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From persecution to protection and the purgatory in between



Mark Twain is reported to have said ‘history does not repeat, it rhymes.’ Watching a US helicopter evacuating people from the US Embassy in Kabul, that was rhyming. Many have seen this picture before, 30 April 1975, but then it was Saigon. The massive confusion, mixed messages, terrified people, lack of human rights protection happened in 1975, and still happens in 2021.

Sadly, one of the first responses from Australia regarding possible refugee flows was that no one who came by boat, ‘illegally’ (the term incorrectly used by Government, given it is not an offence to arrive without a visa, it just has a consequence – detention under s189), will be settled permanently in Australia. However, a number of Afghans were offered and granted the temporary humanitarian visa known as the Safe Haven Visa subclass 449.

The 449 visa is quick to issue because there is no application process, just an invitation by the Government to someone under regulation 2.07AC. A detailed statement of protection claims or detailed interviews and processing is not needed. It is an effective emergency tool, but there is a serious cloud that surrounds the 449 silver lining. More on that later.

The situation on the ground in Kabul at the airport was chaotic, but at least some people were able to escape. The evacuations stopped on the deadline, but now there are discussions about what can be done for the Afghans who are in need of protection but were not rescued.

The Taliban have no incentive to be cooperative, they have their own agenda. Up until recently the US and Australians were in a serious war with them. In September 1996, the Taliban captured Kabul the first time, and not only killed and persecuted those they did not agree with, but sought to wipe away ‘destructive western influences.’ They literally hung TV sets and video tapes over poles, in the streets, music was banned, women were restricted in their movements and had to wear the blue burqa over their whole body. Kite flying was also banned.

Now we have Taliban 2.0, or so their propaganda arm on twitter wants us to believe. This fake marketing effort does not convince the Afghan people, especially the Hazaras. They know that the Taliban oppressors of 1996 have not changed much in 25 years. The Taliban are just more determined.


'The harsh reality in a war zone is that only a minority will ever find safety. The sudden capitulation of the Afghan government was a surprise many governments and international agencies. Whilst it is right to praise the efforts of the military and bureaucrats in the rescue, there were things that the immigration minister could have done earlier.'


Hazaras are an ethnic and religious minority, many from the Hazarajat area in Bamiyan. This is where the famous Buddha statues were before the Taliban blew them up in 2001 because they were idols that offended their fundamentalist religious views.

Ethnically the Hazaras claim to be descended from the Mongols, and they are Shia, unlike the majority of Afghans who are Sunni. These two facts make them identifiable targets for the puritanical zealots of the Taliban. A tragic irony is that with the war criminals and psychopaths of Islamic State targeting Shia mosques in Afghanistan, the Hazaras are seeking protection from their former persecutors in the Taliban.

There are also many other high-risk groups such as single women, professional women, children, people from other minorities whether they are ethnic, religious or cultural.

The harsh reality in a war zone is that only a minority will ever find safety. The sudden capitulation of the Afghan government was a surprise many governments and international agencies. Whilst it is right to praise the efforts of the military and bureaucrats in the rescue, there were things that the immigration minister could have done earlier.

The clearest example deals with the Ministerial Direction 80 for the order of priority of visas in the family categories. The lowest priority are those permanent residents ‘in which the applicant’s sponsor is a person who entered Australia as an illegal Maritime Arrival and holds a permanent visa.’

Whilst terms such as ‘partner, parent, spouse, sponsor’ are all defined in the Migration Act or Regulations, the term ‘illegal maritime arrival’ is helpfully defined for us in the Direction because it does not appear in The Act or Regulations. We are told ‘Illegal Maritime Arrival’ has the same meaning as ‘unauthorised maritime arrival in section 5AA.’ In other words, people who arrived by boat to Australia, but did not have a visa. The boat people, but not the convicts on the first fleet of course, or their descendants.

Clearly the cumbersome legalese of ‘unauthorised maritime arrival’ does not have enough negative connotations of criminality and associated demonisation that you get by changing ‘unauthorised’ to ‘illegal’, otherwise why bother redefining an already defined term?


'Anyone who was granted the 449 Temporary Safe Haven Visa would be unable legally to lodge any other visa to remain in Australia.'


The Coalition have long demonised people arriving by boat in Australia. Whilst the laws were punitive in the first incarnation of the Temporary Protection Visa from October 1999, they became positively brutal and crushing in the current incarnation since 2014. These laws target not criminals, or people who will cause us potential harm, but people our government decides are refugees. We are deliberately punishing those in need of international protection.

Those who arrived by boat and were granted permanent visas before the Coalition was elected in September 2013, are those who are still being punished by laws such as ‘direction 80’ and terms such as ‘illegal maritime arrivals.’ An Afghan client who arrived by boat in late 2011, and was granted a permanent visa in mid-2012 sponsored his wife and children later in 2012. The case was put on hold by the first version of Direction 80, called Direction 62 in December 2013, which effectively meant the spouse case would never be decided until he became a citizen. His citizenship process was dragged out to check him very carefully, because he was one of the demonised who arrived by boat.

A later Direction 72 in September 2016 slightly eased the harshness by making it possible to get the spouse case looked at where there were ‘compelling circumstances. Most of the family were finally approved in September 2018, nearly 6 years after it was lodged. Such a delayed family reunion is not uncommon in this community.

These are the lucky ones. Those granted Temporary Protection Visas (TPV or SHEV) since September 2013 have no chance at all of family reunion from that visa. They can also forget getting family here. On 23 August, the Prime Minister stated to the Parliament:

‘We will be resettling people who have legitimate claims through our official humanitarian program. We will not be providing a pathway to anyone who seeks to come here by any other means (he means by boat) or change the status of others who have come by other means (he means the refugees here on TPVs, separated from family that cannot sponsor or help).’

Not to be outdone, the defence minister, and former Immigration Minister stated in an interview on ABC that some people could hide their true identity, or possibly worse, ‘forum shopping’ by seeking visas from multiple countries, and he said some family groups included ‘males of fighting age’ and ‘we don’t know enough about those individuals’.

Fancy the hide of these refugees to try and find some safe country for themselves and their families! What next?

Meanwhile a number of Afghans have been given a temporary visa, that ‘silver lining’ of the 449 visa. Now for the cloud. The 449 visa was created in late 1999 to enable the speedy evacuation of Kosovars from war torn former Yugoslavia. In the explanatory memorandum to Parliament in April 1999, it was stated that the Bill to introduce into law the 449 visa:

‘…will ensure that persons to whom temporary safe haven is provided are unable to change their status to remain in Australia after temporary safe haven is no longer necessary. Consistent with the Government’s commitment on 6 April 1999, to provide temporary safe haven for 4,000 persons displaced from their homes in Kosovo any applications made from that date will be rendered invalid.’

What was done was to create a ‘statutory bar’, so that anyone who was granted the 449 Temporary Safe Haven Visa would be unable legally to lodge any other visa to remain in Australia, unless the Minister personally intervened and let them stay. Most of the Kosovars were forced to leave, but some held on, and after a considerable struggle, a number were allowed to apply for some other visa. Now the history is repeating and rhyming, initially for the Kosovars, now for the Afghans.

This type of total control on visa options by absolute statutory bars also exists on those who arrived by boat. So whilst it is great that Australia is granting these 449 visas valid for 3 months, to get people out of Kabul airport, what will happen to these people in the future? Just ‘lifting’ the statutory bar is not enough. The valid application requirements of the permanent protection visa subclass 866 make it impossible for someone to even apply for the permanent protection visa if they ever held a subclass 449 Temporary Safe Haven Visa.

There is no waiver possible of this validity issue for the permanent protection visa. It means that unless the regulations are changed, Afghans who we rescued and brought here on a 449 visa, will never be able to get permanent protection in Australia. They may be able to apply for some other visa if the bar is lifted, but that depends on family sponsorship, or skills. Otherwise, they are in a cycle of perpetual temporary protection visas that could have featured in the circles of Dante’s Inferno, or at least Purgatorio.

There are temporary and permanent protection visas. It also provides there are two types of temporary protection visas — the subclass 785 for 3 years, and the Safe Haven Enterprise Visa (SHEV) subclass 790 for 5 years. The latter has a limited escape provision through regulation 2.06AAB.

This makes it possible to escape the Dantean circles if you work or study on designated regional areas (by postcode) for 42 months cumulatively whilst holding a SHEV visa, and then fit one of the other visa subclassed listed in the legislative instrument. If you are young, not married, have good English or a skill you might squeeze in, but the 45-year-old married Afghan men with a spouse and children overseas will never be able to bring their families to Australia. Never whilst this punitive law remains in force. This is because the skilled migration categories mostly cease once someone turns 45.

It seems unlikely that the Taliban will be changing their ways very much, so we can only hope our government will be more flexible to those fleeing the rule of the puritanical fundamentalist regime in Afghanistan. Maybe these ‘fly in’ Afghans will be lucky, and there will be legislative changes to make it possible for them to get permanent protection. They have not arrived by boat and were effectively ‘hand-picked’. Unlike those naughty Afghan refugees who came by boat up to July 2013, and continue to be punished with little chance of escape from the temporary protection visa circle of a 785 or 790.



Kerry MurphyKerry Murphy is an immigration and refugee lawyer and part-time lecturer on immigration and refugee law at ACU.

Main image: US Defence Force assists in ongoing evacuations from Afghanistan following Taliban Takeover (Getty Images News)

Topic tags: Kerry Murphy, Afghanistan, visa, TPV, refugee, Hazara, Taliban



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Existing comments

Hmm... we're a little exposed to the hyperbole of the absolute here, throw in emotive words such as "purgatory" and the article is a persuasive mix of 5 recited visa types and just as many complex technical directives with a few regulations to garnish. Harsh a la mode. So... a quick cross-reference by me to the lament of ES article by Claire Victory on "poor-blaming" which lambasted Pru Goward for over-generalizations of groups by citing various individual cases which are exceptions to her stark Marxist evaluation. Here, Kerry has employed Gowards sweeping technique to predict the Taliban future behavior on generalizations and assumptions that there is no change; stereotyped, which is a deplorable method in most instances of evaluating humans. Perhaps so, but it's not clearly established the allegations of persecution which are the crux of the whole need for protection are evidenced. Similarly, Kerry appears to present the case for permanent visas but hasn't demonstrated the Afghans actually need and want to stay in Australia, themselves. The raison d'etre for protection visas is solely safety from persecution; my opinion is advocates should more clearly determine that continued need. I appreciate that the Afghans may want "better lives" but that's not the argument here.

ray | 28 October 2021  

Thanks Kerry. Informative as always. You spend time with the individuals, hear their stories, experience the injustice. Those who make the laws shield their consciences from those stories. I remember reading, when there was a refugee camp outside Whyalla I think it was, politicians from the governing party were told not to visit it. Out of sight, out of mind.

Steve Sinn | 28 October 2021  

You've certainly got the Irish spunk which got rid of the British and the Ascendancy after 400 years, Kerry. Good on you! It is not just the Hazaras who suffer under those atrocious Talibs, but anyone who opposes their dreadful regime. The Tajiks, who were the backbone of the anti-Taliban armed resistance, seem to have been overrun and in disarray. It took John Howard's intervention to get visas for the interpreters who worked with Australian troops. Sadly, most people will either have to stay on in Afghanistan or flee to neighbouring Iran or Pakistan. David Kilcullen says we made a dreadful mistake pulling out en masse. The situation is not getting any better. It is not just about refugees, vitally important as that is, but about the Afghan nation, its people and their future.

Edward Fido | 29 October 2021  

Pakistan and Iran have hosted up to six million refugees from Afghanistan over recent decades. What an incredible burden.
Every time I read an article like Kerry's - my first thought is - what about these millions fleeing their homes? Could we have some discussion of options that Australia could employ to help them? Some discussion of their plight? How about a program to assist these frontline states? Education assistance. Food aid. Technical assistance. Yes, resettlement options. Just something that sees the breadth and depth of the issue. That doesn't look at the issue as if it started the day the government fell. Or is only concerned with the small numbers who reached our shores.
It seems to me to be another form of "out of sight, out of mind."

John | 29 October 2021  

Ideological power struggles never favour the local inhabitants. "The massive confusion, mixed messages, terrified people, lack of human rights protection happened in 1975, and still happens in 2021."
The Vietnam war was caused largely by Pius 12th. He asked Kennedy then Johnston to send in the troops ostensibly to protect a 27% Catholic minority. And while we may see the plight of the dispossessed, consider the fact that the USA and its Allies lost about 52,000 men and killed over 4,100,000 Vietnamese in return.
Hardly a just outcome based on an ideological false premise. The Vietnamese were trying to protect their country from what they saw as a third Colonial power in the USA.
Trying to force Western democracy on tribal societies has now driven the Taliban into the welcoming arms of the CCP and PLA. Who will no doubt like Shylock want more than a pound of flesh from their new proteges.

Francis Armstrong | 30 October 2021  

‘Unlike those naughty Afghan refugees who came by boat up to July 2013, and continue to be punished with little chance of escape from the temporary protection visa circle of a 785 or 790.’ The country they left has ceased to exist in the form in which, in 2013, it was. That changes their circumstance, as would be the case if a person came here by boat in 2013 from Nauru, and Nauru became submerged later.

roy chen yee | 31 October 2021  

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