8/3/2019 Refugees in Australia and the Refugee Convention

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Refugees in Australia and the Refugee Convention

Does Australia Owe Me Protection if I am in Australia?

A refugee is a person who is outside of their country of origin and who is not willing to or not able to

return because of their fear of persecution due to their race, religion, nationality, political opinion or

membership of a particular social group.

For people who are in Australia and are refugees, Australia is obliged to, under the Refugees

Convention, to provide you protection and to ensure you are not returned home, or to any other place,

to face persecution for one of the 5 Refugee Convention grounds.

Therefore, the visa granted to refugees in Australia is called a protection visa - Protection Visa (Class

XA)(Subclass 866). Applications for the protection visa subclass 866 are first lodged by paper application

with the Australian Department of Immigration and Citizenship which will test the claim to protection

stringently.

A large percentage of  subclass 886 protection visas  are refused at first instance as the claims for

protection are simply not plausible, are often unsupported or unverified or the persecution or harm

feared is not linked to one of the 5 convention reasons which are set out above in the first paragraph.

If the application for protection is refused by the Australian Department of Immigration & Citizenship,

this decision can be appealed by application to the Refugee Review Tribunal, also known as the RRT. The

Refugee Review Tribunal, in the conduct of the appeal, will invite the applicant for protection to a

hearing and give the protection visa applicant an opportunity to put their claim for protection by

Australia to the RRT again.

This hearing may be conducted on a limited part of the claim to protection or may be a review of the

whole claim and evidence so far provided. The applicant will also have the opportunity to provide

further evidence in support of their claim to protection and the Tribunal Member, the person who

conducts the hearing of the Refugee Review Tribunal, will test the protection visa applicant ’s story,

often very rigorously scrutinizing the claims and evidence before it in great detail.

Refugee visa applicants can often find this hearing very confronting and emotionally upsetting having to

relive traumatic life events in a formal environment where it appears their stories of hardship, torture

and trauma are not believed or accepted by the Tribunal Member.

If the RRT does not accept the applicant’s claim to protection, they will affirm the decision of the

Minister of Immigration, the applicant is therefore, not a refugee under Australian law, and the

Australian government does not owe them protection. In this event, it may be possible to appeal the

refusal of the RRT the Federal Magistrates Court if the RRT has made a ‘jurisdictional error’ of law in its

decision making but often the person is left with no option other than to depart Australia.

The onshore protection visa regime should not be confused with offshore processing regime for‘Irregular Maritime Arrivals’ processing regime, that is those refugees arriving unlawfully by boat who

are intercepted and removed to Christmas island. The IMR processing regime is established under

different provisions off the Australian Migration Act 1958 (Cth) and is not considered in this article.

If you are a refugee in Australia, fear you will be persecuted if you return home or have had your

subclass 866 protection visa application or your appeal to the Refugee Review Tribunal refused, then

immediately contact Ray Turner or Stewart Coulson on 9264 4654 or email info@tcilawyers.com.au for a

confidential discussion on what options may be open to you in Australia.

This article should not be taken as legal advice and cannot be relied upon as a complete or accurate representation of the law. It is meant to be

indicative only and should be seen as a general informative guide to Australian immigration law principles.  

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