Refugee Visas

To be eligible for a refugee visa, a person must be outside Australia and be subject to persecution in their home country. The refugee visa is called a class XB visa and allows a refugee and their family to live, work and study indefinitely in Australia. It is usually granted to people referred to Australia by the United Nations Commissioner for Refugees (UNHCR).

A decision on a refugee visa may take years. The number of applications received by the Department of Home Affairs is greater than the number of available visas. Priority is given to applicants who are assessed as refugees by UNHCR and referred to Australia for resettlement, and those who are proposed by an immediate family member who holds a refugee visa.

What the visa allows

A refugee visa allows a holder to stay in Australia permanently and access Medicare, become an Australian citizen and attend free English language classes through the Adult Migrant English Program.

The holder can travel to and from Australia for 5 years from the date the visa is granted. From then, a Resident Return visa is required to re-enter Australia as a permanent resident.

The holder can also propose family members for permanent residence. A family member may include a spouse or de facto partner, dependent child or stepchild, parent or step-parent (if the applicant is aged under 18), or other relative who is a dependant. A proposal must be made within 5 years of a person being granted a refugee visa.

Visa subclasses

The refugee visa has four subclasses: 200, 201, 203, and 204.

Refugee (subclass 200)

This visa is granted to those referred to Australia by UNHCR for resettlement.

In-country Special Humanitarian (subclass 201)

This visa is granted to those who are living in their home country and have been unable to leave.

Emergency Rescue (subclass 203)

This visa is granted to those referred to Australia by the UNHCR because they are in immediate danger.

Woman at Risk (subclass 204)

This visa is granted to women who do not have the protection of a partner or relative and are in danger of victimisation.

Eligibility

Applicants for a refugee visa must:

• be outside Australia;
• be subject to persecution in their home country;
• meet “compelling reasons” criteria;
• meet health and character requirements.

Persecution

Persecution at a minimum encompasses a threat to life or freedom based on a person’s characteristic. A decision-maker is required to assess whether there is a “real chance” of persecution by examining the conditions of the person’s country of origin and their particular circumstances.

Section 5J of the Migration Act 1958 sets out the elements that must be met in Australia for a person to demonstrate a well-founded fear of persecution.

The applicant must show that the key reason for their persecution is their race, religion, nationality, political opinion or membership of a particular social group, that it involves systematic or discriminatory conduct, and that it involves serious harm. Serious harm can include:

• a threat to life or freedom
• significant physical harassment or ill-treatment
• significant economic hardship that threatens the person’s capacity to subsist, caused by such factors as denial of access to basic services or capacity to earn a livelihood.

Compelling reasons criteria

The department must be satisfied there are compelling reasons to grant a refugee visa, taking into account:

• the degree or severity of the persecution;
• the extent of the applicant’s connection to Australia;
• whether there is another country suitable for the applicant’s settlement and protection;
• the capacity of the Australian community to provide permanent settlement for the applicant;
• whether the granting of the visa is in the public interest.

Health and character requirements

To meet the health requirement for a refugee visa, the applicant must be free from any disease or condition that will incur a significant healthcare and community service cost to Australia, or which is likely to limit access of Australian citizens and residents to services in short supply by placing demand on those services. The department considers costs of $49,000 or more to be significant. A Medical Officer of the Commonwealth is responsible for deciding whether the health requirement is met.

The character requirements are set out under the Migration Act 1958. These include that a person must not:

• have a substantial criminal record;
• have been convicted of an offence related to immigration detention;
• have been a member of a criminal organisation;
• have never been involved in crimes such as people trafficking, a crime against humanity or a war crime;
• be considered someone who might become involved in criminal conduct or provoke discord in the community, or present a danger to the community;
• have been convicted of sexual offending involving a child;
• have been subject to a negative security assessment by the Australian Security Intelligence Organisation (ASIO);
• have been subject to an Interpol notice when they were suspected to be a direct or indirect danger to the Australian community.

For advice or representation in any legal matter, please contact Armstrong Legal.