TPVs breach human rights

•         Families and social groups that are not kept together or reunited maybe at greater risk of prolonged mental disorder.

Despite these seriously adverse consequences, and the fact that there was no evidence that it had a deterrent effect, the Coalition reintroduced the TPV on 18 October 2013.  TPV 2 also applies to those who arrived without a visa, but it affects all those who have not had a decision on their case, even those who have been in the system for months and sometimes over a year just awaiting a security clearance for their protection visa. This means that there is a retrospective effect with TPV2 and an estimated 25,000 potential refugees could be affected. 

Unlike TPV 1, TPV 2 does not provide a pathway to permanent residence.  There is no 30 month waiting period, simply a ban on the grant of a permanent visa if you have a TPV.  Therefore, the best a refugee can ever get, unless the Minister personally intervenes in their favour, is a TPV – with no option of family reunion – ever. 

Given the fact that those getting the TPV have been found to meet the refugee criteria, this policy can only be interpreted as being deliberately punitive, and excessively so.  Refugees will get a three year visa, then all they can do is apply for a further protection visa which in turn only gives them another three years.  There are some exceptions but they are only likely to be in a few highly compelling cases and it is likely that most refugees granted the TPV will only get temporary residence and have to prove their case again and again to remain in Australia – knowing they can will probably never get to sponsor their spouse and children.

In the explanatory memorandum it is conceded that this harsh effect may be viewed as in breach of Australia’s human right obligations, however in what must be the Eric Blair award for legislative drafting, it states:

There is no right to family reunification under international law. The protection of the family unit under Articles 17 and 23 (of the ICCPR regarding the importance of the family) does not amount to a right to enter Australia where there is no other right to do so. Further, avoiding arbitrary interference with the family or protecting the family can be weighed against other countervailing considerations including the integrity of the migration system and the national interest.

 A UMA (unauthorised maritime arrival) and UAA (unauthorised air arrival) becomes separated from their family when they choose to travel to Australia without their family, Australia has not caused that separation. To this end, Australia does not consider that Articles 17 and 23 are engaged by this Legislative Instrument. To the extent that this might amount to interference with the family, Australia maintains that any interference is not arbitrary and Australia considers that this is a necessary, reasonable and proportionate measure to achieve the legitimate aim of preventing UMAs from making the dangerous journey to Australia by boat. In addition, it furthers the legitimate aim of encouraging people to arrive in Australia via regular means, such as by obtaining a permanent visa under Australia’s Refugee and Humanitarian Programme for persons outside Australia, which allows family groups to migrate together. Therefore, the Legislative instrument is consistent with the rights contained under Articles 17 and 23 of the ICCPR.

There is no justification legally, politically or even morally for what is clearly a deliberately harsh policy which will cause serious psychological trauma to people who have probably already experienced trauma in their home country.  The policy is clearly punitive against people who are found to be refugees.  It is likely to cause severe hardship and suffering for an already damaged group of people for years to come.  What is worse, is that these seriously harmful effects are deliberately intended.