WHEN CIRCUMSTANCES CHANGE

How does Australia treat people who arrive with a valid visa, but whose circumstances in their home country change and they can no longer safely return? Sometimes this happens to large groups of people at the same time, such as Chinese nationals after the events in Tiananmen Square in 1989 or the people from Myanmar following the coup in February 2021.  This explainer sets out the process for people who find themselves in this situation.

When a change of circumstance affects a large group of people

In some of these circumstances, the Australian government has offered various sorts of protections, including extension of visas, temporary protection and permanent residency. The last time temporary protection was offered en masse was in May 2021, when the government offered visa extensions to Myanmar nationals in Australia on temporary visas.

Ukrainian nationals – 2022

In response to the Russian invasion of Ukraine in February 2022, the Australian government announced special visa processing for Ukrainian citizens.

On 23 February 2022, the Australian government announced that ‘All Ukrainian nationals in Australia with a visa that is due to expire up to 30 June, will be given an automatic extension for six months’.  At the time of the announcement there were approximately 430 visa applications from Ukrainian citizens which had not yet been processed. The Australian government committed to prioritising and fast tracking these applications ‘for a decision by immigration officials, as soon as possible’. Since the 23 February, the Australian government has granted over 3,000 visas to Ukrainians.

Myanmar nationals – 2021

On 5 May 2021, the Australian government announced that due to ongoing unrest in Myanmar, Myanmar nationals currently in Australia on temporary visas could extend their stay until it is safe to return home. Those affected, around 3,400 people, would receive a letter from the Australian government about how to remain lawfully in Australia.

Hong Kong passport holders – 2020

On 9 July 2020, owing to ongoing pro-democracy protests and government retaliation in Hong Kong, the Australian government announced that Hong Kong citizens on a temporary work or student visa would be allowed to extend their visas for another five years, with the government offering a path to permanent residency after that. Australia also suspended its extradition agreement with Hong Kong in response to Hong Kong’s new national security law.

At the time, those eligible for the five-year extension included over 8,200 students, 900 temporary graduate visa holders and 570 temporary skilled visa holders, in addition to 2,000 applicants who have had visas approved but have not yet arrived. Around 1,000 working holiday and tourist visa holders were not eligible for the extension but could apply for asylum through the humanitarian visa stream. By January 2021, 3,000 Hong Kong residents had benefited from these visa concessions.

Tiananmen Square – 1989

On 4 June 1989, the Chinese government violently killed thousands of protestors in Tiananmen Square. In response, the Australian Prime Minister at the time, Bob Hawke, promised protection to Chinese students in Australia. To cope with the large number of students remaining in Australia, the Australian government, in 1992, introduced four-year temporary protection visas (TPVs) rather than permanent residence for refugee and humanitarian cases. This program was ended in November 1993 but was again later adopted by the Howard government. In the end, approximately 42,000 Chinese students were offered permanent protection in Australia.

Refugee Status Determination

Where the Australian government does not make a general policy decision, people who arrive in Australia with a valid visa can submit a written application for refugee status with the Australian Department of Immigration and Border Protection. People who experience a sudden change in their home country may seek refugee status in Australia.

The application is then assessed by an officer of the Department to establish whether the asylum seeker is entitled to protection. If the application is accepted, the person is granted a permanent protection visa. If the application is rejected, the person can apply to have the decision reviewed by the Administrative Appeals Tribunal (AAT).

The AAT is an independent government statutory body with its members appointed by the Governor-General. AAT members review the department’s initial decisions. If a decision cannot be made on the written evidence available, the AAT gives the applicant the opportunity for a hearing.

After review, the AAT may overturn the original decision and grant refugee status or uphold the original decision to reject the application. In this case, the asylum seeker can apply to the Federal Circuit Court of Australia for judicial review of the AAT’s decision.

The minister has the power to make decisions on individual cases, if all other avenues of review and appeal have been exhausted. In this case, an asylum seeker may seek the personal intervention of the Minister for Immigration. The minister may change the decision of a tribunal where it is in the public interest to do so, but the minister rarely intervenes.

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Last updated 11 March 2022