PROTECTION OBLIGATIONS UNDER AUSTRALIAN LAW

 

Australia considers the claims of asylum seekers under the provisions of the Migration Act 1958 and the Migration Regulations 1994.

Section 36 of the Migration Act sets out the grounds for granting a protection visa. The Migration Act gives effect to Australia’s obligation of non-refoulement.

Section 36 also sets out grounds for complementary protection for people who are not refugees as defined in the Refugee Convention but who cannot be returned to their home country for other reasons. These reasons may be because there is a real risk that would engage Australia's non-refoulement obligations under international human rights law.

Australia's non-refoulement obligations, in addition to its obligations under the Refugee Convention, are derived from international conventions to which Australia is a party. These include the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol, the Convention Against Torture (CAT), and the Convention on the Rights of the Child (CRC).

Non-refoulement obligations may be engaged under these treaties where there are substantial grounds for believing that there is a real risk that a person returned to their country of origin will suffer significant harm. Significant harm is where a person will be subjected to arbitrary deprivation of his or her life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

Protection visas

The Protection visa is the mechanism by which Australia can offer protection to individuals who are refugees, within Australia’s new definition of what constitutes a refugee.

Section 36 of the Migration Act sets out the grounds for the granting of a protection visa. The Migration Act gives effect to Australia’s obligation of non-refoulement.

Asylum seekers granted a permanent Protection visa become permanent residents of Australia and have access to health, social security, education and employment services. People with Protection visas are able to apply for Australian citizenship and sponsor eligible relatives for permanent residence (with some restrictions).

A person may be eligible for this visa if they:

  • are in Australia and engage Australia’s protection obligations
  • did not arrive in Australia without a valid visa i.e. people characterised as “illegal maritime arrivals” or “unauthorised air arrival”.

A variety of temporary visas can be issued to asylum seekers who arrive in Australia without valid visas. Read more here.


Updated 2 August 2015

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