Hamid crushed by Australia's immigration laws


With a change at the helm of government, there was some speculation that the hardline and aggressive approach in immigration may be softened, though the minister has not changed.

Flower caught in chain fence

There are no signs of an aggiornamento so far though, with the rhetoric relatively unchanged, especially regarding those stuck in Manus and Nauru. The focus on centralised control and militarisation of immigration has meant that the flexibility needed in this complex area has not been available.

If you create a legal system that has around 19 sections of the Act just dealing with preventing people from applying for protection in Australia, unless the minister personally intervenes, it illustrates a very strict and tight approach — no other visa category is so heavily regulated. Many asylum seekers are being crushed by an uncompromising structure that prevents them from obtaining any certainty in where they can live beyond a few years.

Consider the situation of 'Hamid' (not his real name). He is stateless and came to Australia by boat in mid 2012. He sought protection and his case remains under consideration. Hamid is married and has five children, who remain in another country also unable to resolve their statelessness.

Let us assume Hamid can meet the narrowed definition of a refugee that we use in Australia. The best he gets is a Temporary Protection Visa (TPV) for three years.

The TPV is a cruel and punitive visa that prevents refugees from applying for anything else apart from another punishing TPV or the Palmer inspired SHEV visa. The SHEV is another version of the TPV but is valid for five years, and allows an applicant to apply for many non refugee visas provided they work or study in designated regional areas for up to 42 months. So far only NSW has signed up for the SHEV.

At the time this was enacted in December 2014, the former immigration minister noted that he thought only a small number of the 30,000 awaiting decisions on their cases would ever benefit from a SHEV to convert their visa to something more permanent.

This is especially so for the older refugees, like Hamid. He is 47, and has some skills in a trade. He could move to a regional area of NSW, work in his trade, and apply for the SHEV. Hopefully 42 months after the grant of the SHEV (however long that will take) he can seek sponsorship on a 457 visa for his trade, assuming he improves his English and gets a genuine employer willing to sponsor him. He can then sponsor his wife and children to join him.

However, once he turns 50, his chance for a permanent visa in the skilled or employer sponsored area disappears. So while he might get the 457 visa in four years, he will never get permanent residence, either because of his age or because the law states that if you ever held a TPV, you can never get the permanent protection visa — which is really the visa he needs to create some certainty for his future.

Having explained this to Hamid, I thought he was about to cry. Maybe he did after he left the office. I can understand why. He is now unable to see a way of reuniting with his family in the short term, or getting a long term solution for himself and his family — all because of the need to punish the refugees who arrive in Australia by boat, as a way of 'stopping the boats'.

Hamid is but one example of many. This cruel and punitive policy needs to be amended and provide a mechanism for a permanent visa, which might be a refugee visa or something else, without having to wait years. We need to remove the barriers that constrict the options.

The punitive effect of the TPV is a means of pressuring already traumatised people to leave Australia. These polices are creating major anxiety for refugees, who are being worn down by the inflexible system, leading to increasing acts of desperation. Increasingly, we are seeing a more puritanical approach to the application of the laws, especially to those who seek and are granted protection.

This new puritansim is also wearing out those working with refugees — lawyers, migration agents, interpreters, social workers, medical staff, public servants and the many Australians who provide help through non-government organisations around the country. Some leave the area disenchanted due to burnout, others can become more radical in their views.

Either way it has the effect of alienating people from working with refugees and asylum seekers. Surely this cannot be the political intention.

There is an opportunity here to 'embrace the future' rather than punishing people further and emphasising fear with puritanical policies and laws. We can only hope that something is done before more people are broken by the harshness of the existing law and policy.

Kerry MurphyKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers and member of the boards of the IARC and JRS.

Image by James Jordan, Flickr CC

Topic tags: Kerry Murphy, asylum seekers, refugees



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Existing comments

Punishment is how we have translated the refugee convention for years now, no heart, no soul. no kindness at all. We had a brief window from 2008 to 2011 when Rudd was around but after that it has been horrendous, so bad that shooting people at the border would make more sense.
Marilyn | 27 September 2015

Second last paragraph: "it has the effect of alienating people from working with refugees and asylum seekers. Surely this cannot be the political intention". Oh yes it is. Great effort is being put into persuading us to thing of refugees as sub human.
Jim Jones | 28 September 2015

No exceptions can be made when national security and the future of our children are threatened. That's the bottom line. However there is nothing to stop anyone to respectfully make the applications and show proof of good intentions. This bulldozing and breaking laws cannot be tolerated as any Australian must and have been respecting. Why are there double standards and those who push and lobby for easy entry should themselves answer to the law and their real conscience not the make believe world that so many of them live in. Compassion cannot be treated like trading stamps.
Richard | 28 September 2015

The law such as it stands makes even less sense when people meet and get to know the refugees personally - which is why the government(s) have been so keen to keep the refugees away from us. As a very senior immigration official said in a training session,'this (immigration/refugee) type of work is so difficult because you and I would always be happy to have them (the refugees) as our friends; nearly all of them are such nice people.' So why do we want them to die in detention, destroy themselves, or push them back to the horrors they left behind in highly dangerous voyages?
Eveline Goy | 28 September 2015

Thankyou Kerry For putting the case so succinctly. Right now on Christmas Island a young man has to fill in a 45 page application in English without any legal or migration assistance. This is his one chance for a TPV. Australian Refugee process is now the nastiest Sankes and Ladders Game of all- all snakes and no ladders.
pamela curr | 28 September 2015

The brief paragraph that introduces Hamid raises the sorts of questions that are never addressed in this whole sorry state of affairs. Why is he stateless? Where did he come from? Wherever that was, was he under threat? If so, why was he prepared to abandon a wife and 5 children? Are they in the country from which he undertook his journey in 2012? Are they now under the same threat? If so it wouldn't appear to be a major life threatening one. How long was Hamid domiciled with his family in the country where he left them? He clearly couldn't have been too worried or threatened if he was prepared to leave them there. Hamid's motives are more than a little difficult to understand.
john frawley | 28 September 2015

Thank you Kerry Murphy for caring and reminding us about asylum seekers who "are people like us" but who have been dehumanised by our Parliament . Unfortunately, too many Australians have been brainwashed into believing they have something to fear from asylum seekers, that they may be terrorists or that they are depriving others of settlement here because they are not waiting in the 'queue'. Others of us feel overwhelmed by such negativity and by the seemingly hopelessness of trying to get the Coalition and Labor to change the draconian laws that have been passed. We desperately need people like you, Kerry, who refuse to give up.
Anna | 28 September 2015

I am not surprised many who work in this area 'leave the area due to burnout' or become more radical. This is quite common in any human welfare situation. I think we need more open discussion on the matter. Most Australians would like to consider themselves compassionate but are also wary that all asylum seekers may not be genuine. I think we need to open up this seeming Pandora's Box. Much that will come out may well be negative but there may be hope at the end. I think most of us would want to be compassionate without being taken for a ride. These two aims need not be mutually incompatible.
Edward Fido | 28 September 2015

Nice to see John Frawley and Richard blaming the victims.
Marilyn | 28 September 2015

Thank you, Kerry, for being passionate about asylum seekers. The TPV is truly punitive, as are so many other policies and actions meant to dissuade asylum seekers from coming here, especially making an example of those people being treated so cruelly in detention hell holes. I don't care whether you are left wing or right wing but I find it difficult to believe people can be Christian and deny their responsibility of being a good Samaritan.
Anna | 09 October 2015


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