This article will discuss temporary safe haven visas in the Migration Act 1958. But what is a temporary safe haven visa? The DHA grants this visa to individuals who are seeking protection from persecution or danger in their home country. This way, the protected person can stay in a safe country for the period during which they wait for a resolution to the conflict in their home country.
Countries that have signed international treaties and conventions related to refugee protection often issue temporary safe haven visas. An example of this is the United Nations Convention Relating to the Status of Refugees. The specific terms and conditions of the temporary safe haven visa may vary depending on:
- The country issuing the visa (In this article, we'll discuss how the visa works in Australia); and
- The circumstances of the individual's case.
In some cases, the visa may allow the individual to work or study in the host country. The individual may also need to remain in a designated area or refugee camp. Do you want to know more about temporary safe haven visas in the Migration Act and relevant legislation? Read on to find out more.
Safe Haven Enterprise Visa (Subclass 790)
The Safe Haven Enterprise Visa is a permanent visa for people who arrived in Australia and are seeking protection. Applicants may stay for up to 5 years in Australia if they apply for this visa. The Safe Haven Enterprise Visa costs 40 AUD. To be eligible for this Visa, the applicant must:
- Not be able to make a valid application for a Permanent Protection Visa (subclass 866)
- Have been refused immigration clearance at Australia's border
- Entered Australia without a valid visa
- Have held at least a Temporary Protection Visa (785), Temporary Safe Haven Visa (Subclass 449), Temporary (Humanitarian Concern) Visa (Subclass 786), or Safe Haven Enterprise (Subclass 790)
- Either be a refugee or meet the complementary protection criteria
- Prove their identity, citizenship, and biometrics
- Meet health, character, and security requirements
- Sign the Australian values statement (Form 1281)
Read: Humanitarian Visa Australia
Temporary Safe Haven Visas in the Migration Act: Example
Maria is a journalist from a country where the government has recently tracked down media personnel. She has been critical of the government's actions in her reporting. Hence, she fears that she may be targeted for persecution if she returns to her home country. Maria has already been threatened and intimidated by government officials in her home country.
Maria arrives in Australia and applies for a temporary safe haven visa. She meets the eligibility criteria for the visa. Additionally, she provides evidence to support her claims of persecution and the threats she has received. Her application is accepted, and she is granted a temporary safe haven visa. During her stay, Maria is able to work in Australia and access government services.
She attends interviews and provides further evidence to support her claim for protection. After a few months, the Australian government accepts her protection claim, and grants her a permanent protection visa. Maria is now able to live and work in Australia permanently and does not have to worry about being persecuted in her home country.
Section 91H and 91J: Enactment of Subdivision AJ of the Migration Act
Section 91H of the temporary safe haven visas in the Migration Act provides the reason for the enactment of Subdivision AJ. This Subdivision is enacted because the Parliament considers non-citizens should not be allowed to apply for a visa other than a temporary safe haven visa. In fact, Section 91J states that this is true if the non-citizen (other than an unauthorised maritime arrival or transitory person):
- Holds a temporary safe haven visa
- Has not left Australia since ceasing to hold a temporary safe haven visa
Note: Any such non-citizen who ceases to hold a visa will be subject to removal under Division 8 of the Migration Act (Removal of unlawful non-citizens).
Section 91K: Non-citizens Who Are Unable To Make Valid Applications for Certain Visas
Section 91K of the temporary safe haven visas in the Migration Act provides the provision for an invalid temporary safe haven visa application. The visa is invalid if a non-citizen at a particular time applies for another visa other than a temporary safe haven visa.
If we use our example above, Maria will be unable to seek refuge in Australia if, for instance, she applies for a Temporary Skill Shortage (Subclass 482) Visa.
Section 91L: The Minister's Powers
According to Section 91L of the temporary safe haven visas in the Migration Act, the Minister may determine if Section 91K does not apply to a non-citizen. The Minister may provide a written notice to determine that Section 91K does not apply to a non-citizen when they make the application in the 7 days from the day the Minister gave the notice.
They may only make this determination personally. The Minister may also make a determination whether Section 91K applies to a non-citizen if he/she makes a statement before each House of Parliament that:
- Sets out the determination; and
- Sets out the reasons for the determination
The statement must include the name of the non-citizen and any information that may identify the non-citizen. This is the case even if the Minister believes that publishing the name of another person connected in any way with the matter at hand is not in the public interest.
When Should the Statement Be Provided?
According to Section 91L of the temporary safe haven visas in the Migration Act, the Minister must also provide his/her statement before each House of the Parliament within 15 sitting days of that house after:
- 1 July in that year if the determination is made between 1 January 30 and June 30 in a year
- 1 January in the following year if the determination is made between 1 July and 31 December in a year
Note: The Minister is not required to consider whether to exercise the power of determining in the case of any non-citizen, whether requested to do so by the non-citizen or by any other person, or under any other circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.