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TPVs breach human rights

By Kerry Murphy - posted Thursday, 21 November 2013

"This government is not running a shipping news service for people smugglers.” "As promised, we are running a military-led border security operation." Scott Morrison, Minister for Immigration and Border Protection.

Prior to the election, the Coalition was happy to talk daily about arrivals of asylum seekers and to decry any arrivals of asylum seekers.  Since the election the most we get is a weekly press conference with minimal information.  Questions about boat arrivals or turn backs are met with ministerial and bureaucratic silence.  Presumably an explanation for this dramatic turn around of approach is that the people smugglers were not listening to the Minister when he was only shadow Minister.

Another major change since the election has been the reintroduction of the Temporary Protection Visa (TPV) on 18 October 2013.  The Coalition had long called for the reintroduction of the TPV on the basis that somehow their policies to ‘ stop the boats’ were incomplete without the TPV.  It may help to review what happened with the TPV the first time it was introduced back on 20 October 1999. TPV 2 is similar to TPV 1 in many ways but its effect will be harsher.


The TPV was first introduced prior to the excision of territories from Australia and the establishment of the Pacific Solution under the Howard Government in September 2001.   Initially it only applied to those who arrived in Australia without a visa and were found to meet the refugee criteria.  The TPV was valid for three years and it did not restrict access to work or study, but in reality, refugees found some employers reluctant to give employment for someone on a temporary visa and facing an uncertain future.  Study was expensive as initially tertiary institutions required payment as overseas student rates.  Later a number of institutions changed their policy and did not require the much higher overseas student fees.

Despite the view that it was a deterrent, in fact there was a spike in arrivals until after the establishment of the Pacific Solution in September 2001.  It seems the TPV had little deterrent value.

A major problem with TPV 1 were that it had a restriction on it which meant the refugee could not apply for any other visa apart from a protection visa and they could not be granted the permanent protection visa until they held the TPV for at least 30 months.   Refugees had to prove their cases a second time, often 3-5 years after their initial case.  In the case of the Afghan Hazaras, this meant more complex cases with the change from the Taliban rule in Afghanistan.  With the Iraqi cases, it meant dealing with the post Saddam circumstances in Iraq.

A major problem for the refugees on TPVs was they could not sponsor their spouse and dependent children from the TPV.  This meant that families were forcibly separated for years until the refugee was granted a permanent visa in Australia.   Another more serious consequence was that boats arriving in 2000 and 2001 had many more women and children aboard because they would otherwise have been separate from their husbands and fathers for years. 

On 19 October 2001, the SIEV X sank and 351 people drowned – including many women and children trying to reunite with their husband or father already granted protection in Australia. There is little doubt that the large number of women and children were aboard simply because of the ban on family reunion for the TPV holders.

Gradually the Coalition relaxed the rules on applying for other visas, as TPV holders married and formed relationships with Australian citizens, or were employed by Australian businesses.  After the election of Labor in 2007, the TPV was abolished and all those still holding the TPV 1 were granted permanent residence, with the right to sponsor family members.


Psychologists have documented the serious adverse consequences of the TPV.  Conclusions regarding the TPV published in the British Journal of Psychiatry included these comments on the clinical implications of the policy:

•         To prevent further psychological harm to previously traumatised refugees, it is necessary to minimise detention and ensure that conditions in detention are humane.

•         Certainty of residency to persons recognised as refugees seems to be essential for recovery from trauma-related psychiatric symptoms.

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About the Author

Kerry Murphy is a partner in D'Ambra Murphy Lawyers and an accredited specialist in immigration law.

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