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TPVs breach human rights

By Kerry Murphy - posted Thursday, 21 November 2013


"This government is not running a shipping news service for people smugglers.” "As promised, we are running a military-led border security operation." Scott Morrison, Minister for Immigration and Border Protection.

Prior to the election, the Coalition was happy to talk daily about arrivals of asylum seekers and to decry any arrivals of asylum seekers.  Since the election the most we get is a weekly press conference with minimal information.  Questions about boat arrivals or turn backs are met with ministerial and bureaucratic silence.  Presumably an explanation for this dramatic turn around of approach is that the people smugglers were not listening to the Minister when he was only shadow Minister.

Another major change since the election has been the reintroduction of the Temporary Protection Visa (TPV) on 18 October 2013.  The Coalition had long called for the reintroduction of the TPV on the basis that somehow their policies to ‘ stop the boats’ were incomplete without the TPV.  It may help to review what happened with the TPV the first time it was introduced back on 20 October 1999. TPV 2 is similar to TPV 1 in many ways but its effect will be harsher.

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The TPV was first introduced prior to the excision of territories from Australia and the establishment of the Pacific Solution under the Howard Government in September 2001.   Initially it only applied to those who arrived in Australia without a visa and were found to meet the refugee criteria.  The TPV was valid for three years and it did not restrict access to work or study, but in reality, refugees found some employers reluctant to give employment for someone on a temporary visa and facing an uncertain future.  Study was expensive as initially tertiary institutions required payment as overseas student rates.  Later a number of institutions changed their policy and did not require the much higher overseas student fees.

Despite the view that it was a deterrent, in fact there was a spike in arrivals until after the establishment of the Pacific Solution in September 2001.  It seems the TPV had little deterrent value.

A major problem with TPV 1 were that it had a restriction on it which meant the refugee could not apply for any other visa apart from a protection visa and they could not be granted the permanent protection visa until they held the TPV for at least 30 months.   Refugees had to prove their cases a second time, often 3-5 years after their initial case.  In the case of the Afghan Hazaras, this meant more complex cases with the change from the Taliban rule in Afghanistan.  With the Iraqi cases, it meant dealing with the post Saddam circumstances in Iraq.

A major problem for the refugees on TPVs was they could not sponsor their spouse and dependent children from the TPV.  This meant that families were forcibly separated for years until the refugee was granted a permanent visa in Australia.   Another more serious consequence was that boats arriving in 2000 and 2001 had many more women and children aboard because they would otherwise have been separate from their husbands and fathers for years. 

On 19 October 2001, the SIEV X sank and 351 people drowned – including many women and children trying to reunite with their husband or father already granted protection in Australia. There is little doubt that the large number of women and children were aboard simply because of the ban on family reunion for the TPV holders.

Gradually the Coalition relaxed the rules on applying for other visas, as TPV holders married and formed relationships with Australian citizens, or were employed by Australian businesses.  After the election of Labor in 2007, the TPV was abolished and all those still holding the TPV 1 were granted permanent residence, with the right to sponsor family members.

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Psychologists have documented the serious adverse consequences of the TPV.  Conclusions regarding the TPV published in the British Journal of Psychiatry included these comments on the clinical implications of the policy:

•         To prevent further psychological harm to previously traumatised refugees, it is necessary to minimise detention and ensure that conditions in detention are humane.

•         Certainty of residency to persons recognised as refugees seems to be essential for recovery from trauma-related psychiatric symptoms.

•         Families and social groups that are not kept together or reunited maybe at greater risk of prolonged mental disorder.

Despite these seriously adverse consequences, and the fact that there was no evidence that it had a deterrent effect, the Coalition reintroduced the TPV on 18 October 2013.  TPV 2 also applies to those who arrived without a visa, but it affects all those who have not had a decision on their case, even those who have been in the system for months and sometimes over a year just awaiting a security clearance for their protection visa. This means that there is a retrospective effect with TPV2 and an estimated 25,000 potential refugees could be affected. 

Unlike TPV 1, TPV 2 does not provide a pathway to permanent residence.  There is no 30 month waiting period, simply a ban on the grant of a permanent visa if you have a TPV.  Therefore, the best a refugee can ever get, unless the Minister personally intervenes in their favour, is a TPV – with no option of family reunion – ever. 

Given the fact that those getting the TPV have been found to meet the refugee criteria, this policy can only be interpreted as being deliberately punitive, and excessively so.  Refugees will get a three year visa, then all they can do is apply for a further protection visa which in turn only gives them another three years.  There are some exceptions but they are only likely to be in a few highly compelling cases and it is likely that most refugees granted the TPV will only get temporary residence and have to prove their case again and again to remain in Australia – knowing they can will probably never get to sponsor their spouse and children.

In the explanatory memorandum it is conceded that this harsh effect may be viewed as in breach of Australia’s human right obligations, however in what must be the Eric Blair award for legislative drafting, it states:

There is no right to family reunification under international law. The protection of the family unit under Articles 17 and 23 (of the ICCPR regarding the importance of the family) does not amount to a right to enter Australia where there is no other right to do so. Further, avoiding arbitrary interference with the family or protecting the family can be weighed against other countervailing considerations including the integrity of the migration system and the national interest.

 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 Australia 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. In addition, it furthers the legitimate aim of encouraging people to arrive in Australia via regular means, such as by obtaining a permanent visa under Australia’s Refugee and Humanitarian Programme for persons outside Australia, which allows family groups to migrate together. Therefore, the Legislative instrument is consistent with the rights contained under Articles 17 and 23 of the ICCPR.

There is no justification legally, politically or even morally for what is clearly a deliberately harsh policy which will cause serious psychological trauma to people who have probably already experienced trauma in their home country.  The policy is clearly punitive against people who are found to be refugees.  It is likely to cause severe hardship and suffering for an already damaged group of people for years to come.  What is worse, is that these seriously harmful effects are deliberately intended.

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About the Author

Kerry Murphy is a partner in D'Ambra Murphy Lawyers and an accredited specialist in immigration law.

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All articles by Kerry Murphy

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