Temporary protection visas

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  Factsheet: Temporary Protection Visas

Contents


What are Temporary Protection Visas (TPVs)?

The TPV (Temporary Protection Visa) is a class of visa that was introduced in Australia by the Howard Government in October 1999 and abolished by the Rudd Government in August 2008.1 Under the Howard Government’s TPV regime, the type of visa granted depended upon how the person had entered Australia. Those who had arrived in Australia with a visa – typically by plane – were eligible for a permanent Protection Visa (PV), allowing them to live permanently in Australia. However, those who had arrived in Australia without a visa – typically by boat – were eligible only for a TPV. The TPV was valid for three years, after which the person holding the TPV was required to re-apply for protection to remain in Australia.2

Initially, the policy allowed TPV recipients to apply for a permanent PV at the point of reapplication. However, amendments to the TPV regime in 2001 made this much more difficult. If a person holding a TPV had spent seven days or more in a country where they could have sought and obtained protection en route to Australia, they were not eligible for a PV and could only apply for another TPV.3   This was known as the ‘seven day rule’. This meant that most refugees who arrived by boat would remain indefinitely on a TPV.

Under the Howard Government’s policy, refugees on TPVs were granted work rights but denied other rights that were available to refugees on permanent PVs, including the right to family reunion and the right to re-enter the country if they decided to leave Australia. They were also denied a range of services available to refugees on permanent PVs, including community support programs and English language tuition.

Approximately 11,000 TPVs were issued between 1999 and 2007, and approximately 90 per cent of TPV holders eventually gained permanent visas.

On 5 December 2014, the Abbott Government passed the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.  Under this scheme, TPVs can be granted for up to three years, and holders are entitled to work. However there is no right to family reunification, and TPV holders will not have access to various welfare support mechanisms.

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What are Temporary Humanitarian Concern visas (THCVs)?

Two other types of temporary visas are the Temporary Safe Haven Visa (Class UJ) and the Temporary (Humanitarian Concern) Visa (Class UO).  The Safe Haven Visa was originally created in 1999 to provide temporary refuge to people from Kosovo, and includes a sub-class of visa, the Humanitarian Stay (Temporary) Visa (sub-class 449), which was created to provide temporary refuge to people from East Timor.4  The Temporary (Humanitarian Concern) Visa was originally created in 2000 for people who held the ‘Safe Haven’ Visa and who needed to extend their stay in Australia for further medical treatment or counselling.5  This visa cannot be applied for directly. Rather, an eligible person must first be invited to accept the Safe Haven Visa which will then allow the Department of Immigration and Border Protection to grant them a Temporary (Humanitarian Concern) Visa.

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What are Safe Haven Enterprise Visas (SHEVs)?

The creation of a new Safe Haven Enterprise Visa (SHEV) was announced on 25 September 2014. Under the scheme, TPV holders have the opportunity to transition to a five-year SHEV if they agree to move to a regional area (to be defined in the Regulations), and engage in study at an approved institution (to be defined in the Regulations), or undertake work that means they are not reliant on income support for more than 18 months in the five-year period. At the end of the five years, they will be eligible to apply for a standard onshore migration visa giving rise to permanent residence.

However, statements by the then Minister for Immigration, Scott Morrison, suggest that the SHEV is not intended as a solution for many people.  The Minister stated that the threshold for applying for a migration visa will be very high, and, of those who wish to apply for one, said: ‘Good luck to them if they choose to do that and if they achieve it’.6

There are concerns that these visas will not be a viable option for refugees who are suffering from physical or mental disabilities or who are unable to work, such as young adults or those who arrived in Australia as unaccompanied minors.

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Differences between temporary and permanent visas

The table below summarizes the key differences between THCVs, TPVs and permanent PVs under the Abbott government’s current policy. It is expected that SHEVs will generally have the same conditions as TPVs, other than the differences described above.

Table: Differences between temporary and permanent visas

 

Temporary (Humanitarian Concern) Visa

Temporary Protection Visa

Permanent Protection Visa

Visa provision

Temporary (Humanitarian Concern) Visa issued for periods of up to three years; may be for a shorter period, as assessments made on a case-by-case basis. Holders will need to have their claims for further protection assessed before the visa expires, in order to obtain another temporary visa. TPVs issued for periods of up to three years. TPV holders may apply again when the visa expires. Immediate permanent residency.

Income assistance

Access to social security benefits (Centrelink). Eligible for benefits set at Minister’s discretion; may have mutual obligation restrictions (e.g. ‘Work for the Dole’). Access to a full range of social security benefits.

Settlement support 

Access to job-matching and short-term counselling for torture or trauma. Access to services and support unclear. The  Minister has discretion to grant access to settlement services or support, but there is no entitlement to such support. Access to full range of settlement support services. 

Work rights/Employment

Permission to work.  Permission to work (holders of SHEVs experience restriction based on geographic location). Ability to find employment impeded by temporary status. Permission to work and access to all employment services.

Health care 

Access to Medicare. Eligible for a temporary Medicare card. Same access to Medicare as any other permanent resident.

Education

Able to study, but details as to whether school students will have to pay domestic or international fees unclear (and depend on individual schools and state/territory policies). Adults may study but must pay enrolment fees for courses. Access to primary and secondary education for children. 
Fee requirements for adults unclear.
Same access to education as any other permanent resident; some additional supports available based on need.

Language training 

Holders are able to complete any Department of Immigration and Border Protection-funded ESL programmes that they were already participating in at the time of being granted the visa. Eligibility for English language education unclear.  510 hours of English language education.

 Family reunion 

 No rights to family reunion.  No rights to family reunion. Can apply to sponsor immediate family members (spouse and children).

 Overseas travel

 No right of return; 786 visa forfeited upon leaving Australia. Must obtain permission in writing. Department has advised that travel will only be allowed if the TPV holder can show compassionate or compelling circumstances.
TPV holders are not allowed to travel to the country from which they sought protection.
Can leave and re-enter Australia.

Sources: Refugee Council of Australia (2013); Department of Immigration and Border Protection, Temporary Humanitarian Concern Visa (Factsheet, February 2013); Expert Panel on Asylum Seekers (2012); Department of Immigration and Border Protection, Temporary Protection Visas (2014). 

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What is the Australian Government’s policy on TPVs?

On 18 October 2013, the Abbott Government reintroduced TPVs under a policy similar to that which operated under the Howard Government. Asylum seekers who arrive by boat and are found to be refugees or in need of complementary protection would be eligible only for TPVs, not permanent PVs. Under the policy, the duration of TPVs was to be determined on a case-by-case basis, although no TPV would exceed three years in duration. If a person was still found to be in need of protection at the end of the three-year period, he or she could apply for a subsequent TPV.

The rationale for the Coalition’s policy is the same as that which underpinned the Howard Government’s TPV regime: to deter asylum seekers from coming to Australia without a prior visa (unauthorised arrival by boat or by plane) by denying them rights that are available to asylum seekers who arrive in Australia by authorised means. However, both the Labor Party and the Greens are opposed to TPVs, with the result that the Government has been using other strategies to prevent the grant of permanent Protection Visas. 

On 2 December 2013, the Senate disallowed the Migration Amendment (Temporary Protection Visas) Regulation 2013 under which TPVs had been re-introduced. In commenting on the disallowance, Minister for Immigration, Scott Morrison, told ABC radio that the government would continue to refuse asylum seekers permanent visas, but did not state how this would be achieved. On the same day, the Minister made a determination capping the number of Protection Visas for the 2013-2014 financial year at 1,650. However, this determination was revoked on 20 December 2014, days before a legal challenge in the High Court of Australia.

On 12 December 2013, a new Regulation was made, the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth) (UMA Regulation). The Regulation introduced a new visa criterion for permanent Protection Visas, with the effect that unauthorised maritime arrivals would be unable to obtain such visas. However, the UMA Regulation was disallowed on 27 March 2014. 

On 5 February 2014, the Abbott Government announced that asylum seekers found to be refugees or in need of complementary protection, who have arrived without a prior visa, would be granted a Temporary (Humanitarian Concern) visa, described above. Those given such visas were barred from making applications for other kinds of visas, including permanent Protection Visas. On 4 March 2014, the Minister made a new determination capping protection visas for the 2013-2014 year at 2,773. However, on 20 June 2014, the High Court of Australia ruled that these determinations were invalid, because the Act did not authorise the capping of protection visas.

On 22 July 2014, the Minister granted permanent protection to one of the asylum seekers involved in the High Court challenge. However, on 18 July 2014, the Minister refused to grant a protection visa to the other asylum seeker, on the basis that it was not in the ‘national interest’, and also issued a certificate preventing review of the decision by the Refugee Review Tribunal. This decision is currently being challenged by the High Court, which will hear the matter on 9 December 2014.

On 25 June 2014, the Government introduced the Migration Amendment (Protection and Other Measures) Bill 2014. Schedule 3 of the Bill would bar people holding Safe Haven or Temporary (Humanitarian Concern) Visas from applying for a Protection Visa unless the Minister exercised a personal discretionary power to enable protection. This would replace the existing bar on applying for any other kind of visa. The effect of this change would be to facilitate the transfer of people holding Safe Haven or Temporary (Humanitarian Concern) Visas on to a Temporary Protection Visa with lesser benefits, if and when temporary protection visas become available again. On 22 September 2014, the Senate Legal and Constitutional Affairs Legislation Committee recommended that this Bill be passed. The Bill is currently before the Senate.

On 11 September 2014, the High Court ruled in Plaintiff S4/2014 v Minister for Immigration Border Protection [2014] HCA 34 that the grant of the Safe Haven Visa and Temporary (Humanitarian Concern) Visa to a plaintiff who had already been assessed as a refugee was invalid. The plaintiff had arrived by boat to Christmas Island in December 2011, and had been assessed under the then-existing administrative process as a refugee, and met all required health and security checks. However, the Minister granted the plaintiff the Safe Haven and Temporary (Humanitarian Concern) Visas rather than a Protection Visa. The High Court held that the Minister had already begun considering exercising his personal, non-compellable power to allow the plaintiff to apply for a Protection Visa, and could not then exercise his power to grant Temporary Visas which had the effect of barring the applicant from making an application for any other kind of visa.

As a result, the grant of these visas to asylum seekers whose claims had begun to be processed under the previous government is now invalid. The effect of this is that the asylum seekers are able to apply for permanent Protection Visas, but no longer have lawful status in Australia. 

On 25 September 2014 the Minister introduced into Parliament the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. The Bill provides for the reintroduction of TPVs.

The Bill was considered by the Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills. It has also been considered by the Senate Legal and Constitutional Affairs Committee.

For further information on the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill, see our legislative brief.

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What are the impacts of TPVs on refugees?

In 2006, the Senate Legal and Constitutional Affairs Committee, in its Inquiry into the Administration and Operation of the Migration Act 1958 (Cth), found there was ‘no doubt’ that the operation of the TPV regime had a ‘considerable cost in terms of human suffering’. By introducing the risk that refugees might be removed to the country where they had feared persecution, and by denying refugees the right to be reunited with their families, TPVs had detrimental effects on the mental health of refugees. These detrimental effects were compounded by limiting the entitlements of TPV holders to access accommodation, language training, health care and other essential services.7 Moreover, refugees who faced the prospect of ‘rolling’ TPVs were placed in a state of ongoing legal limbo. A study by mental health experts in 2006 found that refugees on TPVs experienced higher levels of anxiety, depression and post-traumatic stress disorder than refugees on permanent PVs, even though both groups of refugees had experienced similar levels of past trauma and persecution in their home countries.

The particular impacts of TPVs on children were documented in 2004 by the Australian Human Rights Commission, which found that the uncertainty created by TPVs detrimentally affected the mental health of children and their ability to fully participate in educational opportunities in Australia.8 TPVs also had the effect of separating children from their parents and family for long, and potentially indefinite, periods of time.9

In addition to the human costs of TPVs, the TPV regime was also bureaucratically inefficient. It required the full reassessment of an individual’s protection claim from scratch at the expiration of the TPV.

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Are TPVs consistent with international law?

Under international law, temporary protection is an exceptional measure that is generally only applied in in situations of mass movements of asylum seekers, when individual refugee status determination is impracticable because of those large numbers.10 Temporary protection is also used to grant protection to a broader class of individuals than those who are covered by the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, such as those fleeing armed conflict or other emergencies. By contrast, the Australian TPV regime is used to grant protection to all asylum seekers who had been individually assessed to be Convention refugees, simply on the basis that they have arrived in Australia without a visa.

The Australian TPV regime has significant implications for Australia’s compliance with international human rights law. By creating two classes of refugees – those who come to Australia by boat and those who come by authorized means – the TPV regime may constitute a breach of the right to non-discrimination.11 Its explicitly punitive underpinning may also constitute a penalty in violation of article 31 of the Refugee Convention.12 Moreover, by denying refugees the ability to reunite with their families, the TPV regime may also infringe the right to family and the freedom from arbitrary interference with family life. It is possible that the cumulative impact of these factors, including on refugees’ mental health, may constitute cruel, inhuman or degrading treatment in violation of Australia’s obligation under article 7 of the International Covenant on Civil and Political Rights.

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Do other countries use TPVs?

Australia has a unique approach in how they issue TPVs. Most countries in the European Union such as Germany and Denmark, grant refugees permanent protection either upfront, or on renewal. They do not issue rolling temporary visas like the Australian approach. In New Zealand, once asylum seekers are found to be refugees, they are granted a temporary visa. Their status is reassessed after 3 years before they are eligible for permanent residence. In the United States, refugees are eligible to apply for permanent residence after one year if they continue to be a refugee while in Canada; refugees may apply for permanent residence once they are granted refugee status.

European Union 

Under the European Union’s Qualification Directive, individuals found to be refugees are granted residence permits that are valid for at least three years and renewable. Unlike in Australia, residence permits in the EU are also granted to family members of refugees, which are valid for less than three years and renewable. The United Nations High Commissioner for Refugees has expressed its concern about these provisions, indicating that ‘[s]hort-term residence permits are detrimental to refugees’ security and stability’ and that ‘provisions in the Qualification Directive on the duration of residence permits … may not be conducive to integration’.13

In practice, most States grant refugees permanent protection either upfront, or on renewal. They do not issue rolling temporary visas like the Australian approach.

Since 2011, under the EU’s amended Directive concerning the Status of Third-Country Nationals who are Long-Term Residents, refugees who have legally resided in a Member State for five years may claim a long-term residence permit.14 A long-term residence permit is ‘a permanent status that gives the holder a right to equal treatment with nationals in relation to the areas mentioned in the Directive, including access to employment, education, social security and social assistance.’

For instance, in Germany, refugees are granted a residence permit valid for three years, and if found to be in need of continued protection at the expiration of this period, are eligible for a settlement permit, which provides them with a permanent status.15 Unlike the Australian TPV policy, refugees on a German residence permit are given the same status as Germans within the social insurance system16 and have a right to family reunion.17  In Denmark, refugees are granted a residence permit valid for seven years, and if found to be in need of continued protection at the expiration of this period, are eligible for permanent residency.18

New Zealand

New Zealand has recently passed laws designed to address ‘mass arrivals’ of asylum seekers (that is, asylum seekers arriving in NZ in a group of 30 or more). As part of the changes, asylum seekers who arrive in NZ as part of a ‘mass arrival’ and who are found to be refugees are to be granted temporary visas and to have their status reassessed after three years before they are eligible for permanent residence. Under the changes, immediate family members may be sponsored only after residence has been granted, and extended family members are ineligible for sponsorship. According to the Immigration Minister Michael Woodhouse:

‘These policy changes are considered to be an important deterrent to a mass arrival. Asylum seekers may be less likely to endanger their lives by attempting to travel to New Zealand by sea if they know they must wait for three years and have their claim reassessed before they can apply for residence, and if they are unable to reunite with extended family members.’19

United States

Asylum seekers who are found to be refugees in the US become eligible to apply for permanent residence after one year if they continue to be a refugee.20 They may apply for family reunion upon being granted refugee status in the US.21

Canada

Asylum seekers who are found to be refugees in Canada may apply for permanent residence upon being granted refugee status.22

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Do TPVs deter asylum seekers?

There is little evidence that TPVs have a deterrent effect. Indeed, after TPVs were introduced by the Howard Government, there was an increase in the numbers of women and children who arrived in Australia by boat. According to personal accounts, this was because the TPV regime precluded family reunion.23 The ineffectiveness of TPVs is the very reason that they were abolished by the Rudd Government.

The following tables, which provide a breakdown of boat arrivals by age and gender in the two years before and after the introduction of TPVs, show an increase in the number of women and children arriving in Australia after the introduction of TPVs.24

Source: Budget Estimates 2012-2013, Senate Legal and Constitutional Affairs, Immigration and Citizenship Portfolio, Reply to Question on Notice BE12/0265

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Further reading

Edwards, Alice, ‘Tampering with Refugee Protection: The Case of Australia’ (2003) 15 International Journal of Refugee Law 192

Hoffman, Sue, ‘Temporary Protection Visas & SIEV X’, Sievx.com, 6 February 2006

Human Rights Watch, Commentary on Australia’s Temporary Protection Visas for Refugees (13 May 2013)

Leach, Michael, ‘Back to the Future on Temporary Protection Visas’, The Conversation, 27 August 2013

Liberal Party of Australia and National Party of Australia, The Coalition’s Policy to Clear Labor’s 30,000 Border Failure Backlog (August 2013)

Mansouri, Fethi, Michael Leach and Amy Nethery, ‘Temporary Protection and the Refugee Convention in Australia, Denmark and Germany’ (2010) 26 Refuge 135

Marston, Gregory, Temporary Protection, Permanent Uncertainty: The Experience of Refugees Living on Temporary Protection Visas (Centre for Applied Social Research, RMIT University, 2003)

McAdam, Jane and Tristan Garcia, Submission to the National Human Rights Consultation, 10 June 2009, 26

Momartin, Shakeh, Zachary Steel, Marianio Coello, Jorge Aroche, Derrick M Silove and Robert Brooks, ‘A Comparison of the Mental Health of Refugees with Temporary versus Permanent Protection Visas’ (2006) 185 Medical Journal of Australia 357

Phillips, Janet, Temporary Protection Visas (Research Note No. 51, Parliamentary Library, 11 May 2004)

Refugee Council of Australia, Position Paper on Australia’s Use of Temporary Protection Visas for Convention Refugees (September 2003)

Refugee Council of Australia, Temporary Protection Visas (Policy Brief, 24 September 2013)

Refugee Council of Australia, Use of Temporary Humanitarian Concern Visas as an alternative to Temporary Protection Visas (Factsheet, 6 February 2014)

Report of the Expert Panel on Asylum Seekers (2012), Attachment 4: Australia’s Contribution to International Protection

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Endnotes