Last week asylum seekers had a small win only to have it snatched away, and then were confronted by a more serious attack. Those working with asylum seekers have learned to expect abuse and derision from governments directed against asylum seekers and those helping them. Labor is only moderately better than the Coalition, but at least they occasionally made positive decisions. However these recent events have reached a new nadir.
On the evening of 2 December, the Senate disallowed the unfair and inhumane Temporary Protection Visa (TPV) regulations. This meant that those already granted a TPV were stuck with it. The debate was short, only three senators spoke, but WA Senator Michaelia Cash managed to insult all those working in the area, including department officers and officials from the Refugee Review Tribunal (RRT) when she set out the underlying policy:
For those who arrived before 19 July and are subject to offshore processing (i.e. boat arrivals), under a Coalition Government they will not get permanent residence in Australia ... They will not be given family reunion ... They will not be allowed to leave Australia and then return and they will be required to satisfy mutual obligation requirements in return for welfare payments. They will face a much tougher assessment process, not the tick-and-flick approach that was adopted by the former government, and they will do all of this without the largesse of taxpayer funded lawyers to run their multiple appeals.
Case officers, interpreters, lawyers and migration agents spend hours on these cases. To describe this difficult work as a 'tick-and-flick' approach is degrading and insulting.
That same day, Immigration Minister Scott Morrison capped the number of protection visas under s85 to be issued in the 2013/14 year at 1650. That number has already been met. In the 2012/13 year, there were 7504 visas issued, including 2555 to those who had not arrived on boats. This power limits the number of decisions that can be made and is not disallowable in the Senate. It means that it would take three years just to deal with the same number of visa grants as in 2012/13. It has never previously been used for protection visas.
Tony Abbott stated: 'This government will never allow people who come here illegally by boat to gain permanent residency in Australia.' But arriving without a visa is not illegal and the use of illegal is a deliberate policy to demonise people seeking asylum. It is not the correct legal term, and has not been since September 1994.
1650 visas is a tiny number and means all visa applicants who meet the protection criteria will have to wait much longer. Some are waiting for permission to work, others are supporting family offshore, often in perilous circumstances. The inhumanity of this decision is manifest, and deliberate. As a comparison, the planning level for visas for partners in 2013/14 is 42,425 — more than three times the reduced total refugee program.
Not to be outdone, Morrison then introduced the ominously titled Migration Amendment (Regaining Control Over Australia's Protection Obligation) Bill on 4 December. This bill abolishes the only major positive legislative reform for asylum seekers in over 20 years — the introduction of Complementary Protection in March 2012.
Complementary Protection was introduced under Labor to achieve several important aims. Firstly, it provided a domestic mechanism for people to access the non-refoulment obligations under the Convention Against Torture, the International Covenant on Civil and Political Rights and several other key international human rights provisions. Previously, an applicant who could not meet the strict Refugee Convention provisions, but still faced serious harm or torture in their home country, had to go through a cumbersome three step process to have such a case considered. You could only access the personal powers of the minister under s417 after a decision at the RRT.
The process was not transparent, somewhat arbitrary and unreviewable. By making an assessment on Complementary Protection as the second part of the protection visa process, the law meant that these often complex cases could be considered at an earlier stage and avoid the costs and trauma of further processes. It also brought Australia in line with other developed countries such as Canada, the UK and European Union in terms of having such a process as part of the mainstream application, rather than some hidden personal intervention by the minister. Once again these basic human rights provisions are being sidelined.
Minister Morrison wants to be the only person to make such decisions. This is a retrograde step, as well as administratively and legally irrational. He stated that Complementary Protection was promoted by smugglers, yet only 57 positive decisions over the last year or so makes you wonder how much of a promotion for smugglers it really is. How the grant of 57 visas means losing control over Australia's protection obligations is a mystery.
Complementary Protection was a successful and positive reform. It meant that the complex case that did not quite fit the Refugee Convention could be argued on other grounds. While there were problems with the drafting, this could have been fixed if the suggestions of UNSW Professor McAdam had been adopted by the previous government. Morrison does not want to improve the system, he wants to control it. Already there have been strong criticisms of the bill and time will tell if the Senate passes it or not.
Kerry 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.
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