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. Until the end of 2014, this was achieved by linking the obligations in the Refugee Convention to the Migration Act. In December 2014, references to the Refugee Convention were taken out of the Migration Act and replaced by a definition of 'refugee' that is similar in meaning but not identical to that of Article 1 of the Refugee Convention.   

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.

Once an individual has been determined to be a refugee or in need of complimentary protection, protection visas are the mechanism by which Australia can offer protection that individual. Currently there are three types of protection visas, permanent, temporary and safe haven enterprise.

Protection and other visas are discussed here.

Updated 3 July 2018

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