With yet another humanitarian crisis looming in the wake of the apparent reestablishment of the Islamic Emirate of Afghanistan, many are looking to Australia as a potential destination of refuge. Whilst Australia commits to protecting vulnerable persons and upholding its responsibilities under the 1951 Refugee convention, the precise legal framework for refugee migration associated with this end is not always intuitive.
With a plethora of refugee, asylum and protection visas on the books, it can be difficult for lay observers to identify appropriate pathways for prospective visa applicants. Today, we seek to elucidate several offshore humanitarian visas aimed at assisting those who remain resident in the country from which they seek protection.
Offshore Humanitarian Visa Subclasses
Options for prospective refugees differ depending on their physical location at the time of their application. For those applying from outside Australia, the following subclasses may potentially be considered:200 Refugee
- 201 In-country Special Humanitarian
- 202 Global Special Humanitarian
- 203 Emergency Rescue
- 204 Woman at Risk
Of the above 5 subclasses, only subclasses 201 and 203 can generally be applied for whilst still residing in one’s country of citizenship. This is of course subject to several caveats, adding further complexity to the scheme.
Of most interest is the Subclass 201 visa, providing the primary pathway for refugees to migrate from their country of citizenship to Australia.
Subclass 201 Visa – In-country Special Humanitarian Visa
To be eligible for Australian permanent residency under the 201 subclass, applicants must satisfy the following criteria;
- Be subject to persecution in one’s home country; and
- Be living in one’s home country.
Alternative criteria exist for persons specified by legislative instrument or have their applications supported by an existing Subclass 201 visa holder.
Contemporary Humanitarian Issues
With the reestablishment of Taliban rule over Afghanistan, much uncertainty exists surrounding the future of the country. Many observers fear a return to the worst excesses of the previous Taliban regime, which ruled the country from 1996 until 2001. This period was replete with severe oppression of women, ethnic cleansing of minority groups, wanton destruction of cultural artifacts and the imposition of brutal punishment for transgressions against religious law.
Now, such concerns are compounded by new fears of reprisal against persons associated with the previous government, western-educated citizens, human rights activists and other persons who are at risk of being regarded as collaborators of the United States and its allies.
Given historical and contemporary pecidents for gross human rights abuses at the hands of the Taliban, many Afghan citizens hold genuine fears for their safety in their home country. The current situation has been acknowledged by the Australia Federal Government, which on this Tuesday indicated that Afghan nationals currently present in Australia will not be required to return for the time being (see the media release by Hon. Alex Hawke).
Furthermore, the Australian Government has announced that 3,000 places under the existing Australian humanitarian migration program will be set aside for Afghan nationals. These places will prioritise protection of at-risk groups and relatives of Australians of Afghan origin.
Unfortunately, these places are not in addition to the 13,750 places forming part of this year’s humanitarian intake, but are rather taken from these places, leaving fewer opportunities for refugees seeking protection from countries other than Afghanistan. This response, whilst disappointing, is a gradual step in the right direction in ensuring protection of those fleeing Taliban rule.
Australian community organisations have been swift in their messages of support for the people of Afghanistan and the Afghan diaspora worldwide.
The Victorian Multicultural Commission has advocated for the following measures to be implemented in response to the recent tragedy:
- Offer pathways to permanent residency for Afghans in Australia
- Offer additional places for migration of the most vulnerable groups.
- Prioritise family reunion for relatives of Afghan Australians.
Other community groups and professional associations, including the Refugee Council of Australia and the Migration Institute of Australia, among others, have echoed similar sentiments, pressuring decisive political action in light of this looming humanitarian crisis.
Such global challenges are by no means a new phenomenon. In past crises, the Australian Government has taken special measures to adapt the existing humanitarian visa scheme to better tackle contemporary challenges.
From 2011 onwards, the Australian Government has made significant contributions to addressing the ongoing humanitarian crisis resulting from the Syrian Civil War. In addition to significant financial contributions to the global humanitarian effort, Australia also implemented a special intake of approximately 12,000 refugees and displaced people from Syria and Iraq. This intake included a highly publicised intake of persons of the Yazidi faith, who had been subject to ethnic cleansing and gross human rights abuses at the hands of the Daesh.
Less drastic measures were taken in response to mounting human rights concerns in Hong Kong, where, pursuant to government crackdown on the Special Administrative Region’s pro-democracy protests, the Australian government offered concessional status to Hong Kong applicants for proscribed visas in mind-2020.
Further historical parallels can be drawn from other special intakes and programs operated by the Australian Government from time to time. This includes dedicated visa subclasses aimed at specific humanitarian crises, such as the Subclass 212 Sudanese Permanent Visa, many of which remained on the books until as late as 2000.
For the time being, the reservation of 3,000 places under the existing humanitarian scheme is a step in the right direction. Whilst it pales in comparison to past responses to major humanitarian catastrophes, it is likely only the beginning of Australia’s efforts to help those in need of its protection. It is our view that Australia’s humanitarian response will adapt to the circumstances as they develop, however, it is hoped that more will be done before further deterioration in the Taliban’s treatment of vulnerable groups.
From the above, it is clear that the Australian Government has a proud history of taking a proactive stance in the wake of global catastrophe. Given the significant historical precedents which exist in this area, we are confident that the Commonwealth’s response to the situation in Afghanistan will develop quickly over the coming weeks, potentially offering hope to tens of thousands of people placed at risk by the regime of the Taliban and their extreme form of Deobandi Islamism.
Please do not hesitate to call us for confidential discussions.