How separating onshore refugee protection visas from overseas humanitarian resettlement will help address Australia’s messy visa system
For over 25 years, there has been an artificially constructed link between the onshore (within Australia) and offshore (overseas resettlement) components of the Humanitarian Program. We need to break this numerical link in order to address the onshore protection visa application processing backlog which is making people vulnerable.
Learn more about why we need to break the link:
Rethinking the relationship between the onshore and offshore programs
In 1996, the Howard Government decided to link onshore refugee grants and offshore resettlement places in one program, making Australia the only resettlement country in the world to do this. This meant two distinct programs began to be managed under one numerical cap.
As a result, the Humanitarian Program has two components: onshore protection (for those who are found to be refugees in Australia after arriving on a valid visa) and offshore humanitarian (for those resettled from overseas). Cabinet sets the number of places in the program yearly. A cap on the onshore protection program is set in relation to Departmental targets for offshore humanitarian visas (figure 1).
We suggest that the onshore and offshore components should be separate programs. The number of visas granted under the offshore program should relate to the number of meritorious applications made, it should not be offset against the number of offshore humanitarian visas granted. We outline below why the programs are incompatible with each other, how linking the two programs has contributed to the visa processing backlog, and how people seeking protection have been made increasingly vulnerable.
The cap on onshore protection visa grants
The number of people needing protection in Australia does not conform to a set quota; rather, it should be demand driven to reflect the actual number of people found to be refugees each year. While the Australian Government can plan the number of places it chooses to make available to people applying for resettlement from overseas under the offshore Humanitarian Program, the High Court held in 2014 that the Minister is not permitted to set a cap on the number of onshore protection visas granted per financial year.
Even if this is no longer an official policy, the practice of capping onshore protection visa grants remains. We observe that the number of onshore protection visas granted has remained consistent despite significant increases in the number of applications lodged. For example, in financial years 2018-19 and 2019-20, exactly 1,650 onshore visas were granted despite a significant increase in applications made from previous years (figure 2). Further in financial years 2019-20 and 2020-21, the cap on onshore visa grants was maintained despite a shortfall in offshore humanitarian visa grants due to COVID-19 (figure 1).
Backlog in decision-making process
Ten years ago, the then Immigration Department aimed to decide 100 per cent of applications for onshore protection visas within 90 days. Now, there are significant delays at every stage of the decision-making process. There are approximately 70,000 people waiting for decisions on their applications including:
- Primary decision: 27,464 people waiting an average of 12 months for a primary decision from the Department.
- Merits review at AAT: 39,598 people waiting for the Administrative Appeals Tribunal to review a refusal by the Department. This caseload increases faster than decisions are made. In the 10 months of the 2022-23 financial year, the AAT made 5,673 decisions while receiving 8,221 new applications. At this rate, it will take almost seven years to clear the backlog.
- Appeal at Federal Court: 3,523 people waiting for the Federal Courts to appeal an AAT decision.
This means people are waiting over eight years for their applications to be finalised. Breaking the numerical link between the offshore and onshore components will mean that when a person is found to be a refugee, they can be granted a visa and not be made to wait for a place in a capped program. This will help address the blowout in the number of onshore protection applications yet to be finalised.
Lack of support for people seeking protection
While people wait for decisions on their applications, restrictive bridging visa conditions and ongoing exclusion from support makes them vulnerable to experiencing poverty, homelessness and labour exploitation.
People in this cohort are generally granted bridging visas with the same conditions as their original visa (e.g. people who arrive in Australia on a tourist visa often do not have work rights on their bridging visas). They have been deprived of a safety net, facing major hurdles in accessing government-funded support programs and other supports. Most people are ineligible for the Status Resolution Support Services program and temporary visa status makes it difficult for those experiencing family violence to access women’s refuges. Many work in exploitative conditions or rely on charities out of necessity.
Cost of breaking the link
The Refugee Council refutes the argument that it is not possible to have a demand-driven onshore protection visa program because it is difficult to plan for the cost of this policy change in the budget. We note that in estimating the cost, the Government should not assume that everyone who is granted an onshore permanent protection visa will access Centrelink. Many people, who have been able to work and support themselves for over two years, will not have the same need for settlement and income support as newly-arrived refugees. The Government should also account for their positive contributions to the Australian economy, for example in terms of tax and running their own businesses.
We encourage the Government to break the numerical link between the offshore resettlement and onshore protection programs. Trying to manage two distinct programs under one numerical cap has contributed significantly to the massive blowout in the number of onshore protection applications yet to be finalised. We recommend that Australia return to past policy and manage the programs separately, in line with the approach taken by every other resettlement state.
 Plaintiff S297-2013 v Minister for Immigration and Border Protection  HCA 24; Plaintiff M150 of 2013 v Minister for Immigration and Border Protection  HCA 25. See Human Rights Law Centre, Human Rights Case Summaries.
 As at 30 April 2023. See data at https://www.aat.gov.au/about-the-aat/corporate-information/statistics
 As at August 2021. 2021-22 Supplementary Senate Estimates Question SE21-194.