Analysis – Eligibility for Hong Kong nationals for Australian visas

Analysis - Eligibility for Hong Kong nationals for Australian visas

Today, we write about eligibility for Hong Kong nationals to apply for and receive permanent protection in Australia. Earlier this month, the Communist Government of the People’s Republic of China finally passed their controversial national security law, introducing a slew of vague and open-ended offenses ostensibly targeted against dissidents operating in connection with Hong Kong. Arrests under this new law have already begun to occur, and condemnation from the democratic world has been swift and fierce.

Australia is playing its part, looking to potentially offer temporary protection to Hong Kong nationals under the Safe Haven Enterprise Visa program. Whilst the move serves to offer respite to Hong Kong nationals in times of punctuated persecution, it is, nevertheless a temporary arrangement.


Eligibility of HK Nationals to Permanent Protection in Australia

For those looking to remain in Australia infinitely, options remain largely uncertain due to the absence of precedents. Whilst it may often be the case that other avenues will exist for such persons to achieve permanent residency, it is important to understand the threshold and standards by which permanent protection is awarded. Looking at the current protection scheme and juxtaposing contemporary circumstances with historical incidences, we have analyzed the potential eligibility for Hong Kong democrats to achieve permanent protection in Australia.

If you have played a critical role in the democratic movement as a Hong Kong national, please get in touch with us for further discussions!


Legislative Framework for Protection Visas

Section 35A of the Migration Act 1958 establishes the classes of protection visas, which encompass permanent and temporary protection visas, and safe haven enterprise visas. Part 4 of Schedule 1 to the Migration Regulations 1994 – ‘Protection, Refugee and Humanitarian visas’ classifies the three classes of protection visa:

  • Protection Class XA – Subclass 866 Protection;
  • Temporary Protection Class XD – Subclass 785 Temporary Protection; and
  • Safe Haven Enterprise-Class XE – Subclass 790 – Safe Haven Enterprise.

Section 36(1) of the Act imposes statutory requirements for an applicant for a protection visa that:

  • The applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); and
  • The applicant is not a person whom the Minister considers, on reasonable grounds, is a danger to Australia’s security, or the Australian community having been convicted by a final judgment of a particularly serious crime.

Australia owes protection obligations to the following classes of non-citizens and their family members in Australia in respect of whom the Minister is satisfied that:

  • The non-citizen is a refugee; or
  • There are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

Implications of these provisions are a person in respect of whom Australia does not have protection obligations under the refugee criterion may nevertheless be granted a protection visa, if he or she satisfies the ‘complementary protection’ criterion: MIAC v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [71].

The person is a refugee if the person:

  • in a case where the person has a nationality, is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
  • in a case where the person does not have a nationality, is outside the country of his or her former habitual residence, and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

The significant harm exists when the non-citizen will be:

  • Arbitrarily deprived of his or her life; or
  • Sentenced to the death penalty; or
  • Subjected to torture; or
  • Subjected to cruel or inhuman treatment or punishment; or
  • Subjected to degrading treatment or punishment.

Nevertheless, the significant harm does not exist if the Minister is satisfied that:

  • It would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
  • The non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
  • The real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

Explicit grounds exist to confer ineligibility to the applicants, where the Minister has serious reasons for considering that the non-citizen has:

  • Committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
  • Committed a serious non-political crime before entering Australia; or
  • Been found guilty of acts contrary to the purposes and principles of the United Nations.


Section 36(3)

Section 36(3) of the Act stipulates that Australia does not have protection obligations in respect of a non-citizen who has not taken all reasonable steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, any country apart from Australia, including countries of which the non-citizen is a national. This does not apply in relation to a country where:

  • The non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
  • The Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right in the receiving country, there would be a real risk that the non-citizen will suffer significant harm in relation to the country;

Section 36(3) of the Act also apply in relation to a country if the non-citizen has a well-founded fear that:

  • The receiving country will return him or her to another country; and
  • The non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.


Application to Hong Kong

Considering recent concerns regarding the reintegration of the Hong Kong SAR into the People’s Republic of China, some discussion has arisen regarding the potential eligibility of Hong Kong citizens for permanent humanitarian protection within Australia. Whilst applications for protection by Hong Kong nationals appear insignificant in number, for the time being, recent representations by the Australian Government may incentivize a significant surge in cases.

Historically, this is by no means a new phenomenon, with attempts by Hong Kong nationals to apply for protection on said grounds dating back to the mid-1990s. in matters such as that of N94/06152 [1995] RRTA 1221, attempts were made, prior to the 1997 reversion of Hong Kong to Chinese rule, to argue persecution on speculative grounds. Predictably, such applications proved unfruitful, often failing to establish the precise nature of the significant harm for which the applicant possesses a ‘well-founded fear,’ as required under section 36(2)(aa) of the Act.

Contemporary circumstances may nevertheless provide some avenue for argument. For a select few, current developments in Hong Kong may offer them a pathway to indefinite refugee status under Australian law.


Who Are Eligible Applicants?

Not all applicants are considered equal. As was found in Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19, it is generally inadequate to base one’s fear of persecution on the operation of laws which are of general application. Simply constituting a cohort of persons who disagree with a law, and thus fear the repercussion of their non-compliance, will not meet the requisite definition of “particular social group” established by section 5L of the Act.

The above is further compounded by the fact that such fears may, for the time being, fall short of being “well founded” within the meaning of section 5H(1) of the Act. As of the time of writing, enforcement of the new security laws has not constituted the purge once feared, with arrests largely being confined to outward displays of dissent, rather than a comprehensive and brutal purge of dissident figures. It would, therefore, take more than mere apprehension of significant harm to give rise to a claim for permanent protection, at least insofar as section 36(2)(a) is concerned.


Hong Kong National Refugee Status

Of course, this is not to say no Hong Kong national holds a claim to refugee status as a result of current events. The national security law has been formulated such as to provide carte blanche to authorities in defining subversive activities. Furthermore, the law does not appear to limit its scope to domestic conduct, meaning actions undertaken overseas may just as easily be caught. As such, it is reasonable to conclude that noted activists may, in time, face a significant risk of reprisal as the façade of liberal democracy in Hong Kong continues to erode. Protection under section 36 may be arguable for figures who, by virtue of their high-level involvement in anti-CCP activities, are able to establish a specific risk of persecution upon return to Hong Kong. It is important, however, that it be possible to substantiate a specific risk of persecution peculiar to the individual.

Again, we can look at historical precedents to understand how such claims may function. Following the brutal 1989 crackdown of the CCP against pro-democracy protestors, Australia experienced a significant volume of protection applications from mainland Chinese applicants. Many such applications claimed a fear of persecution based on vague claims of pro-democracy sympathies and involvement with anti-government activities. Such claims came to be met with some degree of incredulity in the absence of compelling evidence: N94/03058 [1996] RRTA 2873. It is thus not sufficient to merely direct the delegate’s attention to instances of contemporary political repression or to merely claim high-level involvement with protest groups. To succeed under section 38, it is incumbent on applicants to make specific claims regarding likely persecution based on an applicant’s membership of an identifiable group.


How To Apply For Visa “permanent protection in Australia”

As such, in our view, for dissidents of particular note, prolific within anti-communist or pro-democracy circles, and with a name likely to be known to Chinese authorities, it may be feasible to argue satisfaction of section 36 in exceptional circumstances. Any claim falling short of this threshold, or failing to establish how said applicant would come to the particular attention of the Chinese authorities, would likely fail on the basis of the prevailing provisions applicable to protection Visa Plan applicants. Applicants must, therefore, be visible and earmarked for special attention and persecution in order to substantiate their claim.


Conclusion of the permanent Visa protection in Australia

Regardless of the above, the situation is fluid, and the sentiments of the Australian Government appear relatively generous. As such, it is difficult to provide a clear insight by way of analogy or historical precedent. Our conclusion merely asserts that those with most cause to fear reprisal for their actions whilst in Australia may find themselves with a credible argument. Ultimately, the determination of applications in this space carries with them significant discretionary judgments and, supplemented with evolving government policy, may prove to sway with the vagaries of contemporary geopolitics.


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