Protection visa
Statutory definition
Section 5(1) of the Migration Act 1958 (Cth) defines protection visa as a visa of a class provided for by s 36. Section 36 provides that there is a class of visas to be known as protection visas, and sets out the criteria for grant by reference to Australia's non-refoulement obligations.
Section 36(2) provides that the Minister is to grant a protection visa to a non-citizen if the Minister is satisfied that the non-citizen is a person in respect of whom Australia has protection obligations, or is a member of the same family unit as such a person.
Explanation
A protection visa is granted to a non-citizen who satisfies Australia's international protection obligations. These obligations arise from two sources:
- Refugee obligations — under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, Australia must not return a person to a country where they face persecution on account of race, religion, nationality, membership of a particular social group, or political opinion (s 36(2)(a))
- Complementary protection — Australia must not return a person to a country where there is a real risk they will suffer significant harm such as arbitrary deprivation of life, the death penalty, torture, or cruel or degrading treatment (s 36(2)(aa))
There are two types of protection visa currently in use:
- Subclass 866 (Protection) — a permanent visa granted to eligible protection applicants
- Subclass 785 (Temporary Protection) and Subclass 790 (Safe Haven Enterprise) — temporary visas granted in certain circumstances, including to persons who arrived as unauthorised maritime arrivals
How this term is used
The protection visa framework engages complex provisions of the Act relating to who may apply, from where, and under what conditions. Not all persons seeking protection are eligible to apply for a protection visa onshore — in particular, unauthorised maritime arrivals and persons taken to offshore processing countries face additional restrictions.
Applications for protection visas are made to the Department of Home Affairs. Refused applicants may seek merits review in the Immigration Assessment Authority (IAA) or the Administrative Review Tribunal (ART), depending on their circumstances. Judicial review is available in the Federal Court and the High Court.
The concept of protection obligations does not depend on the applicant's nationality or the method of arrival in Australia — it depends on a factual assessment of the risk they face if returned to their country of origin or any other country where they may be sent.