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 visa. The 201 visa was an offshore visa only, and previously used for interpreters who worked with the ADF in Iraq and Afghanistan, and their immediate families. Some technical amendments to the Regulations and legislative instruments were required to achieve this.
Extending this offshore visa to those onshore is a unique development. This was necessary because the Afghans on a 449 visa would never be able to apply for the permanent protection visa subclass 866 due to a legal requirement that applicants for the 866 permanent protection visa have never held a 449 visa, or a 786 visa. So rather than amending the subclass 866 permanent protection visa requirement, a pathway was invented just for the evacuated Afghans.
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.
Afghans who arrived by boat and have been only on temporary visas since 2013 are not eligible for this special pathway. The best they get is temporary protection visas, apart from a very few exceptions. The temporary protection visas come in two types — the three-year subclass 785, and the five-year subclass 790. If you have ever held a 785 or a 790, like the 449 and 786 visa holders, you are prohibited from ever validly applying for the 866 permanent protection visa. This application prohibition is absolute, and cannot be waived.
This takes us back to the Ukrainians and why they needed a ‘special’ solution, not a ‘refugee’ or ‘protection visa’ solution. The criteria for a protection visa (temporary or permanent) is essentially in two streams. Either you meet the definition of a ‘refugee’ as set out in the Migration Act, or you meet the alternative criteria for ‘Complementary Protection’.
A refugee in Australian law must meet a number of requirements. Firstly, they must be outside their country of origin — not an issue if in Australia. Secondly. They must not have a ‘right to enter and reside’ a third country even on a temporary basis. This could be on a visitor or short stay work visa, even if that country does not have a mechanism for applying for protection of refugees.
Once you clear those hurdles, you need to prove a ‘well-founded fear or persecution’ for one or more of five Refugee Convention reasons. All these terms are defined in the Migration Act, so well-founded means a real chance, not a remote possibility. Persecution is far more serious than just discrimination. The five reasons are: race, religion, nationality, membership of a particular social group or political opinion.
The legal hurdles the Ukrainians may face are several. Firstly, that the generosity of the European neighbours to the Ukraine such as the EU, especially Poland, may mean that Ukrainians have a right to reside, even temporarily in countries in the EU. That could preclude them from gaining protection VISA in Australia.
'Whilst it is far too early to predict what might happen in the Ukraine in 2025, the "issue" of dealing with Ukrainians temporarily in Australia, and precluded from permanent protection visas, will be an issue for the new Government elected after the may Federal election.'
Once they get past that hurdle, the issue is which of the five factors apply — as just fleeing a war is not a criteria. Arguably is could be nationality (as Ukrainian) or political opinion — opposed to the Russians. These are debatable and even if successful, there are still other possible hurdles – namely are they at risk in the whole of their country or is there somewhere in their country they could receive protection. This is also debatable, about whether western Ukraine is a safer alternative or not.
The complementary protection pathway does not link to five factors like refugee, but does have a number of other strict legal hurdles, such as definitely facing death, torture, or serious harm.
Given these major hurdles, the ‘quick fix’ of the 786 three-year temporary humanitarian concern visa is attractive. The downside it that what happens after the three years? They are precluded from a permanent visa because of the ban on 786 visa holders getting a permanent protection visa. Some may have skilled or family options, but these categories are also very technical. A possibility is a pathway similar to the Afghan solution. It may depend on what is the situation like in the Ukraine in 2025.
Another ‘cloud’ is that holders of temporary visas like the 449 or 786 are unable to sponsor immediate family such as a spouse of children. Only a permanent resident can sponsor a spouse or children, so if the Ukrainians are here without family, their family need to somehow go through the same process to get here, they cannot simply be sponsored.
There has been an ongoing process generally in migration to grant temporary visas first, and a permanent visa sometime later in skilled and family categories. This was extended to asylum seekers who came by boat in 1999, and also to temporary humanitarian groups like the Kosovars. The Government focus on border control has meant that the onshore asylum process has become very complex and technical. So the only way to provide a ‘fast humanitarian visa’ process is the 449 or 786 process and then wait and see what happens.
Whilst it is far too early to predict what might happen in the Ukraine in 2025, the ‘issue’ of dealing with Ukrainians temporarily in Australia, and precluded from permanent protection visas, will be an issue for the new Government elected after the may Federal election, whoever that might be.
Kerry Murphy is an immigration and refugee lawyer and part-time lecturer on immigration and refugee law at ACU.
Main image: Demonstrator holding pro-refugee sign. (Getty Images)