Part II ONSHORE REFUGEE PROGRAM. Section 1 CRITERIA. Section 2 UNITED NATIONS DEFINITION

Part II ONSHORE REFUGEE PROGRAM Section 1 CRITERIA Section 2 UNITED NATIONS DEFINITION Section 3 KEY CONCEPTS Persecution Well-Founded Fear Convention Reasons Section 4 LIMITATIONS OF APPLYING FOR REFUGEE STATUS Section 5 PROCEDURE FOR ONSHORE REFUGEE STATUS APPLICATIONS Applying for a Protection Visa Section 6 HUMANITARIAN CONSIDERATION REFUGEE & HUMANITARIAN PROGRAM 1

REFUGEE STATUS ONSHORE The last years have seen enormous change to the rights and entitlements of both asylum seekers and recognised refugees who are processed in Australia. It is fair to say that these changes have curtailed and limited the protection we offer. For over a decade, Australia has differentiated between asylum seekers by their mode of arrival. Those who come illegally are subject to mandatory detention those who enter legally are not. However, until recently, this discrimination ended once Convention status was recognised all refugees, regardless of their mode of arrival, became permanent residents. Since October 1999, this is not longer the case. Amendments to the Migration Act introduced new arrangements relating to people who arrive in Australia unlawfully. Under these arrangements, there are two subclasses of Protection Visas: a Permanent Visa, subclass 866 and a Temporary Visa, subclass 785. Applicants who are immigration cleared are eligible to apply for subclass 866. Those applicants who have not been immigration cleared OR who have been immigration cleared on fraudulent documents have access to the Temporary Protection Visa (subclass 785) and are not eligible to apply for the Permanent Protection visa in the first instance. The TPV is valid for three years. A permanent visa can be applied for in 30 months (or less if the Minister decides Sched 2-866.228). The problems for people on TPV s include: Holders can not sponsor family members under the family migration program; social security rights are restricted, it is difficult to get stable employment and accommodation; deep uncertainty causes despair and severely restricts recovery from trauma and planning a future. The harsh regime and attitudes towards refugees causes divisions and undermines attempts to promote community harmony. (Refugee Council of Australia 2003). In September 2001, the goal posts were moved again. Now, not all entrants into Australian territory are even entitled to apply for refugee status. The legislative creation of excised offshore places (currently Christmas Island, Ashmore and Cartier Islands, Cocos (Keeling) Islands, and most recently Melville Island and some 4000 other islands) prescribed by regulations pursuant to s 5 Migration Act 1958 ( MA )) ensures that anyone arriving in such places can be removed from Australia to an alternative processing centre, such as Nauru or Manus Island in PNG, as they are legally banned from seeking asylum in Australia. The most resent tactic was the towing away back into Indonesian waters of a boat with 14 Kurdish asylum seekers from Turkey in November 2003 caused domestic and international outcry. REFUGEE & HUMANITARIAN PROGRAM 2

Furthermore, amendments now limit the number of Temporary Protection Visa holders who may be entitled to a grant of permanent residence at the end of their three (3) year visa. Although any refugees still requiring protection will be allowed to remain in Australia, they will be denied permanent residence and granted a further three year visa if, en route to Australia, they resided for more than seven days in a country where they could have sought and obtained effective protection of the country or through the UNHCR in that country. The Minister may waive this requirement in the public interest (Schedule 2 Criteria 866.215 Migration Regulations 1994 ( MR ). These came into effect on 19 September 2001 Further Regulation amendments on 28 August 2003 attempted to widen the scope of the Temporary Visas 785 to include people who arrive lawfully in Australia on or after that date. The Senate disallowed these regulations on 9 October 2003. Protection (Class XA) Subclasses: 866 (Protection) 785 (Temporary Protection) The criteria and assessment process are similar for both subclasses of visa. Protection (Class XC) Subclasses: 785 (Temporary Protection) Item 1403, Schedule 1, MR The Applicant must be a person to whom regulation 2.08F applies and who is taken under regulation 2.08F to have applied for a Protection (Class XC) visa. Regulation 2.08F Certain holders of Subclass (Temporary Protection) visas taken to have applied for Protection (Class XC) visas. See Regulation 2.08F (1) and (2) MR Criteria to be met. The person: Is the holder of Subclass 785 visa which was granted before 19 September 2001; Is in Australia but not in immigration clearance; Has not had the visa cancelled; Has made, within 36 months after the grant of the visa, an application for a Protection (Class XA) visa; AND The application has not yet been finally determined. REFUGEE & HUMANITARIAN PROGRAM 3

Section 1 Criteria To obtain a Protection visa the applicant must: Be in Australia Meet the UN definition of a refugee Need only undertake a medical exam and chest x-rays (not satisfy it) Meet certain public interest criteria Section 2 United Nations Definition Refugees are people defined by the United Nations Geneva Convention relating to the Status of Refugees of 1951 ( the Refugee Convention ), as amended by the 1967 Protocol to the Refugee Convention. The definition of a refugee under the Convention states that a refugee is a person who:- Owing to a well founded fear of being persecuted on grounds of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside his country of residence as a result of events, is unable or owing to such fear, is unwilling to return to it (Article 1A). The definition contains several elements: The applicant must have a fear of returning The fear must be well founded i.e. there must be a real chance that the harm feared will actually occur The harm feared must be significant enough to be regarded as persecution The persecution/harm feared must arise from one/more of the 5 reasons specified in the Convention It must be established that adequate protection is not available from the state The applicant must be outside the country of his nationality However, even if the applicant meets the definition of a refugee under the Convention they can be excluded from protection under the Convention if they: Have prior protection of a safe third country (Article 1E and Article 33) Have committed a serious non political offence or crimes against humanity (Article 1F and Article 33) REFUGEE & HUMANITARIAN PROGRAM 4

This last exclusion clause is encapsulated in sections 502(1)(a)(iii) and 503(1)(c) MA, which provides grounds for the Minister to refuse or cancel a Protection Visa if a refugee has been convicted of a crime and sentenced to prison for more than 12 months (irrespective of time actually served). See also the inclusion of Schedule 2 Criteria 866.222A convicted in last four years of a crime which has a penalty of more than one year s prison). Additionally, the Convention has always permitted countries to refuse protection to a refugee who has been convicted of a particularly serious crime, which results in the refugee constituting a danger to the community. Recent amendments to the Migration Act have, however, arguably extended the definition of particularly serious crime well beyond that contemplated by the Convention or by UNHCR. It includes, for example, escaping from immigration detention. An offence can amount to a particularly serious crime even if a court does not impose a prison term, as long as the law allows for the possibility of a term exceeding one year. A person who has been granted refugee status can however lose that status and cease to be recognised as refugees if they fall within one of the "Cessation Clauses" in the Convention (Articles 1 C (1)-(6)): Voluntarily re-avail themselves of protection of their country of nationality (Article 1 C(1)); Having lost their nationality, voluntarily re-acquire it (Article 1C(2)); Have acquired a new nationality and enjoy the protection of that new nationality (Article 1 C (3)); Have voluntarily re-established themselves in their home country (Article 1C (4); Can no longer refuse to avail themselves of the protection of their home country because reasons why the person was recognised as a refugee have ceased to exist (Article 1 C (5)). Being a person who has no nationality, can no longer refuse to avail themselves of the protection of their country of former habitual residence because reasons why the person was recognised as a refugee have ceased to exist (Article 1 C (6)). Note that Article 1 C (5) and (6) respectively will be the very cessation clauses that the Australian Government will determine as applying or not to Temporary Protection Visa holders at the end of their prescribed three year temporary residence. Section 116 of the Migration Act substantially covers these cessation clauses as grounds for cancellation of a Protection Visa. Also note that if a refugee applicant or protection visa holder takes steps to acquire a passport from the country in which they state that they are being persecuted in, DIMA may cancel the protection visa or refuse the application on this basis. REFUGEE & HUMANITARIAN PROGRAM 5

Sur Place Claims The principle behind "sur place' claims recognises that acts or events occurring after the applicant has fled his/her country may, if it is appropriate, form the basis of refugee status. For example, the political situation may have changed for the worse since the applicant left home, consequently making them fear persecution if they return; or subsequent actions by the applicant after having left their country, (expressing political views abroad which authorities in their home country do not support) make them fear persecution if they return. Refugees in this instance are known as refugees 'sur place'. In Australia the legal position used to be that the consequences of such actions -i.e. whether such actions give rise to a well-founded fear of persecution - formed the basis of the 'sur place' claim, and not the applicant's motives for these actions. This has been explicitly overturned by s.91r(3) of the Migration Act which prohibits decision-makers from having regard to any conduct engaged in by the person in Australia unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening their claims. The legislation is unclear on the position when there are multiple motivations involved some bona fides and some not. See NAST v MIMIA [2002] FCA 1536 (29 November 2002) The effect of s 91R(3): The applicant has an onus of proof in relation to activities in Australia ; The person must satisfy the Minister or the Tribunal that the relevant conduct was engaged in otherwise than for the purpose of strengthening the person s claim to be a refugee ; The onus of proof is, no doubt, to the civil standard (balance of probabilities). Section 3 Key Concepts Persecution In October 2001, the government introduced a legislative definition of persecution. Prior to this, the term had not been defined anywhere, not even in the Convention or Protocol. The UNHCR Handbook acknowledges that there is no universally accepted definition of persecution. An often quoted passage on the interpretation of persecution is Mason CJ in Chan Yee Kin V Minister of Immigration and Ethnic Affairs (High Court of Australia) [1989] 169 CLR 379. Mason CJ, stated: Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by REFUGEE & HUMANITARIAN PROGRAM 6

reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, though I would not wish to express an opinion on the question whether any depravation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason. S.91R (1) of the Migration Act now provides, essentially, that for the purposes of the Refugees Convention, a person will not be considered to be at risk of persecution for a Convention reason unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. As to what constitutes serious harm, sub-section (2) provides non-exhaustive examples as follows: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment 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. The legislation appears to abolish what were previously known as cumulative claims. This is when a person is subjected to multiple instances of discriminatory or disadvantageous conduct, none of which in itself is serious enough to amount to persecution. When taken as a whole, however, the courts have, on occasion, been prepared to accept the cumulative effect as persecution. The current legislation seems to remove this option, since each instance of harm relied upon must be serious harm in its own right. Well founded fear There is no strict legal definition of well founded fear in the Refugee Convention or in Australian statute law. However, there is general agreement that there are two elements in any interpretation of the term: The first element is the subjective part that the applicant must be afraid to return to their country of origin REFUGEE & HUMANITARIAN PROGRAM 7

The second element is the objective part the applicant must show that they have a good reason for fearing return to their country of origin. Again the leading Australian decision is Chan s case. The High Court found that if there was a real chance that the applicant would be persecuted if they returned to their country of origin, then it must be accepted that the applicant had a well-founded fear of persecution. A real chance was further interpreted to mean one that was not remote, regardless of whether it was less or more than 50% Further in Guo Wei Rong v Minister for Immigration and Ethnic Affairs (Full Federal Court) (1996) 135ALR 421, Foster J stated: It follows that very little in the way of objective support is required to establish refugee status for a person genuinely in fear of relevant political persecution if returned to his own country. The term real chance does not mean significant or substantial chance, a meaning, which the phrase sometimes bears in colloquial parlance. It means a chance or possibility which is real by reason of its not being baseless, far-fetched or fanciful. As a guide, generally speaking applicants will need to show: That they have personally suffered persecution in the past That people in similar situations have suffered persecution That people close to them, such as family or workmates, have suffered persecution and show that they are likely to suffer in a similar way; or Other reasons why they personally are likely to suffer persecution Convention Reasons RACE applicants who are members of a particular race or ethnic group RELIGION includes membership of established religions and membership of smaller religious groupings or sects NATIONALITY covers applicants who are persecuted because they are members of a particular national group POLITICAL OPINION this includes people who are members of political parties or groups, people who have publicly expressed their political views and people who are assumed, correctly or incorrectly, to hold certain political views MEMBERSHIP OF A PARTICULAR SOCIAL GROUP essentially a collection of persons who share a certain characteristic or element, which unites them and enables them to be set apart from society at large. A particular social group can not be defined by the characteristics of a common fear of persecution on the part of its members, or by reference to the acts giving rise to the fear of persecution. eg. Chinese people, who were REFUGEE & HUMANITARIAN PROGRAM 8

afraid of being persecuted for having breached governmental policy limiting families to only one child, have been held not to be a social group. Examples of social groups include homosexuals, families, and women in domestic violence situations where culturally males are not punished for exercising their 'right' over their wives. Able bodied men in Afghanistan (they were targeted by the Taleban) have been held not to be a social group. Section 4 - Limitations of Applying for Refugee Status 1. A repeat application for a protection visa on Australian shores can only be allowed at the non compellable discretion of the Minister. There is nothing that can compel the Minister to even look at whether the second application should be accepted. The Minister rarely accepts such applications. Guidelines have been issued in relation to referring a matter to the Minister of Immigration for consideration Guidelines for Purported Further Applications for a Protection visa subject to s. 48A and requests for Ministerial Intervention under s48b. Under the Migration Act it states that the Minister should only accept a second application if it is in the "public interest" to do so. There is no legal definition of the meaning of public interest. "Change of circumstances" in the applicant's home country and "new information" which appears to be "credible, Convention-based and enhances the applicant's chances of making a successful claim" can be argued under the "public interest" criteria. 2. There are certain groups of people who are also prevented from making refugee applications under the Migration Act and Regulations:- Persons who are covered by the Comprehensive Plan of Action, which is an international accord made to resolve the problem of resettling those who fled Vietnam during the conflict in that country. Those who already enjoy the protection of a safe third country. The People s Republic of China is a safe third country in relation to Vietnamese refugees and their families. Those who have been offered temporary stay in Australia by the Australian Government for the purposes of regulation 2.07AC. ie. applications for Temporary Safe Haven and Temporary (Humanitarian Concern) Visas. Those who entered Australia at an excised offshore place, even if a genuine refugee cannot apply for protection in Australia. Rather, they can be removed by Australia to another country for processing, where their possibility of returning to Australia under the offshore program is strictly curtailed. If they do manage to obtain a place in the RSHP, they will be given a subclass 447 visa, and cannot be granted permanent residence in Australia unless the Minister thinks it is in the public interest. REFUGEE & HUMANITARIAN PROGRAM 9

3. Section 36(4) Migration Act 1958 - "Australia is taken not to have protection obligations to 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, in any country apart from Australia including countries of which the non-citizen is a national". This section does exempt however non-citizens if they have a well-founded fear of being persecuted in that country or they have a well-founded fear of refoulement to the country where they fear persecution. 4. Sections 91M-91Q of the Migration Act bars certain non-citizens from applying for Protection Visas. If a person has the right to enter and reside (temporarily or otherwise) in a third country AND that person has resided in a third country for at least a continuous period of 7 days AND the Minister has made a declaration regarding that country, then that person is barred from applying for a Protection Visa. The relevant country declared by the Minister must be gazetted. 5. Persons who enter Australia on false documents (whether visa or passport) and apply for a protection visa will only be entitled to the grant of a Temporary Protection Visa (subclass 785) and not a subclass 866 Protection Visa in the first instance. If they are found to have resided in a safe third country for more than seven days en route to Australia, they will never receive permanent residence only successive Temporary Protection Visas. The criteria for the grant of an 866 visa includes that an applicant entered Australia on a valid passport issued in own name and which contained a valid visa that was not counterfeit or altered, or obtained using a fraudulent document. "Fraudulent document" is defined in 866.213. Compare "fraudulent document" as opposed to "false statement". Making a false statement to enter Australia should not preclude an application for a Protection Visa subclass 866. Such changes only apply to valid applications lodged on or after 1 st November 2000. A decision to not grant a subclass 785 visa on the grounds of using fraudulent documents to enter Australia is not merits reviewable in the RRT. The decision can be appealed in the Federal Court or the High Court sitting in its original jurisdiction. REFUGEE & HUMANITARIAN PROGRAM 10

Section 5 Procedure for Onshore Refugee Status Applications (Subclass 866) Applying for a Protection Visa STEP ONE: STEP TWO: STEP THREE: lodge form 866 and statement of claims at DIMIA and pay $30 fee (no fee if applicant is in immigration detention and has not been immigration cleared) departmental interview (discretionary) decision - if yes health and character - if no go to step four STEP FOUR: lodge application for review to Refugee Review Tribunal within 28 days of notification or if in custody within 7 working days STEP FIVE: STEP SIX: STEP SEVEN: STEP EIGHT: consideration given to making favourable decision on papers. if yes health and character if no go to step six attend RRT hearing RRT decision if yes health and character if no consider options in step eight 28 days from notification of decision: - Fed/High Court - humanitarian consideration (Ministerial discretion) - repeat application (prior consent of Minister) - depart Section 6 Humanitarian Consideration The Minister has power to set aside a refusal of the RRT and substitute a more favourable decision under s 417 of the Migration Act, if the Minister considers it in the public interest to do so. The Minister has issued Guidelines as to when he might intervene to substitute a more favourable decision. The power is entirely discretionary, noncompellable and non-reviewable. REFUGEE & HUMANITARIAN PROGRAM 11

A Bridging Visa E is granted for the first Ministerial application but not for subsequent requests (unless subsequent requests make it past the Ministerial Unit who sends it on to the Minister for his active and personal consideration). Also there are no work rights granted on the issuance of a Bridging Visa E for such a request unless the Minister confirms that he is personally considering the application. REFUGEE & HUMANITARIAN PROGRAM 12

APPENDIX RELEVANT UNITED NATIONS CONVENTION UN Convention relating to the Status of Refugees of 1951, as amended by the 1967 Protocol to the Refugee Convention, Article 1A. A refugee is a person who:- owing to a well founded fear of being persecuted on grounds of: race religion nationality membership of a particular social group political opinion is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside his country of residence as a result of events, is unable or owing to such fear, is unwilling to return to it. REFUGEE & HUMANITARIAN PROGRAM 13

RSHP ONSHORE SOUTH BRISBANE IMMIGRATION & COMMUNITY LEGAL SERVICE Subclass 866 Permanent Protection Visa granted to: Holders of a substantive visa at time of application (eg. tourist visa) Unlawful non-citizens who previously held a substantive visa. Holders of subclass 451 Secondary Movement Relocation (Temporary) visas, after a period of 54 months, unless a shorter period allowed by Minister. Holders of subclass 447 Secondary Movement Offshore Entry (Temporary) visas, provided the Minister has given prior consent. Holders of subclass 785 Temporary Protection Visas, after a period of 30 months, provided they had not resided for more than seven days in a safe third country prior to coming to Australia (The 7 day rule does not apply for 785 holders who made 866 applications before 27 September 2001). Subclass 785 Temporary Protection Visa granted to: Unauthorised arrivals Persons who entered Australia on bogus or fraudulent documents Holders of subclass 447 Secondary Movement Offshore Entry (Temporary) visas, where the Minister has not given consent to the grant of permanent residence Holders of subclass 785 Temporary Protection Visas, after a period of 30 months, who had resided for more than seven days in a safe third country and who could have sought and obtained effective protection in that country prior to coming to Australia Holders of subclass 785 Temporary Protection Visa where visa was granted before 19 September 2001 and, within 36 months after grant of the visa, that person has made an application for a Protection (Class XA) visa and the application has not yet been finally determined. REFUGEE & HUMANITARIAN PROGRAM 14

S 91R MIGRATION ACT 1958 s 91R(1): risk of persecution for a Convention reason only if (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct s 91R(2): serious harm non-exhaustive examples as follows (a) a threat to the persons life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment 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. REFUGEE & HUMANITARIAN PROGRAM 15

MIGRATION ACT 1958- SECT 36 Protection visas (1) There is a class of visas to be known as protection visas. Note: See also Subdivision AL. (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (b) a non-citizen in Australia who is the spouse or a dependant of a noncitizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa. Protection obligations (3) Australia is taken not to have protection obligations to 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, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country. (5) Also, if the non-citizen has a well-founded fear that: (a) a 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; subsection (3) does not apply in relation to the first-mentioned 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. REFUGEE & HUMANITARIAN PROGRAM 16

Acknowledgements of Secondary Sources: 1. Refugee Immigration Legal Centre Inc., Melbourne, CPD Seminar - 26 June 2001, "Updates in Immigration Law 2: Refugee and Humanitarian Protection Visas" 2. "The Immigration Kit - A Practical Guide to Australia's Immigration Law", 6 th ed., The Immigration Advice and Rights Centre", Jennifer Burn and Anne Reich, The Federation Press, NSW, 2001. 3. South Brisbane Immigration and Community Legal Service, paper October 2001, Temporary Protection: The New Cornerstone of Australia s Refugee and Humanitarian Response 4. Migration Regulations 1994 and Migration Act 1958 DISCLAIMER While every effort has been made to ensure that the information include in this seminar is accurate, participants should be aware that the Migration Law and policy and other related legislation is subject to frequent changes. Participants should always consult the Migration Act and Regulations as the primary source of legislative information. This Seminar Paper should not be relied upon as a substitute for legal advice. This presentation was brought to you by the SOUTH BRISBANE IMMIGRATION AND COMMUNITY LEGAL SERVICE INC, 170 Boundary Street, West End, Queensland 4101. REFUGEE & HUMANITARIAN PROGRAM 17