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 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.