens, people with permanent protection visas can obtain a certificate of identity or an Australian travel document. These documents mean they can travel without needing to use the passport of the country from which they fled. Protection visa holders should seek legal advice before travelling overseas, and generally should not travel back to their country of origin.

Although they are also recognised as refugees, people granted temporary protection visas have fewer rights than holders of permanent protection visas. They have permission to work and are eligible for Medicare and limited Centrelink payments. They cannot sponsor family members, nor re-enter Australia if they leave. They can apply for another protection visa. Unless the minister specifically permits otherwise, a temporary protection visa holder must wait at least 30 months before an assessment is made on whether to grant a further protection visa. Alternatively they may be eligible for a limited range of other types of permanent and temporary visas.