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Protection visa sequel worse than the original

Kerry Murphy |  21 October 2013

Mock movie advertisement features a sinking paper boat and the title TPV II: Temporary protection just got a whole lot harsherThe first version of the temporary protection visa (TPV), introduced by the Howard Government, commenced on 20 October 1999 and was repealed by Labor on 9 August 2008. The new TPV, which commenced last week almost 14 years to the day since the Howard version came into being, is harsher than the original, mainly because it has no pathway to a permanent visa — once granted, it is likely that the best you will ever get in Australia is a TPV. The good news is that it does not apply to all asylum seekers, only to those who come without a visa.

When TPV1 was introduced, a barrier was put in the permanent visa which stated that a person could not get a permanent protection visa for at least 30 months from the grant of their TPV. There was a 'no further stay' (8503) condition which means the person is unable to apply for any visa other than a protection visa. TPV2 has the 8503 condition, but the permanent visa has a new requirement that the applicant does not hold and has not held a TPV. There is no waiver of this barrier, so legally, holders of the TPV2 cannot be granted any permanent protection visa.

The TPV provides work permission but there is no access to family reunion. So partners and children are likely to be separated for very long periods, with little if any prospect of reunion. In the explanatory memorandum, there is a cold explanation as to why this does not breach human rights principles under articles 17 and 23 of the International Covenant of Civil and Political Rights (ICCPR) or the Convention on the Rights of the Child (CROC):

A UMA (unauthorised maritime arrival) and UAA (Unauthorised air arrival) becomes separated from their family when they choose to travel to Australia without their family, Australia has not caused that separation. To this end, Australia does not consider that Articles 17 and 23 are engaged by this Legislative Instrument.

To the extent that this might amount to interference with the family, Australia maintains that any interference is not arbitrary and ... considers that this is a necessary, reasonable and proportionate measure to achieve the legitimate aim of preventing UMAs from making the dangerous journey to Australia by boat.

The cold heartedness continues with the Convention on the Rights of the Child:

Article 3 of the Convention on the Rights of the Child (CRC) requires that the best interests of the child are treated as a primary consideration in all actions concerning children. However, other considerations may also be primary considerations. While it may be in the best interests of unaccompanied minors (UAMs) to be reunited with their family, it is clearly not in their best interests to be placed in the hands of people smugglers to take the dangerous journey by boat to Australia.

Australia's political interests trump the rights of family reunion for refugees and for a permanent solution for the refugees.

What is especially harsh is that TPV2 applies to all those currently in the system. So my client, 'Ali', who was accepted as a refugee back in 2011 but has been waiting for a security check since then, only gets a TPV. He is now married to an Australian and they have a child, but the 8503 condition on his TPV prevents him from making a partner visa application in Australia.

My client 'Ahmed's' first Refugee Review Tribunal (RRT) was conceded by the Government to be legally flawed and is awaiting his second RRT; if he is successful he will only get a TPV. Part of his case involves the ongoing threats against his family, including his wife — from whom he will now be separated for years.

One of the major lessons of the TPV1 was that the forced separation of families caused significant mental health and medical problems for refugees. Families broke up. In one case, a TPV1 holder grieved the death of his son, who was killed in a bomb attack. He had been hoping to sponsor him to join him in Australia once granted his permanent visa. Instead, his relief at being finally granted a permanent visa was forever overshadowed by grief.

Even the previous Coalition Government ameliorated the harshness of TPV1 in August 2004 by making it possible to apply for other visas onshore. I recall a number of cases of refugees on TPV1 who were able to get a partner visa because of relationships with Australian citizens. Others suffered because they could not provide a way for their family to escape.

There is no evidence the TPV worked as a deterrent. After it was introduced in October 1999, boat arrivals spiked as the next boats had many women and children seeking to join their husbands in Australia. The tragedy of the SIEVX sinking was compounded by the large number of women and children on the boat because they had been forcibly separated by the TPV.

The TPV is a punishment, not a deterrent — it has no other justification. The Government has decided that its campaign to demonise asylum seekers by wrongly and deliberately calling them illegal, needed to include the punishment of those whom Australia has decided meet the refugee criteria, but who came without a visa. The TPV is a cruel visa, and it reflects the cruelty of the politicians introducing it.

Kerry Murphy headshotKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers. He is a student of Arabic, former Jesuit Refugee Service coordinator, teaches at ANU and was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers.

Paper boat image from Shutterstock



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Submitted comments

They will not pass the high court smell test because it is a punishment visa for a non-crime. Morrison is using the smuggling protocol to punish refugees for being smuggled, but they are not being smuggled, it is a free ocean with free right to innocent passage. And until he adds penalties to entry without a visa he is just acting outside the law. He cannot over ride human rights because of non-existent laws being broken.

Marilyn 21 October 2013

"The TPV is cruel, and it reflects the cruelty of the politicians introducing it." It also reflects the cruelty of the wider community, who elected these politicians and now choose to remain silent. We are a compassionate people no more.

Karin 22 October 2013

An excellent forensic dissection of the genesis of the new TPV and its repercussions for grantees, Kerry. There is a wonderful Kudelka cartoon in today's Australian (Tuesday 12 October 2013) on Scott Morrison and his use of language on asylum seekers, based on the old adage about calling a spade a spade, showing him digging himself into a large hole with aforesaid language. I notice a comment on your article by ES's inveterate commentator on this subject, Marilyn, where she uses her broken record technique in a very similar manner to Mr Morrison, to assert that her understanding of the situation is the only possible one. This sort of no compromise approach on both sides of the asylum seeker debate only leads to an impasse which I fear is totally counterproductive. In the words of Yosemite Sam, I think both sides need to "Back Off" and allow cooler heads to take the stage. I do not think most Australians are either racist or hyper-conservative. The debate on this subject has been hijacked for political ends and its flames fanned by the media. We do not want to make national policy this way. Articles like yours open a possible door to understanding the human situation involved. It is only by this understanding we can collectively achieve a humane solution.

Edward F 22 October 2013

Whilst I am in total agreement with all that is written from a Christian viewpoint on this subject, I am sorry for myself and those like me . I arrived ten years ago on a retirement visa,bringing with me all my assets and pension.My UK state pension is frozen from the time I left the UK. I have just been granted a ten year extension at the age of 82. My wife's ashes lie in Australia. I am not allowed Australian citizenship because Immigration say, I am not a 'Permanent Resident'!!

Tony Knight 22 October 2013

I need considerable help here. Is it not the case that no-one can enter any country on this planet without passport/visa/papers unless there exists an agreement for mutual free passage of nationals between those countries? If someone arrives without "papers" does that not represent an illegal entry? If so, what is wrong with calling it an illegal entry? Do not all such illegal entrants have the right to apply for asylum? Only then can they genuinely be referred to as "asylum seekers", with a case to be assessed followed by either the grant of residency or deportation. I have little understanding of how the people who set off from Indonesia, after choosing Australia as their preferred land of residence, first, place their own wives and children at risk of death in full knowledge of the dangers, and second, how they manage to traverse a number of countries en route in many cases allegedly without "papers". I suppose they all want to experience the dreadful cruelty that by now they must realise Australia provides should they manage to arrive here illegally!

john frawley 22 October 2013

More often than not, Edward F, cooler heads are found on stiff-necked people with hearts and ears still uncircumcised.

Annoying Orange 22 October 2013

Tony, it seems Immigration adheres to the old adage 'you're not a native until you have three generations buried in the local churchyard'!

Joanna Elliott 22 October 2013

@Edward F: "Marilyn...uses her broken record technique in a very similar manner to Mr Morrison, to assert that her understanding of the situation is the only possible one." I didn't read it that way at all. I find it strange that you regard a factual statement (no matter how oft repeated) as a "no compromise approach". How can one compromise on the truth? Your claim that "It is only by this understanding [in articles like Kerry Murphy's] we can collectively achieve a humane solution" is a nice sentiment, but do you really think Scott Morrison is open to persuasion by articles in Eureka Street?

Frank Golding 22 October 2013

Morrison does not care about the compassion vs cruelty he simply wants to show he is tough. You know that old one, "We need strong leadership" cry from the fearful. And by the way at what point does the accused "illegal" person make the decision to break the law? I thought you had to intend to be culpable, or is that old fashioned.

Michael D. Breen 22 October 2013

There is no doubt that the TPV is cruel. Morrison has instructed Public Servants to refer to boat people as "illigals" and to asylum seekers as "detainees". By objectifying these people we don't have to consider them as fellow human beings whose suffering and/or fear drive them to get on overcrowded leaky boats. Politicians do not want to understand their desperation and their willingness to die, if they have to, in the attempt to escape and have a decent life for their children and themselves.

Anna 22 October 2013

Thank you to Kerry Murphy! We are lucky to have people like him!

Erika Stahr 22 October 2013

I can only assume that Edward wouldn't mind having his own human rights compromised out of existence just because, as an example, he had blue eyes instead of brown ones.

Marilyn 22 October 2013

...Yes we need to take care of the baby and teach it many things, but have we stopped and tried to learn from the blue eyed baby? http://ce399.typepad.com/.a/6a00d8345257f969e2010534a19f40970c-400wi

Annoying Orange 22 October 2013

TPV1-TVP2 same old, same old, unforgivable abhorrent mistake http://www.history.com/images/media/slideshow/remembering-the-holocaust/holocaust-tattoo.jpg

Damaris 22 October 2013

The SS were meticulous detail recorders. As the holocaust was an industrial operation each ''client '' had to be numbered to ensure an orderly extermination of the ''right people''. This could only be done after a racial examination to decide weather or not a ''client'' was jewish. It was important to know the number, so numbering with a tattoo meant that once identified the ''client'' was for evermore at the states mercy. The fact that the SS killed anyone and everyone is beside the point.The records were more important than the clients in this respect.

William 23 October 2013

Soon-to-be-retired Senator Bob Carr has recently praised the talent of politicians who possess the "virtues" of both 'cunning' and 'canniness'. Don't worry Kerry,the Abbott Government will be acting in its own, and the country's interests, when it quietly and "cunningly"" does away with TPV's for authentic refugees who came without a visa. This change will happen in the near future.

Claude Rigney 23 October 2013

Claude R - I thought something similar about the likelihood of such a change happening down the track (although a bit further away than the "near future"). I'm not sure I'd thin of it as cunning though - more a change that will eventually be forced on them, (hopefully - as happened in the Howad era - due at least in part to pressure from some of their own side) as they gradually become aware of the enormity of the cruelty being inflicted along with its unnecessary nature. Although part of me also thinks I am being absurdly optomistic about that, as I also feel the cruelty this time is done much more knowingly and with even greater carelessness about those it is being inflicted upon.

Andrew Bartlett 23 October 2013

Hello, I have some important questions to ask please? Is TPV is for both onshore and offshore refugees? or just offshore? Can a person who came on valid visa will get permanent protection Visa? Can he apply for partner Visa afterwards? Waiting for reply. Thanks!

Ali 24 October 2013

To be honest with you, Frank Golding, having read many of Marilyn's comments on various threads, I find them as little "factual" as Scott Morrison's. I see them both as two sides to the same coin. There have been several excellent, thought provoking articles on this subject on ES by a number of authors, including Kerry; Andrew Hamilton; Frank Brennan and Tony Kevin. I would refer you to Marilyn's comments on Frank's article "Seven Ways to Ethically Stop the Boats". I found them disturbing. They seemed to be as emotive and manipulative as Mr Morrison's. I do not see Marilyn as being the foremost possessor of "the truth" on this particular topic, which is a complex and multi-faceted one. There is a difference between simple truth and reducing a complex, constantly changing, real time human issue to simplistic terms which I think she does.

Edward F 24 October 2013

Ali, the TPV is only for those who arrived without a visa or official documents. So those who come here on a visitor or student visa for example, and then apply for protection, will get the permanent visa if successful. People who came here on a boat without a visa and are still waiting for a decision will only get a TPV if successful.

Kerry Murphy 24 October 2013

hello i wanna to go to aussie liz

sayed Hassnain 24 October 2013

John: there is nothing 'illegal' about entering Australia without 'papers' i.e. a valid visa (stick to Australia here, as comparisons with other immigration systems are not useful). There is no 'crime' or 'offence' (as we lawyers would call it) in the Migration Act of being here or entering Australia without a visa. I would also add that, having worked with unaccompanied minors who came here by boat (yes, one as young as 14), I can say that they had no 'choice' about making the trip. To deny them family reunion is just breathtaking in its moral bankruptcy, as well as a breach of our obligations under international law. Denying ANYONE the support of their families is both cruel and unjustified, and it is also punishing those who have done nothing wrong - both the IMA and their families who languish in terrible conditions in the source country. AND, most of those languishing that way are women and children, including the elderly. People make better migrants when they have family support. I could go on and on, but Kerry Murphy always truly 'calls a spade a spade' and his writing is better than mine!

Lydia 25 October 2013

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