Visas for victims

Upon signing the Trafficking in Persons Protocol the Australian Government made the following formal declaration:

The Government of Australia hereby declares that nothing in the Protocol shall be seen to be imposing obligations on Australia to admit or retain within its borders persons in respect of whom Australia would not otherwise have an obligation to admit or retain within its borders.

In January 2004, the Australian Government first implemented the ‘People Trafficking Visa Framework’ to provide support and protection to victims of trafficking in persons, particularly to those victims who are of interest to, or can assist in, police investigations or prosecutions. A visa granted under the framework allows foreign nationals to remain lawfully in Australia for varying lengths of time and also access limited social services provided under the Government’s Support for Victims of People Trafficking Program (‘Support Program’), administered by the Australian Red Cross.[2] It should be noted, however, that victims of trafficking on any valid visa are able to access support under the program for a limited period of time.

When created in 2004, the framework included the following four phases and visa categories:

1. Bridging F visa
2. Criminal Justice Stay visa
3. Witness Protection (Trafficking) (Temporary) visa
4. Witness Protection (Trafficking) (Permanent) visa

These four visa categories were reduced to three following a number of amendments made in July 2009 in response to a significant level of criticism of the framework. Importantly, the temporary visa stage in the Witness Protection (Trafficking) visa process was removed, reducing the pathway to a permanent visa for eligible victims by at least two years.[3] The level of support offered to victims who are unwilling or unable to assist police was also extended, enabling a wider range of victims to access support services.

This visa framework was substantially overhauled in the 2015-16. These changes were intended to address civil society concerns regarding stigmatisation of victims under the previous framework, and to facilitate improved access to education and training opportunities.[4] On 1 January 2016 the new ‘Human Trafficking Visa Framework’ (HTVF) formally came into effect and reduced the number of relevant visa categories to two: Bridging F Visa and Referred Stay (Permanent) Visa.

Bridging F Visa

The Bridging F visa (subclass 060) is a visa class designed to offer short-term protection to suspected trafficked persons in order for them reside legally in Australia, receive initial support, and decide whether to cooperate with any criminal investigation or prosecution. The visa is valid for an initial 90 days and may be granted to an unlawful non-citizen that has been identified by the Australian Federal Police (AFP) or a State or Territory police force as a ‘suspected victim of trafficking’. The visa is available regardless of whether the victim is willing or able to assist with an investigation and prosecution of a people trafficking offence.

A law enforcement officer must, however, provide a support statement to the Department of Immigration and Border Protection (DIBP) confirming the identification of the applicant as a suspected victim and that ‘suitable arrangements have been made for the care, safety, and welfare of the applicant for the proposed period of the visa’.[5] The visa may also be granted to a ‘member of immediate family’.[6] Holders of the visa are entitled to access the Support Program and are eligible to apply for the Special Benefit income support mechanism but are not entitled to work.[7] Additionally, the Minister for Social Security formally determined that Bridging F visas were not subject to the Newly Arrived Resident’s Waiting Period for Special Benefit (NARWP) and, therefore, can access social security immediately.[8] The 2015-16 visa framework reforms also saw the extension of eligibility for the Adult Migrant English Program (AMEP) to holders of a Bridging F Visa. This program provides participants with up to 510 hours of English language tuition, without charge.[9]

Previously, Bridging F visas were valid for only 45 days. Under this system a second Bridging F visa could, in some circumstances, be granted for a further 45 days on a case-by-case basis, where a person is ‘willing but not able to assist police because of their current mental, physical or emotional state’.[10] In the 2011 Mission to Australia, the UN Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo noted that the second Bridging F Visa was in reality only granted where victims can evidence extreme emotional trauma.[11] Her suggestion that an automatic 90 day period of reflection would be more in keeping with Article 6 of the Trafficking in Persons Protocol is reflected in the new arrangements. It should be noted, however, that Bridging F visas may be cancelled at any time if DIBP is given written advice by a relevant police force that the visa holder is no longer identified as a suspected victim.[12]

The Bridging F visa may also be granted, at the invitation of the Minister for Immigration and Citizenship, to a suspected victim of trafficking or immediate family member outside of Australia in order to return to Australia temporarily. Similarly, the Minister may grant the visa to a suspected victim of trafficking who holds a Criminal Justice Stay visa in order to enable them to travel overseas for compelling and compassionate reasons and then return to Australia (by invitation).[13]

Referred Stay (Permanent) Visa

The original trafficking visa framework included a two-stage visa process for victim-witnesses who had provided a ‘significant contribution’ to the prosecution by the Commonwealth Director of Public Prosecutions (CDPP) and would be in danger if they were returned to their country of origin. The former Witness Protection (Trafficking) (Temporary) visa[14] ceased operation on 30 June 2009 and was combined with the Witness Protection (Trafficking) (Permanent) Visa.[15] Prior to 2009 a victim was required to have made a ‘significant contribution’ to a trafficking investigation — an obligation which was subject to severe criticism. This standard has been lowered to the provision of ‘a contribution’ to either an investigation or prosecution. The changes in 2009 have had the effect of making all trafficking victims who qualify for witness protection, immediately eligible for a permanent Australian visa. This offers greater security for these individuals as it removes the two-year period of uncertainty. This visa was renamed in 2016 as the ‘Referred Stay (Permanent)’ visa in order to reduce the likelihood of holders being identified as victims and, thereby, limit potential stigmatization.[16]

To grant a Referred Stay (Permanent) visa, the DIBP requires a certificate from the Commonwealth Attorney-General confirming that the victim of trafficking, who is in Australia, has met a number of criteria. If the victim can demonstrate that he or she would be in danger if returned to his or her home country, and that he or she has made a contribution to, and cooperated closely with, a prosecution or investigation of a person who is alleged to have trafficked a person or who was alleged to have forced a person into exploitative conditions, that individual may be invited to stay in Australia on this visa.

This visa is now be available before the conclusion of a relevant prosecution, after the activation of an ‘independent trigger’. A request may be triggered by ‘an event, such as the decision by the CDDP not to prosecute or by the expiry of a designated period of time related to the criminal justice process.’ Referral of a matter for prosecution to the CDDP or where the CDDP decides not to prosecute are prerequisites for the AFP to request a Witness Protection Certification and making a request must be ‘considered’ at these times. The AFP may request a Certificate up to 90 days after charging a suspect or 90 days from the date of the CDPP’s decision not to prosecute.[17]

It should be noted that the applicant must not be subject to any prosecutions in relation to trafficking offences but does not need to be in Australia for the visa to be granted. Members of immediate family both inside and outside Australia are also eligible to apply for a permanent Witness Protection visa.[18]

The visa entitles the holder to full work rights, eligibility for Medicare and income support, and access to the Justice Support Stream of the Support Program. The visa recipient can also travel to and enter Australia for five years after the visa is issued, after which they must apply for a resident return visa or gain citizenship if they wish to travel and re-enter Australia.[19]

Criminal Justice Stay Visa (CJSV)

The Criminal Justice Stay visa, a visa class not specifically created as part of the trafficking visa framework, allows the holder to say in Australia for the purposes of the administration of criminal justice. This type of visa was formally removed from the Australian Human Trafficking Visa Framework in 2016. This reform was designed to ensure trafficked persons are provided with visas that cater specifically for their circumstances and which facilitate more appropriate access to support and benefits.[20] At the time of writing there is no publically available evidence regarding whether victims of trafficking are, in practice, still being provided with Criminal Justice Stay visas.

Trafficking Visa Statistics

Figure 1 displays the number of trafficking visas granted between the 2003–04 and 2014-15 financial years. It should be noted that the number of visas in this table includes those granted to both suspected victims of trafficking and their immediate family members. For the Bridging F and Criminal Justice Stay visas only, the number granted reflects the ability to grant such visas more than once to the same person. As stated previously, the Witness Protection (Trafficking) (Temporary) visa was removed on 30 June 2009.

Figure 1: Trafficking visas granted, 2003-04 to 2014-15[21]

Outside of the designated visa framework for trafficked persons some options are available to victims of trafficking to extend their stay and seek protection in Australia. These alternatives primarily arise out of international refugee and human rights law; approaching the protection of trafficked persons in this way is a relatively recent and continually developing phenomenon. It may be considered that the need for victims of trafficking to seek protection via these avenues is symptomatic of flaws in the Australian Human Trafficking Visa Framework.

Protection under the Refugee Convention

In recent years there has been a growing recognition that a victim or potential victim of trafficking may potentially claim refugee status and thus protection under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugee Convention, or the Convention).[22] Australia’s obligations under the Refugee Convention are reflected in domestic law pursuant to s 36(2)(a) of the Migration Act 1958 (Cth). This section provides that an applicant for a Protection visa (Class XA) (subclass 866) must be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

Until 2014, this section of the Migration Act 1958 (Cth) contained an explicit reference to Australia’s intentional obligations under the Refugee Convention.The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) removed this reference and instead implements, “a new, independent and self-contained statutory framework which articulates Australia‘s interpretation of its protection obligations.”[23] Sections 5H-5M for the Migration Act 1958 (Cth) represent this framework for determining refugee status.

Although there are no official figures, ‘there are a small but significant number of trafficked people who have been granted permanent residence as refugees.[24] It has been argued, however, that the ‘difficulties involved in meeting the definition of “persecution”; rebutting the presumption of state protection; interpreting a “particular social group” and meeting the Convention nexus have resulted in a limitation of the protection that is available for victims.’[25] Anna Dorevitch and Michelle Foster, after reviewing Australian jurisprudence, concluded that ‘while foreign jurisprudence and guidance from the UNHCR demonstrate that the Refugee Convention can clearly encompass trafficking-related claims, […] Australian decision makers continue to interpret and apply art 1A(2) of the Convention in a way that overlooks how gender intersects with social, cultural and economic norms to oppress women and subject them to discriminatory harm.’[26]

Complementary Protection

‘Complementary protection’ is the term used to describe a category of protection for people who are not refugees, as defined in the Refugee Convention, but who cannot be returned to their home country because there is a real risk that the person will suffer certain types of harm that would engage Australia’s non-refoulement (non-return) obligations. Prior to March 24, 2012, Australia dealt with these obligations through the Ministerial Intervention process, outlined below. The introduction of the Migration Amendment (Complementary Protection) Act 2011 (Cth) implemented a system of ‘complementary protection’ in domestic law, giving effect to Australia’s international human rights law obligations.[27] As such, under s 36(2)(aa) of the Migration Act 1958 (Cth) a protection visa should be granted to

a non-citizen in Australia […] in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

‘Significant harm’ is where a person will be subjected to: arbitrary deprivation of his or her life; the death penalty; torture; cruel or inhuman treatment or punishment; or degrading treatment or punishment.[28] Each of these types of harm is exhaustively defined in s 5(1) of the Migration Act 1958 (Cth).

If the risk of harm is faced only generally by the population and not by the applicant personally or the applicant can seek protection from within their home country, it may not give rise to a non-return obligation.[29] This means that an examination of whether the applicant’s home country is willing or able to protect victims of trafficking or potential victims of trafficking will still be necessary.

Because the complementary protection regime is relatively new in Australia, there have been no reported cases where a victim of trafficking has been identified as such and applied either successfully or unsuccessfully for complementary protection. There is, however, a burgeoning field of literature that suggests victims of trafficking may have some success using this process.[30]

In the Australian context it has been contended that ‘the severe levels of ostracism and discrimination, as well as the physical threats of re-trafficking or retaliation by traffickers, constitute torture, cruel or inhuman treatment’ within the criteria set out in the Migration Act 1958 (Cth).[31]

It should be noted that, on 14 October 2015, the Australian Government introduced the Migration Amendment (Complementary Protection and Other Measures) Bill 2015 (Cth)to the House of Representatives. This Bill is designed to amend the criteria for complementary protection under the Migration Act 1958 (Cth), with the intention of limiting the range of circumstances in which complementary protection can be offered.[32] The Bill is currently being debated in the Senate and may subsequently pass into law.

Applicants who successfully claim complementary protection (and members of the same family unit in the same application) will receive the same visa as a person who is owed protection under the Refugee Convention. For those that are not owed protection, the last avenue of appeal lies with the personal intervention of the Minister for Immigration, outlined below.

Ministerial Intervention

After exhausting the avenues outlined above, a foreign victim of trafficking or person who fears trafficking in their home country may write to the Minister for Immigration and Citizenship to request his or her personal discretion to grant a Protection visa. Under ss 351, 391, 417, and 501J of the Migration Act 1958 (Cth), the Minister for Immigration and Citizenship has the power to substitute a decision made by one of the review tribunals,[33] with a decision that is more favourable to the visa applicant, if he or she considers it is in the public interest to do so. A similar power in the Minister to intervene personally to grant a visa may also be exercised in relation to a person in detention, under s 195A, regardless of whether they have received a tribunal decision. The Minister has the discretion to grant any visa type considered appropriate. A trafficked person would likely apply under s 417 of the Migration Act 1958 (Cth) in relation to a failed appeal for a Protection visa made through the RRT.

Ministerial intervention is non-compellable and non-delegable, and the Minister has no obligation to consider a request for intervention; the decision, or lack of, is not reviewable by the courts. The Minister must, however, table a statement of reasons in both Houses of Parliament where a visa is granted (although these are not published online). It is policy that the power will only be exercised in ‘unique or exceptional circumstances’ or where a review tribunal has specifically referred the case.[34] ‘Such circumstances are considered most likely to arise in the light of international human rights conventions and other circumstances where compassion may be required.’[35]

Prior to the introduction of the complementary protection scheme in 2012, a claim for Ministerial intervention was the only option for an applicant seeking protection whose claim did not fit the narrow definition of ‘refugee’. There are no publically available figures available that indicate how many, if any, trafficked persons have received a visa in this way. It is likely that claims for Ministerial intervention should diminish now that the system of complementary protection is in place. This avenue does, however, offer a final level of appeal for a victim of trafficking who is facing the prospect of further harm or re-trafficking if returned home.