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Thursday, 4 December 2014

No, Clive, asylum seeker bill won’t make it easier for the most vulnerable –

No, Clive, asylum seeker bill won’t make it easier for the most vulnerable –

No, Clive, asylum seeker bill won’t make it easier for the most vulnerable

Yes, the newly announced visas are prefereable to indefinite
offshore detention. But they are turning humanitarian visas into skilled
migrant visas, write refugee law experts Jane McAdam and Kerry Murphy.

In working with refugees in Australia, it can be said that
every silver lining has a cloud. This is very evident with the new
temporary visas proposed by the government for asylum seekers who arrive
by boat. They will bring some positive changes to the lives of over
30,000 asylum seekers currently stuck in limbo. Now, if found to be
refugees, they will be granted a temporary protection visa (TPV) for up
to three years, with an option to transfer to a safe haven enterprise
visa (SHEV) allowing them to work or study in yet-to-be designated rural
areas for five years. If they meet certain conditions, they will be
eligible for a visa from the non-refugee or protection categories that
will enable them to stay permanently.

While these are preferable options to life in limbo,
mandatory detention or offshore processing, we do need to remember that
this is not how refugee protection is meant to work. The Refugee Convention
does not actually let countries pick and choose their refugees based on
how valuable they are to the economy, or how well they assimilate. This
seems to be putting refugees through a double assessment process — are
you a refugee, and are you also a valuable migrant?

That said, there are limited options in a political
environment that places deterrence and punishment front and centre. At
the moment, it seems it’s a question of what is the “least worst”

Superficially, the SHEVs look like a positive outcome. These
visas will allow people to work and will help them to regain their
sense of purpose and self-worth. They will allow people to study and
build up their qualifications and skills. This will be an asset if they
stay in Australia, or if it is ultimately safe for them to return home.

While the actual regulations of the SHEV are not yet
available, Immigration Minister Scott Morrison stated that refugees who
took up a SHEV would have the opportunity to work or study in a regional
area for five years. Provided they do not require income support for
more than one-and-a-half years (exempted if studying at an approved
institution), they can apply for a skilled, family or another visa
before the SHEV expires. They will not receive permanent protection as a
refugee, but they will be allowed to become permanent residents.

This will provide a welcome opportunity for many refugees.
As we know from a study commissioned by the Immigration Department in
2011, written by Professor Graeme Hugo, refugees are some of the
greatest and most successful contributors to Australia’s economy. In
addition, their skills may help to rebuild parts of regional Australia
that are suffering from declining populations, revitalising
infrastructure, schools and communities. The Snowy Mountains
Hydro-electric Scheme provided thousands of jobs for many displaced
people after World War II, and the current scheme may be able to do the

Nevertheless, the SHEV has its fair share of problems. It
undermines the right to freedom of movement by stipulating residency
requirements. It potentially forces family separations where relatives
live in urban areas. It is not viable for refugees who are particularly
vulnerable and unable to work. And there’s a real question about how
many refugees would actually be able meet the requirements for the
onshore visas technically available to them.

No analysis has been undertaken as to the likelihood of a
refugee qualifying for an existing onshore visa. Apart from the family
categories (which are of no help for those married with a spouse and
children still overseas), the skilled and employer-nominated visas all
have English language requirements. Given the other visa requirements,
such as relevant work experience on the books (not paid in cash) and
acceptable qualifications, it is unlikely that many will get the “prize”
of a permanent skilled visa or employer-sponsored visa.

Even if family reunion were allowed, as is suggested by
Clive Palmer, this will not solve the problem for those who are unable
to meet the strict skill and language requirements. What’s more, the
costs of a permanent skilled visa for a couple and say two children
under 18 would be $7040. Add a dependent child over 18 and it jumps to
$8800 — add the costs of medicals, English tests and skills assessments
and it comes to around $10,000. Migration to Australia for a family is
not cheap.

Morrison previously acknowledged that the Department did not
think many SHEV holders would qualify for permanent residence, saying,
“Good luck to them”.

The SHEV “pathway” attempts to convert humanitarian
protection (based on treaty obligations) into a discretionary skilled
migration program where the refugee claims are irrelevant for the visa,
through which Australia can pick and choose which refugees (if any)
remain permanently. It will leave many refugees, in particular the most
vulnerable and those separated from their families, without the
possibility for permanent protection and will only damage them further.

So what, then, for refugees who remain on a TPV? Because the
government is determined that no one who arrives without a visa will be
eligible for permanent protection as a refugee, asylum seekers will
have to have their claim assessed every three years.

When TPVs were used by the Howard government, around 90% of
refugees ended up staying permanently in Australia. This is because in
many cases, situations of persecution and other serious violence don’t
simply disappear, or they evolve into new forms of persecution and
violence, as happened in Iraq after the overthrow of Saddam Hussein in

International refugee law also says that if a government
wants to send a refugee home, it’s up to that government to show why
there has been a fundamental change of circumstances that now makes it
safe for the refugee to return. Australian TPVs don’t respect this
obligation, because they require refugees to reapply from scratch every
three years. As we know from the last time TPVs operated, this can cause
considerable psychological distress, compounding the trauma many had
experienced in their home country or in detention. The inability to
resolve their immigration status as a refugee will hinder people’s
ability to recover and rebuild their lives.

TPVs are also inefficient from a bureaucratic perspective.
Given the backlog of over 30,000 cases, deciding and re-deciding refugee
claims will be like painting the Sydney Harbour Bridge — you’ve no
sooner finished than you have to start all over again.

On top of all this, the government is now proposing
fast-track processes for determining refugee status for new arrivals.
Merits review will be very limited, and legal aid will not be available.
This means that whatever visa options are available at the end of the
process, they won’t mean much if a claim cannot be adequately assessed
in the first place.

Finally, TPVs and SHEVs will only be available to refugees
who arrived in Australia before December 2013. Anyone who came after
that time — and anyone who comes in the future — will still be subject
to offshore processing. In that sense, the visas won’t serve as a
deterrent to future arrivals.

It would be more efficient, and more consistent with
international law, if Australia simply granted refugees permanent

*Professor Jane McAdam is director of the Andrew &
Renata Kaldor Centre for International Refugee Law, UNSW. Kerry Murphy
is an accredited specialist in immigration law and lecturer in ANU
Migration Law program.

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