7.1
The committee took a range of evidence on how Australia is offering and processing visa places for Afghan nationals following the fall of the country to the Taliban. Much of the focus in evidence was on the question of whether Australia should be increasing the number of places available, and the speed with which they are delivered.
7.2
This chapter outlines the visa pathways and settlement arrangements for various cohorts of Afghan nationals, including discussing:
humanitarian visas available to Afghan evacuees currently in Australia, as well as subclass 449 visa holders who are currently outside of Australia;
humanitarian visa processes and availability for Afghan nationals who were already in Australia prior to the fall of Kabul; and
availability and timeliness of other visa types for Afghan nationals, particularly family visas.
Visa applications and grants to Afghan nationals
7.3
This section outlines information provided to the committee by government departments on the background to Australia’s relevant visa programs, and current numbers and processes for Afghan nationals seeking visas in Australia.
Background to Australia’s humanitarian visa program
7.4
Australia's Humanitarian Program provides permanent resettlement for refugees and people in humanitarian need, and others including their family members. The government sets the number of visas that may be granted annually under the Humanitarian Program, which for the 2021–22 year has been set at a ceiling of 13,750 places. There are currently eight subclasses of refugee and humanitarian visas.
7.5
The Department of Home Affairs (Home Affairs) stated that all humanitarian program visa applications are assessed on an individual basis, and outlined:
Applicants must satisfy the visa criteria, including satisfying Public Interest Criteria for character, security and health. Ensuring the safety and security of Australians is the Government's most fundamental responsibility and highest priority. Processing times can vary according to the particular circumstances of the applicant, their location (whether they are inside or outside their home country) and their ability to travel and produce documents or access Australian Government officials.
7.6
Since 1 July 2013, Australia has granted approximately 13,000 humanitarian visas to Afghan nationals, with Home Affairs stating that Afghanistan 'has historically been a prominent cohort in the Offshore Humanitarian Program' and has been in the top five countries of origin for this visa program over the last five years.
7.7
Since 2009–10, 3,888 vulnerable Afghan women and children have received visas and settlement services under the Woman at Risk (subclass 204) visa.
7.8
Home Affairs noted that under Australia's Operation Sovereign Borders policy, which has been in place since 2013, 56 Afghans remain under regional processing arrangements as at 12 September 2021 (25 in regional processing countries and 31 temporary in Australia).
Humanitarian and other visa applications lodged by Afghan nationals
7.9
At the committee’s request, Home Affairs provided a range of data on the number of visa applications by Afghan nationals before and after the country came under Taliban control in August 2021, along with data on how long these applications had been in process.
Visa applications on hand when the Taliban assumed control of Afghanistan
7.10
As at 13 August 2021, directly before the fall of Kabul, Home Affairs had the following numbers of visa applications on hand from Afghan nationals:
1,395 visa applications for Offshore Humanitarian visas made by Afghans located outside of Australia. Of these, nearly 500 applications had been in process for longer than 18 months.
1,910 visa applications for Onshore Humanitarian visas made by Afghans (where applicants are onshore at the time of lodging their application). Of these, 1,359 applications had been in process for longer than 18 months.
17,500 visa applications for non-humanitarian visas made by Afghans located outside of Australia, the vast majority of which (16,855) were Family visa applications. Of the family visa applications, 12,793 had been in process for longer than 18 months.
7.11
Home Affairs stated that as at July 2021, the average processing time from lodgement to visa grant for Class XB (offshore humanitarian) visas for Afghan applicants was 63.5 weeks.
Lodgement of humanitarian visa applications after the fall of Kabul
7.12
Home Affairs informed the committee that between 17 August 2021 (just after the fall of Kabul) and 8 October 2021, 24,857 class XB (offshore) Humanitarian applications were lodged by Afghan citizens.
7.13
Home Affairs provided further information, current to 8 October 2021, about the total numbers of humanitarian visa applications lodged offshore by Afghan citizens in the months leading up to and after August 2021, shown at Table 7.1.
Table 7.1: Class XB (offshore) applications lodged by Afghan citizens, January – October 2021
|
|
|
|
January
|
52
|
|
February
|
53
|
|
March
|
79
|
|
April
|
102
|
|
May
|
88
|
|
June
|
95
|
|
July
|
131
|
|
August
|
8,615
|
|
September
|
14,791
|
|
1 to 8 October
|
1,564
|
|
Total 1 January – 8 October 2021
|
25,570
|
Source: Home Affairs, Answers to questions on notice following public hearing on 11 October 2021, Canberra (received 25 October 2021), Question No. 03.
7.14
Home Affairs officials noted that when accounting for family members included as part of primary visa applications, this number of applications represents ‘well in excess of 100,000 people currently applying’. Home Affairs provided updated figures at the committee’s 15 November public hearing, stating that it now had 32,000 primary claims on hand, an increase of nearly 7,000 since 8 October.
7.15
Home Affairs stated that it is 'assessing the above caseload to determine priorities and valid applications'.
7.16
When questioned about the significant number of Afghan humanitarian visa applicants who have not been contacted since lodgement of their visa application, Home Affairs stated:
The Department is currently receiving large numbers of applications for Refugee and Humanitarian (Class XB) visas, which means it is taking longer than normal to respond. We know this is a distressing time for many people, including our Australian Afghan community, and request patience with the application process.
Applications are generally acknowledged in writing and processed as quickly as possible according to their date of receipt.
All visa applications will be processed in accordance with Government announcements and within program priorities, and assessed on an individual basis. Processing times can vary according to the particular circumstances of the applicant, their location (be it inside or outside their home country), and their ability to travel, provide documents or access to Australian government officials. All visa applicants in the Humanitarian Program must meet the visa criteria and satisfy public interest criteria for character, security and health.
Numbers of subclass 449 visas granted
7.17
As noted in Chapter 5, during Australia’s evacuation efforts for people at risk in Afghanistan, 6,294 persons were invited to apply for Humanitarian Stay (Temporary) subclass 449 visas between 19 August 2021 and 1 October 2021, of which approximately 500 were partner or other visa applicants.
7.18
Home Affairs advised that, as at 1 October 2021, a total of 5,317 subclass 449 visas had been granted. Officials advised on 15 November 2021 that this number had increased to 5,636.
7.19
Of those granted subclass 449 visas, 2,844 people (including four babies born during the evacuation) had arrived in Australia as at 1 October 2021. By 12 November, the number of arrivals in Australia on subclass 449 visas had increased to 3,568 people.
7.20
Home Affairs advised in its submission that it is 'currently considering potential visa pathways for evacuees who have arrived in Australia on a subclass 449 visa', and noted that the 'most appropriate visa pathway will depend on the individual circumstances of each case'. It noted further:
Children born outside Australia who have at least one Australian citizen parent at the time of their birth may be eligible for Australian citizenship by descent. Between 16 August and 6 September 2021, 20 children resident in Afghanistan acquired Australian citizenship by descent. A small number [of] people who have since arrived in Australia as holders of a subclass 449 visa may also be eligible for Australian citizenship by descent.
7.21
Officials from Home Affairs informed the committee that individuals who remain outside of Australia and have had subclass 449 visas granted will be prioritised in the processing of their claims when their permanent humanitarian visa applications are lodged.
Partner visa applications for Afghan nationals
7.22
In terms of partner visa applications for Afghan nationals, Home Affairs officials noted that, as at mid-November 2021, there are just under 7,500 people with partner visa applications located outside Australia (of which it is unclear how many are in Afghanistan and how many are in other countries), as well as 534 located in Australia.
7.23
Mr David Wilden, First Assistant Secretary, Refugee, Humanitarian and Settlement Division, Home Affairs, explained how partner visas for individuals in Afghanistan were being processed both before and after the evacuation operation:
Where we were able to finalise partner visas since the embassy closed back in May, up until the evacuation phase, the big focus was on finalising those we could and getting them out. Where we were unable to finalise in those last days, those people came on 449s. As I said, there were around 500 who have arrived on partner visas. For the remaining, they're at different stages. Some of them have only put in applications since the evacuation. Some have been with us for quite some time…[W]e're anticipating that a large number of these people will get granted this year. Once granted, [if these individuals] cannot get a passport, then we can look at alternative documentation to allow people to cross borders and come to Australia. Once the visa is granted, we need to have that conversation on a case-by-case basis, if people don't have the relevant travel documentation.
…
Standard processing times [for partner visas] go just beyond 12 months, so a large number of these may be done this year, if they are already in train. If they have only recently applied, they may not be done this program year; it might be next program year.
Number of humanitarian visa places available
7.24
On 18 August 2021, in response to the deteriorating situation in Afghanistan, the Minister for Immigration announced that a minimum of 3,000 places in Australia's annual humanitarian refugee visa program of 13,750 places would be allocated to Afghans. This number ‘is a floor, not a ceiling’, with the government anticipating that ‘this initial allocation will increase further over the course of 2021–22’.
7.25
Home Affairs submitted that this allocation ‘ensures Australia is balancing the immediate needs of Afghan citizens, while also balancing other global resettlement needs’, stating further that it ‘ensures Australia will continue to meet its international humanitarian obligations through its humanitarian and resettlement programs’.
7.26
Home Affairs officials noted that several hundred people had received permanent humanitarian visas under the LEE program in the 2021–22 financial year prior to the evacuation operation, and that these would be additional to the 3,000 announced places. It was also noted that the initial 3,000 announced places is for the 2021–22 financial year, and that additional places would be made available in subsequent years.
Processing and prioritisation of Afghan visa caseload
7.27
Home Affairs told the committee that within the initial allocation of 3,000 places, ‘particular priority will be given to LEE, persecuted minorities, women, children and those with close links to Australia’, with further detail regarding the composition of and priorities within the allocated places ‘under consideration by Government’ and subject to further announcements in due course. Home Affairs also stated that the government ‘is working with Afghan community leaders in Australia, and IOM and the UNHCR, to identify and facilitate the resettlement of those Afghans most in need’.
Processing timeframes and procedures for Afghan visa applicants
7.28
When asked how many Home Affairs staff are assigned to processing Afghan visa applications, Home Affairs stated, in late October 2021:
The Department has established the Middle East Onshore Complex Team (MEOCT) in Australia to focus on the processing of partner/family visa applications from the Middle East region, including Afghan applicants. There are currently 19 staff in the team, but this does not represent the entirety of staff processing Afghan visa applications, as the Department operates a global visa delivery model, with visa processing offices at a range of locations in Australia and overseas.
Resources are allocated flexibly to manage demand and on-hand levels for all visa types processed across our service delivery network. Staff may work across multiple visa programs based on operational requirements. Departmental systems do not allow us to identify staffing levels assigned to processing a particular type of visa application from a particular nationality at a particular point in time.
7.29
Mr Wilden updated the committee at the 15 November public hearing on the work Home Affairs is undertaking:
In terms of the broader process for protection claims out of Afghanistan, we actually have 32,000 primary claims in front of us. Some of those arrived before the evacuation and some during the evacuation. At its peak, I think in one week we had over 10,000 applications lodged. What we're doing at the moment is focusing on getting those receipted and making sure they're valid applications. Obviously, when we receive such a large number in a very short space of time, there are delays. We have extra staff working on it. We have people working overtime. People are working weekends to do that.
The primary goal is to get this large group certified, in the first instance, as valid applications. Once we've done that, we can then start to look at the relative priorities of those claims.
7.30
Mr Wilden commented that prioritisation will be necessary to determine which applicants can receive a permanent humanitarian visa:
Obviously, there are very few spots. No matter whether it's 3,000 or more, it's going to be significantly less than the number of applications we have in. The criteria that the government has already spoken about are those at particular risk, women at risk, LEEs and people with close links to Australia. Those broad categories alone will give us far in excess of the number of spots we have available. So, at the moment, while we've got our processing people seeking to get the claims receipted and to make sure that they're valid, we're also working on how we help guide our staff once they start looking to assess the claims for protection in terms of those relative priorities, so that those with the greatest claims are considered first for the available places in this program year and in future program years.
7.31
Mr Wilden stated that further announcements would be made on how the humanitarian program for Afghan nationals would be rolled out:
We are working with the minister on the size and construct of the program, and the minister, or the government, will make announcements on what that will be over the future. I'm not sure what period. At that point we'll then determine the number of places for those already onshore—because, again, that number keeps growing—and then how many places will be available for people offshore to fill the relevant places for Afghans in the program.
7.32
When asked when Home Affairs expects to have completed the initial work of certifying the validity of the applications that have been received, Mr Wilden stated that ‘[w]e should have that done before Christmas, all going well’. In terms of when visa application decisions for this cohort would start being made, Mr Wilden commented that some should be made this year for those already in Australia, with the remainder of decisions being taken in 2022:
The process of deciding these will be as usual. It will roll out, and the first decisions, I'd presume, would come very soon, because we already have a number of people onshore who have valid claims and are already a lot of the way through their claim; we only have to finalise it. They are being made and will be made over coming weeks. The broader group who are offshore, however, will probably have started by January, and then we'll be looking at filling all the places in the program over the six months left in the program year.
Extension of subclass 449 visas
7.33
During November 2021, the government made announcements extending visa arrangements for all Afghan nationals in Australia who had been evacuated from the country on Humanitarian Stay (Temporary) subclass 449 visas, as well as some subclass 449 visa holders who were unable to access the evacuation and are still outside of Australia.
Subclass 449 visa holders already in Australia
7.34
On 12 November 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon Alex Hawke MP, announced that Afghan evacuees in Australia will have their existing subclass 449 visas extended for 12 months, ‘ensuring continued access to the full range of Government support services as they undertake the process of transitioning onto Australian permanent visas’.
7.35
These subclass 449 visas, which were due to expire in November 2021 after being initially issued for a 90 period in August 2021, are now valid until November 2022. Home Affairs stated that it would ‘write to all subclass 449 visa holders in the coming weeks [to] give them more information about what this means and what to do next’.
7.36
Home Affairs also stated that it would ‘process any valid permanent visa applications made by subclass 449 visa holders before their arrival in Australia’, including Family, Skilled or Humanitarian visas. Home Affairs stated that it would ‘contact applicants about the progress of these applications in due course’.
7.37
The Minister also announced on 12 November 2021 a legislative change to enable Afghan evacuees to ‘transition to offshore permanent protection visas rather than onshore visas which would normally apply to applicants already in Australia’. This change provides for access to a broader range of Government support and settlement services that normally available to onshore applicants. Home Affairs expanded on this announcement:
This change allows Afghan subclass 449 visa holders in Australia to make a valid application for a Refugee and Humanitarian (Class XB) visa in Australia.
This change aligns to a practicable extent, visa outcomes for this group with what they would likely have received through the Humanitarian Program, if they did not need urgent evacuation from Afghanistan.
We will contact Afghan evacuees who have not already made a permanent visa application. We will give them more information about how to apply for a Refugee and Humanitarian (Class XB) visa.
Subclass 449 visa holders can not apply for a Refugee and Humanitarian (Class XB) visa straight away. This is due to administrative steps that need to be taken by the Department. The Department is writing to affected people to give more information about the next steps in the visa application process.
7.38
The Minister’s media release of 12 November stated further:
The Government is looking at all possible avenues to ensure that visa options through Australia’s long-standing Humanitarian and Migration Programs continue to be available to all Afghan nationals, both within Afghanistan and in other countries.
Within the Humanitarian program, the Department of Home Affairs has been instructed by the Government to afford the highest processing priority to applicants from Afghanistan.
7.39
When asked how many of the 3,568 people already in Australia on subclass 449 visas were likely to apply for humanitarian visas within the 3,000 places currently available, and how many may apply for other types of visas, Mr Wilden informed the committee:
Quite a number already have applications in. Around 500 have partner applications in, so they'll be in the partner stream. We anticipate that there'll be others in that broad number of 3½ thousand who will apply for partner visas or family visas. We know already, from our discussions with our settlement providers, that some people are looking at business visas and skilled visas as possible avenues as well. Clearly a large number will be refugee and humanitarian visas, but, until those onshore have lodged, we won't be able to give a definitive number. It's probably in the region of 2,000 to 2½ thousand, we would estimate.
Situation for Subclass 449 visa holders outside of Australia
7.40
Concerns were raised about individuals who were granted subclass 449 visas during the evacuation operation in August 2021 but were not ultimately able to leave the country during this period.
7.41
Home Affairs stated that it ‘is contacting those who hold an Australian visa that was granted to facilitate their evacuation, but remain in Afghanistan or have travelled to another country’, and commented further:
Those granted subclass 449 visas have three months from date of grant to enter Australia. The Government will assist their travel where they are in a location able to travel to Australia. People in this situation are asked to contact their nearest Australian mission to make these arrangements. All subclass 449 visa holders will need to have their biometrics collected before travelling to Australia. Fulfilment of this requirement will be a consideration in any Travel Exemption Request to travel to Australia.
7.42
The committee was advised by Home Affairs on 15 November 2021 that subclass 449 visa holders currently outside Australia would be contacted via email to advise them on the next steps for their visa pathways. Officials noted that this would be ‘in the region of—based on the average family construct—about 400 to 500 emails that will need to go out to…the primary applicant, with their associated family members, to advise what's next for them’.
7.43
Subclass 449 visas issued during the evacuation were due to start expiring on 19 November 2021. The government then made an announcement on 18 November 2021 in relation to the extension of subclass 449 visas for some individuals still outside of Australia; specifically, for individuals associated with the LEE program. Minister Hawke stated:
The Morrison Government has today announced that temporary humanitarian visas issued to Afghans who supported Australia’s mission in Afghanistan, and who remain there following the August air evacuation, will be extended on an ongoing basis.
Today’s decision provides an ongoing extension to visas issued to certified Locally Engaged Employees from the Department of Defence, the Department of Foreign Affairs and Trade, and the Australian Federal Police, as well as persons with other working relationships with the Australian Government and their families who were issued temporary humanitarian visas.
7.44
Minister Hawke stated that those ‘outside of the LEE program who were granted a temporary humanitarian visa which will expire will receive priority in Australia’s Humanitarian and Refugee intake’. Further:
The Government will continue to make announcements regarding Afghanistan and the evolving humanitarian situation in the near future. We again thank the Australian-Afghan community for their close cooperation, direct feedback and their work to assist people in crisis in Afghanistan.
7.45
When asked how many of the subclass 449 visa cohort still outside of Australia (which totalled 2,086 individuals as of 12 November) were covered by the Minister’s announcement and had subsequently had their visas extended, Home Affairs informed the committee:
Since the Minister’s announcement of 18 November 2021, 244 (as at 22 November 2021) subclass 449 visas have been granted to eligible persons as described in the announcement. The Department has prioritised grants for those with imminent travel arrangements. The Department is currently working through the cohort of eligible subclass 449 holders, offshore, for further subclass 449 visa grants.
The announcement refers to the extension of visas. However, in practice due to the operation of the legislation, individuals are granted a further visa. All initial subclass 449 visas were issued with three-month validity from the date of the grant and will cease at the end of that period.
Visa application processes for those still in Afghanistan
7.46
Evidence was received on the need to streamline or provide alternative means for applicants to satisfy identity and other checks normally required for a humanitarian visa application, and to improve the application process more broadly.
7.47
The Law Council of Australia (Law Council) submitted:
Given the urgency of Humanitarian Visa applications, the Law Council submits that it is essential that there is a user-friendly and reliable way to validly lodge humanitarian visa applications online. Practitioners have reported technical difficulties in lodging Humanitarian Visa applications via the online portal.
These difficulties include receiving error messages when attempting to lodge applications. The Law Council recommends that this portal is upgraded to ensure that it is a reliable means of lodging humanitarian applications. Alternatively, the Law Council recommends allowing humanitarian applications to be able to be validly lodged via email.
Practitioners have also reported not receiving any acknowledgement of their applications, whether they are lodged online or by post. The Law Council recommends that an acknowledgement email with a reference number be sent upon receipt of a Humanitarian Visa application so that there may be some certainty around this process.
The Law Council also recommends more information be provided in relation to expected processing times and the number of humanitarian places remaining for people from Afghanistan. This would assist practitioners to manage their clients’ expectations regarding timeframes and prospects of success.
7.48
Her Excellency Hasina Safi, Ms Azadah Raz Mohammad and Professor Felicity Gerry QC, argued that Australia should remove the need for Afghans to first flee to a third country as a prerequisite to applying for most Australian humanitarian visa sub-classes, by amending the relevant legislative instrument relating to this requirement:
In light of the circumstances in Afghanistan and the difficulty for many Afghans to flee the country, particularly without a valid visa for a third country, we suggest that the Committee reviews the instrument ‘Specification of a Class of Persons - IMMI 12/127’. This instrument makes it necessary for Afghans to flee to a third country in order to be eligible for the majority of Australia’s humanitarian visas. Doing so would represent a more targeted approach tailored to the situation at hand.
Resolving identity issues and health checks for Afghan visa applicants
7.49
While acknowledging the importance of identity checks as part of the visa application process, the Law Council submitted that ‘there are now clear difficulties with conducting such checks for Afghans, given a lack of embassy and government staff on the ground to facilitate them, and difficulties producing documents’:
Practitioners have reported that due to the ongoing crisis, some clients from Afghanistan are no longer able to obtain passports or birth certificates for their children in parts of Afghanistan. Additionally, many clients who did not have passports prior to the Taliban resuming power are fearful of presenting at a passport office for fear of alerting the Taliban to their whereabouts. This is consistent with UNHCR information—the UNHCR reports that of the Afghans who have crossed the border into Pakistan since 1 April 2021, 45 per cent have had no identity documentation.
7.50
The Law Council recommended that, to the extent possible, ‘a more flexible approach be adopted regarding the type of identity documentation required for the issue of visas to people from Afghanistan’, and added:
The Law Council suggests this could include working with the UNHCR and other States in the region also faced with the challenge of confirming identity in this context.
By way of example, the Law Council notes that it has been reported that the Pakistan Government, with the support of the UNHCR, is managing a Documentation Renewal and Information Verification Exercise which will update the details of more than 500,000 registered Afghan refugees as part of a country-wide campaign to issue renewed Proof of Registration cards.
7.51
The Asylum Seeker Resource Centre recommended that Australia adapt its assessment of identity documents and health requirements for all visa applicants from Afghanistan, recognising that ‘identity and health checking in Afghanistan are no longer possible, and that many people from Afghanistan are now unable to secure relevant civil documentation to support their visa application’.
7.52
Home Affairs officials were asked at the public hearing on 15 November what changes are being made in terms of waiving or changing the requirements for health checks, the endorsement of documents and other requirements that people would normally have to provide in order to put in a valid application for a humanitarian visa. Mr Wilden commented that ‘[a]t this point, there are no changes’ to the standard processes:
A humanitarian visa is a humanitarian visa and has core requirements that must be satisfied. I know there is concern about the ability of people who are still in country. I note that, in our standard humanitarian program, in-country visas usually make up a very small number of those; the places usually go to people who have fled countries. Afghanistan is a unique situation. We're talking with our providers, who up until the middle of August were in situ and providing health services and other services. We will continue to work with them to see—they haven't said that they will not be going back in to provide those services, but they are waiting for the situation to stabilise. We will wait while we go through the first phase of getting the applications receipted. We aren't going to look at alternatives to the existing process. However, if, at a future point, it's quite clear that people can't get medicals et cetera, we will discuss that with government to see whether they want any concessions or changes made.
7.53
On the specific issue of verifying the identity of visa applicants, Mr Wilden noted that the ‘Afghan case load has traditionally been challenging in terms of identity’ and that this ‘will, we presume, continue to be the case’. Further:
It does not mean we must have specific documents. We need proof of identity that satisfies the decision-maker on who the individual is. That can be achieved through a number of means. We will just have to wait as we move forward—again, it's on an individual basis—to look at what their individual circumstances are, what documentation they may have and then, going forward, whether they can access health care in Afghanistan or how we may seek to manage that.
7.54
When questioned about the novel approaches being taken by other countries to processing Afghan visa applications, Mr Wilden commented:
We are aware that other countries have taken different approaches. But, again, some of those approaches include—I believe that the US are taking people to staging places. So, they've got them out of Afghanistan as part of the evacuation but they haven't actually taken them to the United States. My understanding is that with the US you will still need to meet those basic requirements, particularly around identity, character and security, which is very similar to our own processes. We always speak particularly with our Five Eyes colleagues, whom we often share case loads with. I know that the Canadians have announced large numbers, and I will be talking to them in the next week or so about how they're going to be managing that process. Where they do things differently, obviously that's information for us, and we can look internally at what that means in terms of our own processes. But for the moment, standard humanitarian processing applies.
The need for increased humanitarian visa support to Afghanistan
7.55
A number of submitters and witnesses commented on the level and pace of Australia’s humanitarian visa intake from Afghanistan.
7.56
The Law Council of Australia provided some context to the discussion of Australia’s humanitarian intake from Afghanistan, noting that even before the Taliban took control of the country, ‘there was a significant number of Afghan refugees and asylum seekers worldwide, as a result of many years of political instability and violence’. The Law Council noted:
According to UNHCR data, at the end of 2020 there were almost 2.6 million Afghan refugees worldwide, mostly hosted in Pakistan and Iran, as well as nearly 240,000 Afghan asylum seekers registered with the UNHCR;
the UNHCR has estimated that in a worst-case scenario, recent events could result in 515,000 newly displaced refugees fleeing across the borders;
the UNHCR has indicated that between 1 January 2021 and 5 October 2021, 665,182 people have been internally displaced within Afghanistan, of which 80 per cent are women and children, in addition to 2.9 million already internally displaced at the end of 2020.
7.57
A number of submitters called on the Australian Government to formally raise the number of humanitarian visa places offered to Afghan nationals as a result of the overwhelming crisis facing the country following the Taliban’s seizure of power. Submitters also called on Australia to grant permanent protection and amnesty to Afghans already in Australia, and prioritise family reunification for Afghans in Australia’s visa program.
7.58
The Afghanistan-Australia Advocacy Network (AAAN) summarised the concern for Australia to offer adequate support for vulnerable Afghans:
Providing safe haven to refugees for people from Afghanistan is consistent with the promise made by Australia to protect persecuted groups, when they first entered the war in Afghanistan, and strongly aligns with Australia’s international obligations. After two decades of intervention and promises to the people of Afghanistan, which included protection for persecuted groups, women, democratic freedoms and the rule of law, our government cannot absolve itself of responsibility for the unravelling crisis in Afghanistan today. The Australian government must grant permanent protection to refugees from Afghanistan in Australia; enable a pathway for family reunification; commit to an additional humanitarian intake for people from Afghanistan in urgent need of protection; and lift the ban on the resettlement of refugees from Indonesia. We must not abandon the people of Afghanistan.
Calls for an increase to the initial 3,000 announced humanitarian visa places
7.59
Many submitters and witnesses called for an increase to the government’s announcement of an initial 3,000 humanitarian visa places for Afghan refugees. AAAN submitted:
While this initial commitment of 3,000 is a welcome step, it does not go far enough. Afghanistan is currently facing one of the world’s worst humanitarian crisis, and Australia played a significant role over the last two decades and has a responsibility to help and support the people of Afghanistan now.
…
Since the Taliban forcibly took over Kabul, we have seen our international partners in the war in Afghanistan step up and significantly [increase] their humanitarian intake from Afghanistan… The Australian government’s response to the humanitarian crisis in Afghanistan so far does not match the promises that we made to the people of Afghanistan, and our 20-year commitment to the war in Afghanistan. We would like to see Australia commit to an additional 20, 000 humanitarian intake from Afghanistan to provide safety to those most at risk at the hand of the Taliban.
7.60
The Afghan Australian Development Association submitted similarly:
Although resettlement means a brain drain for a nation that sorely requires retention of its skilled people, Australia has a moral responsibility to assist Afghans at risk of reprisal by issuing humanitarian visas for resettlement. The numbers of at-risk Afghans who have worked with Australia over the 20 years of our engagement is well beyond the mere 3,000 humanitarian placements committed. Australia’s international reputation requires increasing our intake to at least 20,000 to match commitments by the UK and Canada, noting Canada’s recent doubling to 40,000:
The Senate is thus asked to recommend increasing Australia’s humanitarian intake from Afghanistan to at least 20,000.
7.61
Amnesty International submitted that it is:
…deeply concerned that [the 3,000 places announced] does not meet the need presented by the unfolding crisis in Afghanistan.
While vague indications have been made that 3000 places will be the “floor”, there is still no confirmation of what the total commitment will be.
7.62
The Law Council noted that the announced 3,000 initial places ‘does not represent a substantial increase to the recent number of places given to Afghans’ in past years, and emphasised that the 3,000 places are not additional to, but instead fall within, the Humanitarian Program’s existing annual allocation of 13,750 (a ceiling figure). The Law Council stated:
This allocation was significantly reduced in last year’s Federal Budget from 18,750 places in 2018–19 and 2019–2020. As a result, within an already smaller program, the 3,000 places for Afghan nationals will come at the expense of persons of other nationalities who have been assessed, e.g., by the UNHCR, as highly vulnerable and in need of protection.
7.63
The Law Council recommended that the government ‘commit to substantially increasing the number of humanitarian visa places allocated to Afghans over and above its existing ceiling of 13,750 annual places over the next three years’.
7.64
A number of other stakeholders called for a one-off increased refugee intake from Afghanistan, additional to the 13,750 places allocated to Australia’s general humanitarian program for 2020–21. Many submitters echoed the specific call from Afghan advocacy groups for an increased intake of 20,000 humanitarian visa places for Afghans affected by the current crisis.
7.65
The Refugee Council of Australia submitted:
The Government’s commitment to 3,000 places within the already reduced Refugee and Humanitarian Program needs reconsideration towards a genuine humanitarian response. Hundreds of thousands of Australians have supported calls for the Australian Government to respond generously, calling for a special intake of 20,000 places for refugees from Afghanistan on top of the recently reduced Refugee and Humanitarian Program.
We argue that the request for a special intake of 20,000 refugees from Afghanistan is not unrealistic: in fact, it is reasonable, necessary and worthwhile.
Comparison to the humanitarian visa commitments of other nations and to past crises
7.66
The committee heard that Australia’s commitment of a ‘floor’ of 3,000 humanitarian visa places is significantly lower than other comparable nations; with Canada having recently committed to accepting an additional 40,000 refugees from Afghanistan, and the UK recently committing to a resettlement scheme covering 5,000 at risk Afghan nationals in its first year, with up to a total of 20,000 places over the long term.
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Submitters and witnesses noted that the initial Australian announcement of 3,000 places provides for fewer people to be assisted than in previous responses to comparable crises. It was noted by a number of submitters that in 2015, the Australian Government provided an additional 12,000 places for people displaced by conflict in Syria and Iraq, above its general Humanitarian Program allocations, as a result of the crisis in those countries.
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The Kaldor Centre for International Refugee Law, UNSW (Kaldor Centre), elaborated on resettlement announcements from Canada and the US, in contrast with Australia’s current response and its response to the Syria crisis:
Countries with comparable resettlement programs to Australia have significantly increased their capacity to admit Afghan refugees. In September 2021, the Canadian Government announced a special humanitarian intake of 40,000 Afghan refugees, an intake that will be additional to Canada’s existing annual humanitarian resettlement program. On 20 September 2021, the United States Government announced a Refugee Admissions Program (USRAP) ceiling of 125,000 for the 2022 fiscal year. Within this expanded intake, Afghans who are both outside and still within their country are designated as priority cohorts for resettlement in the United States. In planning for the 2022 USRAP, the United States Government has recognised the resettlement needs of Afghan refugees who have fled to host countries within the Middle East, Europe, and the Asia Pacific.
As of 8 October 2021, the Australian Government has not offered an additional intake of Afghan refugees, but rather has only pledged to allocate around 3,000 existing places within the nation’s 2021–22 resettlement program (which is capped at 13,750 places) to people fleeing Afghanistan. While welcome, this is not enough; what is needed now are places additional to existing programs. The Australian Government has a demonstrated capacity to offer an additional special humanitarian intake of Afghan refugees. In 2015, Australia offered a special humanitarian intake of 12,000 places for Syrian and Iraqi refugees, which was in addition to the annual humanitarian program (set at 13,750 for 2015–16).
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Other Australian humanitarian crisis responses were also noted, such as the Hawke Government’s 1989 commitment of 42,000 additional emergency humanitarian visa places following the Tiananmen Square Massacre, and the Fraser Government’s commitment of an additional emergency 70,000 humanitarian visa places between 1975–83 in the wake of the Vietnam War.
Support from the Australian community to assist with humanitarian entrants
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The Refugee Council of Australia highlighted the goodwill of the Australian community towards assisting with an increased humanitarian intake from Afghanistan at this time:
In the weeks since the fall of Kabul to the Taliban, refugee and multicultural services around Australia have been swamped with calls from Australians who want to help refugees from Afghanistan to make a new life in Australia. These calls are coming from all corners of the country and people of all backgrounds, offering employment, housing and donations of goods and cash, and wanting to be involved in sponsoring, welcoming and befriending refugees. All that is missing is the Australian Government offering a generous response through its Refugee and Humanitarian Program.
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Amnesty International called on Australia to reform its refugee Community Sponsorship Program to assist in an expanded humanitarian intake program from Afghanistan:
If Australia's Community Sponsorship Programme was better, it would be playing an important role in bringing fleeing Afghans to Australia right now. However, it is expensive, cumbersome and it takes away places from the humanitarian intake. A fair and just community sponsorship programme would not take places away from others, limit costs, provide adequate support and services, and allow community, family and businesses to act as sponsors.
…
[Amnesty International recommends that] the Australian government immediately reform the Community Sponsorship Programme, including by making it more affordable and in addition to the government’s humanitarian intake, so that it is easier for people to sponsor refugees from countries such as Afghanistan.
International dimensions to an expanded humanitarian intake
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The Kaldor Centre submitted that by expanding access to protection through a special humanitarian intake for Afghan refugees, the Australian Government ‘can help to relieve the pressure on ‘front line’ States such as Pakistan and Iran, which are hosting 1.4 million and 800,000 Afghan refugees respectively’. It argued that safe and orderly pathways to protection ‘are also a critical form of international solidarity and responsibility-sharing among States’, and urged that Australia’s program should be coordinated with the UNHCR:
A special humanitarian intake for Afghan refugees should be guided by principles of refugee protection…[T]his includes ensuring that Australian Government resettlement processes operate with transparency and consistency, and focus ‘on identifying refugees with the greatest protection needs’ and do not discriminate based on irrelevant factors. To this end, a special humanitarian intake must be undertaken with the consultation and cooperation of the United Nations refugee agency, UNHCR. The agency is best placed to identify and refer refugees who are most in need and best suited to resettlement to Australia.
Coordination for refugee departures from Afghanistan
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The Kaldor Centre noted estimates that there are currently more than 3.5 million internally displaced Afghans, and that the UN High Commissioner for Refugees, Filippo Grandi, has stated that most of these people ‘have no regular channels through which to seek safety’.
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The Kaldor Centre called on the Australian Government to work with international partners to establish an ‘orderly departure’ program (also known as ‘in country processing’) for people seeking to safely leave Afghanistan. It noted that Australia already has an existing visa mechanism to facilitate orderly departure, the In-Country Special Humanitarian Visa (subclass 201), which has been used already in Afghanistan as part of Australia’s Locally-Engaged Employee (LEE) program. The Kaldor Centre elaborated:
The purpose of an orderly departure program is to help displaced people to cross international borders safely and avoid taking potentially dangerous or exploitative journeys to access protection in another country.
…
Orderly departure must have transparent and flexible application criteria and processes, to ensure that individuals who are at risk of persecution or other serious harm can make an informed decision about whether they can apply and safely wait for their application to be finalized. Procedures should be flexible enough to allow individuals to move into another country, and back again if necessary, while their application is in progress. Protection safeguards include the ability of unsuccessful applicants to know the reason for their rejection, to appeal and, if their circumstances change, to apply again.
Orderly departure must be based on a multi-year commitment by the Australian Government and other States, to provide predictability for individuals who need to flee, as well as for partner organisations and support services in the destination country, to better plan for the housing, support services, educational and employment needs of refugees upon arrival.
Permanent visa pathways for Afghans in Australia
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In addition to calls for an expanded humanitarian intake for Afghan nationals seeking safety in Australia, a number of submitters and witnesses urged the Australian government to grant pathways to permanent protection to refugees and asylum seekers from Afghanistan already living in Australia, along with their families.
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AAAN submitted that ‘after two decades of intervention and promises, Australia has a moral obligation to take steps toward protecting those most at risk under the Taliban’. It called on the Australian Government to:
Grant pathways to permanent protection to refugees from Afghanistan living in Australia, held in immigration detention and people from Afghanistan who currently reside in Australia on temporary visas and fear returning to a Taliban ruled Afghanistan.
This includes refugees held in detention offshore and onshore…There is no justification for keeping people detained. These people cannot go back to Afghanistan. They must be given permanent protection.
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The Kaldor Centre argued:
In providing protection for Afghan refugees, whether those who are resettled through the annual humanitarian program or a special humanitarian intake, or those who have sought—or who may seek in future—protection directly through Australia’s national asylum procedures, the Australian Government must provide a pathway to permanency for the refugees concerned. A permanent, durable solution can allow displaced people to enjoy long-term security and the opportunity to rebuild their lives within the Australian community. Research consistently shows that refugees make considerable economic, demographic, cultural and civic contributions to Australian society.
Afghans on Temporary Protection Visas (TPVs) and Safe Haven Enterprise Visas (SHEVs)
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Concerns were raised with the committee about the status of Afghans currently in Australia on temporary visas, particularly those currently on Temporary Protection Visas (TPVs) and Safe Haven Enterprise Visas (SHEVs).
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Home Affairs noted that on 17 August 2021, the Minister for Immigration announced that ‘no Afghan visa holder currently in Australia will be asked or required to return to Afghanistan while the security situation there remains dire, and that ‘Afghan citizens currently in Australia on temporary visas will be supported by the Australian Government’. This announcement was welcomed by submitters to the inquiry.
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In relation to the possibility of people returning to Afghanistan, Home Affairs submitted:
Furthermore, Australia is committed to its international obligations and provides protection to individuals consistent with its obligations set out in the 1951 Convention Relating to the Status of Refugees, its 1967 Protocol and other international human rights conventions to which it is a party. Australia does not remove individuals to situations where they face persecution or a real risk of torture, cruel, inhuman and degrading treatment or punishment, arbitrary deprivation of life or the death penalty. If individuals from affected areas wish to return to Afghanistan voluntarily, and if eligible, they will be supported to do so through Australia’s Return and Reintegration Assistance Program.
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The Law Council expressed concern that the current situation leaves many Afghans who are in Australia on TPVs and SHEVs with ‘a permanently uncertain future, when there is little realistic prospect that they can return to a safe and secure Afghanistan in the foreseeable future’, particularly while the Taliban remains in power. The Law Council outlined:
Currently, such visa holders must regularly reapply for protection visas and are ineligible for permanent protection. They are also unable to sponsor a child, a parent or spouse to come to Australia, which is undoubtedly causing additional stress at this time. Anecdotally, practitioner feedback is that a large portion of TPV and SHEV holders are men, who have wives and children still residing in Afghanistan, which are vulnerable groups within Afghanistan.
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The Refugee Council of Australia highlighted that as of 30 August 2021, there were a ‘total of 5,193 people from Afghanistan who are on a TPV or SHEV or whose application for a TPV or SHEV needs urgent determination or reassessment’. This includes 4,291 Afghan refugees who are on TPVs or SHEVs, a further 384 who are awaiting an outcome of their application for a TPV or SHEV, and 518 Afghan asylum seekers who have been refused a visa on appeal at the Immigration Assessment Authority (IAA).
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The Law Council also highlighted that holders of TPVs and SHEVs have reduced access to social services:
Specifically, while temporary protection visa holders are able to access payments such as Family Tax Benefit, Parental Leave Pay and Special Benefit, they are unable to receive Carer Payment and Carer Allowance, Parenting Payment, and Jobseeker and Youth Allowance.
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The Law Council explained further:
Afghans present in Australia on TPVs or SHEVs are unable to apply for a permanent protection visa because they are boat arrivals. The Law Council understands the policy objective is to discourage further boat arrivals. However, the Law Council questions whether this is a proportionate measure in circumstances where the holders of these temporary visas have no foreseeable prospect of repatriation, cannot bring immediate family members to Australia and cannot access particular social services.
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The Law Council questioned whether Australia’s international human rights obligations are being met in relation to TPV and SHEV holders, particularly those from Afghanistan, stating that ‘the current situation of Afghans demonstrates the inherent problems with Australia’s current temporary protection visa policy’. It recommended that all Afghan TPV and SHEV holders be transferred to permanent protection visas, and elaborated further:
The Law Council’s preferred position is that the Minister exercise his or her powers such as to transfer all TPV and SHEV holders to permanent protection visas, including in particular the existing Afghan cohorts.
If this is not accepted, it recommends that:
a moratorium of least five years be granted, to remove the need for renewed applications by these cohorts;
these cohorts be permitted to sponsor family to join them in Australia; and
temporary protection visa holders have the same access to social services as permanent protection visa holders.
Should, however, the requirement to renew applications be retained, these should be able to be prioritised and progressed without the need for an interview.
The Law Council is concerned for the mental health of Afghan TPV and SHEV holders. The Law Council considers that the settlement programs introduced to ease the settlement of new Afghan evacuees could be adapted to provide mental health and other support to current Afghan TPV and SHEV holders. Otherwise, the Law Council suggests the Department clarify the future of such holders, in line with the suggestions made in the preceding paragraphs, expeditiously.
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A number of other submitters argued similarly for the Afghan TPV and SHEV cohorts to be offered permanent protection visa pathways. Refugee Advice & Casework Service (RACS) submitted:
Our experience at RACS leads us to witness that people from Afghanistan in Australia are experiencing immense anxiety and distress due to the lack of viable family reunion and the overwhelming worry they have for their family members.
Australia should abolish temporary protection visas given the significant suffering this program is creating. We should grant all refugees currently on temporary protection visas permanent protection, and allow them to finally restart their lives without the prospect of being returned to the country from which they’ve fled. The situation in Afghanistan warrants special consideration of permanent protection given the significant unlikelihood the country will be restored to safety in any immediate future and brings to light all the issues enlivened by this system of temporary protection.
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In supporting the call to abolish TPVs and SHEVs, Her Excellency Hasina Safi, Ms Azadah Raz Mohammad and Professor Felicity Gerry QC stated:
We recognise that immigration is a complex topic in Australia, but this is an extraordinary crisis that requires a coordinated and humanitarian approach. As the Committee will be aware, these visa categories do not allow family reunion, which will have a negative impact upon the mental health and psychological wellbeing of these visa holders in Australia. This in turn may hinder their ultimate integration because of the lack of support structures. The return of the Taliban has affected the Afghan-diaspora in Australia and has hit hard at those that do not have the option of family reunion. Most of the Afghan-national TPV/SHEV-holders have their immediate family members still inside Afghanistan and live in fear that if they are discovered by the Taliban, they may face harm. In the short- and long-term, temporary visa holders fear kidnappings and ransom money demands of their family members by the Taliban. There is precedent in past years, where individuals with ties to western countries—mostly Hazara populated areas—were kidnapped and their families extorted for ransom money. With the return of the Taliban such actions are likely to increase, and we have already received reports from families in Australia that their relatives in Afghanistan are being subjected to this practice.
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Submitters also highlighted that there are around 15 people from Afghanistan still in offshore processing centres in Nauru and Papua New Guinea, and around 50 people from Afghanistan currently being held in onshore immigration detention facilities in Australia. It was argued that, given the circumstances now in Afghanistan, there is no justification for keeping these individuals detained, and they should be offered permanent protection and resettlement immediately.
Evidence from Home Affairs on the TPV and SHEV cohorts
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Home Affairs outlined the government’s current policy in relation to the TPV and SHEV cohorts:
Consistent with current Australian Government policy settings, unlawful arrivals who engage Australia’s protection obligations are only eligible for temporary protection, that is, either a Temporary Protection visa (TPV) valid for three years, or a Safe Haven Enterprise visa (SHEV) valid for five years. TPV and SHEV holders are not eligible to propose family members for entry to Australia through the Humanitarian Program or the Migration Program. This is in line with the Government’s Operation Sovereign Borders policy that no one who comes to Australia illegally by boat will settle here – established to safeguard vulnerable people from exploitation by people smugglers, prevent the loss of life at sea, and ensure the integrity of Australia’s borders. The Prime Minister restated the Government’s policy in this regard as it applied to Afghan citizens on 23 August 2021.
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When asked at an Estimates committee hearing on 25 October what the government’s intention is for Afghan nationals who are currently in Australia on temporary visas, Mr Michael Pezzullo AO, Secretary of the Department of Home Affairs stated that, without legislative change, no other outcomes are under consideration:
As a matter of law, temporary protection visas—which were introduced in December 2014 at the same time as the SHEVs, of which we spoke earlier—cannot lead to any other kind of visa outcome, permanent or otherwise. The group of which you spoke relate to illegal maritime arrivals as a matter of policy and direction, because we have to take into account not just refoulement obligations but also the practicalities of the logistics of returning someone. As a matter of practice and operations, the government intention—which has been communicated as a direction to me—to not return people to Afghanistan holds for so long as that security situation holds and as long as that government direction holds. So when you say, 'what is the intention,' it's no different, at one level, from the situation prior to the fall of Kabul; although, obviously, the objective circumstances on the ground there have changed. The legal situation is no different because it's legally impermissible for those persons, save the abolition of temporary protection visas, to apply for any other kind of visa, just as a matter of law.
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Mr Pezzullo advised that Home Affairs has not provided any advice to the Minister or the government more generally about the possibility of implementing legislative amendments to enable TPV holders to access permanent visa pathways.
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Mr Wilden from Home Affairs provided an update at the 15 November public hearing on visa application processing for the SHEV and TPV cohort in Australia:
We are right towards the end of that case load, which, as you know, was very large. If I look at the figures at the moment, there are currently 1,668 safe haven enterprise visas on hand and there are 463 temporary protection visas on hand. But it's important to note that some of them are second applications—they've already been granted one, the three years or five years has completed and we're now doing their subsequent term—so I don't have the breakdown below that. For those people who, if you like, haven't had their initial decision, they are generally a very complex group and we have to satisfy ourselves of the core criteria. Identity is still a big one, as I know I've mentioned already. For the many people in this cohort who we don't have decisions for, we had hoped to finish all interviews by July, but, unfortunately, COVID in our two biggest processing centres, and where most of them are, has slowed that down. We still have a small group of people to interview for the final stage of their claim. But, again, in the coming two to three months, for anyone who hasn't had an initial assessment out of the TPV and SHEV caseload, we would hope to have those finalised, pending issues around identity et cetera.
Afghans whose applications for protection are before the Department or tribunal
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The Law Council highlighted that the changed circumstances in Afghanistan since the Taliban takeover should impact rulings in relation to the claims of individuals in Australia currently seeking asylum. It submitted:
The Law Council is aware of numerous instances in which Afghan nationals’ protection visa applications have been rejected on the basis that it is safe to return to Afghanistan, or for the applicant to relocate to a ‘safe’ area of Afghanistan. However, such conclusions are clearly now affected by current events. It considers that given their changed circumstances and the prima facie valid protection claims that all Afghan nationals in Australia now have, there are several cohorts of visa applicants in Australia whose situation must now be carefully reassessed.
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The Law Council stated that the cohorts affected in this regard are for individuals where:
a protection visa application is currently on foot;
a previous refusal decision is currently subject to merits review before the Immigration Assessment Authority (IAA) or the Administrative Appeals Tribunal (AAT);
an IAA or AAT decision to affirm a refusal decision is subject to judicial review proceedings; or
the application has been refused and is not subject to any kind of review process.
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In terms of the number of applicants in these cohorts, the Law Council stated that as at August 2021 there were 384 Afghan unauthorised maritime arrivals (i.e. boat arrivals) protection visa applicants who had matters before the Department or IAA and AAT for decision. There may also be a small number of Afghan applicants in this situation who are not unauthorised maritime arrivals; and it is unclear how many Afghans have matters before the courts on judicial review.
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The Refugee Council of Australia submitted similarly:
There are currently 384 people seeking asylum from Afghanistan who are awaiting an outcome of their refugee protection application. In addition, there are 518 Afghan asylum seekers who have been refused a visa on appeal at the Immigration Assessment Authority. There are also people who are seeking legal review of their application in federal courts. Many of these refusals have been issued because, at the time, the Department of Home Affairs considered that certain places in Afghanistan (e.g. Kabul) were safe for people to return to, based on section 5J of the Migration Act 1958. These decisions were made before the fall of Afghanistan, and now are clearly incorrect. There is nowhere safe in Afghanistan, especially for minority groups, women, people who are LGBTIQ and human rights activists… As such, those seeking asylum, including those who are currently appealing their case in the IAA or federal courts, now have a much stronger claim for protection. These claims should be prioritised and assessed in light of the circumstances in Afghanistan now.
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The Law Council submitted further:
[T]o the extent possible, and subject to consideration of the security related criteria for a protection visa, Afghans should be considered as a cohort based on a common, updated set of country information, with a view to saving considerable time and resources of the Department, merits review bodies and the courts. There should be transparency about how the updated country information is prepared, and in every case, relevant visa holder or visa applicant given an opportunity to comment, regardless of whether there is a statutory obligation on the decision-maker to afford such an opportunity.
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The Law Council recommended that the Minister for Immigration ‘expedite the processes required to consider all protection visa applications by Afghan asylum-seekers as much as possible, subject to consideration of security-related criteria’. It emphasised that careful consideration should be given to ‘the changed circumstances in Afghanistan and the need to afford fair and efficient processes’.
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Responding to the arguments that Afghans who are currently seeking asylum, or appealing visa refusal decisions through the IAA or the Federal Court, should have their cases reviewed in light of the changed circumstances in Afghanistan, Home Affairs commented:
Australia provides protection to individuals consistent with the obligations set out in the Refugee Convention, and other relevant international treaties to which Australia is a party and Australian legislation.
…
Action to return an unsuccessful asylum seeker to their country of origin or a third country where they have a right to reside does not take place until all claims for protection have been fully considered, including through any merits and judicial review.
Afghan citizens who have applied for either a temporary or permanent protection visa in Australia are a processing priority.
In addition, under some circumstances, Afghan citizens who have had their protection visas either refused or cancelled may be able to request ministerial intervention to allow them to apply for another protection visa.
Requests will only be referred to the responsible Minister, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, if they meet the Minister’s guidelines for referral, including if there are new protection claims that could not have been provided in the original application.
Prioritising family reunification
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Submitters called on the government to prioritise the family reunification visas of people from Afghanistan in Australia. The Refugee Council of Australia summarised some of the concerns around a lack of pathways for family reunification:
Unfortunately, family reunion is incredibly difficult for people from Afghanistan, as well as other refugee communities. The availability, cost and significant delays have decimated options for the Afghan community to bring their family members to safety in Australia. Successive government policies have deliberately restricted access to family reunion for many members of the Afghan community. This includes significant issues with the Special Humanitarian Program (SHP), costs and delays for family reunion in the Migration Program, and deliberate policies designed to deny family reunion for people who arrived by boat, including those from Afghanistan.
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The Refugee Council of Australia recommended that the Australian Government should identify and prioritise applications from people from Afghanistan within the Special Humanitarian Program backlog, noting that this program is significantly oversubscribed, subject to lengthy processing delays, and with application costs that make it unaffordable to many refugees in Australia seeking to sponsor family members.
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The Refugee Council of Australia further noted concerns for Afghans in Australia attempting to sponsor family members through the family stream of the migration program (rather than the SHP), noting that visa processing times are very lengthy, and particularly lengthy for Afghan citizens (for example, data from 2021 shows that the average time for a subclass 309 visa application by a citizen of Afghanistan to be processed was 43.6 months, compared with citizens of the US, which took an average of just 7.3 months). High costs for this visa stream were also raised as a barrier to Afghan applicants.
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Submitters also highlighted issues with policies designed to impact individuals who originally arrived in Australia seeking asylum by boat, that inhibit family reunification. As noted earlier, the lack of access to family reunion for TPV and SHEV visa holders was cited by submitters as a significant cause of distress for Afghan nationals in Australia on these visas. A further issue was raised in relation to Ministerial Direction 80, as explained by RACS:
It is believed that there are thousands of refugees from Afghanistan on permanent protection visas who arrived in Australia before the re-introduction of temporary protection visas, who are now prevented from reuniting with their families due to a government ministerial directive that requires the Department of Home Affairs to give family reunion applications made by those who arrived in Australia by boat lowest priority.
The effect of this ministerial directive, known as Direction 80, is that refugees from Afghanistan who now have partners and children currently living under Taliban rule, are denied the right to reunite with their family in safety in Australia unless and until they are granted Australian citizenship or an exemption to this Direction. This stands in contrast with other permanent residents who do not need to wait for Australian citizenship before their family’s visa applications are processed.
We are aware of members of the Hazara community in Australia who have lost loved ones for various reasons while waiting for their family reunion application to be processed. Direction 80 could be terminated right now, and families could be reunited sooner, at the will of the Minister for Home Affairs.
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AAAN urged that the government prioritise the family reunification visas of people from Afghanistan in Australia, ‘including those who are prevented from reuniting with their families due to an unconscionable ministerial directive that requires the Department of Home Affairs to deprioritise family reunion of hundreds of people from Afghanistan in Australia’. AAAN submitted further:
Many people on temporary visas have been in Australia for at least 8 years and have not been able to reunite with their spouses, children, brothers and sisters, and parents. Family members who were already at risk in Afghanistan before the Taliban came back into power are now even more at imminent risk. Now troubling reports indicate there is a grave concern for families still in Afghanistan. The AAAN is deeply concerned for the safety of Australia’s Afghan diaspora who remained in Afghanistan. The Australian government must expedite the pathway for them to join their family here in Australia.
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The Refugee Council of Australia provided a case study of the impact caused by Direction 80 on an Afghan protection visa holder in Australia following the Taliban takeover of the country:
Ali has not been able to sleep properly since mid-August. Although he has a permanent protection visa, he has not been able to reunite with his wife and children since arriving in Australia 10 years ago [due to Direction 80]. His wife and children in Pakistan are calling him every day, afraid that they will be forced back to Afghanistan by local authorities who are sympathetic to the Taliban and say they now have to return. Ali has sent money so that his family can move away from the area where they were being harassed. Ali has not been able to work as he usually does in his painting business because his mental and physical health have been so severely affected and he says he cannot focus. He has been calling migration agents to see if there is anything he can do to get his family to safety.
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Mr Michael Willard, First Assistant Secretary, Immigration Programs, Home Affairs, commented on the status of partner visa processing within Home Affairs for those affected by this Ministerial Directive:
We have established a team within our partner visa processing branch that looks specifically at applications from applicants who are what we would term affected by a direction 80. The issue with partner visa processing relates to a ministerial direction around processing priority, which determines the order in which we process partner visas. A number of applicants from Afghanistan, but also some other locations, are the lowest priority because they're sponsored by a former IMA who is a permanent resident and not yet a citizen, and that determines the priority we can give to applications.
…
[W]e've formed this team to handle this cohort in particular for a few reasons. One is that, because of the 72,000-plus partner visas delivered last year, we're in a position now to be able to start dealing with this case load, although it remains the lowest priority in terms of processing priority directions. The other reason is that it is a very challenging case load to deal with where we're dealing with issues of identity and genuine relationship that require a degree of specialisation in order to be able to handle the case load efficiently, so the team has been formed up in order to drive that effort.
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Mr Willard stated that no consideration has been given to changing or removing ministerial direction 80, and that doing so would be a decision of government. Mr Willard commented, however that the ‘effect of the direction at this point is more limited than it has been in previous years’:
[That is] because of the size of the partner visa program versus the number of applications that are on hand in the partner visa program. We have around 60,000 applications on hand. We have a program size of around 72,000. So the effort to process applications is being directed across the on-hand case load and across all levels of processing priorities.
Afghan refugees and asylum seekers in Australia’s region
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Several submitters recommended that Australia lift its current ban on resettlement of refugees to Australia through the United Nations High Commissioner for Refugees in Indonesia, a ban which has been in place since 2014. AAAN submitted that ban ‘continues to limit resettlement options for 10,000 refugees from Afghanistan awaiting safety and protection’, and highlighted commentary on this point from human rights advocate Zaki Haidari:
People from Afghanistan have been stuck in limbo in Indonesia for many years, despite being recognised as refugees by the UNHCR, UN Refugee Agency. Due to a ban put in place by Australia they are ineligible for settlement here. They do not have access to education, employment and healthcare and they cannot return to Afghanistan. The time is now for Australia to end this temporary limbo and enable them a pathway to a place that they can call their permanent home.
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The Law Council urged that the government give careful consideration to the situation of Afghan nationals and other asylum seekers who have already registered with the UNHCR in Indonesia and Malaysia, and develop regional solutions to assist asylum seekers and refugees in Australia’s immediate region. It noted:
[T]the Law Council considers more needs to be done to resettle those in Indonesia and Malaysia who have been found to be refugees.
The Law Council is aware of the challenge and complexity of developing policy relating to regional settlement and the importance of avoiding a precipitation of boat arrivals. However, it considers that there needs to be a greater humanitarian emphasis on the plight of Afghans remaining in Indonesia, with no apparent prospect of settlement.
The Law Council notes that regional solutions need not be focused solely on an increased intake from Australia. For example, Australia should encourage other countries in the region to accede to or ratify the Refugee Convention, which will not only offer protection to asylum seekers and refugees, but also ensure better protection of the human rights of all persons living in those countries.
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The Law Council recommended that the Australian Government should ‘urgently review its regional resettlement policies with a view to facilitating the expeditious resettlement of Afghan refugees in Indonesia and Malaysia’.
Additional suggestions on visas options
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Her Excellency Hasina Safi, Ms Azadah Raz Mohammad and Professor Felicity Gerry QC provided several additional suggestions on visa options that could assist with the current crisis in Afghanistan.
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Firstly, it was suggested that government could add a special category of protection to the Women at Risk Visa Subclass 204 visa, specifically for women at risk regardless of whether they have ‘a male relative to protect’. It was noted that currently:
Women at Risk Visa Subclass 204 focuses on the ‘harassment, persecution, abuse or victimisation on the basis of gender without any male relative to protect’. The majority of women’s rights defenders with work history of over a decade are at direct risk from the Taliban, as are their partners by virtue of their association. These women have often been the breadwinners of their families and have long accounts of combatting and rebelling against societal taboo and traditional practices. This includes, for example, women in law enforcement (e.g. police and the military). These women were at risk already before 15 August by virtue of their being women in male-dominated professions. Australia and other allied forces promoted women in law enforcement and ought to recognise the heightened risk which these women face due to this work.
To recognise the risk for this particular group of women, a special category of women at risk visa regardless of ‘male relative to protect’ should be introduced. Such category would enable Australia to provide an avenue through which these women could be brought to safety as a distinct group based on their employment history at the national and international level. It is important to make sure that women are not neglected and abandoned as they were during the peace process. A comprehensive gender-based approach is needed that is designed for women who belong to a distinct group. These women are highly educated and knowledgeable and would be a great asset to Australian society.
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Her Excellency Ms Safi, Ms Mohammad and Professor Gerry also recommended that the government consider establishing a specific visa type for Afghans due to the current crisis:
Given the dire situation in Afghanistan which we consider to be comparable to large historic refugee crises, such as the situation in the former Yugoslavia, we suggest that the Committee considers recommending to the Government the establishment of a specific visa type for Afghans. Such a move would be similar to what Australia did in the context of such other prior conflicts to reduce administrative barriers which delay the process and leave persons at grave risk of harm while waiting for visas to process. Examples that the Committee may wish to point to include the visa types for minorities in the former USSR and citizens of former Yugoslavia.
Settlement services and processes for evacuees from Afghanistan
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Home Affairs stated that the government had decided to offer all of those evacuated from Afghanistan to Australia in recent months with settlement services through the Humanitarian Settlement Program (HSP), in light of the circumstances of their departure, 'notwithstanding the fact that not all people evacuated from Afghanistan are refugees'.
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The HSP is 'designed to integrate new arrivals into Australian life by providing practical on-arrival support and helping entrants to build the skills and knowledge needed to become self-reliant and active members of the community', and is delivered 'by service providers that have long-standing experience working with new arrivals'.
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Home Affairs submitted that following the evacuees’ completion of COVID-19 related quarantine, the department’s immediate priority ‘has been the physical and mental wellbeing of evacuees’, working ‘in lock step with service providers and the states and territories to deliver practical support as new arrivals start their new lives in locations around Australia’. Home Affairs elaborated on the process for recent evacuees:
HSP service providers contacted evacuees in quarantine to collect information on family composition, initial needs, and HSP assistance required. The Department referred contact details to Services Australia, to facilitate their contact with evacuees to assess their eligibility for financial assistance.
Evacuees assessed as requiring ongoing HSP support are met on their release from quarantine and transported to suitable short-term accommodation, where they receive an initial range of services including a food package, orientation to services in the local area, and advice on local COVID-19 measures. For evacuees who are settling in a different location to where they quarantine, onward travel arrangements are facilitated and support provided on arrival in their final destination.
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Home Affairs stated that ‘[b]ased on their level of assessed need, evacuees may continue to receive support through the HSP to integrate into Australian life and build self-reliance’:
This may include assistance to source long-term accommodation, make social connections, and access mainstream and specialised services related to health, employment, education and English language learning. An orientation program is also provided, through which clients learn about the Australian way of life, values and laws and acquire essential life skills. Most clients will generally receive support from the HSP for up to 18 months after their arrival, but this can be extended based on need.
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Ms Cheryl-ann Moy, Deputy Secretary, Immigration and Settlement Services Group, Department of Home Affairs, commented further on the initial process for subclass 449 visa holders in Australia:
[T]hrough this period of time where they're being advised about their 449 visa, they're also engaged with their humanitarian settlement provider and, once they come out of quarantine, they're being connected into the community, with a large majority of them in Melbourne and Sydney. They're getting their Medicare cards and getting aligned with Services Australia on special benefit. We are making sure that all of that work is being done. As the minister's made the decision, announced on 12 November, to extend the 449 visas, individuals will be individually advised of that, but there's also the assistance that will be provided in several regards, in terms of employment and economic recovery for the individuals and also assistance for them to get legal support to actually lodge an application for whatever visa it is that they wish to apply for. So there's no void of contact and information coming to the individuals.
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Mr Pezzullo provided further information at an Estimates committee hearing on 25 October about settlement services arrangements for the Afghan cohort:
We have a Coordinator-General for Migrant Services who reports directly to me. She provides an integrated end-to-end service working in consultation with states and territories and, in some cases, other organisations such as community groups, sporting groups and the like. We have a range of providers who are contracted. They typically operate state by state, although some of them have got overarching national head organisations. These are well established settlement and integration providers who are very skilled and adept in relation to trauma issues, employability—mentioned earlier—language training, supporting youth; and helping newly arrived parents to navigate the school system, childcare, access to government benefits, access to Medicare and healthcare.
…We are very much focused on the Afghan community here in Australia. Mr Hawke, the immigration and migrant services minister, set up a consultive group to ensure that, if you will, an end-to-end arrangement was put in place that deals with everything from mental, emotional and wellbeing issues, through to employment, income and becoming acquainted with Australia. The very basics of it—even if you get English language training, apparently there are some idioms and cultural practices here that take a while to get familiar with.
Those service providers, under the auspices of our migrant services program, provide that end-to-end support. We've got great partners, I should add, in state governments, territory governments, faith groups, community groups, sporting groups, a lot of business associations and, indeed, individual companies come forward saying: 'We'd like to participate. We'd like to open up employment pathways.' We've got some great Australian companies working with these providers.
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The decision to extend HSP support to evacuees was welcomed by submitters to the inquiry, with the Refugee Council of Australia submitting:
It is…commendable that the Australian Government has offered [HSP] support to all people evacuated, including Australian citizens and permanent residents. This commitment to support has meant that people can better transition after their traumatic experiences prior to evacuation.
Advisory panel on resettlement of Afghan nationals
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Home Affairs noted that on 30 August 2021, the Government announced the establishment of an advisory Panel on Australia’s Resettlement of Afghan Nationals. The panel ‘is comprised of Australian-Afghan community leaders and refugee and settlement experts, chosen for their commitment and expertise in refugee and integration issues’. Home Affairs stated further:
The panel’s focus is on planning to support the Government’s commitment to provide an initial 3,000 humanitarian places in the offshore Humanitarian Program to Afghan nationals, ensuring appropriate settlement and integration supports for Afghan new arrivals and the communities into which they will settle; and, harnessing the high level of community commitment and interest in welcoming newcomers and supporting the successful settlement and integration of this cohort.
In addition to the settlement services offered to all people who are settled through the Department’s humanitarian program, the Government is consulting with the panel to consider what further specialised support might be required to support evacuees who have endured extreme trauma. The Advisory Panel will operate for an initial 12 months, with the possibility of extension should ongoing advice be required.
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A Ministerial forum on Multicultural Affairs was held on 8 September 2021, chaired by Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Hon Alex Hawke MP, and attended by Ministers from each State and Territory, to discuss support for the resettlement of Afghan nationals in response to events in Afghanistan. Ministers agreed to:
work together at this distressing time for so many people, particularly Afghan Australians, to support coordinated and effective settlement arrangements for the Afghan intake;
work in partnership with Afghan community leaders in Australia, and leading refugee advocates and service providers, to welcome people from Afghanistan to Australia and maximise their sense of belonging, mental health and wellbeing and broader settlement outcomes.
Afghan Settlement Support Package funding
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On 14 October 2021, the Government announced an Afghan Settlement Support Package worth $27.1 million over two years ‘to help recent evacuees from Afghanistan settle successfully into their new lives in Australia.’ The breakdown of funding included:
$8 million to assist Afghan-Australian community organisations;
$6.4 million to support evacuees on 449 temporary visas transition to permanent visas by boosting the capacity of specialist legal services;
$4.8 million to help new arrivals navigate skills recognition and education pathways to join the labour market; and
$7.9 million to the Program of Assistance for Survivors of Torture and Trauma (PASTT) to support evacuees and the Afghan community to access targeted mental health support.
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Submitters welcomed the announcement of this support funding. Some commented on additional measures they consider to be required; for example, RACS submitted:
RACS welcomes and supports this necessary settlement and support package. However we note that this announcement relates only to recent evacuees, and does not address the critical need for additional humanitarian places from Afghanistan; permanent protection for those [TPV and SHEV holders] who have been living in our communities for the last 8 years; it also does not address the barriers for people from Afghanistan currently living in Australia to reunite with their partners and children currently in Afghanistan.
The announcement also does not address the gap in services such as mental health support for TPV and SHEV holders who are under significant pressures. It also does not address the increased need for legal advice and assistance for the community who remain in Australia and affected by this crisis, such as access to interpreting for those seeking advice on the offshore humanitarian process. This support package is a worthy and welcomed development, however more needs to be done to adequately address this crisis.
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The Asylum Seeker Resource Centre called for additional funding for ‘legal assistance to specialist community immigration lawyers so they can provide legal information and assistance to people from Afghanistan seeking assistance with all migration options’.
Importance of targeted mental health support for the Afghan community in Australia
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Several submitters highlighted the necessity of targeted mental health support services for the Afghan community in Australia at this time.
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Dr Sayed Amin, Zoe Safi, Naseer Shafaq, Tamkin Hakim, Raz Mohammad and Atal Zahid Safi commented:
Resettlement programs should entail mental health support programs. Those programs should be delivered by individuals who are equipped with language and cultural barriers. More [funding] and resources should be directed at Afghan run community associations in order to build their capacity in the area of mental health. Currently the Afghan community in Australia are under immense pressure by providing mental health support to their loved ones overseas. They themselves are suffering from trauma and PTSD triggered by the current crisis.
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AAAN submitted that it is important to recognise the mental health challenges of the diaspora community from Afghanistan:
People in the diaspora community may be experiencing the long-term, intergenerational trauma and psychological distress from their experiences of conflict, having escaped war-torn Afghanistan and their refugee journey to Australia over the last few decades, which has been exacerbated in recent months due to the worsening situation in Afghanistan, with many fearing for their families and loved ones back home.
Many continue to struggle to cope with the effects of past and current trauma as they navigate their new lives in Australia, which comes with its own set of stressful challenges. This has taken a huge toll on the mental health of many Afghan-Australians, who are silently struggling in many ways.
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AAAN noted the importance of acknowledging that there are also barriers that prevent Afghans in the diaspora from accessing mental health support services, and the need for targeted support:
[Barriers include] language difficulties, lack of knowledge and information about mental health and the services available, as well as the fear of judgement by the community, due to the stigma attached to openly talking about mental health as an issue. While there is general mental health support available to all Australians, it is critical to address this issue affecting large numbers of Afghan-Australians to have distinct and targeted mental health support services directed to and made available for the Afghans in the diaspora who are dealing with a unique set of emotional and psychological challenges and pressures.