The Australian Department of Home Affairs recently published an update on the processing of Afghan humanitarian visas.
It provides that the government has allocated 31,500 permanent visa places for Afghans to migrate to Australia between 2021 to 2026. 5000 of these places fall under the family stream and 26,500 of these places fall under the offshore humanitarian program.
It is said that, aside from split families and those with close Australian ties, priority will be given to (Program Priorities):
(a) certified former Locally Engaged Employees (LEE) and their immediate family members
(b) immediate family members (spouse, children under 18) of holders of Refugee and Humanitarian (Class XB) visas
(c) refugees who have been referred by the United Nations High Commissioner for Refugees (UNHCR) to Australia for resettlement
(d) women and girls, ethnic minorities, LGBTQI+ and other identified minority groups.
It is then said:
“The protracted and volatile situation in Afghanistan has severely limited the Department’s ability to process in-country applications for Humanitarian visas. There are no facilities in Afghanistan to enrol applicants’ biometrics, conduct comprehensive visa interviews or verify identity and civil documents.”
“To ensure that resettlement is provided in a timely manner to those most in need, and to reduce uncertainty for those awaiting the outcome of their application, applications that do not fall within the Program’s priorities for the Afghan caseload, including from applicants who remain in Afghanistan, will be refused.”
The above suggests that, notwithstanding applicants may meet the criteria to validly make an application for a humanitarian visa, if they are located in Afghanistan then they may automatically be refused.
The nature of the update suggests that this is an internal policy of the Department and it needs to be determined whether this policy may be in conflict with the underlying law which allows applications by persons situated in Afghanistan to be considered. If they are in conflict, the consequence of not processing an application or any actual refusal on these grounds may potentially be unlawful.
Clarification of the Department’s position and confirmation that they will continue to process applications received from those situated in Afghanistan is needed urgently, otherwise this may cause applicants to leave Afghanistan, at potentially great personal risk, in order to have applications considered by the Department. A recent SBS report suggests that this might already be occurring. The Department’s statement appears to acknowledge this possibility, without offering any practical alternatives.
The Department notes that, between 17 August 2021 and 30 December 2022, there have been around 37,978 offshore humanitarian applications lodged with the Department, representing around 177,283 applicants (with each application averaging around 4.5 applicants). Of those, 32,982 applications (representing 155,053 applicants) have been registered and acknowledged, with 435 applications remaining to be registered and acknowledged.
If it is not a requirement when making an offshore humanitarian visa application to be located outside one’s country of origin (i.e. Afghanistan), how can the Department refuse to process an application on that basis without having regard to the individual merits of each case?
If the only pathway for persons seeking such visas is to leave Afghanistan, and this potentially places those persons at increased risk, how does this align with the Department’s statements that:
“The Department has put in place a number of measures to process applications, including setting up a specialised team to process the high number of applications from Afghans. These commitments acknowledge those at greatest risk, and recognises the unique and exceptional contributions made by individuals and their families to the Australian and Coalition missions in Afghanistan.”
Will this new policy have the effect of nullifying much of the commitment made to Afghans to offer them humanitarian pathways to Australia, including refugees, women and girls, ethnic minorities, LGBTQI+ and other identified minority groups at greatest risk? How does this align with the law in Australia and Australia’s international humanitarian commitments?
Note: The comments made in this article are general in nature and do not constitute the giving of legal or migration advice. Ashiana is not a legal or migration practice and does not offer legal or migration advice. If you require advice because you or someone you know may be affected by this policy, please contact your lawyer or migration agent who can advise you on your particular case. If you don’t know where to turn for help, contact us for a supported referral to an independent legal or migration adviser. For further details, please refer to our disclaimer.