NSW: Block this bill!

Temporary Protection Visas (TPVs) and Safe Haven Enterprise Visas (SHEVs) will become the only protection visas available to refugees.

What are TPVs and SHEVs?

• TPVs were first introduced under the Howard Government in 1999 and were abolished by the Rudd Government in 2008. If reintroduced, TPVs will be granted for a maximum period of three years, after which time the person will need to reapply to have their TPV extended.


• SHEVs will be available to TPV holders, and will offer protection for up to five years provided the person agrees to move to a regional area and either study or work.

The good thing about TPVs is that they will provide people with access to work rights, Medicare and income support, torture and trauma counselling, translating and interpreting services and education for school aged children. This will allow refugees to support themselves and afford them the dignity they deserve.

However, the negative consequences of TPVs far outweigh any benefits. TPVs have been widely criticised by mental health experts, as they force people to live in a state of uncertainty and instability, which results in significant negative mental health impacts. People on TPVs are constantly aware of the fact they could be sent back once the three year term is up.

TPVs also don't allow for family reunion rights, meaning families can be separated for years. In the past, this has led to an increase of women and children trying to reach Australia by sea.

The so-called "deterrence value" of TPVs is also highly questionable. In the two years following their initial introduction in 1999, there was actually an increase in boat arrivals. Perhaps this is because people didn't think to stop and research Australian visa policies when they were fleeing for their lives.

Safe Haven Enterprise Visas (SHEVs), similarly seem good at first glance. They will allow people to work, provided they live in "designated regional areas". This will give a much needed boost to regional towns struggling to attract workers. Furthermore, SHEVS provide a pathway to permanent residency (this is different from permanent protection), by allowing refugees on SHEVs to eventually apply for a student or working visa. Sounds pretty good right?

But here's the catch: refugees (people who are found to be owed permanent protection) will only be eligible to apply for permanent residency if they can manage to support themselves for three and a half of the five years, without any income assistance.

There are significant questions around just how many people SHEVs would help. Applying for a student or work visas would be very difficult for many refugees due to the high application fees and the level of English language skills required, not to mention the hurdles to clear along the process. Even Morrison himself has said to those wishing to apply for such a visa, "good luck to them". Isn't that nice of him?

SHEVs could turn our humanitarian protection system into a skilled migration system, where Australia can pick and choose the refugees they allow to stay permanently.

The responsibilities of being a signatory to the UN Refugee Convention have no bearing on Australian law unless our Parliament legislates them and they become a part of domestic law.

If passed, this bill will remove most references to the UN Refugee Convention from our laws – in short, we might as well remove our signature from the Convention altogether.

The bill will redefine the term "refugee" under Australian law to one that is out of step with, and narrower than, the definition currently accepted under international law.

The "redefined' interpretation of a refugee could mean people will need to prove they face a real chance of persecution in all areas of the country they're fleeing. For example: a Hazara refugee, who escaped the Taliban in a particular province of Afghanistan, will need to show there is nowhere in Afghanistan they can safely be returned to, or they will risk deportation to a different part of the country.

The bill could also require refugees to take "reasonable steps" to modify their behaviour to avoid persecution. The danger here is that it could be considered "reasonable" for a gay person to stop being gay, or for a person to change their religion to avoid persecution.

But this is perhaps the worst of it: the bill, if passed, will allow our government to breach our non-refoulement obligations.

Non-refoulement is the part of the Refugee Convention that prohibits a country from sending people back to a place where they could suffer from significant harm, torture or be killed. The bill will give the government the power to deport someone, regardless of whether an assessment has been made on the risks of refoulement.

Right now there is a case being heard in the High Court, which will determine whether it was lawful for the Australian Government to detain 157 Sri Lankan asylum seekers on the high seas back.

However, this bill seeks to override any future decisions made by the High Court, giving the Immigration Minister extraordinary powers to detain people at sea and send them to another country – regardless of whether we have the country's consent, or whether the country is a signatory to the UN Refugee Convention.

This is in stark contrast to the Government's position on the proposed "Malaysia solution", when they were in opposition:

"It's not appropriate to send [asylum seekers] to countries that haven't signed the UN Convention."

– Tony Abbott, 29 June 2012

How can the Australian Government override decisions made by the High Court?

The proposed bill will suspend the rules of "natural justice", this significantly reduces the scope for any kind of oversight or scrutiny of the government's action by the courts (including the High Court).

Essentially, this means the High Court will not be able to rule the government's actions invalid, even if they breach Australian laws, international laws or the laws of other countries. This would allow the government to intercept people at sea, keep them there for as long as they wish, and ship them to another country – without any repercussions.

The bill will introduce a new "fast track" application process for people who arrived after August 2012. The fast track process will remove people's access to the Refugee Review Tribunal (RRT) and establish an Immigration Assessment Authority (IAA) in its place.

While faster application processes can be a good thing if they help reduce the amount of time people spend in detention, they also raise concerns about the potential dire consequences of not conducting a thorough assessment of applications – the result of which can literally mean life or death for some.

A similar fast track process was struck down by the High Court in the UK, as it carried an "unacceptable risk of unfairness".

Introducing a fast track process in Australia would undermine our rigorous refugee determination process and significantly increase the chances of someone being sent back to danger.

Earlier this year the Australian High Court ruled Minister Morrison's protection visa cap invalid, finding the current laws didn't allow the Minister to place a limit on the number of protection visas granted each year.

So what's a minister to do? Change the current laws of course. If passed, this bill would overturn the High Court's ruling, allowing the Immigration Minister to suspend processing of protection visas applications and limit the number of people who receive protection.

It seems counter-intuitive that a government concerned with getting rid of the so-called "backlog" (or "legacy caseload") of refugee applications, would seek to suspend processing and risk prolonging the time people spend in detention.

This bill would seek to classify asylum seeker children born in Australia as Unauthorised Maritime Arrivals – meaning any child born in Australia to parents who arrived here by boat would have the same status of their parents. This would leave them liable to being transferred to offshore detention centres, such as Nauru, and would subject them to mandatory indefinite detention.