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Almost no silver lining in new TPV cloud

Kerry Murphy |  07 December 2014

Asylum seeker protest

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 profile photoKerry 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.



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Submitted comments

Since 2001, almost 1400 asylum seekers have drowned between Indonesia and Australia.They were people too, perhaps we owe them something as well.

Name 05 December 2014

I see the first cab off the rank is someone without a name who claims we have to help dead refugees.

Marilyn 05 December 2014

I have never been so ashamed to be an Australian as I have been since John Howard started to demonise asylum seekers and other political leaders have followed suit. All the major parties share the blame for what has happened. I wonder how many of our current Government and Opposition find it hard to sleep at night. They seem to have plenty of energy for their parliamentary slanging sessions, which seems to suggest that they do sleep well at night. My only conclusion is that we have an Australian Parliament with a large majority of psychopaths. Or is there some other explanation. If there is, it evades me. Readers, please inform me if you can come up with some other rational explanation.

Grant Allen 05 December 2014

This still does not explain why people who arrive by boat are treated so differently from those who arrive by air or overstay visas. Essentially it is punishing those without papers.

Pauline 08 December 2014

Australia-built on 'criminal' refugees from Britain, land of the fair go,the lucky country. Australia-happy to spend billions on fighting in Afghanistan and Iraq, presumably to uphold universal rights to peace and justice. Why, how can we justify treating the innocent victims of these wars as the enemy,criminals,aliens,illegal arrivals, security threats!Young men and women, families and many orphaned children who risk everything to travel months and years through dangerous territories on foot and in unsafe boats to a far flung, foreign land with huge cultural barriers. We would rather spend billions deterring and incarcerating them.We bend the rules of international law.Punishment. Naturally, these people would rather be living in their beautiful culture and homelands,not Australia.Why our government cannot, WILL NOT join the dots....is beyond reason, blatant hypocrisy. Australia further insults progress for democratic and peaceful societies, as it labels others as barbarian, evil, sprouting principles of human rights -humanitarian- and instead 'sells' refugees to Cambodia, another impoverished and desperate country.Barbarians.

Catherine 08 December 2014

Grant and Barbara, thank you for your comments and Kerry for your article. It is as though we are being cajoled into becoming a people we do not want to be. I am hearing from both sides of politics 'this is not who we are' and yet it is. We are being seen as 'barbarians'. Everyone of us needs to yell very loudly that this is not right.

Jorie 08 December 2014

Although the re-introduction of tpvs is a setback what the crossbenchers have achieved is work rights for 25,000 on bridging visas and the release of 1500, including nearly 500 children from detention and the threat of removal to Nauru. Readers of Eureka Street might pray for the defeat of the Abbott government in two years time and the repeal of the tpv provision by a Shorten-led government. They might also pray that Labor will then re-settle in Australia all the refugees still marooned on Nauru and Papua New Guinea. As 1200 asylum seekers died at sea during the period of the Rudd and Gillard governments I will not be praying for the return to the kind of open border policy introduced with noble intentions but catastrophic consequences by the Rudd government in 2007/8. It's time for new thinking by friends of the asylum seekers, in my view.

Robert Manne 08 December 2014

Kerry this is excellent. I appreciated your generous and judicious appraisal of the good faith of the cross bench Senators who voted both for and against these bad laws. There is in my view no case for abusive name calling ( as I have seen a bit of on social media) of those cross bench Senators who voted for these laws. I would appreciate your further comments ( in ES correspondence?) on the scope for further softening of these laws in the committee stage next year; and on the scope for a Labor Govt in 2016 to remove their most egregious provisions. For it seems to me that the present OSB regime will go on keeping boats away, these additional cruelties, to people already in our care, for the sake of deterrence are just superfluous. It remains to be seen whether Shorten and Marles would in government accept that logic.

Tony Kevin 08 December 2014

Now at last the deaths at sea will stop. Labor are responsible for enticing people with unrealistic hopes on very dangerous journeys. I have just heard that the number of refugees coming through the camps (ie refugees who have nothing) has been increased.Sanity is returning to our refugee policy.

Skye 08 December 2014

Grant Allen, I share your concern at the absence of any kind of rational explanation for the immigration policies of the major political parties. In the final analysis I think they are based on political (ie getting into power and holding on to power) rather than on socio-economic or ethical grounds. The current situation is a bit like that when the Immigration Restriction Act of 1901 was being debated. J C Watson, the Labour leader, had the honesty to admit that a White Australia was a necessary condition of a high standard of living for the working classes. Such honesty appears to be absent in the current debate about asylum seekers. The major political parties hide the real motives behind their policies because they are hide-bound by opinion polls and focus groups as to what they should and should not do.

Uncle Pat 08 December 2014

When the government fiddled yet again with refugee policy at the end of last week, it was a pretty safe bet that ES would begin the week with an article pointing out the deficiencies and inhumanity of the latest changes and, as an each way bet, that the article would be written by either Kerry Murphy or Tony Kevin. But no-one could have suspected that Marilyn, the odds-on favourite for the first comment, would be pipped on the post by an un-named contender! Is the world coming to an end?

john frawley 08 December 2014

I am sick of hearing the pious claim that passing this kind of legislation is necessary to stop the drownings of people fleeing by boat. Drawnings and other accidental, tragic deaths of people fleeing persecution have always occurred, and will continue to occur. This excuse serves a single political motive, ie to prove the government's toughness in 'protecting our borders' and an accidental bonus effect is that Australians are gradually becoming accustomed to great cruelty, justified in the government's hypocritical words - and those of Labor. The legislation does nothing to improve the human rights and protection we owe to people fleeing persecution. Our shame and guilt are unbearable. One term only!!

Eveline Goy 08 December 2014

I hear echoes of the language test of White Australia in the deliberate obstacle course designed to keep asylum seekers , because they came by boat, and even if assessment of their claims for protection finds them to be refugees meeting the same UN criteria as the cherry picked refugees in our resettlement program. Why send refugees on temporary visas on a hopeless quest to find employment in country Australia which might make them eligible to apply for a visa which may result in permanent residence but almost certainly will NOT. In the established methodology of thein Government, the rules will change, the interpretation will change to keep "boatpeople" out. How we can do that to refugees who need a safe country, and keep them separated from their loved ones, defies understanding. Spare a thought for the wives and children of the courageous men who came the dangerous way, because there was no other way and a 50% chance of safe arrival in a safe country warranted the risk. Unfair Australia will destroy itself.

frederika steen 08 December 2014

Meanwhile our blessed mother and all heaven weep at the good Catholics in the Australian government. Wonder what they will say to God on judgement day. Do they even care

Irena 09 December 2014

Hi Marilyn! Yes, why should be care about 1200 dead asylum-seekers? The fact is that they died because the AS lobby successfully pressured the Labor Government to scrap Howard’s border protection policies, encouraging over 50,000 of them to try and get into Australia again, is a mere detail isn’t it? And if Labor gets back in – and in the interest of adopting a more “humanitarian” asylum seeker policy – decides to reverse existing border protection policies again then perhaps another 1200 or so will drown in due course, along with hundreds of children. And meanwhile tens of thousands of legitimate refugees who should have got asylum in Australia are left to rot in refugee camps. GRANT: You ask how our politicians sleep at night re their asylum seeker policies. Well, yes, I wonder how the Greens and pro-AS Labor pollies do. They were the ones who scraped existing border protection policies that caused 1200 deaths and denied asylum to many thousands who really needed it. Perhaps the AS lobby should also have a twinge of conscience about this. It might also want to reflect on its moral confusion and appalling hypocrisy over the refugee issue.

Dennis 09 December 2014

I cannot understand why so many are indifferent to the drownings at seas and why they would not want an increased intake of refugees via the camps. The people in camps have nothing. The Christians in particular are victims of violent ISIS and need a home, as well as the Yadzigis and other Muslim minorities. Please help the victims of such violence who have lost family members, have nothing and who are pleading for our help.

Skye 09 December 2014

it seems the best defence of Government policy is that you need to treat people cruelly as a deterrent to them risking their lives escaping persecution. These issues - drownings, and asylum process and visa need not be so linked. It may be there is no 'solution' which is fair, but just permitting the harsh treatment of people we find to be refugees is inhumane. On another matter, most refugees are not in camps, but in urban areas, those in camps are more likely to be seen because so many are together. It is about how we treat people, not how to score debating points.

Kerry Murphy 09 December 2014

Kerry: Raising the issue of 1200 dead people is not about scoring debating points. It’s about reminding the asylum-seeker lobbyists, of the disastrous consequences that resulted from them having the existing border protection policies scrapped that prevented such carnage. And yes many refugees don’t live in camps, especially in the Middle East. Many thousands live in dingy one-room hovels in big cities in Lebanon and Jordan etc. They subsist in such places with money their children make selling flowers in the streets day and night to buy food for the family. In Lebanon such refugee kids earn $2 to $3 a day digging up potatoes etc. Compare their miserable lot to children living in Australia’s detention centres. They get three meals a day, do not have to slave from dawn till dusk to support their families, have access to proper medical care, are given schooling and live in accommodation far superior to little plastic tents or dingy rooms of refugees in Amman etc. Detention centres are luxury compared to the awful situations that most ME refugees subsist in – and the people we should be helping! (See “Detention shatters illusions” in the Weekend West, November 1-2 if you’re interested). And yet the AS lobby works itself into a self- righteous lather over children and their parents in detention in Australia who have left far better homes and with much more resources to force their way into Australia..

Dennis 10 December 2014

To Dennis: It may be necessary temporarily to accept a lesser evil, but one must never label a necessary evil as good.

Annoying Orange 10 December 2014

Thank you for this thoughtful piece- I feel for the Senators who had to make this choice. I find it hard to understand how our goverment can possible adopt these inhumane policies. We really have to help them to see how wrong they are - but how to do this? I will keep trying in every way I can think of. Re the drownings- we allow people to risk their lives for sport or adventure. Surely we can understand when they risk their lives for freedom.

Monique Bond 12 December 2014

Any legislation secured by threat and fear of the consequences if not passed is unlikely to produce a decent outcome. Is it not a matter for concern that the passage of this Bill was secured by instilling fear in reluctant Senators that if they did not agree to it that the Minister would inflict even worse on asylum seekers and continue to lock up children in appalling camps? Are we not shocked that a law was passed by means of threats and blackmail? Is this who we are? Is this what we want for governance ?

pamela 12 December 2014

Thank you for explanations of senators views which I agree with but feel helpless to act on.

DENISE WALSH 06 February 2015

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