Senator Vanstone’s new rules for temporary protection visa holders are complex and confusing. It’s time for Labor to offer a real alternative, argues Peter Mares
NEW REGULATIONS to allow refugees on temporary protection visas (TPVs) to apply to stay on in Australia are a disappointment. When the immigration minister Amanda Vanstone announced the changes in July, they were widely interpreted as a major softening of policy. Finally the government was showing greater compassion towards refugees, mostly from Iraq, Iran and Afghanistan, who arrived in the country via boat from Indonesia. Vanstone herself said the changes recognised ‘the fact that many TPV holders are making a significant contribution to the Australian community, particularly in regional areas’. But the detailed rules made public this week have added a new layer of complexity to the already flawed TPV system. As Vanstone herself puts it, the government has ‘tweaked the visa entitlements’; it is ‘not changing the system of TPVs’. A few individuals may manage to negotiate the bureaucratic maze to access the small escape route that has been opened but the majority of Australia’s ‘temporary’ refugees will remain trapped, living in limbo and suffering increased confusion and uncertainty.
Overview
The fundamental change ushered in under the new rules is that TPV holders are able to apply to stay on in Australia without first giving up their right to protection as refugees. Under the old rules, anyone on a TPV who wanted to apply for a ‘mainstream’ (non-refugee) visa had to leave the country first. The government has also relaxed some requirements in some categories (such as English language skills) to make it easier for TPV holders to qualify for residency. While these changes sound good in theory, the available visa categories remain narrow. Many of the visas potentially on offer confer only temporary residence status (as students, for example). Refugees who wish to avail themselves of these new visa opportunities will require significant financial resources or backing from a generous sponsor.
Regional Migration
The new rules are partly a response to lobbying by government MPs from rural and regional Australia who see TPV-holders filling important gaps in the local labour market, whether as professionals (like doctors) or as semi-skilled workers (farmhands and meatworkers). Refugees who have been employed in regional areas for at least twelve months can now apply to stay in Australia under the Regional Sponsored Migration Scheme, as long as they can secure the backing of an employer to support their application. ‘Regional Australia’ is interpreted broadly to include ‘all areas of Australia except Sydney, Newcastle, Wollongong, Melbourne, Perth, Brisbane and the Gold Coast’, and there is capacity to exempt applicants from the usual requirements that they be under 45 years of age and possess ‘functional’ English language skills. Nor does it matter how many employers the refugee has had over the period of twelve months, which means that even workers employed in seasonal pursuits such as fruit-picking are potentially eligible.
But the application fees and other costs associated with these visas remain unchanged and may prove prohibitive. A refugee who wants to pursue a sponsored visa under the regional scheme must pay a non-refundable ‘first installment’ fee of $1845 in order to apply. If the applicant is assessed to have ‘less than functional English’ then a second installment of $5270 will also fall due, plus an additional $2630 for each family member who also lacks adequate English language skills. On top of this come the costs of $300 per family member for the required medical examinations and between $150 and $350 per family member for ‘language costs’ (to cover the cost of assessing English language skills). Added to this are the possible costs of arranging approved translations of personal documents and employing the services of a registered migration agent to assist with the application, which could easily exceed $1000 dollars. The Immigration department advises applicants that they ‘are not required to use a migration agent’ to help with their application and that for ‘many of the less complex visa classes’, a migration agent may do little more than pass on the information that they provide. However, all but the most confident, articulate and self-assured applicants are likely to regard a migration agent as a necessary broker between themselves and the authorities.
If the application for regional migration is successful, then permanent residence beckons and brings with it the potential to sponsor immediate family members (a spouse or dependant children) to migrate to Australia. This process routinely takes two years or more and involves a whole new set of fees and charges. This new-found stability of permanent residence may also have some hidden costs. A ‘temporary refugee’ who manages to make the transition to the status of ‘sponsored migrant’ in the regional Australia ‘may be subject to a waiting period for some Centrelink payments’; in other words, they might lose access to social security benefits for which they are currently eligible. The new regulations leave open the question of whether or not a refugee-turned-migrant may be required to repay the Commonwealth for the privilege of having been incarcerated in an immigration detention centre when they first made landfall in Australia -- a debt that may run into tens of thousands of dollars. The immigration department website says that a debt to the Commonwealth ‘will not prevent’ eligible applicants from obtaining a mainstream visa but it holds out no promise to cancel that debt altogether.
Refugees outside ‘regional’ Australia
For refugees who do live in the major cities (probably the majority), access to permanent residency will be even more difficult than for their counterparts in regional Australia. Refugees with professional qualifications that are in short supply in Australia, fluent English and the support of an employer may be able to apply for sponsored skilled migration; a refugee who has married an Australian citizen may be eligible for family migration; refugees with lots of money and a detailed investment plan may qualify as business migrants; and elite sportspeople, artists and academics may qualify for entry as ‘distinguished talent’ category.
Only a very small number of TPV refugees are likely to meet such criteria. For the rest, another option may to apply for a temporary visa: doctors, academics, religious workers and businesspeople may gain entry this way but only for as long as they have a formal appointment to work in Australia. Refugees can also apply for entry as students but they will need substantial financial backing to do so, since they must demonstrate that ‘they have sufficient funds to pay their course fees and meet their living costs’ or that they have an individual or organisation sponsor willing to provide financial assistance. Again, a refugee who succeeds in converting from a temporary protection visa to a fee-paying temporary student visa may lose access to other benefits, such as social security payments.
The sting in the tail of such temporary visas is that the refugee must give up their right to protection in Australia under the Refugee Convention. Once the new temporary visa expires -- because, for example, a student has completed a course of study -- the applicant cannot reapply for a refugee visa. This raises obvious problems -- what happens to a graduate who comes from a country where conditions have deteriorated markedly during the course of their studies?
This opens up what might be called ‘the Bob Carr avenue’ to permanent residency: the remote and convoluted possibility that a ‘temporary’ refugee living in an urban centre like Sydney could move to regional Australia, secure twelve months employment, secure the sponsorship of an employer and apply for a visa under the Regional Sponsored Migration Scheme. It is a utilitarian approach that shows scant regard for the social and economic networks that refugees may have already established in Australia or for their rights as refugees fleeing persecution; they are treated as pawns to be moved about on the chessboard of Australian society in accord with prevailing demographic and economic agenda. They will be expected to contort themselves in various ways -- especially in the labour market -- in order to prove their on-going ‘worth’ to Australia. We can also anticipate that groups like Rural Australians for Refugees will find their political lobbying efforts increasingly diverted into fund-raising, in order to help refugee families raise the cash to apply for a mainstream visa.
Delaying Tactics
Given the limited options and significant costs associated with pursuing a non-refugee visa, the best option for most TPV holders is probably to ignore the government’s new ‘flexibility’ for now and to focus instead on pursuing their claim for continuing protection under the Refugee Convention. So far most TPV-holders who have had their cases re-assessed have been found to be in need of Australia’s on-going protection -- if not by the department then after appeal to the Refugee Review Tribunal. Most have also been granted permanent visas, although this may not always be the outcome. The most obnoxious aspect of the TPV rules (introduced by Philip Ruddock in the wake of the Tampa) could prevent some TPV holders from ever gaining a permanent refugee visa, unless they can demonstrate why the could not seek protection in another country en route to Australia. But these provisions have yet to be legally tested, and may yet prove to be ineffectual in most cases -- a case of Ruddock’s bark being worse than his bite.
If TPV holders fail in their bid to win further protection in Australia, they can at least take advantage of the other major change introduced by Senator Vanstone -- the new Return Pending Visa (RPV). This eighteen-month visa will be available to refugees whose temporary protection visas have expired and who have been refused further protection in Australia. The stated intention is to enable former TPV holders ‘to make arrangements to depart Australia’. The changes acknowledge that ‘people who have previously been found to be owed Australia's protection need additional time and support to make arrangements to return home’. To encourage applicants to return voluntarily to their homeland when the eighteen months ends, the immigration department is also offering a Reintegration Assistance Package, which covers the cost of airfares and provides cash grants of $2000 per asylum seeker (up to a maximum of $10,000 per family group). To qualify for the assistance package, applicants must ‘formally withdraw/discontinue’ their refugee claims or ‘any legal action’ including any claim or action ‘before the Refugee Review Tribunal (RRT), the Administrative Appeals Tribunal (AAT), the Federal Magistrates Court, the Federal Court, the Australian High Court or UN treaty bodies’. If applicants fail to return voluntarily when their visa expires then the carrot turns into a stick; the reintegration package is withheld and the applicant will be detained pending removal from Australia. Holders of a Return Pending Visa can work legally in Austalia and remain eligible for social security payments and Medicare. They may also apply for other non-refugee visa categories.
Again the question arises as to what happens when conditions deteriorate in a person’s country of origin during the eighteen-month validity of the Return Pending Visa. The immigration department offers applicants the reassurance that ‘you will not be returned to your home country ‘where this would breach Australia's international obligations’. Yet there is ‘no facility in the legislation to extend a RPV’ and without special dispensation from the minister, a person on an RPV has no right to apply for a new refugee visa even when cirumstances in the home country change. The minister’s power to intervene is ‘non-compellable’ and ‘non-delegable’ -- in other words it is entirely a matter of ministerial discretion with no recourse to courts or tribunals.
Legal and political consequences
According to the information provided on the Immigration department website, refugees who are refused a mainstream visa ‘will have the right to seek independent merits review of the decision by the relevant review tribunal’. Similarly, applicants who are refused a Return Pending Visa can also seek review of the decision by the relevant review tribunal. This presages a raft of appeals to bodies such as the Migration Review Tribunal or the Administrative Affairs Tribunal, and in due course, appeals to the Federal Magistrates Court, the Federal Court and eventually the High Court. In short, there is a real potential for the latest changes to spawn a whole new series of appeals and complex legal challenges. The Vanstone changes appear likely to exacerbate the rising cost of migration related litigation -- a problem that has been a matter of constant complaint by immigration ministers from both sides of politics since the early 1990s.
The opposition’s response to the changes has been muted. Immigration spokesman Stephen Smith welcomed the changes but opined that ‘they only deal with the backlog’. He says the ALP in government would apply ‘a public interest test’ to TPV-holders to gauge whether a person has built up ‘the social and economic and family and community links’ to be part of Australia’s ‘normal immigration intake’. The ALP is squandering the opportunity to put more daylight between itself and the government on this issue, which could be influential in marginal inner city seats like Adelaide, held by Liberal Trish Worth on a margin of just 0.6 per cent. The ALP could differentiate itself from the government by promising clearly and explicitly to convert all expiring temporary refugee visas into permanent visas if it wins office (unless there is a compelling reason in any particular case not to do so, such as evidence of fraud in the original visa application). This would spare the refugees much agony and spare the Australian taxpayer from footing the bill for yet another round of unnecessary legal and bureaucratic manoeuvring that could drag on for years.
Conclusion
A refugee living in Australia on temporary protection visas is now confronted by a bewildering array of choices, none of which offer certainty and security. They have already proved themselves to be refugees fleeing perseuction; they now must prove this all over again or prove in some other way that they are worthy of Australian residency. It is like surviving a shipwreck only to find yourself stranded on rocks amidst an incoming tide. Some of the surrounding rocks look safer and more stable but it is impossible to guage whether you can bridge the gap. Even a successful leap will inflict deep cuts and bruises. Other rocks are closer but may be less secure than your current purchase. Time is limited and you are under pressure to make a decision; yet once you move there is no going back. The shore is visible but just out of reach. Politicians from the major parties are waiting on the beach with rescue equipment that they are unwilling to use.
Peter Mares
Institute for Social Research, Swinburne University of Technology
26-8-2004
Peter Mares is a senior researcher in the Institute for Social Research at Swinburne University of Technology and the author of Borderline: Australia’s Response to Refugees and Asylum Seekers in the Wake of the Tampa (UNSW Press 2002)
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