Australian Law and Policy

A Brief History

Australia first implemented mandatory detention for all people who do not hold a valid Australian visa in 1992 under the Keating government. This extended to children who were born in Australia and whose mothers did not have a valid visa to remain in Australia. The initial 273 days maximum period of detention was removed in 1994, legally allowing the use of indefinite detention. Since 1994, people seeking asylum (including children) have been detained until they: return to their country of origin, move to a third country in which they have the right to reside or until granted a temporary visa to stay in Australia as a refugee.

Currently, the Migration Act 1958 (Cth) requires the detention of all people who do not hold a valid Australian visa and are within Australian land or sea borders. Australia uses a range of onshore and offshore processing centres, including Nauru and Papua New Guinea (Manus Island).


Categories of Asylum Seekers 

The application of Australian policy to people and children seeking asylum largely depends on their method and date of arrival into Australia. There are three categories of asylum seekers in Australia now:

1. Arrived on or after 19 July 2013: Any adult or child seeking asylum who arrives in Australia by boat on or after 19 July 2013 must by law be forcibly sent to the Manus or Nauru Detention Centres outside Australia. These adults and children must remain in these detention centres until they receive a visa from the Nauruan or Papua New Guinea governments, which then authorises them to live in the respective communities.

2. Arrived between 13 August 2012–19 July 2013: Any adult or child seeking safety who has arrived by boat during this time may be forcibly sent to the Nauru or Manus Island Detention Centres. People who arrived during this time and have been issued with a bridging visa are strictly unable to work.

3. Arrived before 13 August 2012: Any adult or child seeking safety arriving by boat before 13 August 2012 is eligible to remain in Australia on a temporary protection visa.


Asylum Seekers Who Arrive by Plane

Asylum seekers who arrive by plane require a valid visa (e.g. a tourist or student visa) in order to access the Australian Government’s Refugee Status Determination (RSD) process. Under the Migration Act 1958 (Cth), a valid visa makes asylum seekers lawful non-citizens. Section 36 of this Act outlines the criteria that must be met if a protection visa is to be awarded to an asylum seeker under the RSD process. Unless their documents are fraudulent, most asylum seekers arriving by plane are likely to have a valid visa. You can find more information here.


Temporary Protection Visas

Depending on mode and time of arrival, three types of visas can be granted if an asylum seeker is found to be a refugee. These include: 

  • Permanent Protection Visa (PPV)
  • Temporary Protection Visa (TPV) and
  • Safe Haven Enterprise visa (SHEV).

TPVs were introduced in Australia on 18 August 2013 and apply retrospectively. This means that an asylum seeker who arrived in Australia on or before 13 August 2012, and who has yet to have his/her visa application processed, is only eligible for a TPV and will not be eligible for a permanent protection visa. You can find more information here. To read more about TPVs and SHEVs, click here.

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