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Best of 2013: Protection visa sequel worse than the original

  • 17 January 2014

The 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of the temporary protection visa (TPV), introduced by the Howard Government, commenced on 20 October 1999 and was repealed by Labor on 9 August 2008.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