It's time to clean up the mess of temporary protection visas
10 June 2004 | Chickens launched by former immigration minister Philip Ruddock are coming home to roost in the portfolio of Senator Amanda Vanstone. Peter Mares argues that it is time to clean up the mess
In October 1999, Philip Ruddock created the three-year temporary protection visa (TPV) for refugees who arrived on our shores without authorisation. Prior to this everyone recognised as a refugee in Australia was granted permanent residence, regardless of how they got here.
Ruddock’s aim was to deter Middle Eastern asylum seekers who were arriving in increasing numbers by boat from Indonesia by granting them a second-class refugee status, which prevented them from applying for family reunion. The policy not only failed, it had the unintended effect of encouraging more women and children to make the voyage on dangerous boats, since that was the only way to reunite families in Australia.
The bulk of the 8912 TPVs issued since temporary visas were introduced have been given to refugees from Afghanistan (3661 visas) and Iraq (4269). Those visas have now expired or will soon expire, which means that the refugees must either return home or prove to the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) that they need on-going protection in Australia.
TPV holders generally attempt the latter approach and the department generally turns them down. As of 14 May 2004, DIMIA had made 1192 primary decisions made on TPV holders applying for further protection; in 991 cases the application had been refused.
Most of these decisions involved refugees from Afghanistan. The government’s argument - the same argument used when it offered Afghans cash incentives called ‘reintegration packages’ to be repatriated - is that since the fall of the Taliban the refugees are no longer at risk of persecution in their homeland.
The refugees have an automatic right of appeal to the Refugee Review Tribunal, however, and the tribunal is proving to be much more sympathetic to the Afghans’ plight.
Since the beginning of this financial year, the tribunal has considered the appeals of 271 Afghans who had been told by DIMIA that they were no longer refugees. In 244 of those cases, the tribunal ‘set aside’ the department’s decision, arguing that the applicants in question should be allowed to stay in Australia. In short, the tribunal says immigration department officers got it wrong 90 per cent of the time, when they refused to grant further protection to refugees from Afghanistan whose temporary visas had expired.
This is an extraordinary figure, given that on average the tribunal overturns less than 10 percent of all cases.
So why are the immigration department and the refugee review tribunal reaching opposite conclusions in TPV cases from Afghanistan?
When the question was raised late last month in Senate Estimates, the explanation was that circumstances in Afghanistan had changed between the time decisions were made by DIMIA officers and the time those cases came before the tribunal. In other words, the tribunal was acting on newer, more negative country information than departmental decision makers.
But refugee lawyers say this is only part of the picture. Another factor is the interpretation put on that country information. DIMIA has consistently put a positive spin on the situation in Afghanistan (in marked contrast to the dire travel warnings issued by the Department of Foreign Affairs). Most Afghan applicants are from the Hazara ethnic minority and most Hazara are Shia Muslims. In Sunni-majority Afghanistan they have experienced discrimination over generations. The Hazara were a special target for abuse under the former Taliban regime and, in the view of the tribunal, they are still at risk. A summary judgement, printed in the tribunal’s May monthly report, describes the situation in the following terms.
The Tribunal noted that progress had been made in eradicating the Taliban and the ethnic and religious persecution of the Hazaras. However it found that the trend to improvement had been influenced by recent deteriorations involving attacks by the Taliban, worsening security, and uncertainty around international support and involvement.
In other decisions, the tribunal has found that Taliban supporters are still ‘active and dangerous’ in particular provinces and questioned whether government authorities could provide ‘adequate protection’ for returning refugees. One tribunal member found that ‘there was a discriminatory failure on the part of the Afghan government’ to provide residents of the Hazara area of Kabul with ‘access to law enforcement’.
The fact that departmental officers appear to wear rose coloured glasses when viewing country information from Afghanistan goes some way to explaining the discrepancy in decision making between DIMIA and the tribunal. But according to refugee lawyer David Manne, there is another more important factor. Manne is the coordinator of Melbourne’s Refugee and Immigration Legal Centre and sits on the board of the Refugee Council of Australia. He says that when a refugee on a temporary visa seeks further protection in Australia, DIMIA and the tribunal apply completely different legal tests. DIMIA requires applicants to prove their case for refugee status all over again, as if they had just arrived in Australia, whereas the tribunal puts the onus of proof on the authorities to show why the applicant is no longer a refugee.
DIMIA’s approach is based the definition of a refugee contained in Article 1A of the 1951 Refugee Convention - that is, it requires applicants to demonstrate a well founded fear of persecution on the basis of their race, religion, nationality, political opinion or membership of a particular social group. The tribunal’s approach is based Article 1.C (5), known as the cessation clause, which applies when the circumstances under which a person was granted refugee status ‘have ceased to exist’. In applying this test, the tribunal must be convinced that change in the homeland is so fundamental and so durable that the returning refugees are no longer at risk - a difficult case to make in relation to Afghanistan.
The courts will eventually decide which approach is correct. In the meantime, the department is setting the bar much higher than its review body. Refugees stumble at the first hurdle but frequently clear the second. This is a waste of public money (this year the Finance Department costed tribunal cases at $3500 each) and causes unnecessary suffering to vulnerable people, who may wait months for their cases to be decided.
The potential for further waste and further delay is great. There are another 400 Afghan cases awaiting decisions at the tribunal and DIMIA has only just started processing applications from Iraqi refugees whose TPVs have expired and who are seeking further protection. (Processing of Iraqi applicants was frozen for more than a year because of the uncertain political situation in post-war Iraq.)
THERE are indications that the immigration minister, Amanda Vanstone, is looking to clean up the TPV mess and come up with a more pragmatic solution. It is understood that she has requested an options paper from her department on how to deal with Iraqi refugees on temporary protection visas. It is to be hoped that this process may produce a sensible outcome, such as a mechanism to convert all temporary protection visas to permanent visas (unless there is strong evidence to indicate that the initial visa was obtained under false pretences). This would also address one of the other iniquities of the convoluted TPV system, which means that some TPV holders may never be eligible for permanent residence in Australia (and so never be able to apply for family reunion or travel outside Australia without giving up all right of return).
But refugee advocates and lawyers are not holding their breath. Even if Senator Vanstone comes up with a workable solution, chances are that she will fail to win backing for it in cabinet. After all, this is what happened to her predecessor, Philip Ruddock, when he tried to argue for a special humanitarian visa for asylum seekers from East Timor. The East Timorese cases were frozen for years pending the outcome of protracted legal proceedings. By the time DIMIA began considering the East Timorese cases, Indonesia was no longer occupying East Timor and their chances of being recognised as refugees were slim. When Ruddock failed to secure cabinet approval for a special visa for the East Timorese, what emerged instead was a cumbersome ‘work around’ solution. East Timorese asylum seekers are forced to go through the motions of applying for refugee status with DIMIA, then appealing to the tribunal, even though there is almost no chance of a successful outcome in either case. It is only after jumping through those hoops that the East Timorese can make an individual request to the minister to use her non-compellable discretion to grant a visa on humanitarian grounds. While the minister generally takes a sympathetic view of the East Timorese cases, this is hardly good public policy. Unfortunately, a similar messy outcome is foreseeable in the case of TPV-refugees seeking further protection.
But even in Senator Vanstone is unable or unwilling to push for a comprehensive solution, she could at least improve the current TPV shambles by instructing DIMIA officers to apply the same legal test and use the same country information assessment as their colleagues at the Refugee Review Tribunal.
Peter Mares is a senior research fellow at the Institute for Social Research at Swinburne University of Technology and the author of Borderline: Australia’s Response to Refugees and Asylum Seekers in the Wake of the Tampa (UNSW Press 2002)
It's time to clean up the mess of temporary protection visas
Chickens launched by former immigration minister Philip Ruddock are coming home to roost in the portfolio of Senator Amanda Vanstone. Peter Mares argues that it is time to clean up the mess
In October 1999, Philip Ruddock created the three-year temporary protection visa (TPV) for refugees who arrived on our shores without authorisation. Prior to this everyone recognised as a refugee in Australia was granted permanent residence, regardless of how they got here.
Ruddock’s aim was to deter Middle Eastern asylum seekers who were arriving in increasing numbers by boat from Indonesia by granting them a second-class refugee status, which prevented them from applying for family reunion. The policy not only failed, it had the unintended effect of encouraging more women and children to make the voyage on dangerous boats, since that was the only way to reunite families in Australia.
The bulk of the 8912 TPVs issued since temporary visas were introduced have been given to refugees from Afghanistan (3661 visas) and Iraq (4269). Those visas have now expired or will soon expire, which means that the refugees must either return home or prove to the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) that they need on-going protection in Australia.
TPV holders generally attempt the latter approach and the department generally turns them down. As of 14 May 2004, DIMIA had made 1192 primary decisions made on TPV holders applying for further protection; in 991 cases the application had been refused. Most of these decisions involved refugees from Afghanistan. The government’s argument - the same argument used when it offered Afghans cash incentives called ‘reintegration packages’ to be repatriated - is that since the fall of the Taliban the refugees are no longer at risk of persecution in their homeland.
The refugees have an automatic right of appeal to the Refugee Review Tribunal, however, and the tribunal is proving to be much more sympathetic to the Afghans’ plight.
Since the beginning of this financial year, the tribunal has considered the appeals of 271 Afghans who had been told by DIMIA that they were no longer refugees. In 244 of those cases, the tribunal ‘set aside’ the department’s decision, arguing that the applicants in question should be allowed to stay in Australia. In short, the tribunal says immigration department officers got it wrong 90 per cent of the time, when they refused to grant further protection to refugees from Afghanistan whose temporary visas had expired.
This is an extraordinary figure, given that on average the tribunal overturns less than 10 percent of all cases.
So why are the immigration department and the refugee review tribunal reaching opposite conclusions in TPV cases from Afghanistan?
When the question was raised late last month in Senate Estimates, the explanation was that circumstances in Afghanistan had changed between the time decisions were made by DIMIA officers and the time those cases came before the tribunal. In other words, the tribunal was acting on newer, more negative country information than departmental decision makers.
But refugee lawyers say this is only part of the picture. Another factor is the interpretation put on that country information. DIMIA has consistently put a positive spin on the situation in Afghanistan (in marked contrast to the dire travel warnings issued by the Department of Foreign Affairs). Most Afghan applicants are from the Hazara ethnic minority and most Hazara are Shia Muslims. In Sunni-majority Afghanistan they have experienced discrimination over generations. The Hazara were a special target for abuse under the former Taliban regime and, in the view of the tribunal, they are still at risk. A summary judgement, printed in the tribunal’s May monthly report, describes the situation in the following terms. In other decisions, the tribunal has found that Taliban supporters are still ‘active and dangerous’ in particular provinces and questioned whether government authorities could provide ‘adequate protection’ for returning refugees. One tribunal member found that ‘there was a discriminatory failure on the part of the Afghan government’ to provide residents of the Hazara area of Kabul with ‘access to law enforcement’.
The fact that departmental officers appear to wear rose coloured glasses when viewing country information from Afghanistan goes some way to explaining the discrepancy in decision making between DIMIA and the tribunal. But according to refugee lawyer David Manne, there is another more important factor. Manne is the coordinator of Melbourne’s Refugee and Immigration Legal Centre and sits on the board of the Refugee Council of Australia. He says that when a refugee on a temporary visa seeks further protection in Australia, DIMIA and the tribunal apply completely different legal tests. DIMIA requires applicants to prove their case for refugee status all over again, as if they had just arrived in Australia, whereas the tribunal puts the onus of proof on the authorities to show why the applicant is no longer a refugee.
DIMIA’s approach is based the definition of a refugee contained in Article 1A of the 1951 Refugee Convention - that is, it requires applicants to demonstrate a well founded fear of persecution on the basis of their race, religion, nationality, political opinion or membership of a particular social group. The tribunal’s approach is based Article 1.C (5), known as the cessation clause, which applies when the circumstances under which a person was granted refugee status ‘have ceased to exist’. In applying this test, the tribunal must be convinced that change in the homeland is so fundamental and so durable that the returning refugees are no longer at risk - a difficult case to make in relation to Afghanistan.
The courts will eventually decide which approach is correct. In the meantime, the department is setting the bar much higher than its review body. Refugees stumble at the first hurdle but frequently clear the second. This is a waste of public money (this year the Finance Department costed tribunal cases at $3500 each) and causes unnecessary suffering to vulnerable people, who may wait months for their cases to be decided.
The potential for further waste and further delay is great. There are another 400 Afghan cases awaiting decisions at the tribunal and DIMIA has only just started processing applications from Iraqi refugees whose TPVs have expired and who are seeking further protection. (Processing of Iraqi applicants was frozen for more than a year because of the uncertain political situation in post-war Iraq.)
THERE are indications that the immigration minister, Amanda Vanstone, is looking to clean up the TPV mess and come up with a more pragmatic solution. It is understood that she has requested an options paper from her department on how to deal with Iraqi refugees on temporary protection visas. It is to be hoped that this process may produce a sensible outcome, such as a mechanism to convert all temporary protection visas to permanent visas (unless there is strong evidence to indicate that the initial visa was obtained under false pretences). This would also address one of the other iniquities of the convoluted TPV system, which means that some TPV holders may never be eligible for permanent residence in Australia (and so never be able to apply for family reunion or travel outside Australia without giving up all right of return).
But refugee advocates and lawyers are not holding their breath. Even if Senator Vanstone comes up with a workable solution, chances are that she will fail to win backing for it in cabinet. After all, this is what happened to her predecessor, Philip Ruddock, when he tried to argue for a special humanitarian visa for asylum seekers from East Timor. The East Timorese cases were frozen for years pending the outcome of protracted legal proceedings. By the time DIMIA began considering the East Timorese cases, Indonesia was no longer occupying East Timor and their chances of being recognised as refugees were slim. When Ruddock failed to secure cabinet approval for a special visa for the East Timorese, what emerged instead was a cumbersome ‘work around’ solution. East Timorese asylum seekers are forced to go through the motions of applying for refugee status with DIMIA, then appealing to the tribunal, even though there is almost no chance of a successful outcome in either case. It is only after jumping through those hoops that the East Timorese can make an individual request to the minister to use her non-compellable discretion to grant a visa on humanitarian grounds. While the minister generally takes a sympathetic view of the East Timorese cases, this is hardly good public policy. Unfortunately, a similar messy outcome is foreseeable in the case of TPV-refugees seeking further protection.
But even in Senator Vanstone is unable or unwilling to push for a comprehensive solution, she could at least improve the current TPV shambles by instructing DIMIA officers to apply the same legal test and use the same country information assessment as their colleagues at the Refugee Review Tribunal.
Peter Mares is a senior research fellow at the Institute for Social Research at Swinburne University of Technology and the author of Borderline: Australia’s Response to Refugees and Asylum Seekers in the Wake of the Tampa (UNSW Press 2002)