Understanding Refugee Law in Australia

Posted on July 14, 2017 by Emily

One of the leading world issues currently is the global refugee crisis. According to the United Nations High Commissioner for Refugees (UNHCR), there are approximately 65.3 million forcibly displaced people worldwide, with nearly 34,000 people forcibly displaced every day; a result of persecution or conflict.[1]

A refugee has been defined as “someone who has been forced to flee his or her country because of persecution, war, or violence. A refugee has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group. Most likely, they cannot return home or are afraid to do so. War and ethnic, tribal and religious violence are leading causes of refugees fleeing their countries”.[2] This is different from an internally displaced person, who is a person who has been displaced but has remained in the borders of their country; and an asylum seeker, a person who flees their country and seeks asylum in another country. However, all of these people are in need of assistance as they have been displaced from their homes due to persecution and conflict.

The 1951 Refugee Convention is the United Nations document establishing the customary international law surrounding refugees. This convention was adopted by the United Nations in July of 1951, but became legally binding in 1954. The key agency ensuring the safeguarding of the Refugee Convention is the UNHCR, with all member states being expected to cooperate with the works of the UNHCR and the convention. One of the fundamental principles of the Refugee Convention is that of non-refoulement. This principle dictates that a country must not return a refugee to the country where that person has fear of persecution, and must be applied regardless of the lawful residence of a refugee in the state they seek refuge in. Other notable principles of the Refugee Convention are non-discrimination and non-penalisation.

People who are excluded from refugee status by the Refugee Convention are those for whom there is a serious reason for “considering that they have committed war crimes or crimes against humanity, serious non-political crimes, or are guilty of acts contrary to the purposes and principles of the United Nations. The Convention also does not apply to those refugees who benefit from the protection or assistance of a United Nations agency other than UNHCR, such as refugees from Palestine who fall under the auspices of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Nor does the Convention apply to those refugees who have a status equivalent to nationals in their country of asylum.”[3]

Australia is a signatory of the Refugee Convention, with the governing legislation in Australian for all forms of migration and visa applicants to Australia being the Migration Act 1958 (Cth). Under this act, people seeking to migrate under what is called the Humanitarian program can do so offshore before arriving in Australia, or onshore upon arriving in Australia or one of its territories.

Other treaties that Australia is signatory to which allocate Australia’s obligations to asylum seekers and refugees while they are in Australian territory are the: International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Cat) and Convention on the Rights of the Child (CRC).


People who come by boat

There has recently been a misconception that people who arrive by boat in Australia are “illegal” entrants. However, according to the Refugee Convention, refugees have a lawful right to seek asylum in any country, regardless of whether they carry travel documents, or how they arrive. This policy is upheld in Australia whereby nobody that enters Australia for the purposes of seeking asylum, whether it be by boat or some other form of transport, is entering illegally. There are, however, certain people that arrive by boat who intend to arrive in Australia for purposes other than seeking asylum, and these people are illegal maritime arrivals. For this reason, all asylum seekers who arrive by boat are classified as ‘unlawful non-citizens’ and may apply for a protection visa until their refugee status is official determined.

Upon entry into Australia, these unlawful non-citizens’ refugee status must be determined and until this time, these people are detained, as per the mandatory immigration detention policy introduced by the Keating Government in 1992. The purpose of this detention is to undertake the relevant security and health checks required of all asylum seekers before they enter into Australia.

However, contrary to popular belief, most asylum seekers who arrive by boat, 70-100%, are legitimate refugees, in contrast with those who apply offshore, only about 45%. The reason behind this discrepancy is that those people who traverse the ocean on a small boat are generally the most desperate and in need of help. Indeed, most people would not choose to undertake such a gruelling and dangerous experience unless their lives truly depended on it.


Options for Asylum Seekers

The two options for people seeking asylum are offshore and onshore visa applications. For the offshore resettlement programme, there are two categories of visa available: the Refugee Category; and the Special Humanitarian Programme (SHP) category.[4]

Refugee category visas are visas for people who are suffering persecution in their home country but who are typically outside of that country seeking resettlement. The requirements are therefore that the applicant is outside of Australia and experiencing persecution; otherwise if they have an immediate family member in Australia, that family member may propose them for a visa.

Special Humanitarian Visas are for people who are outside of Australia, who are subject to substantial discrimination amounting to a gross violation of their human rights; and who are proposed for entry by an Australian citizen, permanent resident, organisation in Australia or an eligible New Zealand citizen.

For onshore applicants, there are three types of protection visas available: Protection visa (class XA) (subclass 866); Temporary Protection visa (SC) (subclass 785); and the Safe Haven Enterprise visa (class XE) (subclass 790). Additionally, upon arriving in Australia, an asylum seeker may apply for a Bridging visa to protect them from detention until the outcome of their protection visa has been decided.



There are many myths surrounding the status of refugees and asylum seekers in Australia. The best way to combat these misconceptions is to be informed on the rules in Australia and internationally regarding refugees and asylum seekers and to understand their motivations in seeking asylum.


[1] UNHCR (2017). Figures at a Glance. http://www.unhcr.org/en-au/figures-at-a-glance.html

[2] USA for UNHCR (2017). What is a refugee. http://www.unrefugees.org/what-is-a-refugee/

[3] United Nations High Commissioner for Refugees. Convention and Protocol relating to the Status of Refugees. P 4. <http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf>

[4] Department of Immigration and Border Protection (DIBP). Offshore – resettlement. <https://www.border.gov.au/Trav/Refu/Offs#>