A Valentine’s Day present from the Minister for Immigration for those on temporary protection visas is a much-anticipated relief for approximately 19,000 refugees in Australia. Like the old Punch cartoon’s Curate’s egg, it is good in parts. Whilst a solution is welcome for these refugees, there remains around a further 10,000 whose status and future is uncertain.
Labor promised to create a pathway to permanent visas for those on Temporary Protection visas. This was achieved by a series of changes to the Migration regulations which means it does not need to introduce change to the Parliament. The Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status [ROS] Visas) regulations commenced on 14 February 2023.
The TPV is a three-year visa, the SHEV is a five-year visa — both are technically temporary protection visas. The permanent protection visa is not available to those who arrive by boat.
The joint press release of Minister Giles and Home Affairs Minister O’Neil started by reaffirming the boat turn back policy operated by the previous Coalition Government. It then went on to explain the purpose of the change:
‘There are thousands of TPV and SHEV holders in the community that have endured ten years of uncertainty due to the policies of the previous Liberal government.’
‘TPV and SHEV holders work, pay taxes, start businesses, employ Australians and build lives in our communities- often in rural and regional areas. Without permanent visas however, they’ve been unable to get a loan to buy a house, build their businesses or pursue further education.’
‘It makes no sense — economically or socially — to keep them in limbo.’
Indeed, it never made sense to keep refugees in limbo, but that was the policy of the Coalition from September 2013. Even under the Howard Government, many of the first TPV holders were able to transition to permanent visas after at least three years provided the refugee criteria was still met.
'Hopefully this policy of humanity will extend to other more complex cases, rather than the absolutist puritanism of the previous regime. When you are dealing with people’s lives, you need a system that has flexibility, not one that is rigid.'
Mental Health Experts and others had lobbied the Howard Government about the seriously deleterious effect on refugees of the uncertainty, the long processing periods, and forced family separation. This was on top of whatever trauma the refugees were already living with from their experiences or fears of persecution. These adverse mental health consequences of TPVs were well documented in the medical Journal of Australia in 2006. The study compared those who had TPV’s with those who had permanent protection visas. A conclusion of the study by specialists familiar with the mental health issues for refugees noted:
TPV status made a substantial additional contribution, being by far the greatest predictor of PTSD symptoms, accounting for 68 per cent of the variance (with those holding permanent protection visas). Adverse prior detention experiences and current living difficulties each made substantial and independent contributions to PTSD symptoms. Current living difficulties were also associated with general distress, anxiety and depressive symptoms.
Despite this carefully documented medical opinion, the Abbott Government started the process all over again. They were on notice that the TPV policy would most likely cause adverse mental health consequences for the refugees. Rather than try and ameliorate this, the Abbott/Morrison TPV process presented little real hope for these refugees of ever getting a permanent visa.
As expected, the policy caused major mental health issues for refugees who were unable to sponsor their spouse and children to Australia. Many have been separated from family for over 10 or more years. Families have split up; children have grown up and are now too old to be sponsored. Children must be under 23 at the time of a decision to be included as a member of the family unit on a partner visa. A child visa can be granted up to 25 years old, but the child must be in full time study for a degree, diploma or certificate. Not easy for some communities, such as Afghan Hazaras with daughters whose only alternative was to be married whether they wanted to or not. Living under the ‘Protection of a male relative’ being the cultural norm.
Despite the intentionally adverse harm caused to the refugees, the opposition, reacted as could be predicted. Liberal Deputy leader Sussan Ley stated:
The concerning information that’s come out of Senate estimates about the dismantling of temporary protection visas should concern every Australian … We’ve seen this movie before. I was in the parliament in 2008 when Kevin Rudd did exactly this, dismantled our border protection, and the result was absolutely horrific. Australians saw that and they don’t want to go back there.
What should concern Australians in that the deliberately punitive policy of the Coalition caused serious harm to people who are likely to be already traumatised by their refugee experience. People who Australia accepted as refugees, under a tightened process which had features that made refusal of cases easier, especially in the intentionally limited review process of the Immigration Appeals Authority.
So, what is the new process? Refugees in Australia who have a TPV or SHEV visa will be will be converted to a permanent Resolution of Status Visa, subclass 851 (ROS). This is the same visa used in 2008 when the Rudd Government abolished the first TPVs. This benefit will also extend to those whose temporary protection visas are about to expire. If a refugee has their spouse and or children with them in Australia, they are included in that process.
Children of boat arrival refugees born in Australia without an Australian parent or a permanent resident parent, are deemed to have arrived by boat whether they have even ever been near the sea or not. They are termed ‘Unauthorised Maritime Arrivals’ (UMA) and are granted temporary protection with their parents.
There are a significant number of people who do not directly benefit from this change. The exact number is unclear, estimated around 10,000 people who are not in the above groups. This includes those UMA people still seeking protection in Australia and may be in the Courts challenging decisions, or perhaps in a Ministerial intervention process. They need to meet the protection criteria to get the ROS prize.
We have seen a number of Afghans who the IAA said could safely relocate to another part of Afghanistan before the Taliban took over, now wait for the Minister to personally intervene and allow them to reapply for protection given the changed circumstances in Afghanistan since August 2021.
There are also people from Myanmar, Iraq, Sri Lanka and Iran in this process, or still in the Courts challenging decisions made often years ago.
Others who have cases which do not meet the strict protection visa requirements, but may be stateless, or be in relationships with Australians. These people have no direct route to the 851 visa, but can only await the literal personal intervention of the Minister. Hopefully the Guidelines will be updated and not be so restrictive in their operation.
There is also the issue of people from Nauru and Manus Island, a number of whom were evacuated to Australia for medical reasons, despite the hysterical opposition of the previous government to the Medivac process. These people are not labelled UMA, they have their own description — transitory person. They are also not covered by the Valentine’s Day announcement. They are still expected to leave, even though a number may be in relationships with Australians.
It is foreseeable that such more complex cases will still take some years to resolve. These cases were previously in a total limbo, without a resolution onshore. Partners were forced to separate for what could be long periods whilst the person who was designated a UMA, left Australia and waited to be sponsored back by their Australian partner.
This is not always a workable option, especially where there are young children, or maybe a sick partner or child, needing support and care from their ‘UMA’ partner or parent. The creation and application of strict statutory bars which are there to prevent any application for a visa onshore without the personal intervention of the Minister may be nice in theory. However, the reality is legally messy and can be traumatic for people.
Labor stated they will maintain a strict border policy of turn backs, despite some very serious concerns about how this is done. They say their policy will ‘keep our borders safe while showing humanity too.’ This is not an easy balance to maintain.
Hopefully this policy of humanity will extend to other more complex cases, rather than the absolutist puritanism of the previous regime. When you are dealing with people’s lives, you need a system that has flexibility, not one that is rigid.
Kerry Murphy is an immigration and refugee lawyer and part-time lecturer on immigration and refugee law at ACU.
Main image: An Iranian detainee walks back to her room after hanging up her laundry at the Construction camp detention center used for younger men and women and children on Christmas Island, Australia. (Paula Bronstein/Getty Images)