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Summary

Australia’s Refugee and Humanitarian Programme consists of several different visas that are available to refugees and others in need of protection. The total number of places available under the program each year is currently 13,750, although 12,000 additional places have been made available in response to the refugee crisis that has emerged from conflicts in Iraq and Syria. The majority of visas are designated for offshore applicants, most of whom are assessed as refugees by the UNHCR and referred to Australia for resettlement. Visas available to offshore applicants provide permanent residence status and access to a range of services and assistance. Holders can sponsor family members for visas and can also apply to become Australian citizens under the same rules as other permanent residents.

There has been much debate and many law and policy changes over the years regarding the approach to handling asylum seekers who arrive in Australia by boat without a valid visa. The current rules mean that anyone who arrives unlawfully after January 1, 2014, will be taken to a third country for processing and resettlement; they will not be able to apply for visas in Australia. Boats that enter Australian territory may be returned to international waters. Around 30,500 asylum seekers who arrived in Australia prior to January 1, 2014, are being invited, in stages, to apply for temporary protection/safe haven visas that are valid for three or five years. Visa holders cannot sponsor family members and only those who meet criteria relating to living and working in regional Australia will have a pathway to permanent residence. A permanent protection visa is available to people who seek asylum after arriving in Australia on a valid visa.

I. Introduction

A. Refugee and Humanitarian Programme

Australia’s immigration system involves two major components: the Migration Programme for skilled and family migrants, and the Refugee and Humanitarian Programme “for refugees and others in refugee-like situations.”[1] Within the Refugee and Humanitarian Programme there are separate tracks for those seeking asylum following arrival in Australia (referred to as “onshore protection”[2]) and refugees who are outside Australia and in need of resettlement (referred to as “offshore resettlement”).[3] The offshore resettlement component is further divided into two categories: the Refugee category and the Special Humanitarian Programme category, which allows people in Australia to sponsor close family members in other countries who face human rights abuses.[4] Within the onshore protection component, asylum seekers are treated differently depending on whether they entered Australia with or without a valid visa.

Australia is a party to the Convention Relating to the Status of Refugees of 1951 (1951 Refugee Convention) and its 1967 Protocol. It has been involved in the United Nations refugee resettlement program since 1977.[5] The majority of people granted visas through the offshore Refugee category have already been assessed as refugees by the UN High Commissioner for Refugees (UNHCR) and referred to the Australian government for resettlement consideration.[6]

The total number of places available in the Refugee and Humanitarian Programme is set each year by the government.[7] Since 2009–10 (July 1 to June 30), the planned intake has been set at 13,750, although this was temporarily increased to 20,000 in 2012–13 in line with the recommendations of the Expert Panel on Asylum Seekers.[8] Currently, of the 13,750 places available, at least 11,000 are to be used for people applying from outside Australia, including 5,000 places under the Special Humanitarian Programme.[9]

In response to the humanitarian crisis arising from the conflicts in Syria and Iraq, the Australian government announced in September 2015 that an additional 12,000 permanent humanitarian places would be made available during 2015–16 to those displaced from the two countries.[10] Priority will be given to “the women, children and families of persecuted minorities who have sought refuge from the conflict in Jordan, Lebanon and Turkey.”[11] The Australian government will also contribute about AU$44 million to assist with addressing the humanitarian crisis in Iraq and Syria.

The government has stated that the number of places available in the Refugee and Humanitarian Programme will increase to 16,250 in 2016–17 and to 18,750 in 2018–19.[12]

B. Relevant Laws

The Migration Act 1958 (Cth) contains the overarching provisions relating to the grant of visas to noncitizens of Australia. The Migration Regulations 1994 (Cth) set out further rules for different “classes” and “subclasses” of visas.[13] The four classes of “Protection, Refugee and Humanitarian” visas are listed in part 4 of schedule 1 of the Regulations: protection (class XA), refugee and humanitarian (class XB), temporary protection (class XD), and safe haven enterprise (class XE). The first two visa classes involve permanent residence, while the remaining two are temporary visas.

Schedule 2 of the Regulations lists the criteria that applicants must meet in order to be granted a visa under the various visa subclasses. This includes references to the “public interest criteria” that are contained in part 1 of schedule 4 of the Regulations.

Australia’s immigration laws are administered by the Department of Immigration and Border Protection (DIBP).

C. Debate Regarding Treatment of Asylum Seekers Arriving by Boat

There has long been considerable debate regarding how Australia should handle asylum seekers, particularly those who attempt to enter Australian territory by boat without a visa, often via Indonesia and with the assistance of people smugglers.[14] Such people are currently referred to by the government as “illegal maritime arrivals” or IMAs,[15] and in the Migration Act 1958 (Cth) as “unauthorised maritime arrivals.”[16] The Australian government has introduced various measures over time to intercept, detain, and process such people.[17] Matters debated by politicians, advocates, and the public include the mandatory detention of asylum seekers, their transfer to detention centers offshore or in third countries, the conditions and oversight of those facilities,[18] whether particular measures could be in breach of the 1951 Refugee Convention, and the effectiveness of different policies in deterring asylum seekers from risking their lives by traveling to Australia by boat.[19]

The current policy is that anyone who tries to travel illegally by boat to Australia after January 1, 2014, will not be processed or resettled in Australia.[20] Boats may be intercepted at sea and returned to international or Indonesian waters (a measure implemented through “Operation Sovereign Borders”[21]) or the people on board may be sent to a third country for processing (“regional processing country”). These measures are intended to “stop people smugglers exploiting vulnerable people and to prevent loss of life at sea.”[22]

Unauthorized/illegal maritime arrivals who arrived between August 13, 2012, and January 1, 2014, are currently being invited to apply for temporary visas; they cannot apply for a permanent protection visa. Those who arrived prior to August 13, 2012, and whose asylum claims are still being processed can also only be granted a temporary visa.[23]

In 2012, the government reinstituted the transfer of asylum seekers to Nauru and Papua New Guinea for processing, as recommended by the Expert Panel on Asylum Seekers. This followed the model of the “Pacific Solution,” which had previously been in place in some form between 2001 and 2008.[24] Later, upon the signing of new agreements with the two countries in mid- 2013, the government announced that asylum seekers who are found to be refugees as a result of such offshore processing would also be resettled in those countries, rather than in Australia. A further agreement with Cambodia, signed in September 2014, means that people can also be resettled there following processing and acceptance of their claims by Nauru.[25] As of June 30, 2015, there were 655 asylum seekers (including eighty-eight children) detained in Nauru, and 945 asylum seekers detained on Manus Island, Papua New Guinea.[26]

The Australian Parliamentary Library notes that, in recent years, “the proportion of asylum seekers applying for (onshore) protection in Australia who arrived originally by boat has fluctuated significantly in response to shifts in asylum flows and changes in Government policy.”[27] For example, in 2013–14, about 51.5% of asylum applications were made by people who arrived in Australia by air with a valid visa. In the previous year, 68.4% of applications were lodged by those arriving by boat without a visa.[28]

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II. Offshore Component of the Refugee and Humanitarian Programme

A. Visa Subclasses

There are four visa subclasses within the refugee and humanitarian visa class (class XB) that make up the Refugee category of the Refugee and Humanitarian Programme:[29]

  • Refugee visa (subclass 200): a permanent residence visa available to people living outside their home country and who are persecuted in their home country.[30]
  • In-country special humanitarian programme visa (subclass 201): a permanent residence visa available to people living in and subject to persecution in their home country, and who have not been able to leave that country to seek refuge elsewhere.[31]
  • Emergency rescue visa (subclass 203): a permanent residence visa available to people who are subject to persecution in their home country and face an “immediate threat to their life or personal security.”[32]
  • Woman at risk visa (subclass 204): a permanent residence visa available to women who are living outside their home country, do not have the protection of a male relative, and are in danger of “victimisation, harassment or serious abuse” due to their gender.[33]

As noted above, the majority of people who are considered for visas under the Refugee category have been identified and referred to Australia for resettlement by the UNHCR. They must apply from outside Australia and meet the definition of “refugee” contained in section 5H of the Migration Act 1958 (Cth), including having a “well-founded fear of persecution,” which is defined in section 5J.

Under the Special Humanitarian Programme category, the global special humanitarian programme visa (subclass 202) is a permanent residence visa that requires offshore applicants to be sponsored by an Australian citizen or permanent resident, or by an Australia-based organization (referred to as a “proposer”). Applicants, who must be living outside their home country, do not need to meet the definition of “refugee,” but rather must be subject to “substantial discrimination amounting to a gross violation” of their  human  rights  in  their home country.[34]

Currently, up to 500 places under the Refugee and Humanitarian Programme are available for the Community Proposal Pilot program, which allows approved organizations in Australia to propose someone in a humanitarian situation outside Australia for a class XB visa. The organizations  are  responsible  for  lodging  applications,  and  paying  for  application  charges, medical examinations, and airfares should a visa be granted. The organizations must also support the visa recipients for up to twelve months after they arrive in Australia.[35]

B. Family Members

An applicant for any of the above class XB visas can include his or her spouse or partner (except in the case of the woman at risk visa), dependent children, and other dependent relatives in the visa application.[36] Those who are granted a visa and move to Australia are also able to propose or sponsor immediate family members[37] for permanent residence under the “split family” provisions.[38] Proposers must have told the Australian authorities of the relationship before their visa was granted, and the relative must apply for a visa within five years of the proposer’s visa being granted.[39] Family members are usually granted a visa in the same subclass as the proposer’s visa.[40]

C. Application Process

1. Overview

Applicants for the five types of class XB visas, including as part of the Community Proposal Pilot program or under the “split family” provisions, are required to complete Form 842.[41] Proposers under the Refugee and Humanitarian Programme, either for a subclass 202 visa or under the “split family” provisions, must fill out Form 681.[42] Approved Proposing Organisations under the Community Proposal Pilot must fill out Form 1417.[43] Applicants must provide the required documentation, including certified copies of travel or identity documents (or a statement explaining why the person does not have these); visa or resident permits; and marriage certificates, relationship registrations, and birth certificates of children included in the application. In addition, in terms of providing evidence of a person’s status as a refugee, the applicant can provide “[e]vidence of registration with any international organisation dealing with refugees, for example, the United Nations High Commissioner for Refugees (UNHCR)” and a written statement explaining why he or she left the country, or a full copy of his or her UNHCR Resettlement Registration Form.[44] For the in-country visa subclass, applicants must provide a detailed written statement about why they fear remaining in their home country.[45]

The DIPB summarizes the  process  after  an  application  is  made  as  including  the following steps:[46]

  • Initial assessment: some applications are refused at this stage.
  • Interview: all applicants referred for further processing are interviewed by an Australian immigration officer, who may travel to refugee camps to conduct interviews.
  • Assessment against health and character requirements: in addition to being assessed against the relevant criteria for the different visa subclasses, as outlined above, all Australian permanent residence visas (as well as provisional visas and some temporary visas) have health[47] and character requirements,[48] as specified in public interest criteria 4001 and 4007 of the Migration Regulations 1994 (Cth). These requirements are discussed further below.

Other applicable public interest criteria include 4003 (foreign policy considerations), 4004 (debts to the Australia government), 4009 (intention to live in Australia permanently), and 4019 (if eighteen years of age or older, the applicant must sign an Australian “values statement”).

2. Health Requirement

The health requirement is met if a person if free from a disease or condition that is

  • considered to be a threat to public health or a danger to the Australian community
  • likely to result in significant health care and community service costs to the Australian community
  • likely to require health care and community services that would limit the access of Australian citizens and permanent residents to those services as they are already in short supply[49]

Applicants for class XB visas will have medical and x-ray examinations and may undergo medical treatment before being granted a visa. A waiver of the need to meet the health requirement “is possible if compassionate and compelling circumstances exist.”[50] A person may need to sign a Health Undertaking if he or she is found to have specific health issues that need follow-up and monitoring in Australia.[51] Those granted a class XB visa will also undertake a health check within seventy-two hours of their departure for Australia.[52]

3. Character Test and Security Assessment

The “character test” is set out in section 501 of the Migration Act 1958 (Cth). An applicant will fail the test if, for example, he or she has a substantial criminal record; he or is or has been a member of a group or organization suspected to be involved in criminal conduct; there is a risk that he or she would engage in criminal conduct in Australia, or would represent a danger to the Australian community or a segment of that community; or he or she “has been assessed by the Australian Security Intelligence  Organisation  [ASIO]  to  be  directly  or  indirectly  a  risk to security.”[53]

All class XB visa applicants must also meet public interest criterion 4003, which also relates to security assessments by ASIO.[54] In 2014–15, ASIO completed 1,316 security assessments of offshore refugee visa applicants, compared to 2,310 in 2013–14. ASIO noted that, in 2014–15, it “undertook a major revision of its visa security assessment model in order to focus resources on the cases of greatest complexity and potential highest threat. As a result, the number of DIBP referrals requiring ASIO assessment declined.”[55]

4. Processing Times

The DIBP notes that it is “difficult to provide useful estimates of average processing times” for offshore resettlement visas, as such timeframes may be affected by multiple factors.[56] The Department’s service standards information states that it expects to finalize 75% of offshore humanitarian visa applications within twelve months, but also that, currently, “high numbers of applications and a limited number of Special Humanitarian Programme places mean that it may take several years for ‘split family’ applications to be decided.”[57]

D. Assistance to Refugees

1. Visa and Travel Costs

Those who apply for a Refugee category visa do not face any costs. If a visa is granted, the Australian government pays for travel costs to Australia and for costs prior to travel, such as those related to medical examinations and cultural orientation.[58]

Applications lodged under the Community Proposal Pilot are subject to an application charge and, as noted above, the proposing organizations are also responsible for other costs; visa holders cannot be asked to pay back any of the costs.[59]

While there is no charge for applying for a Global Special Humanitarian Visa (subclass 202), the Australian government does not pay for travel costs if a visa is approved. Such costs must be paid by the applicant or the proposer; however, financial assistance may be available through the International Organization for Migration No-Interest Loan Scheme.[60]

2. Australian Cultural Orientation Program

The Australian Cultural Orientation (AUSCO) Program is provided to class XB visa holders aged five years and older while they are still overseas and preparing to travel to Australia.[61] The five-day course is currently delivered by the International Organization for Migration on behalf of DIBP. It is designed to prepare visa holders for travel to Australia; help them settle in Australia; help visa holders be realistic about what they can expect of life in Australia; provide information about Australian laws, values, and lifestyle; and introduce visa holders to other people who will also travel to Australia.[62]

3. Humanitarian Settlement Services Program and Related Programs

The Humanitarian Settlement Service (HSS) program helps class XB visa holders to settle in Australia for up to a year after their arrival.[63] HSS is a voluntary program  delivered by nongovernment service providers in twenty-three regions throughout Australia.[64] The organizations assess the person’s needs and provide tailored support, including the following:

  • arrival reception and assistance
  • help to find accommodation (short-term and long-term)
  • property induction
  • an initial food package and start-up pack of household goods
  • orientation information and training
  • help  to  register  with  Medicare,  health  services,  Centrelink  [for  social  welfare payments], banks and schools
  • help to link with community and recreational programs[65]

The DIBP states that when HSS support ends, individuals will be able to, for example, find government and other services, make appointments, use public transport, resolve tenancy issues, know how to find work, know how to find education and training, and have a basic understanding of Australian law.[66]

An online Humanitarian Entrants Management System helps the DIBP, Department of Social Services, and contracted  HSS  providers  settle  holders  of  refugee  and  humanitarian  visas in Australia.[67]

In addition to HSS, a Complex Case Support program “delivers specialised, and intensive case management services to eligible humanitarian entrants with exceptional needs which extend beyond the scope of other settlement services.”[68] Clients of this program have “intense and critical” needs that require multiple services, such as torture and trauma services, disability services, counseling, special services for children or youth, and support to manage financial or legal issues.[69]

Settlement grants are also available to organizations to help refugees and humanitarian entrants settle in Australia.[70]

4. Adult Migrant English Program

Refugees entering Australia are eligible for the Adult Migrant English Program (AMEP), which provides up to 510 hours of free English language training. AMEP is overseen by the Department of Education and Training and is delivered by service providers at around 250 locations throughout Australia.[71]

The Department of Social Services also provides a free interpreting service to assist community organizations and service providers communicate with Australian citizens and permanent residents who do not speak English.[72] A free translation service is also provided to eligible permanent residents and citizens so that they can have up to ten non-visa-related personal documents translated during their first two years in Australia.[73]

5. Unaccompanied Humanitarian Minors Programme

The Unaccompanied Humanitarian Minors Programme

facilitates the provision of relevant care, supervision and support services to minors on certain visas in Australia without a parent or legal guardian, who fall under the auspices of the Immigration (Guardianship of Children) Act 1946 (IGOC Act), and for whom the Minister for Immigration and Border Protection is the legal guardian.[74]

Services, which are provided by contracted providers and/or in partnership with state or territory child welfare agencies, include torture and trauma services, medical services, English language classes, access to education, and mentoring services.[75]

6. Social Welfare and Health Care Eligibility

There are no dedicated social welfare payments or special payment rates for refugees.[76] As permanent residents, refugees are able to apply for various government payments and access Australia’s national health care system, Medicare.[77] This system “provides free or subsidised treatment by some health professionals and free treatment and accommodation as a public patient in a public hospital.”[78] Refugees and humanitarian entrants are also eligible for a detailed health assessment.[79]

Holders of refugee and humanitarian visas are not subject to the normal waiting period that applies to other newly-arrived residents for many payments.[80]80 In addition, a one-time Crisis Payment is available to people “experiencing difficult or extreme circumstances,” including those who arrive in Australia for the first time on a refugee or humanitarian visa.[81] The amount of the payment is equal to one week’s payment at a person’s existing income support rate.

E. Path to Naturalization

Holders of class XB visas who are aged eighteen years and over can apply for Australian citizenship once they have lived in the country for four years. During that time, applicants must not have been out of the country for a total of more than one year, and must have been in Australia for at least nine months in the year immediately preceding their application.[82] Applicants must also satisfy character requirements and pass a citizenship test.[83] The same requirements apply to holders of other permanent residence visas.[84]

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III. Onshore Component of the Refugee and Humanitarian Programme

A. Visa Subclasses

There are three visa classes, each with one subclass, within the Refugee and Humanitarian Programme that are available to people who are in Australia and wish to apply for asylum (i.e., “protection”):[85]

  • Permanent protection visa (class XA, subclass 866): a permanent residence visa available to people who are in Australia and who are found to “engage Australia’s protection obligations” due to being a refugee or meeting the “complementary protection” criteria in the Migration Act 1958 (Cth).[86]
  • Temporary protection visa (class XD, subclass 785): a temporary visa that allows holders to live and work in Australia for up to three years. People must be in Australia and invited to apply for this visa, and must engage Australia’s protection obligations in order to be granted a visa. Holders can only apply for another temporary visa in order to remain in Australia longer than three years.[87]
  • Safe haven enterprise visa (class XE, subclass 790): a temporary visa that allows holders to live and work in Australia for five years. Applicants must be invited to apply and engage Australia’s protection obligations. Holders can apply for other substantive visas if they spend a minimum amount of time employed or studying in regional Australia.[88]

To engage Australia’s protection obligations, a person must either be determined to be a refugee or a person “in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”[89] “Significant harm” is further defined in the Migration Act 1958 (Cth), with the different elements arising from Australia’s complementary protection obligations under the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[90]

The criteria for all of the above visas, set out in section 36 of the Migration Act 1958 (Cth), also include that the applicant is “not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security.”[91] In addition, the immigration minister must not consider, on reasonable grounds, that the person is a danger to Australia’s security, or that he or she is a danger to the Australian community by virtue of being convicted of a particularly serious crime.[92]  The health requirements must also be met.

B. Permanent Protection Visa for Lawful Arrivals

As noted in the introduction to this report, the permanent protection visa is now only available to people who arrive in Australia legally (i.e., with a valid visa). Those who arrived illegally before January 1, 2014, and have not previously been granted a visa can only apply for a temporary protection visa or safe haven enterprise visa.[93] Those who attempt to enter Australia illegally after that date will not have their claims processed in Australia and will not be settled there.

As with class XB visas, an applicant for a permanent protection visa can include eligible family members in their application, as long as those relatives are also in Australia at the time the application is made.[94] Visa holders can also sponsor family members for permanent residence under the family migration stream, and in some cases for a protection visa.[95]

An applicant who arrived lawfully by air and who is currently in immigration detention due to visa expiration or cancellation, or who is in the community and suffering from financial hardships and other disadvantages, can get help preparing and lodging an application under the Immigration Advice and Application Assistance Scheme.[96] Any person who is in immigration detention is not required to pay the application charge for the protection visa, which is otherwise AU$35.[97]

Once a person has applied for a protection visa, he or she may be able to receive financial assistance, health care, and help with  visa-related  costs  through  the  Asylum  Seeker Assistance Scheme.[98]

People who are granted a protection visa, including while in immigration detention, are eligible for support through the Humanitarian Settlement Services program. However, those who were granted a protection visa after August 30, 2013, and who were illegal/unauthorized maritime arrivals and lived in the community on a “bridging visa” (see Part III(D)(2), below) or in community detention, or were non-IMAs who had similarly been living in the community, are not eligible for such support.[99]

Protection visa holders, due to having permanent residence status, may access the public health care system and social welfare payments.

Since June 3, 2013, a condition (condition 8559) has been applied to protection visas prohibiting a visa holder from traveling to his or her home country, or another country from which they sought protection. If such travel takes place, a person’s visa can be canceled.[100]

As permanent residents, protection visa holders have the same ability, and must meet the same requirements, to apply for citizenship as outlined above.

C. Temporary Visas for Illegal/Unauthorized Arrivals

1. Immigration Detention

All noncitizens, including asylum seekers, who enter Australia without a valid visa, or who remain in Australia after their visa has expired or is canceled, are classified by law as “unlawful non-citizens.”[101] However, “the term ‘unlawful’ does not mean that asylum seekers have committed a criminal offence. There is no offence under Australian law that criminalises the act of arriving in Australia or the seeking of asylum without a valid visa.”[102]

Unlawful noncitizens are subject to mandatory immigration detention, during which detention they can apply for a visa.[103] A person may be held in detention until her or she is granted a visa or is deported.[104] There is no limit to the length of time that a person may be held  in immigration detention.[105]

2. Bridging Visas

Since November 2011, illegal/unauthorized maritime arrivals have been able to apply for a “bridging visa” (subclass 050-051, bridging visa E or BVE) in order to be released from detention and live in the community while awaiting resolution of their asylum claims.[106] BVE holders may or may not be able to work, depending on the terms of their visa.  Those who leave

Australia may not reenter.[107] Some BVE holders are eligible to receive Status Resolution Support Services, which could include financial assistance, housing, case worker support, access to English lessons, and access to schooling for school-aged children.[108]

Since December 2013, all adult applicants for a BVE must sign a Code of Behaviour. As part of this Code, the person agrees to cooperate with Australian government agencies, which includes applying for a visa when invited to do so. Once a person has been invited to apply for a temporary visa, as discussed below, he or she is granted a new BVE that will be valid until the application has been decided. Such people have permission to work and to access Medicare and other services.[109]

3. Fast-Track Assessment Process

There are currently about 30,500 people in Australia, either in detention or on bridging visas, who arrived illegally before January 1, 2014.[110] Since April 2015, a new “Fast Track Assessment Process” has applied to temporary visa applications from people who arrived on or after August 13, 2012, and before January 1, 2014, and who were never taken to a Regional Processing Centre. The commencement of this process lifted a stay on processing asylum claims from such people.[111] Applicants must be invited by the immigration minister to make a valid temporary visa application.[112] Invitations are being sent in the order in which people arrived in the country, although priority is being given to those in immigration detention.[113]

Under the fast-track process, a DIBP officer conducts an initial assessment of the application, which includes interviewing the applicant. If a visa is refused, the DIPB automatically refers the case to a new body within the Administrative Appeals Tribunal (AAT) called the Immigration Assessment Authority, which undertakes a limited form of review.[114] Full administrative review by the Migration and Refugee Division of the AAT is precluded under the fast-track process.

Some people may also be assessed by DIBP to be an “excluded fast track review applicant” and not have any review rights. This can occur in situations where the applicant

  • ha[s] access to a safe third country that [he or she] can seek protection from, or [is] a national of two or more countries
  • ha[s] previously entered Australia and, while in Australia, made an application for a protection visa which was either refused or withdrawn
  • ha[s] been refused protection in another country, including with the United Nations High Commissioner for Refugees (UNHCR)
  • ha[s] made manifestly unfounded claims for protection (that is, [his or her] claims have no substance)
  • ha[s] given [DIBP] a bogus document as part of [his or her] protection visa application and do[es] not have a reasonable explanation for doing so.[115]

The two visas for which invited applicants may apply are the temporary protection visa and the safe haven enterprise visa.

4. Temporary Protection Visa

In December 2014, Parliament passed changes to the Migration Act 1958 (Cth) that reintroduced the temporary protection visa (TPV), as well introducing the fast-track process.[116] The TPV was previously a feature of Australia’s immigration law from 1999 until 2008. During that time, 11,206 people were granted TPVs, with 95% eventually given permanent protection visas.[117] As noted above, under the current rules, a TPV holder can apply for a new temporary visa to remain in Australia, but cannot apply for a permanent visa unless ministerial approval is granted.

In addition to processing applications received under the invitation and fast-track process outlined above, “any valid application for a permanent Protection visa lodged by a person who arrived in Australia illegally that was not finalised by 16 December 2014 has been converted into a TPV application.”[118] The same form, Form 866, is used for the permanent protection visa and TPV.[119] There is an application charge of AU$35 for aTPV, unless the applicant is inimmigration detention.[120] The “most vulnerable illegal arrivals” will be notified of their eligibility for assistance with preparing their applications, which is provided through the Primary Applicant Information Services program.[21]

TPV holders can enroll in Australia’s public healthcare system and are eligible for some social security benefits. They can receive job-matching assistance and “short-term counselling for torture and trauma where required.”[122] Children can attend school and adults can access the government’s Adult Migrant English Programme.[123] TPV holders are not entitled to settlement support services, although the immigration minister may grant access.[124]

TPV applicants can include their family members who are also in Australia on their application.[125] However, TPV holders cannot sponsor overseas family members for a visa.[126] As temporary residents, they do not have a pathway to gaining citizenship.

Those granted a TPV after December 16, 2014, must obtain approval to travel to  another country. Such travel will be approved only if the person demonstrates “compassionate or compelling circumstances that justify the travel.”[127] If a person travels without approval, his or her visa could be canceled.  A person must also not travel to his or her home country.[128]

Persons who were granted a TPV before December 16, 2014, under the old provisions, cannot get permission to travel outside the country.[129]129 If such a person leaves Australia his or her visa may be canceled.

5. Safe Haven Enterprise Visa

The December 2014 amendments also saw the introduction of the safe haven enterprise visa (SHEV). The purpose of this visa “is both to provide protection and to encourage enterprise through earning and learning while strengthening regional Australia.”[130] An unauthorized maritime arrival who is granted a SHEV and meets certain conditions may apply for an onshore substantive visa, although not a permanent protection visa. Therefore, SHEV may provide a “ ‘pathway’ to eventually obtaining permanent residency.”[131] The pathway conditions are met if a SHEV holder has, for at least three and a half years while on the visa, been employed in regional Australia and not received certain social security benefits, or has enrolled and physically attended full-time study in regional Australia, or a combination of both.[132]

People that do not meet the pathway requirements can apply for another SHEV or a TPV, at which time there will be another assessment regarding whether they engage Australia’s protection obligations. If granted another SHEV, a person’s period of work and/or study during both SHEVs will count towards meeting the SHEV pathway requirements.[133]

SHEV holders who wish to study are not eligible for funding for higher education and so are charged international student rates. They are also not eligible for social security benefits for students. School-aged children are able to attend and complete elementary and high school level schooling.[134]

SHEV holders can access Medicare as well as employment services available to job seekers, including referrals for jobs and assistance with looking for work, writing a resume, and preparing for interviews. Social and health-related payments and services that are available to Australian workers can be accessed by SHEV holders if they meet the eligibility criteria.[135]

The same restrictions on travel and sponsoring family members apply to SHEV holders as apply to TPV holders.

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Prepared by Kelly Buchanan
Chief, Foreign, Comparative, and
International Law Division I
March 2016


[1] Fact Sheet – Australia’s Refugee and Humanitarian Programme, Department of Immigration and Border Protection (DIBP), https://www.border.gov.au/about/corporate/information/fact-sheets/60refugee (last visited Dec. 31, 2015), archived at https://perma.cc/KPG3-ZZHP.

[2] What is ‘Onshore Protection’?, DIBP, https://www.border.gov.au/Lega/Lega/Form/Immi-FAQs/what-is-onshore-protection (last visited Jan. 5, 2016), archived at https://perma.cc/YHV8-97NS.

[3] What Is Australia’s Refugee and Humanitarian Programme All About?, DIBP, https://www.border.gov.au/ Lega/Lega/Form/Immi-FAQs/what-is-australias-refugee-and-humanitarian-program-all-about (last visited Jan. 5, 2016), archived at https://perma.cc/X4VZ-LQJ2.

[4] What is ‘Offshore Resettlement’?, DIBP, https://www.border.gov.au/Lega/Lega/Form/Immi-FAQs/what-is-offshore-resettlement (last visited Dec. 28, 2015), archived at https://perma.cc/4R5J-LKB3; The Special Humanitarian Programme (SHP), DIBP,https://www.border.gov.au/Trav/Refu/Offs/The-Special-Humanitarian-Programme-%28SHP%29 (last visited Jan. 5, 2016), archived at https://perma.cc/Q5UH-VSP9; Janet Phillips & Elibritt Karlsen, Budget Review 2014–15: Migration and Humanitarian Programs, Australian Parliamentary Library (May 2014), http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_ Library/pubs/rp/BudgetReview201415/Migration, archived at https://perma.cc/J32K-E83E; Janet Phillips, Australia’s Humanitarian Program: A Quick Guide to the Statistics Since 1947 (Australian Parliamentary Library, Jan. 7, 2015), http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/ pubs/rp/rp1415/Quick_Guides/Humanitarian, archived at https://perma.cc/L67F-FD2M.

[5] Janet Phillips, Asylum Seekers and Refugees: What Are the Facts?, Australian Parliamentary Library (updated Mar. 2, 2015), http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_ Library/pubs/rp/rp1415/AsylumFacts, archived at https://perma.cc/EBY2-LY8M.

[6] Refugee and Humanitarian Visas, DIBP, https://www.border.gov.au/Trav/Refu/Offs/Refugee-and-Humanitarian-visas (last visited Jan. 5, 2016), archived at https://perma.cc/A9U2-DLDM.

[7] Migration Act 1958 (Cth) s 39A, https://www.comlaw.gov.au/Details/C2015C00618, archived at https://perma.cc/JVQ9-UAS7.

[8] Janet Phillips, Budget Review 2013–14: Migration and Humanitarian Programs,Australian Parliamentary Library (May 2013), http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_ Library/pubs/rp/ BudgetReview201314/Migration, archived at https://perma.cc/4XMN-DCFG; Government, Report of the Expert Panel on Asylum Seekers (Aug. 2012), available at http://apo.org.au/files/Resource/ expert_ panel_on_asylum_seekers_ full_report_0.pdf, archived at https://perma.cc/8SUN-VTDJ.

[9] Harriet Spinks, Budget Review 2015–16: Migration and Humanitarian Programs, Australian Parliamentary Library (May 2015), http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_ Library/pubs/rp/BudgetReview201516/Migration, archived at https://perma.cc/G37T-XXKD.

[10] Press Release, Hon. Tony Abbott et al., The Syrian and Iraqi Refugee Crisis (Sept. 9, 2015), http://foreign minister.gov.au/releases/Pages/2015/jb_mr_150909a.aspx, archived at https://perma.cc/2A9S-QQU5.

[11] Id.  See also Syrian/Iraqi Humanitarian Crisis, Department of Social Services (DSS),https://www.dss.gov. au/settlement-and-multicultural-affairs-programs-policy/syrian-iraqi-humanitarian-crisis (last updated Nov. 16, 2015), archived at https://perma.cc/C6VD-UF2T.

[12] Press Release, Peter Dutton MP, Minister – Restoring Integrity to Refugee Intake (May 12, 2015), http://www.minister.border.gov.au/peterdutton/2015/Pages/restoring-integrity-to-refugee-intake.aspx, archived at https://perma.cc/7DV6-7LMU.

[13] Migration Regulations 1994 (Cth), https://www.comlaw.gov.au/Details/F2015C00989, archived at https://perma.cc/SFM5-739G.

[14] See Australia Asylum: Why Is It Controversial?, BBC (Nov. 9, 2015), http://www.bbc.com/news/world-asia-28189608, archived at https://perma.cc/9927-H75Q.

[15] Illegal Maritime Arrivals (IMAs), DIBP, http://www.ima.border.gov.au/en/Illegal-maritime-arrivals (last visited Jan. 5, 2016), archived at https://perma.cc/RPE5-VSQT.

[16] Migration Act 1958 (Cth) s 5AA (meaning of “unauthorised maritime arrival”).

[17] See, e.g, Timeline of Major Events in the History of Australia’s Refugee and Humanitarian Program, Refugee Council of Australia,http://www.refugeecouncil.org.au/fact-sheets/australias-refugee-and-humanitarian-program/timeline/ (last updated Feb. 2014), archived at https://perma.cc/F24X-TP7D; Timeline of Events, Asylum Seeker Resource Center,http://www.asrc.org.au/resources/fact-sheet/timeline-of-events/ (last visited Jan. 5, 2016), archived at https://perma.cc/D296-SY9J; http://www.aph.gov.au/DocumentStore.ashx?id=ba803e88-71a5-4283-b5cd-b10cd12e027c; Elibritt Karlsen & Janet Phillips, Developments in Australian Refugee Law and Policy (2012 to August 2013), Australian Parliamentary Library (Sept. 25, 2014), http://www.aph.gov.au/About_ Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1415/RefugeeLawPolicy, archived at https://perma.cc/P4GN-XABD.

[18] See Janet Phillips & Harriet Spinks, Immigration Detention in Australia, Australian Parliamentary Library (updated Mar. 20, 2013),http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_ Library/pubs/BN/2012-2013/Detention, archived at https://perma.cc/4STN-FKYA; Immigration Detention and Human Rights, Australian Human Rights Commission (Jan. 1, 2014; updated Aug. 14, 2015), https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/projects/immigration-detention-and-human-rights, archived at https://perma.cc/J9K9-35N5.

[19] See Harriet Spinks & Ian McCluskey, Parliamentary Library Briefing Book – 44th Parliament: Asylum Seekers and the Refugee Convention, Australian Parliamentary Library (2013), http://www.aph.gov.au/About_ Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook44p/AsylumSeekers, archived at https://perma.cc/P933-EZ9J; Sarah Joseph, Operation Sovereign Borders, Offshore Detention and the ‘Drownings Argument’, The Conversation (July 23, 2015), http://theconversation.com/operation-sovereign-borders-offshore-detention-and-the-drownings-argument-45095, archived at https://perma.cc/ESZ4-SCHK.

[20] Illegal Maritime Arrivals: When Will My Claims for Asylum Be Considered?, DIBP, http://www.ima.border.gov. au/en/Waiting-in-the-community/When-will-my-claims-for-asylum-be-considered (last visited Jan. 5, 2016), archived at https://perma.cc/S89G-P2UV.

[21] Operation Sovereign Borders, DIBP, https://www.border.gov.au/about/operation-sovereign-borders (last visited Dec. 17, 2015), archived at https://perma.cc/5P55-E9HV.

[22] Illegal Maritime Arrivals: When Will My Claims for Asylum Be Considered?, supra note 20.

[23] Id.

[24] See Janet Phillips, The ‘Pacific Solution’ Revisited: A Statistical Guide to the Asylum Seeker Caseloads on Nauru and Manus Island, Australian Parliamentary Library (Sept. 4, 2012), http://www.aph.gov.au/about_ parliament/parliamentary_departments/parliamentary_library/pubs/bn/2012-2013/pacificsolution, archived at https://perma.cc/LMJ3-54WS.

[25] See Transfer of Asylum Seekers to Third Countries, Australian Human Rights Commission (Jan. 1, 2014, updated Aug. 13, 2015),https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/projects/transfer-asylum-seekers-third-countries, archived at https://perma.cc/V57B-4MR3.

[26] Id.

[27] Janet Phillips, Asylum Seekers and Refugees: What Are the Facts?, supra note 5.

[28] Id.

[29] Refugee and Humanitarian Visas, DIBP,https://www.border.gov.au/Trav/Refu/Offs/Refugee-and-Humanitarian-visas (last visited Jan. 5, 2016), archived at https://perma.cc/C7HQ-M8K2; Migration Regulations 1994 (Cth) r 1402.

[30] Refugee Visa (Subclass 200), DIBP, https://www.border.gov.au/Trav/Visa-1/200- (last visited Jan. 5, 2016), archived at https://perma.cc/JYM4-BDNZ.

[31] In-country Special Humanitarian Visa (Subclass 201), DIBP, https://www.border.gov.au/Trav/Visa-1/201- (last visited Jan. 5, 2016), archived at https://perma.cc/EAJ2-6DNG.

[32] Emergency Rescue Visa (Subclass 203), DIBP, https://www.border.gov.au/Trav/Visa-1/203- (last visited Jan. 5, 2016), archived at https://perma.cc/S62A-VS5B.

[33] Woman at Risk Visa (Subclass 204), DIBP, https://www.border.gov.au/Trav/Visa-1/204- (last visited Jan. 5, 2016), archived at https://perma.cc/UVM9-N3Y5.

[34] Global Special Humanitarian Visa (Subclass 202), DIBP, https://www.border.gov.au/Trav/Visa-1/202- (last visited Jan. 5, 2016), archived at https://perma.cc/F76R-RKR2.

[35] See Refugee Visa (Subclass 200), supra note 30 (Community pilot tab).

[36] See Including Family Members in Your Application, DIBP, https://www.border.gov.au/Trav/Visa/Incl (last visited Jan. 5, 2016), archived at https://perma.cc/2QYJ-XY3D.

[37] What Do You Mean by ‘Immediate Family’?, DIBP, https://www.border.gov.au/Lega/Lega/Form/Immi-FAQs/what-do-you-mean-by-immediate-family (last visited Dec. 28, 2015), archived at https://perma.cc/AVJ3-G66D.

[38] What is a ‘Split Family’?, DIBP, https://www.border.gov.au/Lega/Lega/Form/Immi-FAQs/what-is-a-split-family (last visited Dec. 28, 2015), archived at https://perma.cc/32VM-5VMP.

[39] Who is Eligible Under ‘Split Family’ Provisions?, DIBP, https://www.border.gov.au/Lega/Lega/Form/Immi-FAQs/who-is-eligible-under-split-family-provisions (last visited Jan. 5, 2016), archived at https://perma.cc/XP35-F7BN.

[40] What Visas Will My Immediate Family Members Receive?, DIBP, https://www.border.gov.au/Lega/Lega/Form/ Immi-FAQs/what-visas-will-my-immediate-family-members-receive (last visited Dec. 28, 2015), archived at https://perma.cc/B93U-GVYW.

[41] DIBP, Form 842: Application for an Offshore Humanitarian Visa (Refugee and Humanitarian (Class XB) Visa) (2015), https://www.border.gov.au/Forms/Documents/842.pdf, archived at https://perma.cc/N4T6-NSPH.

[42] DIBP, Form 681: Refugee and Special Humanitarian Proposal (2015), https://www.border.gov.au/Forms/ Documents/681.pdf, archived at https://perma.cc/E75V-TCT7.

[43] DIBP, Form 1417: Proposal for Refugee and Special Humanitarian Entrants by Approved Proposing Organisation (2015), https://www.border.gov.au/Forms/Documents/1417.pdf, archived at https://perma.cc/83QA-3DYU.

[44] See Refugee Visa (Subclass 200), supra note 30 (Visa applicants tab; Document checklist).

[45] In-country Special Humanitarian Visa (Subclass 201), supra note 31 (Visa applicants tab; Document checklist).

[46] After an Application Is Lodged, DIBP,https://www.border.gov.au/Trav/Refu/Offs/After-an-application-is-lodged (last visited Dec. 28, 2015), archived at https://perma.cc/GG73-VVMW.

[47] Immigration Health Requirements, DIBP,https://www.border.gov.au/Trav/Visa/Heal (last visited Jan. 5, 2016), archived at https://perma.cc/GB87-EWCZ; Fact Sheet – Health Requirement, DIBP, https://www.border.gov.au/ about/corporate/information/fact-sheets/22health (last visited Jan. 5, 2016), archived at https://perma.cc/PA5X-5EGQ

[48] Character and Police Certificate Requirements, DIBP,https://www.border.gov.au/Trav/Visa/Char (last visited Jan. 5, 2016), archived at https://perma.cc/N6JC-Q9GA; Fact Sheet – The Character Requirement, DIBP, https://www.border.gov.au/about/corporate/information/fact-sheets/79character (last visited Jan. 5, 2016), archived at https://perma.cc/HFX5-NPKU.

[49] Overview of the Health Requirement, DIBP, https://www.border.gov.au/Trav/Visa/Heal/overview-of-the-health-requirement (last visited Jan. 5, 2016), archived at https://perma.cc/VG5T-KNKC.

[50] Refugee Visa (Subclass 200), supra note 30 (Visa applicants tab; Who could get this visa).  See also Visas That Have a Health Waiver Provision, DIBP,https://www.border.gov.au/Trav/Visa/Heal/overview-of-the-health-requirement/visas-that-have-a-health-waiver-provision (last visited Jan. 5, 2016), archived at https://perma.cc/HRY7-N4D6.

[52] Fact Sheet – Departure Health Check, DIBP,https://www.border.gov.au/about/corporate/information/fact-sheets/67a-dhc (last visited Jan. 5, 2016), archived at https://perma.cc/N8AJ-JZZD.

[53] Migration Act 1958 (Cth) s 501(6)(g).

[54] Migration Regulations 1994 (Cth) sch 4 pt 1 criterion 4003.  See generally Australian Security Intelligence Organisation (ASIO), ASIO’s Security Assessment Function (Jan. 29, 2013), https://www.asio.gov.au/img/ files/Security-Assessment-Function.pdf, archived at https://perma.cc/CD4Z-74DB.

[55] ASIO, ASIO Report to Parliament 2014–2015, at 23 (2015), http://www.asio.gov.au/img/files/ASIOsReport ToParliament2014-15.pdf, archived at https://perma.cc/GA2V-E6KF.

[56] Offshore Resettlement: After an Application Is Lodged, DIBP,https://www.border.gov.au/Trav/Refu/Offs/After-an-application-is-lodged (last visited Jan. 5, 2016), archived at https://perma.cc/9LYH-KF6C.

[57] Refugee or Humanitarian Programme Visa Processing Times, DIBP, https://www.border.gov.au/about/access-accountability/service-standards/refugee-or-humanitarian-program-visa-processing-times (last visited Dec. 28, 2015), archived at https://perma.cc/XT9V-YW6E.

[58] See Refugee Visa (Subclass 200), supra note 30 (About this visa tab; Cost).

[59] Id. (Community pilot tab).

[60] Global Special Humanitarian Visa (Subclass 202), supra note 34 (About this visa tab; Cost). 

[61] Is There Any Support for Refugee and Humanitarian Visa Holders?, DIBP,https://www.border.gov.au/Lega/ Lega/Form/Immi-FAQs/is-there-any-support-for-refugee-and-humanitarian-visa-holders (last visited Jan. 5, 2016), archived at https://perma.cc/4TKW-BJ4K.

[63] Is There Any Support to Help Me Settle into Life in Australia?, DIBP,https://www.border.gov.au/Lega/Lega/ Form/Immi-FAQs/is-there-any-support-to-help-me-settle-into-life-in-australia (last visited Jan. 5, 2016), archived at https://perma.cc/X75D-BSCQ.

[64] See Humanitarian Settlement Services Locator, DSS, https://www.dss.gov.au/our-responsibilities/settlement-and-multicultural-affairs/programs-policy/settlement-services/settlement-services-locator (last updated July 1, 2015), archived at https://perma.cc/4JU2-G6UZ; How Do I Find Humanitarian Settlement Services Support?, DIBP,  https://www.border.gov.au/Lega/Lega/Form/Immi-FAQs/how-do-i-find-humanitarian-settlement-services-support (last visited Jan. 5, 2016), archived at https://perma.cc/TP5C-DMP2.

[65] What Services Will I Receive?, DIBP,https://www.border.gov.au/Lega/Lega/Form/Immi-FAQs/what-services-will-i-receive (last visited Jan. 5, 2016), archived at https://perma.cc/9S8D-ZBQF.

[66] What Will I Be Able to Do When My Humanitarian Settlement Services Support Ends?, DIBP,https://www. border.gov.au/Lega/Lega/Form/Immi-FAQs/what-will-i-be-able-to-do-when-my-humanitarian-settlement-services-support-ends (last visited Jan. 5, 2016), archived at https://perma.cc/58GL-3XBL.

[69] Id.

[71] Adult Migrant English Program, Department of Education and Training, http://www.education.gov. au/adult-migrant-english-program-0 (last modified Dec. 11, 2015), archived at https://perma.cc/9W4V-G8YU.

[74] Unaccompanied Humanitarian Minors Programme, DIBP, https://www.border.gov.au/about/corporate/ information/fact-sheets/uhm-programme (last visited Dec. 29, 2015), archived at https://perma.cc/D9RY-B8XY.

[75] Id.

[76] Luke Buckmaster & Jonathon Guppy, Australian Government Assistance to Refugees: Fact Versus Fiction,Australian Parliamentary Library (Nov. 11, 2014), http://www.aph.gov.au/About_Parliament/Parliamentary_ Departments/Parliamentary_Library/pubs/rp/rp1415/AustGovAssist-refugees, archived at https://perma.cc/LP6Q-WEKL.

[77] Payments for Visa Holders, DSS, http://www.humanservices.gov.au/customer/subjects/payments-for-visa-holders (last updated Aug. 5, 2015), archived at https://perma.cc/D6EY-PTMB.

[78] Health Care, Department of Human Services, http://www.humanservices.gov.au/customer/subjects/health-care (last updated Nov. 25, 2015), archived at https://perma.cc/N9HM-L7GW.

[79] Health Assessment for Refugees and Other Humanitarian Entrants into Australia: Questions and Answers, Department of Health, http://www.health.gov.au/internet/main/publishing.nsf/Content/mbsprimarycare_ mbsitem_refugees_qanda (last updated Apr. 17, 2014), archived at https://perma.cc/HKC6-V58K.

[80] Newly Arrived Resident’s Waiting Period, Department of Human Services, http://www.humanservices.gov.au/ customer/enablers/newly-arrived-residents-waiting-period (last updated Nov. 18, 2015), archived at https://perma.cc/JN88-Z9MW.

[81] Crisis Payment, Department of Human Services, http://www.humanservices.gov.au/customer/services/ centrelink/crisis-payment (last updated Dec. 15, 2015), archived at https://perma.cc/2UZG-P66Q.

[82] Applying for Citizenship: How to Apply – Refugee and Humanitarian Entrants, DIBP, https://www.border. gov.au/Trav/Citi/Appl/How-to-apply/Refugee-and-humanitarian-entrants (last visited Dec. 29, 2015), archived at https://perma.cc/W9PJ-VFHJ.

[83] Id.

[84] Application Process for Australian Citizenship, DIBP, https://www.border.gov.au/Trav/Citi/Appl/How-to-apply/Application-process-for-Australian-citizenship (last visited Dec. 29, 2015), archived at https://perma.cc/8BHD-PQQC; Australian Citizenship Act 2007 (Cth) ss 21–24, https://www.comlaw.gov.au/ Details/C2015C00221, archived at https://perma.cc/5K42-SVB8.

[85] Migration Act 1958 (Cth) s 35A; Onshore – Protection, DIBP, https://www.border.gov.au/Trav/Refu/Onsh (last visited Jan. 5, 2016), archived at https://perma.cc/HW5Q-NJ5A.

[86] Protection Visa (Subclass 866), DIBP, https://www.border.gov.au/Trav/Visa-1/866- (last visited Jan. 5, 2016), archived at https://perma.cc/VKA4-45T6; Migration Regulations 1994 (Cth) r 1401.

[87] Temporary Protection Visa (Subclass 785), DIBP, https://www.border.gov.au/Trav/Visa-1/785- (last visited Jan. 5, 2016), archived at https://perma.cc/FU82-4RVP; Migration Regulations 1994 (Cth) r 1403.

[88] Safe Haven Enterprise Visa (Subclass 790), DIBP, https://www.border.gov.au/Trav/Visa-1/790- (last visited Jan. 5, 2016), archived at https://perma.cc/X6FK-TQ47; Migration Regulations 1994 (Cth), r 1404.

[89] Migration Act 1958 (Cth) s 36(2)(aa).

[90] See Protection Visa (Subclass 866), supra note 86 (Visa applicants tab; Who could get this visa).

[91] Migration Act 1958 (Cth) s 36(1B).

[92] Id. s 36(1C).

[94] Protection Visa (Subclass 866), supra note 86 (Visa applicants tab; Including family in your application).

[95] Id. (Visa holders tab; What this visa lets you do).

[96] Id. (Visa applicants tab; Help to prepare your application); Fact Sheet – Immigration Advice and Application Assistance Scheme (IAAAS), DIBP, https://www.border.gov.au/about/corporate/information/fact-sheets/63advice (last visited Jan. 5, 2016), archived at https://perma.cc/VYK9-KEX6.

[97] Fees and Charges for Visas, DIBP,https://www.border.gov.au/Trav/Visa/Fees (Other tab; Protection visa applications) (last visited Jan. 5, 2016), archived at https://perma.cc/ZA3Y-3UCT.

[98] Protection Visa (Subclass 866), supra note 86 (Visa applicants tab; Applying for assistance after you lodge your application).

[100] Protection Visa (Subclass 866), supra note 86 (Visa holders tab).

[101] Migration Act 1958 (Cth) s 14.

[102] Janet Phillips, Asylum Seekers and Refugees: What Are the Facts?, supra note 5.

[103] Migration Act 1958 (Cth) pt 2 div 7.  See generally Joint Select Committee on Australia’s Immigration Detention Network, Final Report (Mar. 2012), http://www.aph.gov.au/Parliamentary_Business/Committees/ Joint/Former_Committees/immigrationdetention/report/index, archived at https://perma.cc/W4GE-3WMG; About Immigration Detention, DIBP, https://www.border.gov.au/Busi/Comp/Immigration-detention (last visited Jan. 5, 2016), archived at https://perma.cc/F734-EG76

[104] Migration Act 1958 (Cth) s 196.

[105] Asylum Seekers and Refugees Guide, Australian Human Rights Commission, https://www.humanrights.gov. au/our-work/asylum-seekers-and-refugees/asylum-seekers-and-refugees-guide (last updated Aug. 14, 2015), archived at https://perma.cc/M3ZP-78Y3.

[106] Fact Sheet – Bridging Visas for Illegal Maritime Arrivals, DIBP,https://www.border.gov.au/about/corporate/ information/fact-sheets/65onshore-processing-illegal-maritime-arrivals (last visited Jan. 4, 2016), archived at https://perma.cc/2P3P-X6YM; Migration Act 1958 (Cth) pt 2 div 3 subdiv AF.

[107] Bridging Visa E – BVE (Subclass 050-051), DIBP, https://www.border.gov.au/Trav/Visa-1/051- (last visited Dec. 30, 2015), archived at https://perma.cc/3GZ9-PWH7.

[109] Illegal Maritime Arrivals: Waiting in the Community, DIBP, http://www.ima.border.gov.au/Waiting-in-the-community (last visited Dec. 30, 2015), archived at https://perma.cc/M8RA-KW9Y.

[110] Illegal Maritime Arrivals: Illegal Maritime Arrivals (IMAs), DIBP, http://www.ima.border.gov.au/ (last visited Dec. 30, 2015), archived at https://perma.cc/A326-TE9S.

[111] Paul Farrell, Asylum Seeker Fast-Track Processing to Begin with Temporary Protection Visas, The Guardian (May 28, 2015), http://www.theguardian.com/australia-news/2015/may/28/asylum-seeker-fast-track-processing-to-begin-with-temporary-protection-visas, archived at https://perma.cc/W8EQ-W6G3.

[112] Illegal Maritime Arrivals: Fast Track Assessment Process, DIBP,http://www.ima.border.gov.au/en/Applying-for-a-protection-visa/Fast-Track-Assessment-process (last visited Jan. 5, 2016), archived at https://perma.cc/N8K3-8PE9.

[113] Illegal Maritime Arrivals: When Will My Claims for Asylum Be Considered?, DIBP, http://www.ima.border.gov. au/Waiting-in-the-community/When-will-my-claims-for-asylum-be-considered (last visited Dec. 30, 2015), archived at https://perma.cc/9AP6-EWY4.

[114] Illegal Maritime Arrivals: Fast Track Assessment Process, supra note 112.

[115] Id.

[116] Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, https://www.comlaw.gov.au/Details/C2015C00219, archived at https://perma.cc/SDJ3-5CAL.

[117] Temporary Protection Visas, Asylum Seeker Resource Centre, http://www.asrc.org.au/resources/fact-sheet/temporary-protection-visas/ (last visited Dec. 31, 2015), archived at https://perma.cc/E8ST-82HL; Harriet Spinks, A Return to Temporary Protection Visas?, FlagPost (Oct. 18, 2013), http://www.aph.gov.au/About_ Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2013/November/A_return_to_Temporary_Protection_Visas, archived at https://perma.cc/Y5A3-ZAZZ; Temporary Protection Visas, Kaldor Centre for International Refugee Law (Apr. 1, 2015), http://www.kaldorcentre.unsw.edu.au/publication/temporary-protection-visas, archived at https://perma.cc/9BP4-H4Y7.

[118] Illegal Maritime Arrivals: Temporary Protection Visas, DIBP, http://www.ima.border.gov.au/en/Applying-for-a-protection-visa/Temporary-Protection-visas (last visited Jan. 5, 2016), archived at https://perma.cc/6AFZ-MR4Q.

[120] Fees and Charges for Visas, supra note 97.

[121] Temporary Protection Visa (Subclass 785), supra note 87 (Visa applicants tab; Help to prepare your application).

[122] Illegal Maritime Arrivals: Temporary Protection Visas, supra note 118.

[123] Id.

[124] Temporary Protection Visas, Kaldor Centre for International Refugee Law, supra note 117.

[125] Temporary Protection Visa (Subclass 785), supra note 87 (Visa applicants tab; Including family in your application).

[126] Illegal Maritime Arrivals: Temporary Protection Visas, supra note 118.

[127] Id.

[128] Illegal Maritime Arrivals: Travel Condition 8570, DIBP,http://www.ima.border.gov.au/After-your-application-is-decided/Travel-condition-8570 (last visited Jan. 5, 2016), archived at https://perma.cc/W324-FX2V.

[129] Id.

[130] Migration Act 1958 (Cth) s 35A(3B).

[131] Administrative Appeals Tribunal, Migration and Refugee Division, Guide to Refugee Law 1–3 (Dec. 2015), http://www.mrt-rrt.gov.au/CMSPages/GetFile.aspx?guid=91addcd2-35ac-47c3-a97a-07953552f9c5, archived at https://perma.cc/5S5V-N8RL.

[132] Illegal Maritime Arrivals: Information for Save Haven Enterprise Visa Holders, DIBP,http://www.ima. border.gov.au/After-your-application-is-decided/Information-for-Safe-Haven-Enterprise-visa-holders (last visited Jan. 5, 2016), archived at https://perma.cc/F2WL-V7VD.

[133] Id.

[134] Id.

[135] Id.