At the present moment, our office is receiving a high volume of inquiries related to Afghani nationals currently resident in Australia seeking options for family members residing in Afghanistan to obtain a visa pathway to migrate to Australia. This short article will briefly overview, some of the potential visa pathways available for Afghani nationals.

Option 1 – Family Migration Program:

The first option would be the Family Migration Program. Under the Family Migration Program, there are two primary pathways worth considering.

The first is the Partner Visa program. The Partner Visa pathway (Subclass 309) allows any persons who is either a spouse, or a de facto partner of an Australian permanent resident or Australian Citizen to migrate to Australia.

It should be noted that any permanent residents in Australia who arrived in Australia via boat is categorized as what is known as an “Irregular Maritime Arrival”. The implication of this, is that a Partner Visa application for their partner in Afghanistan may be subject to Ministerial Direction 80 which de-prioritizes the application unless compelling and compassionate circumstances are demonstrated. Further advice should be sought on whether you are eligible under this program.

The second pathway is Child visas. The Child visa program allows for any dependent child of an Australian permanent residents or Australian citizens to migrate to Australia and be granted permanent residence. 

Option 2 – Skilled Migration Program: 

A pathway through the Skilled Migration Program may also be worth considering. The Skilled Migration Program aims to provide a pathway for migrants who offers skills that are either required by Australian market, and/or will positively impact the Australian economy. Some of the more prominent visa pathways under this program include the Skilled Independent visa, Employer Sponsored visas, the Temporary Graduate visa, and Training visas.

At this stage, unfortunately, we would not recommend family members of Afghani nationals apply for skilled visas. Applicants from what is classified as a disrupted country such as Afghanistan face several significant issues.

Firstly, most options under the Skilled Migration Program require an applicant to obtain an employer sponsor. With an applicant applying from a disrupted country, there are low prospects that this would be successful.

Secondly, a majority of the visa options under the Skilled Migration Program requires applicants to attain a Skill Assessment which would also be difficult to attain for the same reason.

In addition to these barriers, due to the current restrictions in relation to entry to Australia, it would be exceptionally difficult for any skilled migrant to migrate to Australia under the Skilled Migration Program.

Option 3 – Humanitarian program

The third potential option is through the Humanitarian program. The Humanitarian program provides for approximately 13,750 refugee places in the migration year for persons who are at risk of persecution to be granted a visa in Australia.[1]

There are several pathways under this option.   

Global Special Humanitarian visa (Subclass 202)

Australia operates a Special Humanitarian Program (“SHP”) which provides visa grants to migrants and refugees from various countries of priority around the world including Iraq, Congo, and Syria. This forms a majority of the visas granted under the Humanitarian program.

There are three key criteria:

  1. Applicants must be from one of the countries on the priority list;
  2. Applicants must be out of their country of origin; and
  3. There must be a proposer, who is an eligible Australian Citizen, permanent resident, or an eligible organisation operating in Australia, willing to propose.    

Currently, Afghanistan is not a country under the priority list and applicants from Afghanistan would therefore experience difficulties in being granted a visa under the Subclass 202. If, however, Afghanistan does become a country under the priority list, this may be a potential pathway for Afghani nationals. 

            Community Support Program

An alternative pathway under the Subclass 202 visa, is through the Community Sponsored Program (“CSP”). This pathway is quite costly, however, is an option for eligible individuals with financial resources/support. Individuals will be eligible if they are:

  • outside of their home country and outside Australia;
  • be subject to substantial discrimination in your home country;
  • satisfy the normal requirements for a Subclass 202;
  • be aged between 18 and 50;
  • have adequate English and demonstrate this at a visa interview; and
  • have a job offer with an Australian business, or skills to enable you to get a job quickly.

Applications can be made directly to an Approved Proposing Organisation (“APO”), or to have an Australian support person apply.

            Refugee visa (Subclass 200)

The Refugee visa is an option for anyone who has been referred by the United Nations High Commissioner for Refugees (UNHCR) to Australia for resettlement. If the Minister of Immigration is satisfied that there are compelling reasons to classify such persons as part of a class of persons at risk of harm, an invitation may be granted to apply for the Refugee visa. In determining whether a person is a person at risk of harm, the Minister will consider:

  • the degree of persecution;
  • the extent of the applicant’s connection with Australia;
  • whether or not there is any other suitable country available, other than Australia, that can offer the applicant settlement and protection from persecution; and
  • the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.

Persons invited to apply for the Refugee visa must generally be in a refugee camp.         

            Special allocation

A supplementary program under the Humanitarian program is the Special Allocation program. This program offers visas to specific groups of people at serious risk of harm. There are several visas that may be granted under this program.   

The first is the In Country Special Humanitarian visa (Subclass 201). The Subclass 201 is designed to protect Afghani nationals at risk who have previously been employed by a relevant Australian agency—sometimes known as Locally Engaged Employees (“LEE”). Relevant Australian agencies include the Australian Defence Force, the Department of Foreign Affairs and Trade, AusAID, and the Australian Federal Police, who have employed local Afghans in roles such as interpreters and drivers. 

LEEs must additionally be assessed to be a person at risk of harm based on several factors including their public profile, their location, and the period of their employment. If an LEE is assessed to be at risk of harm an In-country Special Humanitarian visa may be granted.

Additional allocations under Australia’s Humanitarian program are also available for specific categories of persons considered to be at risk. For example, Christians and the Yazidi refugees from Syria in 2014 under the Emergency Rescue visa (Subclass 203), or the Women at Risk visa (Subclass 204) during the expansion of ISIS. These persons have the potential to have an expedited travel to Australia.

Immediate Actions

In the immediate, for any Afghani nationals who have friends or relatives in Afghanistan at risk of harm, firstly we recommend that you remain in regular contact with them to monitor their safety.

Secondly, we would recommend for you to advise them of the following:

  1. Take copies of key identity documents and send these to you. This allows for copies of key identity documents to be secured in case there is a need to flee immediately from persecution.
  2. Do not to seek arrival in Australia via boat. Australian border force rigorously patrols around the Australian border and those who have been caught will be sent back immediately.
  3. Collate and take copies of all correspondence with local judicial authorities or Taliban and send these to you. This may be helpful when required to demonstrate a risk of harm.

We understand that these are concerning times for anyone with friends or relatives in Afghanistan. We will continue to monitor any developments with respect to visa pathway options for persons residing in Afghanistan.  

Need an experienced migration lawyer? Talk to us today to find out a visa pathway that may be available for you.

[1] In previous years, the number of visas granted has gradually increased from approximately 13,000 to 19,000. However, as a result of the Government’s efforts to manage the impact of COVID-19, the number of grants from 2019 to 2020 has decreased back down 13,750.

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