Commonwealth Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

MIGRATION ACT 1958 - SECT 36

Protection visas--criteria provided for by this Act

          (1A)  An applicant for a protection visa must satisfy:

                     (a)  both of the criteria in subsections (1B) and (1C); and

                     (b)  at least one of the criteria in subsection (2).

          (1B)  A criterion for a protection visa is 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 ).

          (1C)  A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

                     (a)  is a danger to Australia's security; or

                     (b)  having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note:          For paragraph (b), see section 5M.

             (2)  A criterion for a protection visa is that the applicant for the visa is:

                     (a)  a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

                    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has 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; or

                     (b)  a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

                              (i)  is mentioned in paragraph (a); and

                             (ii)  holds a protection visa of the same class as that applied for by the applicant; or

                     (c)  a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

                              (i)  is mentioned in paragraph (aa); and

                             (ii)  holds a protection visa of the same class as that applied for by the applicant.

          (2A)  A non-citizen will suffer significant harm if:

                     (a)  the non-citizen will be arbitrarily deprived of his or her life; or

                     (b)  the death penalty will be carried out on the non-citizen; or

                     (c)  the non-citizen will be subjected to torture; or

                     (d)  the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

                     (e)  the non-citizen will be subjected to degrading treatment or punishment.

          (2B)  However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

                     (a)  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

                     (b)  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

                     (c)  the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

Ineligibility for grant of a protection visa

          (2C)  A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

                     (a)  the Minister has serious reasons for considering that:

                              (i)  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

                             (ii)  the non-citizen committed a serious non-political crime before entering Australia; or

                            (iii)  the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or

                     (b)  the Minister considers, on reasonable grounds, that:

                              (i)  the non-citizen is a danger to Australia's security; or

                             (ii)  the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

Protection obligations

             (3)  Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

             (4)  However, subsection (3) does not apply in relation to a country in respect of which:

                     (a)  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; or

                     (b)  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 mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

             (5)  Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

                     (a)  the country will return the non-citizen to another country; and

                     (b)  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.

          (5A)  Also, subsection (3) does not apply in relation to a country if:

                     (a)  the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

                     (b)  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 mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

Determining nationality

             (6)  For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

             (7)  Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback