Content and costs of the TPV policy

This paper outlines the content the Federal Government's temporary protection visa (or TPV) policy, compares the benefits to which TPV holders are entitled with the benefits to which holders of permanent visas are entitled and discusses the costs of the TPV policy.

Overview

• Despite their name, temporary protection visas are aimed at deterrence. They do not provide the minimum protection Australia is obliged to provide genuine refugees under the Refugee Convention.

• The policy is aimed at the most vulnerable people - Australia contributes, in part, to this vulnerability by detaining onshore asylum seekers and making the process for applying for refugee protection extremely difficult.

• The policy is discriminatory and has created a separate class of people who are not entitled to the same benefits as Australian citizens or offshore refugees.

• The costs to TPV holders include costs arising from being provided with no certainty of protection, insecurity, isolation, confusion, powerlessness, health problems, lost opportunity, discrimination racial as well as because of status, no security or stability - all combine with lack of family reunion rights and travel rights compound the trauma experienced by these people in their country of origin and detention.

• TPV holders are not provided with the minimum basic human rights required for settlement in Australia and, as a result, marginalised by the Australian government.

• The existence of the policy and treatment of TPV holders is causing a severe strain on communities that are required to accommodate TPV holders without any Commonwealth Government support. This creates tensions within the community.

• The policy also represents a failure on the part of Australia to comply with its obligations under international law.

Current Issues

• TPV holders who wish to, and are able to, apply for permanent protection must apply within particular time frame. TPV holders who were granted a TPV in 1999 will have to apply this year for permanent protection.

• The review process has commenced and Department of Immigration & Multicultural & Indigenous Affairs (DIMIA) has indicated that it expects that each application will take about 1 month to process.

• It is not clear what type of visa these people will be given while their applications are being processed.

• There is no clear process available to ensure that every holder of a TPV that is about to expire contacts DIMIA to apply for a further visa. This situation in one sense is one of DIMIA's own creation as no incentive is provided in terms of support services to ensure that TPV holders remain in close contact with DIMIA once they have been granted a visa.

• If TPV holders do not apply for further protection with the requisite time frames, they will lose their protection rights.

• What will the public reaction be if DIMIA starts deporting people who have been living in the community for the last 3 years? How will this affect the willingness of the employers who have employed TPV holders to continue to employ TPV holders?

The TPV policy

There are two principal ways a refugee can apply for asylum and be granted a visa to remain in Australia. Asylum seekers that are able to apply for refugee status outside Australia and are found to be refugees may be selected by Australia (often after referral from the UNHCR) and granted a visa before he or she arrives in Australia. The visas granted to these people are permanent protection visas and grant the right to permanently reside in Australia. Asylum seekers may also apply for refugee status inside Australia.

Prior to 20 October 1999 every person accepted by Australia as a genuine refugee was entitled to be granted permanent residence in Australia whether that person applied for permanent residence inside or outside Australia.

TPVs were originally introduced in Australia to apply only to a small class of persons - the Kosovo refugees who had been admitted into Australia under its 'safe have' policy. The policy was aimed at providing a safe but temporary haven to refugees from areas of conflict such as Kosovo.

In October 1999, the Federal Government implemented changes in the law aimed at deterring people arriving in Australia without a visa. These measures included preventing people who arrive in Australia without a visa from obtaining permanent residence for the first three years they are in Australia. This meant that any person who arrived in Australia without a visa and who is successful in his or her application for refugee status in Australia would only be granted a three year temporary entry visa (Visa subclass 785). TPV holders were entitled to apply for permanent protection (Permanent Protection Visa - subclass XA866). However, the application cannot be made until 30 months after the grant of the TPV if he or she still had a continuing need for protection.

The Federal Government made further changes to the law in September 2001. These changes created two new visa classes (subclasses 451 and 447) for asylum seekers intercepted either before boarding a boat bound for Australia or while on a boat bound for Australia.

Asylum seekers apprehended on boats bound for Australia can now only apply for a TPV (subclass 447). Refugees who hold this class of visa are granted a TPV with no right to apply for permanent protection unless the Minister is satisfied that it is in the public's interest to allow the person to be granted permanent protection.

Asylum seekers apprehended before they board boats bound for Australia can now only apply for a TPV (subclass 451). Refugees who hold this class of visa are entitled to apply for an 866 protection visa without the leave of the Minister but cannot do so until four and half years after they have been granted their 451 visa. However, the Minister has power to waive this requirement.

Purpose of TPV policy

Despite their name, temporary protection visas appear to now be used to deter refugees that seek refuge once they have arrived in Australia.

Minister Ruddock said when announcing the 1999 changes that the changes "will prevent unauthorised arrivals from obtaining permanent protection visa and the benefits, particularly family reunion, which appear to attract traffickers and forum shoppers" and would deter "would be illegal entrants".

There is no evidence to indicate that the TPV policy has been effective as a deterrent. In fact, there are two relevant factors that indicate it is misguided as a deterrent.

First, the Refugee Council in is submission to the 2002-2003 Refugee and Humanitarian Program Size and Composition Review provides an informative analysis of the question of whether asylum seekers are drawn (or pulled) towards a country such as Australia or whether they are pushed from other countries towards a country such as Australia. In the Council's opinion, the push factors are far more important that the pull factors in deterring secondary movement of refugees.

Push factors include whether or not the country in which the refugee first seeks protection provides effective protection, the fairness and expedition of resettlement processing, the level of confidence that refugees have that their basic human rights will be met and they will not be returned to their country of origin.

Secondly, the lack of family reunion rights has generally led to an increase in the number of women and children seeking refuge in Australia as the TPV policy provides no benefit for a family to send one member to Australia to be joined by the rest of the family once they have been settled. Refer to Table 2 of this paper for figures.

The policy also fails to recognise the factors that contribute to the number of onshore applicants, which include the effectiveness of international refugee determination and resettlement programs and the current state of conflict in countries such as Afghanistan and Iraq.

There is no coincidence that as at 3 May 2002, of the 8,355 TPVs that have been issued in Australia, over 90% of the holders are Iraqis (47.85%) and Afghans (41.93%).

Australia's obligation to refugees

Minister Ruddock has publicly stated that "Australia takes its international obligations very seriously and is committed to providing protection to genuine refugees."

By signing and ratifying the Refugee Convention, Australia agreed to do certain things, including:

• protecting refugees by not returning them to a country where they could face persecution or the threat of persecution;

• providing refugees with the same human rights that Australia provides to its citizens, including the right to eduction, adequate medical care, welfare, housing, work, freedom of movement and freedom of opinion;

• not penalising refugees for entering a country illegally; and

• extending this protection without discrimination.

TPV holders are people who have been found by the Australian government to be genuine refugees. Any person that is not recognised as a refugee is deported.

Despite Australia's obligations under the Refugee Convention and the commitment given by Minister Ruddock that Australia takes very seriously its international obligations and is committed to providing protection to genuine refugees, Australia's TPV policy fails to comply with Australia's international obligations to refugees in three key respects.

First, TPV holders are not entitled to the same human rights that Australia provides to its citizens.

Secondly, the Federal Government's stated intention of the TPV policy is to deter rather than protect asylum seekers who seek refuge inside Australia which penalises not only asylum seekers that are not found to be refugees but also asylum seekers who enter Australia without a visa and who are found by Australia to be genuine refugees.

Thirdly, the TPV policy discriminates between onshore and offshore refugees and has created two classes of refugees. Although every person in either class has been accepted as a refugee, the Commonwealth Government's TPV policy means that the two classes of refugees are treated differently and each has very different entitlements. This discrimination is particularly unfortunate because not only to TPV holders have standard settlement needs and generally require urgent psychological and emotional care because of their experiences in their home country, they also often require the psychological and emotional care for harm caused from experience in detention.

Benefits/Entitlements

A refugee with a permanent protection visa or a PPV is entitled to the full range of benefits that are available to permanent residents in Australia, including a range of specialist settlement services from Commonwealth Government funded service providers. Whereas holders of a TPV are entitled to only very minimal rights.

A survey conducted by UNHCR in 2000 identified the key factors required to assist refugees resettle in another country. These include employment, language skills, support from people with similar backgrounds, support from and reunification with family members, good settlement services, good physical health, access to education and appropriate housing.

This report recognised that one thing about which there appeared to be little doubt in the minds of those who work with refugees, which is that "the emphasis [for settlement] has to be on empowering the refugees and ensuring they become self-reliant."

Table 1: Comparison of Entitlements of TPV and PPV holders

Position of each of the States and Territories on TPVs

Queensland

The Queensland Government opposes the Commonwealth Government's position on TPVs and on 27 November 2000 the Queensland Government provided approval for Queensland Government agencies to provide the same level of service to TPV holders as PPV holders.

In practice, this would be limited by the services that are actually provided by State governments and, therefore, would not include benefits such as access to Medicare, family reunion rights or access to DIMIA settlement services.

Victoria

The Victorian Government implemented a number of initiatives aimed at providing access to TPV holders to basis support services. These include encouraging all departments to review TPV eligibility to state-funded settlement services and enhancing existing mainstream settlement services to refugees. The Government also makes available a one-off grant of $140,000 to local government and community organizations to assist in meeting the urgent needs of TPV holders released from detention centres and has a policy of collaboration at the interstate level to make representations to the Commonwealth Government to adjust its policies in respect of on-shore visa applicants.

Costs

The costs to TPV holders have been significant and the TPV policy has made settlement of TPV holders more difficult than PPV holders even though they have all been found to be refugees. This has also led to a number of indirect costs to the service providers, community organisations that have undertaken responsibility for providing for TPV holders.

Some of the costs of the TPV policy are as follows:

• With very limited exceptions, any asylum seeker that arrives in Australia without a visa is detained. If that person is found to be a refugee by Australia, that person will be granted a TPV. This means that the majority of TPV holders have not only experienced all of the hardships experienced by refugees worldwide but that they have also been detained in Australia for a number of years. The physical and mental health of the detainees has been undermined the detention experience. The sever disadvantage means that these people have higher than average needs which seriously affects there ability their successful settlement experience.

• For the first 3 years (and for some possibly longer) while the person is settling in Australia, the nature of that person's protection is temporary and uncertain.

• The denial of language training leads to social isolation and represents a major barrier to TPV holder's ability to participate in, and contribute to, Australian society.

• The isolation of people of have experienced torture and trauma through denial of adequate settlement services undermines their sense of safety, security and certainty - this is compounded by the negative statements made about asylum seekers in the media and by the government - treatment includes failure to provide basis entitlements of refugees and negative feeling throughout the community and statements made by media and government.

• The current health care provided to detainees may result in long term health problems and economic cost to the health system.

• The ability to find employment is affected not only by language barriers and lack of access to assistance in finding employment but also because some employers do not wish to employ people with only temporary status.

• Not only are the TPV holders not provided with the assistance required to settle in Australia and to become self-reliant, they are also not provided with the welfare benefits such as Medicare and language training and often have no income to pay for these things.

• TPV holders have access to Special Benefit provided certain criteria are met. Of the 8,355 TPV holders as at 3 May 2002 only 4,427 TPV holders were currently in receipt of the Special Benefit allowance.

• TPVs provide neither security nor stability. This combined with the lack of family reunion rights and travel rights compound the affects of their experiences in their own countries of torture, trauma, exile and detention.

• The lack of family reunion rights has generally led to an increase in the number of children seeking refuge in Australia and being detained because there is no benefit for a family to send one member to Australia and then to be joined by his or her family once they have been settled.

• The fact that Commonwealth Government accepts little responsibility for TPV holders once they have entered the community means that the responsibility for their settlement is passed to the community and state governments in which they live. This combined with the failure of Commonwealth Government to provide basic entitlements to TPV holders means that there are resource limitations.

• The severe disadvantage caused to TPV holders means that they are not able to participate in, and contribute to, Australian society. This creates tensions within the community.

• The TPV policy represents a failure by Australia to comply with its international obligations - conditions to which TPV holders are subject fall short of the legal obligations Australia has to refugees irrespective of the mode in which the refugee arrives in Australia - see article 31 of the Convention.

  Some Immigration Statistics

  Australia accepts a certain quote of migrants. In 2000-2001, Australia set aside 79,000 places for people applying under Australia's general migration program and a further 12,000 places for refugees and other humanitarian applicants. Of the 12,000 places:

  • 8,000 were allocated to offshore applicants who were recognised as refugees under international law or applied under the special humanitarian program or special assistance program; and

  • the remaining 4,000 places were available for onshore applicants recognised as refugees. Of these places only 2,500 were filled in 1999-2000.

  Refugees granted a TPV are part of this overall allocation of visas for refugees and do not increase the overall number of refugees accepted as part of Australia's immigration intake each year. The government has increased the total number of places available under Australia's general migration program for the 2001/2002 year to 97,000. The number of places reserved for refugees and other humanitarian applicants remains at 12,000.

  The humanitarian stream of Australia's migration intake is the smallest of Australia's immigration categories. Between 1982/1983 and 19961997, the number of humanitarian immigrants has varied from 7% of immigrants in 1991/1992 to 18% of immigrants in 1982/1983. The variation arises from the fact that the number of people seeking humanitarian assistance results from the international events that trigger refugee emigration.

  From 1989 to 2001, 13,489 people arrived in Australia by boat and 107 were born subsequently. Of these people:

  • 1,125 were granted permanent residence as refugees;

  • 52 were granted permanent residence on other humanitarian grounds;

  • 4,972 were granted temporary protection visas; and

  • the remaining 3,379 left Australia to return home to go to another country.

  As at 3 May 2002, 8,355 TPVs had been issued in Australia. Over 90% of the holders are Iraqis (47.85%) and Afghans (41.93%).

  Table 3 - Per capita intake of asylum seekers (1998/1999)

  Country	Onshore Asylum Seekers	Asylum Seekers Per Capita of Population
  Switzerland	41,100	1 per 156 residents
  Netherlands	45,200	1 per 394 residents
  Britain	91,000	1 per 604 residents
  Germany	98,644	1 per 760 residents
  Sweden	12,800	1 per 781 residents
  Canada	24,937	1 per 980 residents
  Australia	8,257	1 per 1,961 residents
  United States	79,800	1 per 3,172 residents

  Table 4 - Number of people in Australia without permission

  Year	Over-stayers	Plane arrivals	Boat arrivals
  1997/1998	51,000	1,550	157
  1998/1999	53,143	2,106	920
  2000/2001	53,000	1,695	4,175
  2001/2002	53,000	1,508	4,141

  Table 5 - Recognition of asylum seekers - % (1991-1999)

  Country	1991	1993	1995	1997	1999	Total
  Germany	8.3	4.5	18.7	17.1	13.5	9.9
  Australia	11.4	9.8	9.1	6.7	22.7	13.1
  France	19.7	27.9	15.6	17.0	19.3	20.0
  Netherlands	15.7	48.8	65.6	55.2	15.6	38.8
  United Kingdom	53.7	73.0	24.4	23.8	72.5	43.4
  United States	33.6	21.8	46.9	80.5	88.3	43.9
  Canada	68.7	55.2	70.1	52.4	58.0	61.8
  Denmark	100.0	100.0	85.0	52.6	53.4	73.5