Welcome to Eureka Street

back to site

Just like the original TPV only nastier


Still from 'Mollie and Mubarak'

Last week Immigration Minister Scott Morrison proposed migration law changes that would 'allow the government to commence processing asylum claims of the legacy caseload’. He described them as the implementation of ‘more rapid processing and streamlined review arrangements, as detailed at the election’, adding that ‘any further delays in processing or repeated processing of claims simply adds to cost and uncertainty and prevents people getting on with their lives’.

In fact they do nothing of the sort. The changes are part of an amendment Bill consisting of 181 pages and over 250 pages of explanatory memorandum. This is not the only change in Parliament as there are two other Bills, one introduced in June to make it more difficult to be granted complementary protection, and easier for the Department to refuse cases. There was another that included the further strengthening of the already overly puritanical character provisions. 

Those seeking asylum in Australia have a maze of at least 28 sections in the Migration Act to deal with (not including review rights), as well as the regulations, Ministerial Directions, and hundreds of leading cases.  On my calculation, the changes make it at least 35 sections relevant for refugees and asylum seekers (not including the review rights), and adding two new temporary visas. There is also a whole new review mechanism called ‘fast tracking’ which is separate to the existing Refugee Review Tribunal provisions.

Whilst there are a number of very troubling provisions in the Bill, including the TPV series 3 and related Special Humanitarian Enterprise Visa (SHEV), and the fast tracking proposal.

Those who have followed the issue will be familiar with the TPV that was first introduced in 1999. It led to an increase in boat arrivals because it prevented refugees from sponsoring their immediate families until they were granted a permanent visa.  It also prevented travel to visit family in a safe third country.  The TPV was made less draconian in 2005 when the ban on applying for other visas onshore was lifted.  It was abolished under Rudd in 2008.

TPV series 2 was introduced in October 2013 but disallowed in the Senate. TPV series 3 reintroduces the worst features of the previous series 1 and 2, with the added bar of not being able to apply for any other visa including a permanent protection visa. This means the holder of the TPV 3 will be on a three year visa which allows them to work, but no family sponsorship, no travel to see family, and no certainty about their ability to stay in Australia beyond three years. How this helps a refugee to ‘get on with their life’ is a mystery to me.

The other visa is a new creation, the Special Humanitarian Enterprise Visa (SHEV).  No regulations are available yet so all we have is commentary by the Minister and the Department.  This visa confuses the difference between refugee and migration and seems to require refugees to meet as yet unspecified work or study criteria, irrespective of their refugee case or possible person traumatic experiences.  It will last for up to five years and allows a refugee to work. However they must work, or study, in a regional area (yet to be stated), and if they fail to work, or study for 40 of the 60 months, they will not be able to access as yet unstated other visas.

Requiring people to move to regional areas, and help where there are employment needs, is understandable. But making it a condition of moving beyond the temporary visa is totally unreasonable. Previously TPV 1 holders moved between regional areas in search of work, which was essentially seasonal.  This was because many of the younger men could easily move around and were prepared to share accommodation.  We saw some of the stresses refugees faced in the 2003 Tom Zubrycki documentary Mollie and Mubarak (pictured).  

What happens when there is no work, or the specialised language or medical services needed are not available in remote or rural areas? SHEV refugees will be in competition with the backpackers and other temporary visa holders, as well as Australians in these areas.  Will people have to move back to a TPV if they cannot get work in a regional area?   How will the older men manage to reskill, learn English and support their families?  Already clients tell me that being separated from their families for more than three years will be too hard for them and their families.

The psychological deterioration on the TPV series 1 group is well documented by clinical psychologists. Re-traumatising refugees by putting them through this punishing process is totally unwarranted.

Another issue of concern is the fast tracking process which will probably be used for those who arrived after 12 August 2012 until 19 July 2013.  This process has an emphasis on speed, not on fairness and this is reflected in the proposed law.  

Getting these cases wrong is not like losing a game show completion.  It means a refugee could face persecution.  We should be trying to make sure the decisions are high quality ones, not quick ones.

In general the changes reflect an obsession with people arriving by boat, and a conflation of the need to reduce the risk of people drowning with the focus on punishing the refugees for coming in an irregular way, as most refugees do in the world.  This is at a time of heightened security tensions and tougher character rules. The Minister is right that he promised to do these things, but these are promises it would be better he did not keep.

Kerry Murphy profile photoKerry 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, an IARC ambassador, and was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers.

Topic tags: Kerry Murphy, TPV, asylum seekers, Scott Morrison, migration law, refugees



submit a comment

Existing comments

Great article Kerry, I am one of the teaching staff working on CI. Have been there for 10 weeks and have established a school for the kids. We are providing some hope for UAMs and families. the excitement that thursdays announcement caused great joy. Your article provides a clear future perspective.

Brendan Flanagan | 30 September 2014  

Thank you, Kerry, for this fine, very clear article. It is so difficult to deal with an immigration minister whose heart is hardened against refugees.

Patricia Kennedy | 30 September 2014  

Thanks, kerry for making the situation so clear. Sadly that does not make it any easier for us to make a difference. Annette

Annette Cunliffe | 30 September 2014  

I am working as a pro bono refugee lawyer and registered migration agent after retiring as a corporate lawyer just over 2 years ago. I have been working with one particular unauthorised maritime arrival for nearly a year. In my view this client has a very strong claim for protection as a refugee and in his particular circumstances there was no way he could have done anything other than flee his country as he did by irregular means. Coming to Australia on some kind of visa was just not an option. He did not show up for an appointment today because he has finally been crushed by the oppressive system described by Kerry. I have been informed he now wants to sign whatever it takes for him to be sent home and face whatever happens to him because he can't bear to be separated from his family any longer. It is like a person signing a confession after being tortured. I have been watching this person disintegrate before my eyes. He said to me one day through his interpreter that "it is like looking into a dark mirror". It breaks my heart that my country has not only deliberately set out to achieve this kind of result but is now wanting to pass legislation to make an already oppressive system even more oppressive. Brendan McCarthy

Brendan McCarthy | 30 September 2014  

Once again, thanks Kerry, Having been part of the Refugee Support Group at NSW Ecumenical Council for several years in the early to late 90's, and with friends made during that time who are still working with and for refugees and asylum-seekers. Wish I had another thirty years, to work together with others to change the power a national government has, and another major coalition who do nothing to question- no, challenge - the myths the govt. spawns - yes, like lice! - to try to justify their punitive attitude to those desperate for our help to find new lives - see the UNHCR ads currently airing on TV. I care, and many others do, and we need to join hands and hearts to begin getting justice for those who had no choice but to run. On-shore Processing - a MUST! And ALL children out of detention - RIGHT NOW! God help us - all!! How about beginning with some 'immersion' programmes, similar to ones offered by Jesuits and associates over some years - in some instances in other countries, like Timor L'Este just before and during lead-up to its independence. Whatever time I've got left, I want to find a way to help, first so we begin to understand the situation and second to be on-the-ground with refugees and asylum-seekers to 'welcome and affirm' them - words I used in one of the intercessions I prepared recently, for the UN International Day for Peace. . . Lynne

lLynne Green | 01 October 2014  

Brendon: Accepting that your client is a genuine refugee fleeing verifiable persecution, I’m curious to know 1) What country did he originally come from ? 2) What country did he embark from to reach Australia? 3) Did he fly in or reach Australia by boat? 4) How much did he have to pay to either travel by boat or plane to Australia? 5) Has his appeal for refugee status been rejected by the Australian government? 6) If so, on what grounds?

Dennis | 01 October 2014  

Denis why do you persist with the fiction that how people get here is relevant to anything? It is not except in the minds of the entrenched White immigration people and politicians. At all times all asylum seekers are genuine human beings with the exact same rights to the law and civil society as you have.

Marilyn | 01 October 2014  

Marilyn: How people get into Australia should always be a legitimate concern for us, not a mere “fiction” perpetrated by “white” pollies etc. That’s why Australia and all other modern states require passports and visas etc to determine who enter their country and the terms under which they can do so. But the asylum-seeker lobby contends that Australia must accept anyone who lobs in our country who claim they are fleeing persecution etc, even when they may have no passport, even when they have often thrown whatever travel documents they possess into the sea before being picked up by Australian customs, even when most turn out to be self-selecting economic migrants who are not fleeing persecution, even when there were many closer countries they could have got refuge in. They may be “genuine human beings” who quite reasonably want to get a better life for themselves and their families in Australia, but so are the millions of genuine refugees rotting in Middle Eastern camps who are far more genuinely need our help than comparatively well-heeled opportunists. At last count there was about one million Syrians in Turkey who’ve lost everything and now live in UN-supplied tents. These are the people we should be helping, not “chancers” who have displaced them in the queue. Why has the AS lobby not pushed for Morrison to restore the refugee quota to 20,000 from 13,250? Even some Liberal MPs want this. (See Wyatt Roy’s article “We can be a bigger haven” in The Australian) But then perhaps it’s more satisfying to kick the “evil” Abbott Government in the shins over Manus Island etc rather than pressure it to adopt achievable measures that would help thousands. And there would also mean fewer exciting career-boosting high-profile High Court challenges for assorted human rights lawyers to fight! Strewth!

Dennis | 02 October 2014  

Dennis, there is not an Asylum Seeker lobby as such, rather groups of people with a variety of views. I do not think someone should be allowed to stay just because they arrive. I think they are entitled to a fair assessment of their case, and if finally unsuccessful then they need to leave. I think you will find the RCOA has been lobbying for a return to 20,000. In terms of who we should be helping, every person we resettle leaves thousands of others in the same position they left. Finally - THERE IS NO QUEUE IT IS A MYTH, LIKE SANTA CLAUS.

kerry | 02 October 2014  

Agree with you Kerry except for your comparison with Santa Claus. The Santa myth is benign and keeps the children happy at Christmas. It is a bit of harmless fun. The queue myth on the other hand is damaging and harmful to refugees who risk everything getting away from their oppressors. Like the "well heeled opportunist" line, the queue myth is used unfairly to justify the Government's "Anywhere But Australia" refugee policy wedge.

Brett | 02 October 2014  

Dennis, have you ever asked yourself why those who come by boat don't have visas and so travel by air? Perhaps it's because our embassies won't issue them with visas?

Ginger Meggs | 03 October 2014  

Under Australia’s refugee/asylum-seeker policies a quota, in effect, became a queue. With Labor government policies the onshore (asylum-seeker) and offshore (such as refugees from UN refugee camps etc) components were numerically linked. This meant that every time an onshore applicant was granted a Protection Visa, a place was deducted from the offshore quota. When asylum-seekers succeeded, they occupied places in Australia’s overall humanitarian intake that would have been taken by refugees, mostly those who were referred to Australia by the UNHCR – usually displaced refugees and victimized people, normally much poorer and more downtrodden than any asylum-seekers reaching Australia. However, since September 2013, the onshore/offshore ‘nexus” has been largely replaced to prevent this. In 2013/14, at least 11,000 places were set aside for offshore arrivals’ leaving only 2750 for other people, including asylum-seekers who have still managed to enter Australia and convince the government that they are genuine refugees. That being so, the asylum seeker lobby (i.e. a collection of perhaps otherwise disparate groups with a common aim) should be staging demos to restore our refugee intake to 20,000 – and then press for it to be raised to 25,000 or even 30,000.. .

Dennis | 05 October 2014  

Then Dennis by your definition those who get a visitor's visa and make a 'regular' arrival via plane and then seek asylum are also queue-jumpers. So why do we treat them differently to who can't get a visitor's visa and so make an 'irregular' arrival via boat?

Ginger Meggs | 05 October 2014  

Ginger Meggs: Yes, those who arrive by air, even with visas, are also queue-jumpers if they manage to get asylum in Australia. Like boat arrivals they too, on being granted asylum here, take places from offshore refugees waiting to come here. Even so, only 20 to 30 per cent of asylum-seekers who fly in get asylum compared to 70-90 per cent of those arriving by boat. Clearly, boat-arriving asylum-seekers are favoured over those coming in by air. Those who are prepared to take a dangerous sea voyage and spend many months in detention centres greatly improve their chances of gaining asylum in Australia. .

Dennis | 06 October 2014  

Similar Articles

The unfolding logic of euthanasia

  • Zac Alstin
  • 05 October 2014

A Belgian court recently granted permission for a psychiatrically ill prisoner to be euthanised. Having worked in bioethics, I find it hard to avoid a morbid fascination with the gradual unfurling of euthanasia in nations where it has had a chance to become firmly established. While members of the public are usually shocked to hear of each new milestone, from an ethical perspective there are no real surprises.


The case for remaining single

  • Ellena Savage
  • 02 October 2014

In the few times I have felt distressed by the prospect of some kind of eternal singledom, I have reminded myself of how difficult and suffocating romantic love can be, especially in the belittling shadow of celebrity couplings. My accumulated life data tells me that no-one is a perfect partner, even with 'hard work', and there are many more things to love than some perfect other individual.