Thursday evening’s Senate debate on the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill illustrated the truly unacceptable choices faced by the cross bench Senators. Labor and the Greens opposed the Bill and unsuccessfully sought to move amendments to reduce its harshness. But what finally passed will haunt us for years to come.
The speeches by Senators Xenophon, Madigan and Muir are worth reading, as they show what happens when Senators are faced by an intransigent Government determined to reintroduce bad law. Law that we know causes serious stress and mental harm, yet we have reintroduced it.
In deciding to reluctantly support a bad law, Senator Xenophon set out his reasons, and they make compelling reading.
It has and will continue to be a passionate debate about a wicked and vexed issue. For me it is always important, always, to remember that we are dealing with legislation that relates to people, our fellow human beings. They are not numbers; they are not the myriad of labels that have been applied to them by all sides of the debate; and they are not political inconveniences, punching bags or props. They are mothers and fathers, sons and daughters, friends, neighbours and acquaintances. They are, in short, people just like you and me who have found themselves in extraordinarily difficult circumstances —some, unimaginable circumstances. …
Senator Xenophon spoke of his fear that not passing the Bill was worse than passing a flawed Bill:
… If this bill does not pass there is also the real risk that the government will use a nonstatutory process instead, which will not result in any better outcomes for the people who are currently in Australia. This problem is a true Hobson's choice: we are left to decide between two potentially negative outcomes. … What is being proposed by the government here is by no means perfect—in fact, it is quite imperfect—but the consequences of not supporting it will mean that asylum seekers will be in a worse position, in my view.
The Senator spoke of amendments agreed to by Government, which while not great, are better than nothing. Senator Muir also voted reluctantly for the Bill and stated:
Coming to a decision on this bill has been, without a doubt, one of the hardest decisions I have had to face—a choice between a bad option and a worse option. It is a decision that involves human beings: children, mothers, fathers. It involves the lives of people who have had to endure unthinkable hardship, people pushed to the point where they go to any lengths to seek asylum.
In contrast, Senator Madigan voted against the Bill mainly because of the TPV reintroduction:
The bill will do many things, not least of which is the bringing back of TPVs. As I understand it, the government will not back down on their view in support of TPVs, and I have a problem in backing down on my view against them….…I personally think the whole debate has become so polarised.
The reintroduction of Temporary Protection Visas (TPV) reflects intransigence by the Government. The TPV was only ever a punishment visa for arriving in Australia by boat and then being found to be a refugee. The Coalition made it part of their policy and have now removed any of the hope for a permanent visa that it may have had under the Howard Government.
Once on a TPV, the best you will ever get is another TPV, for another three years unless you apply for the Safe Haven Enterprise Visa (SHEV). You can work or study on a TPV but there is no family reunion and it seems no chance to travel to see your family.
The prolonged negotiations mean that we finally have the criteria for the SHEV and they are very restrictive. The SHEV gives you five years in Australia but you must live and work or study in yet to be designated regional areas. If you spend 42 months earning or learning, without receiving certain yet to be specified social security benefits, then you get the prize of being able to apply for up to 42 other visa types – some temporary (such as student or the 457 temporary working visa) and some permanent. Permanent protection is not available, ever.
Realistically, unless someone marries or forms a de facto relationship with an Australian, their chances of gaining a permanent visa are slim because the skilled and employer sponsored visas have high level English and work experience requirements. They are designed for the skilled migration program, not the lucky dip prize for refugees. Skilled migration is also expensive, and often requires a skills assessment.
For those traumatised by their refugee experiences, or more recently by detention or even just the asylum process, finding full time work in one of the designated areas, in an occupation that leads to a possible permanent visa will be hard. Not every job will lead to a skilled visa, and some occupations require sponsorship by a State or Territory as well. For those who are unable to progress out of the SHEV or TPV, the only options are to return home or apply for a new TPV or SHEV, and look for some other occupation.
Though it is possible to travel on a SHEV, you must get prior permission from the Minister and establish compassionate and compelling reasons to do so. No other substantive visa has such an irrational and punitive condition that restricts travel. You can visit your family in a third country, but only if there are ‘compassionate and compelling reasons’. Very generous indeed.
There are many other changes in the way refugee law is interpreted, and most will make it harder to be successful. In the meantime, the 30,000 asylum seekers still waiting will get permission to work while the Department grinds through the caseload. People will be released from detention and eventually the resettlement program will be increased in four years to over 19,000 places– after the Government cut it last year by 6250 places in what some would call an ‘efficiency dividend’.
It is possible to understand why Senators Xenophon and Muir supported this bad law. They saw it as a small improvement now for people in desperate circumstances, and that is true. Without their intervention, people would be stuck in a limbo with no visa. The silver lining in the cloud is the realistically limited possibilities for permanency for people we accept are in need of international protection. The real culprit is the irrational and punitive policy pursued by the Government.
On Friday morning, I was told by an asylum seeker who is still awaiting a decision: 'It is so stressful to live another three years in limbo and uncertainty.’ Indeed it will be stressful for them, and from what I can see, there will be little relief from this unwarranted anxiety caused by our law.
Kerry Murphy is a partner with the specialist immigration law firm D'Umbra Murphy Lawyers and member of the boards of the IARC and Jesuit Refugee Service.