A large part of our work is assisting refugees with their protection visa applications.
About protection visas
Visas categorised as protection visas are for people who are in Australia and want to apply for protection. If granted the visa, you may be permitted to stay temporarily or permanently provided you engage Australia’s protection obligations and meet all relevant requirements.
Temporary Protection Visas (TPV) and Safe Haven Enterprise Visas (SHEV)
These are temporary protection visas. TPVs cease 3 years after the date of grant or the visa and SHEVs cease 5 years after the date of grant. If you hold a TPV or SHEV and you want to remain in Australia beyond your visa cease date, you must apply for a further visa in which you are eligible to apply for at the time your current visa is due to cease.
Protection visa applications can be complex and very difficult to prepare and lodge yourself. We recommend all clients to seek professional assistance with the application to ensure your best case is put forward to the Department of Immigration for assessment.
To be considered a “refugee” for the purpose of a protection visa, you will be assessed against the legal definition of “refugee” under the Migration Act. You would need to be considered as a person outside their normal country or nationality that has a “well-founded fear or persecution” and cannot return to your home country due to this fear.
The assessment of this criteria is very complex and does not have a single simple answer. Under the Act, a person may be considered to have a “well-founded fear of persecution” if they meet the following:
- the person fears persecution due to their race, religion, nationality, membership of a political social group or political opinion, and
- there are real chances of persecution due to at least one of the 5 reasons if they return home to their country of nationality, and
- the fear relates to all regions in your home country and they cannot relocate to avoid the persecution, and
- the persecution is involving not only a ‘serious harm’ but also a ‘systematic and discriminatory conduct’ towards them.
Complementary protection refers to protection for those that are not by definition ‘refugees’ in accordance to the Act but nonetheless fear certain types of harm will be done to them upon their return to their country of nationality. In these circumstances, Australia’s protection obligations may be engaged.
Usually, a person will be given protection if there is sufficient evidence to establish that there is a real risk they will suffer from significant harm if they are forced to leave Australia and return to their home country.
Significant harm is defined as:
- cruel or inhumane treatment/punishment
- deprivation of life
- penalty of death, or
- degrading treatment/punishment.
The department will consider a number of factors in addition to establishment of significant harm, including:
- relocation possibilities
- assistance from the country’s authority or government, and
- whether the risk of harm is experienced on a personal level or whether it is applicable to the population of the country as a whole.