Specialist immigration lawyer and partner at D'Ambra Murphy Lawyers, and lecturer at Australian Catholic University
With our world inverted and way of life dramatically changed, there are specific issues facing asylum seekers and refugees in the age of COVID-19. Apart from experiencing the same dramatic changes as others in the community, there are areas which specifically adversely affect this group of people.
Immigration Department interviews for protection cases seem to be delayed, or moving to phone interviews. Already the Administrative Appeal Tribunal (AAT) is only having hearings by phone. While this is not ideal, it can work. However, if the technology fails, if the line keeps dropping out, or the interpreter or applicant’s line is not clear, then the applicant may well be disadvantaged in presenting their case in a process that can be intimidating for applicants.
The ability to fund private representation is reduced due to job losses for asylum seekers. There may be technology-accessibility issues for some applicants, and representatives, when the only possible access for advice and representation is virtual. It is common to have appointments with asylum seekers that go for at least two or more hours. This is more difficult where the technology and links to interpreters become an issue. It can also be more stressful for applicants.
Those applicants who have lodged an application and are still awaiting a decision will usually hold a bridging visa, but they may not have access to any income support, or it is very limited. Few will have private healthcare and so will be relying on Medicare – if that is available on their bridging visa. Not every asylum seeker holding a bridging visa will be able to access Medicare.
Bridging visas are an overly complex area of migration law. It is a mystery why it needs to be so complex. There are seven different subclasses of bridging visas, and a variety of conditions that can attach to each according to different circumstances. This is especially complex for those on Bridging Visa E, commonly held by those who arrived by boat and are still awaiting a final decision on their case.
The statutory bar on people arriving by boat applying for any visa literally requires the personal intervention of the Minister for any visa to be granted. At the moment, there are problems for people being granted bridging visas while challenging the decisions of Immigration Appeals Authority in the courts. This leaves them unlawful, and unable to work, or to access any Medicare or official support. They are also at risk of immigration detention.
This risk of detention is increased under social distancing restrictions, with police checking why people are moving about to see if they have a legitimate reason for not staying at home. Just being charged with an offence can lead to cancellation of a bridging visa, which would lead to immigration detention. An added concern is that if someone whose status is unlawful does have COVID-19 symptoms, they may be afraid to get tested, fearing that could lead to detention. Some states are waiving the test fee for those in public hospitals, but all it takes is an overly zealous official and the person could be reported to the Immigration Department. One would hope that the Department does not want to risk filling up detention centres with potential COVID-19 cases.
Those refugees holding a Safe Haven Enterprise Visa (SHEV) are in a particularly problematic situation. The SHEV is a five-year temporary protection visa with only one escape route. To be eligible to apply for a limited range of other non-protection visas, a person must meet strict criteria, including having spent 42 months in a designated regional area while on the SHEV. However, recent bushfires, and now the COVID-19 pandemic, mean that many regional employment options have gone.
While this escape route is a narrow one, which few would have met at the best of times, now it is much harder. There is no discretion to waive the 42-month threshold; it is an absolute requirement. The designated regional areas were already limited compared to the general regional migration options. So in the regional migration program, if you live or work in certain regional areas, that can assist in sponsorship or gaining points for points-tested migration.
However, the number of regional areas available for SHEV holders is considerably less than the normal regional migration program. The regional areas are listed according to postcode, and the areas have not been increased, regardless of whether there are any realistic work or study option in these areas.
Another formal requirement for SHEV holders studying in a regional area is that the study is face-to-face, not online. At the moment that is very unlikely, with most institutions moving to online study only. Already more and more courses had parts of the course online, rather than face-to-face teaching, so the requirement was an unrealistic one in the first place.
Those in financial difficulty, who may be tempted to seek government welfare payments, will face another SHEV trap. The SHEV escape route is not available for those who are paid Special Benefit by Centrelink. So, if a refugee is unemployed because of the bushfires and or COVID-19 and paid a Special Benefit, then the period he or she is in the designated regional area does not count towards the 42-month threshold.
It needs to be remembered that unlike many other longer-term temporary visas, SHEV holders cannot sponsor members of their family unit, such as a spouse or dependent child, to join them in Australia. Given that most SHEV holders arrived between 2010 and mid-2013, that means that they could already have been separated from a spouse and children for 7 to 10 years. The hope of getting a new type of visa through the SHEV escape clause is one of the few hopes faced by these refugees, and with COVID-19, the ability to sponsor any close family looks further away and even less likely.
While it is possible to travel on a SHEV, the purpose and period of the travel must be given prior approval by the Immigration Department, and such approval is not automatic. Now it is not possible, and some SHEV holders may be trapped offshore and unable to return within the period stipulated by their travel permission. This is a likely problem for Afghans or Iraqis visiting family in Iran, only to find that Iran is one of the worst places to be during the COVID-19 pandemic. It seems that extra travel permission would have been required for these SHEV holders to enable their return period to be extended so they could get back to Australia, even if they then had to self-isolate.
The requirements for face-to-face student classes and Special Benefit are made under legislative instruments, so they could be easily changed given the extraordinary circumstances we are facing. The SHEV escape route is hard enough as it is, without being made all but impossible (unless, of course, that is the intention).
Overall, we are all seriously affected by COVID-19, but there are some in the community for whom the impact will be greater. For those seeking asylum or refugees on a temporary protection visa, the adverse consequences of COVID-19 will be likely to last well beyond the immediate period of the pandemic.
|Kerry Murphy is an accredited specialist in immigration law and lecturer in migration law at Australian Catholic University.|
Read Kaldor Centre Director Jane McAdam introducing COVID-19 Watch with ‘The impacts of COVID-19 on the world’s displaced people: A watching brief’, and find all the analysis in COVID-19 Watch. Don’t miss any new posts, follow the Kaldor Centre on Twitter, Facebook and LinkedIn and subscribe free to our Weekly News Roundup, delivered to your inbox every Monday.
Image credit: Refugee Action Coalition Sydney.