Punishment for Punishment’s Sake: the new guiding principles of Australia’s immigration policy

By Besmellah Rezaee

Although the increasingly vitriolic rhetoric has been damaging, the second step of reintroducing Temporary Protection Visas (TPVs) would have to be the most damaging policy implemented since the election. TPVs permanently deny any asylum seeker a chance of resettling here permanently and calling Australia home. Drastically, TPVs deny family reunions and make it impossible for refugees to travel out of and return to Australia.

TPVs came into force on 18 October 2013 and soon the government started granting TPVs (subclass 785) to asylum seekers who have already met the refugee definition under the Refugees Convention and our Migration Act. TPVs were applied retrospectively and punished those who have been waiting for an outcome on their application for years. This creates a deep sense of injustice amongst many asylum seekers who are waiting for a decision through no fault of their own. TPVs are in no doubt punitive in nature and
are in direct breach of Article 31 of the Refugee Convention.

On Monday 2 December 2013, the Senate voted on a disallowance motion moved by Senator Sarah Hanson-Young of the Greens to bring to a halt the re-introduction of TPVs. Fortunately, the Labor Party backed the Greens and together passed a resolution disallowing the instrument giving effect to TPVs. Under the legislative Instruments Act, the government cannot introduce another instrument of substantially the same substance for another six months.

Soon after the disallowance, the government reacted in panic and anger by pledging to dismantle the business of people smugglers. They responded with new measures to circumvent the Senate disallowance. Scott Morrison, using his ministerial power under section 85 of the Migration Act 1958, capped permanent protection visas for the financial year 2013/2014 at 1650. Apart from contradicting their own assertions that Operation Sovereign Borders has already dismantled the people smugglers’ business model, this hurried pledge does not affect new boat arrivals, as they will be processed offshore. It is increasingly clear that their approach is politically motivated and expressly done in response to the Senate disallowance resolution, which effectively freezes the issuing of protection visas until the next financial year.

This is because the 1650 visas had already been issued from 1 July 2013 as stated by the Minister in his interview with the ABC’s 7.30 report. The legal directive was issued on 3 December 2013 and came into effect the following day.

The capping of protection visas was not only affecting “irregular maritime arrivals”, but also onshore applicants such as students and visitors who have claimed protection and those who may seek asylum from Australia.
It also meant that no asylum seeker would be issued protection visas and as such an estimated 33,000 would be left in limbo on bridging visas and most of them without work rights and many without access to Medicare. This continues to be the case now as there is no substantive visa to be granted to asylum seekers who are found to be genuine refugees.

Even though the minister revoked his order to cap protections visas on 19 December 2013, the revocation of the order was not indicative of a change in the government’s approach on this issue. The Minister had in fact on 14 December introduced another legislative instrument titled Migration Amendments (Unauthorised Maritime Arrival) Regulation 2013, which amends the eligibility criteria for a permanent protection visa (subclass 866) so that a protection visa can only be granted to people who enter Australia with a valid visa.

The effect of the revocation of the cap and the introduction of the new amendments is that those who arrived on a valid visa in Australia and were immigration cleared (such as those arriving on student visas) could now be granted a protection visa. However, unauthorised maritime arrivals or asylum seekers who have arrived by boat would not be eligible for any protection visa.

This latest amendments to the Migration Act is also subject to a disallowance motion in the Senate. The senate resumes on 11 February 2014. In the meantime however there are no substantive visas for asylum seekers who are found to be genuine refugees. This limbo unnecessarily places a significant burden on taxpayers’ money that will be spent on welfare. In addition, this creates an underclass of marginalised people that will eventually cause significant strain to all public services. This is all because the Coalition government wants to protect our so-called “borders”. The irony is that people who are within our territory are punished to keep people out of our territory.

Refusing to grant protection visas to those who have already arrived in Australia, in order to stop the boats (an end which Operation Sovereign Borders has already achieved according to Scott Morrison) is not the only inhumane policy introduced by this government. On 19 December 2013, Scott Morrison issued a directive to immigration department officers under section 499 of the Migration Act directing them to give those arrived by boat and have applied to be reunited with family members to be given lowest priority for family migration visas. This latest directive as a whole new level of cruelty, and defeats the coalition’s pre-election mantra of wanting to stop families getting on boats, and encouraging refugees to take advantage of conventional methods of coming to Australia.

The agony that further frustrates fundamental human rights principles is yet to show its ugly face. Just two days after the disallowance of the TPVs by the Senate, Immigration Minister Scott Morrison introduced the Migration Amendment (Regaining Control over Australia’s Protection Obligations) Bill 2013 in an attempt to amend the Migration Act to remove the “complementary protection” criterion from it.

Complementary protection legislation was passed on 24 March 2012 to protect asylum seekers who don’t meet the criteria under the Refugee Convention but would be at risk of serious harm if returned to their country of persecution for reasons other than what is stipulated in the Refugee Convention. Complementary protection legislation gives effect to our international legal obligations under other international covenants and treaties that we have ratified, such as the International Covenant on Civil and Political Rights (the “ICCPR”), the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, the Convention on the Rights of the Child (the “CROC”) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT”).

The complementary protection legislation is a significant achievement for human rights in Australia as it introduced greater transparency, efficiency, and accountability into Australia’s arrangements for adhering to its non-refoulement obligations under international law. We know that Australia’s non-refoulement obligations under the Covenant and the CAT are absolute and non-derogable. Furthermore, the complementary protection legislation for the first time established a statutory framework for considering complementary protection claims. The need for such a framework had long been identified both in the national context of human rights and international context.

It is with this in mind that the repeal of this framework is a slap in the face of human rights in Australia. Both Tony Abbott and Scott Morrison have vowed that no permanent visas will ever be granted under the Coalition government.

Measures such as the bill to repeal complementary protection legislation and the amendment of protection visas clearly shows intent on the part of the government to punish those who are most vulnerable to harm. The ultimate victim of such policies is not just the helpless asylum seekers, but Human Rights generally.
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Besmellah Rezaee is a lawyer who has a strong background in humanitarian work. Besmellah is the son of a former refugee who was also a TPV holder for 3 years under the Howard government. Besmellah practices as a Refugee Lawyer and writes as a freelancer. He gained a Bachelor of Law and International Studies from the University of Adelaide and spent time working in Malaysia. Besmellah is currently completing a Masters of International Law and Masters of Diplomacy at the Australian National University.

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