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Best of 2013: Protection visa sequel worse than the original


Mock movie advertisement features a sinking paper boat and the title TPV II: Temporary protection just got a whole lot harsherThe 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of the temporary protection visa (TPV), introduced by the Howard Government, commenced on 20 October 1999 and was repealed by Labor on 9 August 2008.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 the best interests of the child are treated as a primary consideration in all actions concerning children. However, other considerations may also be primary considerations. While it may be in the best interests of unaccompanied minors (UAMs) to be reunited with their family, it is clearly not in their best interests to be placed in the hands of people smugglers to take the dangerous journey by boat to Australia.

Australia's political interests trump the rights of family reunion for refugees and for a permanent solution for the refugees.

What is especially harsh is that TPV2 applies to all those currently in the system. So my client, 'Ali', who was accepted as a refugee back in 2011 but has been waiting for a security check since then, only gets a TPV. He is now married to an Australian and they have a child, but the 8503 condition on his TPV prevents him from making a partner visa application in Australia.

My client 'Ahmed's' first Refugee Review Tribunal (RRT) was conceded by the Government to be legally flawed and is awaiting his second RRT; if he is successful he will only get a TPV. Part of his case involves the ongoing threats against his family, including his wife — from whom he will now be separated for years.

One of the major lessons of the TPV1 was that the forced separation of families caused significant mental health and medical problems for refugees. Families broke up. In one case, a TPV1 holder grieved the death of his son, who was killed in a bomb attack. He had been hoping to sponsor him to join him in Australia once granted his permanent visa. Instead, his relief at being finally granted a permanent visa was forever overshadowed by grief.

Even the previous Coalition Government ameliorated the harshness of TPV1 in August 2004 by making it possible to apply for other visas onshore. I recall a number of cases of refugees on TPV1 who were able to get a partner visa because of relationships with Australian citizens. Others suffered because they could not provide a way for their family to escape.

There is no evidence the TPV worked as a deterrent. After it was introduced in October 1999, boat arrivals spiked as the next boats had many women and children seeking to join their husbands in Australia. The tragedy of the SIEVX sinking was compounded by the large number of women and children on the boat because they had been forcibly separated by the TPV.

The TPV is a punishment, not a deterrent — it has no other justification. The Government has decided that its campaign to demonise asylum seekers by wrongly and deliberately calling them illegal, needed to include the punishment of those whom Australia has decided meet the refugee criteria, but who came without a visa. The TPV is a cruel visa, and it reflects the cruelty of the politicians introducing it.

Kerry Murphy headshotKerry 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 and was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers. This article was first published on 21 October 2013.

Paper boat image from Shutterstock

Topic tags: Kerry Murphy, temporary protection visas, asylum seekers, refugees, John Howard, Scott Morrison



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Existing comments

The more Australian governments try to evade the UN Convention on Refugees, the deeper they will sink into punishing genuine refugees.They will also risk losing legal cases and their international reputation. None of this is necessary to deal with a small problem.

Dr James Jupp AM | 17 January 2014  

Untll we de-politicize the global refugee problems, we can hardly call ourselves a Christian society. The Australian government's blatant disregard the UN Convention (on refugees) trancends all legal/geo-political boundaries. There is no "left" or "right" argument. It is simply inhuman. And we all, as human beings, should hang our heads in shame.

Alex Njoo | 17 January 2014  

The Government has an obligations to close all the loopholes used by the people smuggling industry. We have ended the slave trade and it is time to stop people smuggling.

Beat Odermatt | 20 January 2014  

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