If you are seeking asylum in Australia, there are 2 pathways from which you can choose. Your choice will depend on whether you are in Australia while applying for asylum or outside Australia. 

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Australia’s Protection Obligations 

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Australia has an extended history of offering refuge to people seeking asylum and resettlement for several reasons. Since 1945, Australia has helped hundreds or thousands of displaced people find a new home and build a new life. 

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The Australian government determines an asylum seeker’s application with the help of various criteria, one of them being whether the applicant engages in Australia’s protection obligations. As this is an important factor, let us understand what the obligations stipulate. 

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To engage in Australia’s protection obligations, you must either be a refugee or fulfil the ‘complementary protection’ criteria. Let us deconstruct these concepts. 

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Refugee

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According to The Migration Act of 1958, a refugee is someone who:

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• Outside their country of nationality (home country) and;
• Owing to a ‘well-founded fear of persecution’, is unable to or unwilling to return to their home country or to seek protection in that country 

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It is important to note that even if a person has suffered some form of persecution in the past, they may not qualify as a refugee under the Act - unless there is a real threat to their lives if they return to their home country. 

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A person may obtain refugee status after arriving in Australia. This could happen for reasons such as a drastic change of circumstances in their home country or a change in their personal circumstances that gives them a well-founded fear of persecution if they return to their home country.

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Well-Founded Fear of Persecution 

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The Migration Act of 1958 states that a person has a well-founded fear of persecution if: 

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• They fear persecution for at least 1 of the 5 reasons stated in the Act 
• There is a real possibility that, if the person returns to their home country, they would be persecuted for 1 or more of the reasons 
• The real possibility of persecution pertains to all areas of their home country 
• At least 1 of the 5 reasons is a significant factor in their persecution
• The persecution involves both ‘serious harm’ to the person and ‘systematic and discriminatory conduct’

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The 5 reasons mentioned above are:

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• A person’s race 
• A person’s religion 
• A person’s nationality 
• A person’s membership in a particular social group 
• A person’s political opinion

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Complementary Protection 

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If your situation does not meet the Act’s stipulated definition of a refugee, you may try obtaining a Protection Visa (Subclass 866) based on complementary protection. To engage Australia’s complementary protection obligations, you must be at real risk of persecution or harm if you return to your home country. 

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Instances of foreseeable harm may include: 

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• Torture 
• Death penalty 
• Degrading treatment or punishment 
• Cruel or inhuman treatment or punishment 
• Arbitrary deprivation of life 

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If any of the conditions below apply to you, you may not be eligible for complementary protection: 

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• The real risk is faced by the population of the country generally and not the person specifically 
• It may be reasonable for the person to relocate to an area of the country where they will not be at real risk of significant harm 
• If the person can obtain protection from the authority of the country so that they are not at risk of significant harm

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Protection Visa (Subclass 866)

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If you are currently in Australia and hold a valid visa, you can apply for a Protection Visa (Subclass 866). If you meet Australia’s protection obligations and other requirements, you will be granted this visa. 

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Eligibility 

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The first step to this process is understanding whether you are eligible for a Protection Visa (Subclass 866). There are certain criteria that you will have to meet to prove your eligibility:

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• Engage Australia’s protection obligations (or are a family member/relative of someone who does) 
• Have arrived legally in Australia on a valid visa 
• Meet the Australian government’s requirements including character, health and security 

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Kindly note that you may not be eligible for a Protection Visa (Subclass 866) under the following circumstances:

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• You have had a Protection Visa (Subclass 866) application refused on your last arrival to Australia 
• You have had a Protection Visa (Subclass 866) cancelled since your last arrival in Australia 
• You are a national citizen of 2 or more countries 
• You had protection in another prescribed safe country 
• You entered Australia by sea, thus becoming an unlawful citizen due to that entry 
• You currently or have previously held a: ‍
• Temporary Protection (Subclass 785) Visa 
• Temporary Safe Haven (Subclass 449) Visa 
• Safe Haven Enterprise (Subclass 790) Visa 
• Temporary (Humanitarian Concern) (Subclass 786) Visa 

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If you obtain this visa, you will be permitted to remain in Australia indefinitely, as you gain Australian permanent residency the day your visa has been granted. 

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Character Exclusions 

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As mentioned above, a person must meet the Australian government’s health, character and security environments to be accepted as a refugee. However, in certain circumstances, even if a person fulfils the requirements, they may not obtain a Protection Visa (Subclass 866). The reasons for refusing a person’s refugee status may include: 

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• If the person has committed a crime against peace, a war crime or a crime against humanity 
• If the person committed a serious, non-political crime before entering Australia 
• If the person is guilty of acts contrary to the purposes and principles of the United Nations 
• If the person poses some form of danger to Australia’s security 
• If the person has been convicted of a particularly serious crime and poses a danger to the Australian community 

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Processing Time 

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Unfortunately, there is no fixed period for the processing of such visas as it may differ from case to case. As an applicant, you can facilitate the process by finalising your application along with the help of your immigration lawyers within specified timeframes. There may be a delay in the process if: 

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• The immigration lawyers/government require more information from you
• You did not fill in your application correctly
• You did not include the required documents in your application
• You do not respond to requests for information promptly 
• It takes the immigration lawyers/government time to verify your information  

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Inclusion of Family Members

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Family members can also be included in your Protection Visa (Subclass 866) application. You may include: 

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• Spouse/de facto partner
• Dependent child 
• Spouse/partner’s dependent child or 
• A relative of you or your spouse/partner, if they:

• Do not have a spouse/de facto partner 
• Usually reside in your household 
• Are usually dependent on you 

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A relative may include: 

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• Sibling 
• Grandparent 
• Grandchild 
• Cousin 
• Aunty/uncle 
• Niece/nephew 
• A step equivalent 

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It is important to note that if your child is in a de facto relationship or married, they will not be considered a dependent.  

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Benefits of a Protection Visa (Subclass 866) 

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Once you are granted a Protection Visa (Subclass 866), you will be eligible to: 

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• Live, work and study in Australia permanently
• Attend English language classes for free 
• Access government resources such as Medicare and Centrelink 
• Sponsor eligible family members through the offshore Humanitarian Program 

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Refugee Visa (Offshore) 

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If you are currently outside Australia and wish to apply for asylum, you can apply for 1 of the 4 refugee visas. 

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Visa Subclasses

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The 4 subclasses under the Refugee Visa are assigned to provide more clarity to each person's case and aid in prioritizing time and resources. The subclasses are: 

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• Refugee (Subclass 200): This applies to people who have been referred to Australia for resettlement through the United Nations High Commissioner
• In-Country Special Humanitarian (Subclass 201): This applies to people who are yet living in their home country and unable to leave 
• Emergency Rescue (Subclass 203): This applies to people who have been referred to Australia by the UNHCR as they are in immediate danger 
• Woman at Risk (Subclass 204): This applies to women who do not have the protection of a partner/relative and are in danger of victimisation 

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Eligibility 

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To be eligible for any of the aforementioned visas, you must: 

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• Be offshore (outside Australia) while applying
• Be subject to persecution in your home country
• Meet the Australian government’s health, character and security requirements 
• Meet the ‘compelling cases’ criterion 

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Priority Processing 

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Certain cases may receive priority processing for visa approval. This includes cases that are: 

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• Assessed as refugees by United Nations High Commissioner for Refugees (UNHCR), and 
• Referred to Australia for resettlement, or 
• Proposed by an immediate family member (e.g. spouse, minors) who hold a refugee-category visa 

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It is important to note that there is a high volume of such applications and a limited amount of resettlement places available each year. This is why the Australian government accepts applicants who have the most compelling circumstances. 

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Reuniting with Family Members 

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If you have immediate family members who are already residing in Australia, this may be helpful. As your family members can ‘propose’ your visa application. 

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This is known as a ‘split family’ application, which is given special consideration during the application process. 

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An immediate family member may include you:

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• Spouse or de facto partner
• Dependent child or stepchild 
• Parent or step-parent (if you are younger than 18 years of age) 

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Kindly note that only family members holding a valid Refugee Visa (Subclass 200, 201, 203, 204) will be allowed to propose a ‘split-family’ application. Other requirements they must fulfil include: 

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• They are still a member of your family 
• They propose your visa application within 5 years of the Australian government granting their visa 
• They have been a member of your immediate family when their visa was granted
• They have informed the Australian government about your relationship with them before obtaining their visa

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Benefits of a Refugee Visa 

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Once you are granted a Refugee Visa, you will be eligible to: 

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• Live, work and study in Australia permanently
• Attend English language classes for free 
• Access government resources such as Medicare and Centrelink 
• Sponsor eligible family members through the offshore Humanitarian Program

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Disclaimer: Kindly note that the information provided here does not constitute legal advice. This must solely be regarded as content that provides general immigration information and is not a substitute for professional legal advice that occurs between an immigration lawyer and a client.

Path Migration strongly recommends readers contact certified immigration lawyers for a holistic overview of the Australian immigration system and a detailed analysis of each case.