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For every silver lining there’s a cloud for refugees in Australia

  • 05 April 2022
Recently the Government announced a special visa program for Ukrainians fleeing the war in their home country. The desperate situation in the Ukraine has dominated news for the last month, and already many tens of thousands of Ukrainians have fled their country seeking safety in nearby countries like Poland, Hungary and Rumania. Whilst Ukrainian migration to Australia is relatively small numerically, the response was quick and seemingly generous — a three-year visa with Medicare and work rights.  

The solution is not described as a ‘refugee’ visa, probably because the legal definition for refugees is very strict. Where the popular meaning of the word ‘refugee’ which may include people fleeing a war, as we will see, fleeing a war is not by itself enough to make someone a refugee under the strict legal definition in The Migration Act. When dealing with humanitarian and refugee cases, it is important to see the cloud that surrounds the silver lining.

Ukrainians in Australia on temporary visas will have these visas extended for 6 months from 1 July 2022. It seems this could be automatic, the exact details are as yet unclear, but that saves times, resources and money in application fees and assessment of cases. It was also announced that a temporary three-year visa — the subclass 786 — Temporary Humanitarian Concern visa would be granted.

This 786 temporary visa does not have a requirement of an application process, just that the applicant has been offered the subclass 449 temporary Humanitarian Stay visa, the same visa granted to Afghans evacuated from Kabul in August last year. The 449 visa was also used back in the 1990s for the Kosovars.

Whilst the process is easy — no fees and no detailed assessment process — there are significant consequences for those holding a 449 visa or the 786 visa. There is a statutory bar under s91K that prevents anyone who has ever held a 449 visa from applying for any visa at all, unless the Minister personally intervenes.

'Those who meet the strict refugee and complementary protection criteria onshore are eligible for a "protection visa". Whether they get a permanent or temporary protection visa depends on how they came to Australia, and what visas they previously held.'

With the evacuated Afghans, the Minister created a special pathway to permanent residence from the 449 visa, by lifting the statutory bar and allowing Afghans to apply for the subclass 201 in-country special humanitarian