This article will outline the Protection Visas Migration Act. Australia is able to welcome refugees and offer protection to those fleeing persecution and violence in their home countries. The Australian government offers protection visas to refugees who are unable to return to their home country due to the risk of persecution, torture, or other forms of harm.
Under the Migration Act 1958, protection visas are for individuals who meet the legal definition of a refugee. The application process for a protection visa can be complex and lengthy. Therefore, it’s important to understand the legal requirements and application process to increase the chances of success. This article will outline points in relation to Protection Visas Migration Act.
Section 35A: Protection Visas and Classes
Section 35A of the Protection Visas Migration Act outlines the different types of protection visas that are available to individuals seeking protection in Australia.
Permanent Protection Visas and Temporary Protection Visas
These classes were initially classified under the Migration Regulations 1994 as Protection (Class XA) visas and Temporary Protection (Class XD) visas, respectively. Additionally, this section also allows for the creation of other classes of visas as protection visas through regulations made under subsection 31(1) of the Migration Act. The criteria for these protection visas are outlined in:
- Section 36 (More explained below); and
- Any additional relevant criteria prescribed by regulations under section 31.
Safe Haven Enterprise Visa
This visa is designed to provide both protection and the opportunity for individuals to earn and learn while strengthening regional Australia.
Section 36: Criteria for Protection Visas
Section 36 of the Protection Visas Migration Act sets out the criteria for protection visas. According to this section, an applicant must:
1. Not be assessed by the Australian Intelligence Organisation (AIO) to be directly or indirectly a risk to security; or
2. Not be a person whom the Minister considers:
- Dangerous to Australia’s security; or
- Convicted by a final judgment of a particularly serious crime
3. Satisfy at least one of the following:
- They are refugees and Australia has an obligation to protect them.
- They are not refugees, but if they are sent back to their home country, there is a significant risk that they will suffer harm. The Minister must have substantial grounds to believe this.
- The applicant is a family member of a non-citizen who holds a protection visa of the same class as the one they are applying for, and who is a refugee
- The applicant is a family member of a non-citizen who holds a protection visa of the same class as the one they are applying for, and who is at risk of significant harm
Protection Visas Migration Act: Significant Harm on the Non-citizen
Section 36 of the Protection Visas Migration Act states that a non-citizen will suffer significant harm if they will be punished by means of:
- Arbitrarily depriving them of his/her life
- Death penalty
- Torture
- Cruel or inhuman treatment or punishment
- Degrading treatment or punishment
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:
- The non-citizen could reasonably relocate to an area of the country where they will not face a real risk of significant harm.
- An authority of the country could provide protection to the non-citizen, eliminating the risk of significant harm.
- The population of the country generally faces a real risk, but not the non-citizen personally.
Ineligibility for a Grant of Protection Visa
According to Section 36 of the Protection Visas Migration Act, a non-citizen is taken not to satisfy the criterion mentioned in 36(2)(aa) if:
1. The Minister has genuine reasons for considering that 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
- Committed a serious non-political crime before entering Australia; or
- Has been guilty of acts contrary to the purposes and principles of the United Nations; or
2. The Minister considers, on reasonable grounds, that the non-citizen:
- Is a danger to Australia’s security; or
- 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
According to Section 36(3) of the Protection Visas Migration Act, Australia does not have any obligations to protect non-citizens who haven’t tried all possible ways to enter and reside in countries other than Australia, including their own country. However, Section 36(3) does not apply if the non-citizen has a valid fear of being persecuted in a particular country for reasons of:
- Race
- Religion
- Nationality
- Membership of a particular social group; or
- Political opinion
Additionally, Section 36(3) does not apply if the:
- Minister has sufficient evidence to believe that the non-citizen would face significant harm as a result of availing themselves of a right mentioned in subsection (3).
- Non-citizen is afraid that a country would return them to another country where they would be persecuted for the same reasons.
- Minister has substantial evidence that the non-citizen would suffer significant harm as a result of availing themselves of a right in subsection (3).
Note: Subsection (3) should only consider a non-citizen’s nationality in a particular country as determined by the law of that country. This rule does not impact the interpretation of any other provisions in this Act.
Section 36A: Consideration of Protection Obligations
Section 36A of the Protection Visas Migration Act state that when assessing a valid protection visa application submitted by a non-citizen, the Minister must take into account whether any of the following conditions are satisfied if the non-citizen:
- Is a refugee
- Will suffer significant harm and also fulfils the subsection 36(1C) criterion
- Is a refugee with respect to a country but does not satisfy Section 36(1C)
- Will suffer significant harm with respect to a country except that the non-citizen is a non-citizen that is a refugee
This assessment must be conducted:
- Before deciding to grant or refuse to grant the visa
- Before evaluating whether the non-citizen meets any other criteria for the visa grant; and
- Without considering subsections 36(2C) and (3)
However, this rule does not apply if:
- The family applicant is a non-citizen who is part of the same family unit as another non-citizen, who holds a protection visa of the same class that the family applicant is applying for, and
- The family applicant made their application for a protection visa before the family visa holder was granted their visa, and
- The family visa holder is a non-citizen that is a refugee or at risk of significant harm.
Importance of Seeking Legal Advice
Protection visas involve complex legal requirements, eligibility criteria, and procedures that can be challenging to comprehend without proper legal knowledge. We at JB Solicitors specialise in immigration law and can provide accurate information and guidance about protection visas.
Our team of lawyers can help protect the rights of non-citizens who are refugees and people at risk of significant harm.
Contact us today for more information about the Protection Visas Migration Act.
