John Menadue. Refugees and asylum seekers..a re-think on Temporary Protection Visas.

I have long argued that Temporary Protection Visas (TPVs) should be rejected on the grounds that they don’t deter asylum seekers, people are left in limbo and because TPV holders could not sponsor family which resulted in risky boat journeys by women and children.

It is time to think again about TPVs.

At the present time there are over 30,000 asylum seekers in detention or in the community awaiting refugee assessment. That caseload is the result of the large influx of boat arrivals following the collapse of the Malaysian Agreement and the refusal of the Coalition and the Greens to agree to changes to the Migration Act which would have helped give effect to the agreement made with Malaysia.

The current outstanding caseload is the highest I can recall. The previous highest number was 19,600 after Tiananmen which was a very homogeneous group.

The large caseload of over 30,000 people from a variety of countries will take over three years to process, if all goes well!  We need to urgently consider ways to reduce this lengthy process. The introduction of TPV’s would help.

Despite the often contentious debate on TPVs in Australia, giving a person a form of temporary protection, depending on the specifics of the arrangements, may be consistent with Australia’s obligations under the Refugee Convention. A number of countries provide some form of temporary protection alongside permanent protection arrangements. For example, people granted asylum in the US must wait one year before applying for permanent residence.

The UNHCR acknowledges that, at times, temporary protection may be the most appropriate arrangement. For example, in circumstances where there are mass influxes (generally involving larger numbers than experienced by Australia), temporary protection may be a valid tool in ensuring protection is available for asylum seekers while allowing authorities the breathing space to more fully examine and determine the need for  permanent protection and stay in a country at a later stage.

The Coalition Government had planned to reintroduce a form of TPV’s for irregular arrivals. But before the Senate changed on July 1, the ALP and the Greens defeated a proposal to reintroduce TPV’s. As a result of this political stalemate the government decided to use the existing Temporary Safe Haven (TSHV) and Temporary Humanitarian Concern (THCV) visa instead of TPVs.

Asylum seekers for whom potential protection issues are identified (and satisfactory health and security checks completed) will be progressively placed on THSVs. They will then be granted a THCV for up to three years. If the assessment of protection claims does not identify any ‘potential protection issues’ asylum seekers will be placed on bridging visas. In this way the government has moved away from both the statutory and non-statutory protection visa assessment arrangement but has taken steps to ‘temporarily resolve’ cases quickly through the use of existing visa mechanisms. As the current arrangements apply, however, it would appear that many asylum seekers will remain in a state of limbo with neither a decision on their protection claim nor, if people are not refugees, on their removal. The consequences of this are that people could remain indefinitely on some form of temporary visa without a final determination of refugee status with the inevitable long-term impact this has on mental health. Extensive and expensive litigation is inevitable.

This form of temporary status only delays a decision on the asylum claim for some time. Such an arrangement is not sustainable in the long term from the social wellbeing of asylum seekers, the cost involved as well as concerns of the broader community.

At some point a final refugee determination needs to be made, whether it leads to temporary or permanent stay. It is quite unreasonable, where Australia has accepted that its protection obligations have been engaged, to allow people to remain in a state of limbo. It is cruel and destructive.

In his evidence to the Human Rights Commission the Minister for Immigration and Border Protection said that asylum seekers would have trouble having their claims processed until he could offer a ‘visa product’ that only gave temporary residence. He added the absence of TPV’s at present ‘removes the possibility of considering alternative options for those currently on Christmas Island or elsewhere in Australia who arrived before July 19 2013’

It is to be hoped that the ALP and possibly the Greens might sit down with the government and try to negotiate a satisfactory compromise.

Negotiations to resolve this issue could include

  • The length of the visa (three to five years),
  • The assessment process at the end of that period.
  • What happens for people re-assessed and found to be refugees again?
  • Some sort of re-entry rights for TPV holders leaving the country for a short period.
  • The nature of benefits offered to people whilst on TPVs.

The change of government and the large case load of 30,000 do require cooperation to obtain an acceptable compromise. TPVs are not ideal but they would be preferable to the present arrangements. Major effort is required to process the large caseload as quickly as possible.

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