Are you seeking asylum in Australia?

Under International Treaties, Australia has obligations not to forcibly return, deport or expel a person to a place when there are substantial grounds  for believing that the person will be at real risk of specific types of harm.

Refugee and Humanitarian (Protection) Visas

The most common (but not all) categories of asylum seeker applications for Australia are:

(a) Permanent Protection visa applications made onshore in Australia (Subclass 866);

(b) Permanent Humanitarian/Refugee visa applications made outside Australia (Subclass 200,
201 or 202);

(c) Temporary Protection (Subclass 785) or Safe Haven Enterprise visa applications (Subclass
790) made in Australia.

Rothstein lawyers also handles Applications to the Administrative Appeals Tribunal.

High Court Finds Offshore Processing Legally Valid

A case was brought to the High Court of Australia to test whether offshore detention and processing is allowable under the Australian Commonwealth Constitution. The High Court decided on, 3 February 2016, that there is no constitutional reason why offshore processing should not be allowed.

This means that anyone who may be brought from offshore to the Australian mainland for medical treatment (being one example) can be legally returned to offshore detention centres such as Nauru. This is consistent with the view that the Australian Government has the choice about where to detain a person if they are an unlawful non-citizen – that is they do not have a valid visa. The High Court found that due to lawful arrangements made between the Australian Government and Nauru, it is open to the Government to transfer non-citizens to Nauru to be held there whilst their visa claims are processed.

Article Updated August 2016

Possible Pathway for certain Asylum Seekers to Australian Permanent Residency

In December 2014 the Australian Government passed the Migration and Maritime Powers Legislation Amendment (resolving the Asylum Seeker Caseload) Act 2014 (“The Asylum Seeker Caseload Act”). One of the options may be to lead to Australian permanent residence visas for asylum seekers.

The Asylum Seeker Caseload Act directly affects persons who arrived in Australia by boat without a valid visa (asylum seekers or “irregular maritime arrivals”) between 13 August 2012 and 31 December 2013.

Under the Asylum Seeker Caseload Act, these asylum seekers will need to wait to be invited by the Minister for Immigration and Border Protection to make an application for either a Temporary Protection Visa (which if granted is valid for 3 years) or a Safe Haven Enterprise Visa (which if granted is valid for 5 years). The Australian Government intends to “fast track” such applications.

Safe Haven Enterprise Visa holders who have worked in regional Australia without access to income support for 3.5 years would be eligible to apply for other visas (Such as Partner, Skilled or Student Visas) if they satisfy the relevant criteria for those visas. Therefore, the visa has the potential to (eventually) provide permanent residency.

These asylum seekers cannot apply for Australian Permanent Protection Visas.

When asylum seekers receive an invitation they must act quickly to lodge their application. It is most important that the application be a complete application. This means that even before an asylum seeker is invited that asylum seeker should commence preparation of the application ready for lodgement. If the application under the Asylum Legacy Caseload Act is not successful than that applicant MAY be referred by the Australian Department of Immigration and Border Protection to the Immigration Assessment Authority for appeal.

If not referred to the Immigration Assessment Authority there may still be avenues available to appeal to the appropriate Federal Court. Each case depends on its own facts.

Except in limited circumstances, the Immigration Assessment Authority will only consider the information that was presented by the asylum seeker to the Department of Immigration and Border Protection. That is another reason to make sure the application is as complete as possible. The Department of Immigration and Border Protection is currently inviting asylum seekers who arrived between 14 November 2012 and 30 April 2013 to apply. Do not delay when an invitation is received.

Article uploaded 6 October 2015

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We’re here to help you with whatever you may need. We specialise in complex immigration, citizenship applications and appeals.