Li, Cindy --- "Temporary Protection Visas: A Breach of Human Rights" [2002] HRightsDef 28; (2002) 11(3) Human Rights Defender 17

TEMPORARY PROTECTION VISAS: A BREACH OF HUMAN RIGHTS

Cindy Li, a First Year Arts student at UNSW

The Temporary Protection Visa (TPV) was introduced in 1999 along with a wave of other immigration law reforms intended to deter asylum seekers from coming to Australia by boat. In the infamous pre-election Tampa frenzy, legislators toughened up on those ‘illegal’ immigrants who arrived without a visa. After the September 2001 amendments to the Migration Act, most TPV holders were effectively barred from ever getting a permanent visa. It is now more than three years since the implementation of the TPV regime. Its social costs and its costs to our welfare system are becoming more pressing and more obvious.

What is a TPV?

A TPV is a temporary three year visa which denies refugees many of the rights which are granted to refugees who are on a permanent visa. Unlike permanent visa holders, TPV holders are not eligible for family reunion. Their access to social security, settlement support services and English training are far more limited. If they leave Australia, they are not guaranteed a right of return.

The TPV regime effectively creates a two-tiered visa system. Refugees who arrive in Australia with a valid visa are granted permanent protection visas but those who do not have a valid Australian visa are granted a TPV. This is an attempt by the government to divide asylum seekers into two groups: those who are ‘deserving’ or ‘genuine’ refugees and those who are ‘undeserving’, ‘illegal queue-jumpers’. Although all TPV holders are found to be genuine refugees, they are still discriminated against because they did not have visas when they first came.

The costs of the TPV regime

Temporary Protection Visa Holders in Queensland is the most recent comprehensive study of the impact of the TPV on refugees. It was published by the Queensland government in February last year. The findings in this report suggest that the TPV regime fosters feelings of insecurity and isolation among refugees and that it exacerbates physical and psychological health problems. This puts an enormous strain on community service providers and community organisations.

Many refugees may have experienced torture or other traumatic events and they need a sense of safety in their new country. TPV holders may, after three years, be sent back to the country from which they had originally fled persecution and this may put them at risk of further persecution. The TPV denies refugees a sense of safety simply because it is temporary. These visas place refugees in a state of limbo. It stops people from settling in their new country and rebuilding broken lives.

Temporary Protection Visas Holders in Queensland also found that among welfare providers, there was a sense of confusion about the eligibility of TPV holders to housing and education services. In the job market, employers are reluctant to employ TPV holders and many of them mistakenly believe that TPV holders do not have the right to work. Denial of access to government funded English tutoring also hinders TPV holders in the job market and in the long-term this can lead to welfare dependency.

TPVs: A breach of human rights

The TPV policy in many ways breaches Australia’s international human rights obligations. As mentioned above, the TPV may, in effect, deny refugees many basic socio-economic rights such as social security benefits. It is in breach of the 1951 UN Convention Relating to the Status of Refugees to which we are a signatory. Some human rights advocates have also argued that the TPV is also a form of indirect racial discrimination which breaches the Racial Discrimination Act (1975).

TPVs and the Convention Relating to the Status of Refugees

Many refugees simply cannot attain Australian visas or even a passport. If you are persecuted by your government, it is not possible to go to that same government to attain these legal documents. Under Article 31 of the Refugee Convention, those refugees without legal authorisation should not be penalised. Our two-tiered visa system, however, does just that. The TPV also breaches the non-refoulement obligation (Article 33): after a TPV expires, a refugee must reapply for another TPV and they may face the possibility of being returned to the country where they originally faced persecution.

TPVs and indirect racial discrimination

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) prohibits indirect racial discrimination. In the eyes of the ICERD Committee, indirect racial discrimination occurs when a particular policy has a disparate negative effect on a particular racial group that cannot be justified. TPVs can be considered to be indirectly racially discriminatory because a significant majority of TPV holders are Afghans or Iraqis. The disparate effect experienced by these TPV holders is unjustifiable because the TPV regime disregards the fact that for many Iraqi and Afghan refugees, ‘lawful’ entry into Australia was simply not an option.

The Racial Discrimination Act (RDA) implements ICERD in Australian law. The question of whether TPVs breach the RDA is a complex legal issue. The RDA prohibits discrimination on the grounds of ‘race, colour, descent or national or ethnic origin’. While national original might encompass ‘Iraqi’ or ‘Afghani, the problem really is that TPVs discriminate on the basis of country of application rather than country of origin.

Afghans and Iraqis are discriminated against because in their country of origin they face barriers in getting Australian visas. However, a few Afghans or Iraqis may apply for an Australian visa outside of Afghanistan or Iraq and they would not get TPVs when they are granted refugee status. One could then argue that these refugees are discriminated against, not on the grounds of their race as such, but on the grounds of their country of application.

TPVs: A continuation of our isolationist tradition

Whether TPVs are tantamount to indirect racial discrimination or not, it is undeniable that they are part of a very hardline stance towards asylum seekers which reflect our long held tradition of isolationism. The anti-refugee sentiment is, no doubt, strongly motivated by sinister racist vilification. Having ridden on this wave of racism in order to win the last election, there would not be a scaling back of our harsh stance. The kind of wedge politics seen during the last election campaign eliminates the possibility of a sensible and open policy making process. And so as we approach our annual Australia Day holiday, it is time for us to be reminded of how farcical it is that we sing: ‘For those who come across the seas, we’ve boundless plains to share’.