Enforcing Precariousness: The Re-establishment of the Temporary Protection Visa in Australia

Anne Neylon, Lecturer in Law, @ Liverpool University, and PhD candidate, CCJHR, U.C.C., School of Law

Anne NeylonLast week, the Australian Minister for Immigration and Border Protection, Scott Morrison, announced that he intends to reintroduce a controversial policy of granting temporary protection visas (TPVs) to recognised refugees. These visas permit the refugee to remain in Australia for a period of three years, after which, their continuing need for protection is re-assessed. The TPV system previously existed between 1999 and 2008. The TPV system was condemned as leaving refugees in a kind of limbo, often resulting in refugees suffering re-traumatisation. The system was eventually abolished in 2008. In a factsheet setting out the reasons for the abolition, the Australian government stated, ‘[t]hese people have been living with uncertainty and should not have to go through the refugee determination process again to gain permanent residence.’

However, the issue of the TPV is once again in the spotlight as the Minister has proposed the reintroduction of the visa under the  Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. The bill also proposes to amend the existing migration legislation to remove most references to the 1951 Refugee Convention and replace them with Australia’s own interpretation of its obligations to asylum seekers and refugees. In addition, the bill permits the Australian Government to remove an individual from Australia without any requirement for the authorities to review whether such a return will result in refoulement. Further, the bill also provides the Minister for Immigration and Border Protection with increased powers to direct boat turnbacks, as well as allowing for boats of asylum seekers attempting to enter Australia, to be sent to another jurisdiction. The latter provision would apply regardless of whether Australia has a pre-existing agreement with such a state to send asylum seekers to the third state’s territory.

The re-establishment of the TPV also comes alongside the creation of a new kind of visa called the Safe Haven Enterprise Visa (SHEV). The SHEV is offered to individuals who have been recognised as refugees in Australia. The proposed SHEV would entitle the refugee to work in Australia for a period three and a half years. Following the initial three and a half year period, the refugees would also be permitted to apply for other onshore visas such as family visas and skilled visas. However, such visa holders are only allowed to live in areas in Australia that are deemed to have labour shortages and they are prohibited from ever applying for a permanent protection visa.  The abovementioned visas are designed to deal with so-called ‘legacy’ cases. These visas are only made available to those who have been recognised as refugees and any refugee who is granted a TPV is precluded from ever accessing a permanent protection visa (PPV). The proposed visas are also only available to recognised refugees who are on Australian territory, either mainland Australia or Christmas Island. Asylum seekers who tried to enter Australia and were re-directed to Nauru and Manus will not be able to enter Australia, even if they are recognised as refugees. The TPV and SHEV referred to in the 2014 Bill therefore will not apply to refugees on those islands.

The TPV, the SHEV, and the normalisation of precarious refugee statuses in Australia

While the TPV system was abolished six years ago, the 2014 Bill is not the first attempt by the current government to re-introduce the TPV system. In 2013, the Minister for Immigration attempted to introduce another bill which would have re-established the TPV system under the Migration Amendment (Reinstatement of Temporary Protection Visas) Bill 2013. The 2013 Bill was however rejected by the Labor and Green members of the Australian Senate in December 2013. However, since one of the central election promises of the current Australian government was the reintroduction of the TPV, the government is once again attempting to establish the TPV as a key feature of Australian asylum law and policy.

In the case of Minister for Immigration and Multicultural Affairs v. QAAH of 2004, the High Court of Australia had to decide how a refugee’s ongoing need for a protection visa should be determined under the previous TPV scheme.The issue under dispute in QAAH was whether the cessation standards set out in the Refugee Convention(in particular Article 1C5), should apply to TPVs when the residence permit had expired, or whether Australian domestic law would be the standard used to determine whether the individual was still in need of a protection status. There, the court stated, ‘it is the law of Australia which prevails in case of any conflict between it and the Convention. It is the law of Australia which must be first identified.’ While the Convention may guide the interpretation of the Refugee Convention, the Court stated, it was the wording of the domestic legislation which took primacy. The implication of this decision was that when the refugee’s ongoing need for protection was being assessed, the refugee had to prove afresh that she was in need of protection as per the refugee definition set out in Article 1A. This standard places a considerable burden on the refugee and makes her legal status in Australia much more precarious. QAAH remains the leading case in relation to cessation of status in Australia. Therefore, if the TPV is reintroduced, refugees who are granted such a visa are in a particularly vulnerable position. If the TPV refugee is unable to demonstrate that she is a refugee, as per the definition Australian domestic legislation, she faces the possible loss of refugee protection and potentially, being returned to her country of origin.

It should be noted that Australia is not alone in its move toward the granting of a more temporary legal status to recognised refugees. In other states located in the Global North, a similar trend has emerged. States such as the UK and Germany have granted such residence statuses for many years, and Canada provides a limited residence status to refugees who arrive to the state as part of a smuggling operation. However, in those jurisdictions, refugees are not required to establish that they continue to be in need of protection at the point that their initial residence permit expires. As UNHCR has attested, the burden should be on the state to demonstrate that the refugee in question is no longer in need of refugee protection. This position is taken not only on the basis of UNHCR’s interpretation of Article 1C5, but in order to reflect the unequal resources to provide evidence and proof available to the refugee in comparison to the state.

As noted above, the 2014 Bill also introduces a new kind of temporary protection work visa for recognised refugees known as a SHEV. If a refuge satisfies a number of strict criteria under the 2014, she may apply for a SHEV, which entitles her to enter and work on the Australian territory for a period of five years. If the refugee does not claim income support for a period of three and a half years, she may then be entitled to apply for further visas, including a visa to facilitate family reunification. Despite the further opportunities to remain stemming from the initial SHEV, the Minister for Immigration has strongly emphasised that those refugees who are granted a SHEV will never be entitled to a permanent residence status. Therefore, according to the Minister, while the SHEV might bring refugees as workers to remote and less populated areas of Australia, it does not allow them to permanently settle there. The long term benefit to these areas of Australia on the basis of the SHEV is therefore diminished as a result of the uncertainty attached to their residence status.

However, despite the strong resistance by the Minister, it has still been suggested that the SHEV would in fact offer a sort of pathway to citizenship.  This nonetheless remains unclear. Even if the SHEV was to be conceived as a tentative path to citizenship, it sets a poor precedent as to what criteria refugees must fulfil before they are entitled to apply for citizenship. Their value as potential citizens is tied to their willingness to submit to an extremely limiting work programme for a period of five years. The alternative to this programme however is either a TPV, which provides an inherently precarious legal status, or else not access to the Australian state at all. The SHEV is therefore a highly coercive tool, a strange version of nation-building, but without any clear long-term advantage to the refugee given. While the SHEV possibly offers a more secure residence status than the TPV, there is still no guarantee that the refugee will ever acquire a permanent residence status in Australia. Further, the long term benefit to the areas of Australia that the refugees would be sent as part of the SHEV is called into question. The problem that such areas face is that they face difficulties in not only attracting people to come work there, but to remain there long-term in order to expand the community.

Conclusion

If passed, the 2014 Bill would set a worrying precedent in terms of the content of refugee protection available to recognised refugees in a developed state. In this regard, the re-introduction of the TPV represents a serious regression for Australian asylum law. As noted above, because of the way in which Australia reviews the need for protection when the TPV expires, the refugee is at a serious risk of losing protection status, and is potentially being returned to her country of origin. Because the 2014 Bill would potentially abolish the requirement that the state review whether the return of an individual would result in refoulement, refugees who are granted TPVs are at particular risk if the 2014 Bill were to be introduced. In addition, the creation of the SHEV marks a potentially more exploitative turn in the nature of refugee residence permits made available. While the SHEV might offer the refugee an opportunity to enter and work in Australia, this opportunity is consistently limited in order to allow Australia to achieve its contradictory goals of developing remote areas of the state, and being seen to only grant temporary protection statuses to recognised refugees.

What is clear from the 2014 Bill is that if refugee protection is available to refugees in Australia, it exists exclusively on the Australian state’s terms. This includes using refugee status as a source of cheap labour in sparsely populated parts of the country. Those refugees who would move to Australia on the basis of a SHEV would also be tied to an allocated territory and would be precluded from travelling outside Australia. The reintroduction of the TPV and the establishment of the SHEV signals the emergence of the intensive management and control of the refugee population, even after the point of refugee status recognition. Fundamentally, the introduction of the 2014 Bill raises serious questions about the future of refugee status as a form of meaningful protection, in Australia, and beyond.