Onshore program

The onshore component of Australia's Refugee and Humanitarian program aims is for people who wish to apply for protection in Australia.

There is one visa available for people onshore applicants: the Protection Visa (Subclass 866), which is designed for people who are refugees as defined by the 1951 Refugee Convention.

Applying for an onshore visa

Information on applying for an onshore visa, including forms and eligibility requirements, can be found on the Department of Immigration and Citizenship's website at www.immi.gov.au/visas/humanitarian

After an application is lodged, an acknowledgment of receipt will be sent to the applicant. The application will be assessed by an officer of the Department of Immigration and Citizenship, who will invite the applicant to an interview to answer questions about their application. Applicants must meet health, character and security requirements in order to be granted a visa for Australia.

Asylum seekers who first arrived in Australia within the migration zone and who hold a valid visa may be given a bridging visa which will allow them to stay lawfully in Australia while their application is being processed. Some bridging visas holders are allowed to work and can access Medicare.

Asylum seekers who first arrived in Australia within the migration zone but who do not hold a valid visa will be detained for the duration of the assessment process. Asylum seekers who first arrived in Australia in an excised offshore place and who do not hold a valid visa cannot submit a valid visa application unless the Minister for Immigration makes a personal intervention into the case.

Refugee Status Determination

The process by which an asylum seeker applies for refugee status varies from country to country. In many developing countries, it is the office of the United Nations High Commissioner for Refugees (UNHCR) that makes the determination. In most western countries, governments have set up structures, either administrative or judicial, for examining claims.

Since 1993 Australia has had a two-stage administrative determination procedure. This procedure only applies to asylum seekers who first arrive in Australia within the Australian migration zone (ie. on the Australian mainland). For information on the offshore status assessment procedure, see our page on excised offshore places.

Primary Stage

An asylum seeker lodges an application for refugee status with the Department of Immigration and Citizenship (DIAC). The written application is then assessed by an officer of the Department to establish whether the person's claims are such as to fit the criteria for the grant of refugee status.

Applications can be received from individuals or from family groups. In the case of the latter, the claims of each member of the family should be examined. It is quite possible that the male head of household may not be a refugee but the wife or any of the children may be. If one member of the family is determined to be a refugee, the whole family is granted refugee status. All primary Protection visa decisions must be made within 3 months of application.

There are only two possible outcomes from the primary stage:

• the application is accepted and the asylum seeker is granted a permanent protection visa; or
• the application is rejected.
  

Review Stage

If a claim is rejected at the primary stage, the asylum seeker then has the option to lodge an application for a review of this decision. The body responsible for reviewing applications is the Refugee Review Tribunal (RRT). The RRT is an independent Commonwealth statutory body whose Members are appointed by the Governor General. It is their task to review the DIAC primary decisions, applying exactly the same criteria (ie. is the person a refugee according to the United Nations definition?).

It is considered vital that Australia retains an independent merits review in refugee status determination. Such a system guarantees equality and fairness before the law and allows asylum seekers to present their full stories confident that government policy towards their country of origin will not influence the decision makers.

There are two possible outcomes from the review stage:

• the RRT overturns the original decision and grants refugee status. This happens on average in approximately 10% of cases (though is much higher for some nationalities); or
• the RRT upholds the original decision.

In the event of the claim being rejected by the RRT, it is expected that the applicant will leave the country. There are, however, two other avenues that could be explored:

Humanitarian Status: Claims that are rejected by the RRT are sent back to the Department of Immigration where they are reviewed by the original case manager. If it is considered that there may be compelling humanitarian reasons why an applicant should not be returned to their country of origin, the case is referred to the Minister for Immigration who has non-compellable discretionary powers to grant residency on humanitarian grounds. Failed refugee status applicants can also make a direct approach to the Minister seeking his consideration of their case.

Judicial Review: Applicants who have been rejected by the RRT can, in certain circumstances, lodge an appeal to the Federal Court. The Court is not empowered to look at the merits of the claim (ie. whether or not they are refugees). It is the role of the Court to consider whether the determination was conducted in accordance with the law. If the Court finds in favour of the applicant, the case is referred back to the RRT for reconsideration. Reconsideration does not automatically mean that the applicant is granted refugee status.