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Temporary Protection by hook or by crook
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Temporary Protection by hook or by crook

Posted 4/03/2014 by Elibritt Karlsen

The Coalition has consistently argued for the reintroduction of Temporary Protection

Visas (or TPVs as they are more commonly known) because it considers them to be an

essential component of its border protection arsenal to deter asylum seekers from trying

to enter Australia by boat. When in Opposition in early 2013, the Coalition unsuccessfully

introduced legislation to try to reintroduce TPVs. When they formed Government six

months later, the domestic landscape had changed significantly. Some 33,000 boat

arrivals were already living in the community on Bridging Visas and following former

Prime Minister Rudd’s announcement in July 2013, all future asylum seekers arriving in

Australia by boat would be transferred to a third country for processing with no prospect

of resettlement to Australia. Arguably, this abrupt policy shift made the basis for the

Coalition’s TPV policy redundant. Nonetheless, the Coalition has remained committed to

the policy.

Only a month after forming Government, the Coalition registered the Migration »

Amendment (Temporary Protection Visas) Regulation 2013. The primary purpose of this

instrument was to reintroduce TPVs for asylum seekers who have travelled to Australia by

boat or those who have otherwise arrived in Australia without a valid visa. However, on 2

December 2013, Labor and the Australian Greens united to pass a resolution in the

Senate disallowing the regulation. In direct response, and on the same day as the

disallowance, Minister Morrison, acting under section 85 of the « Migration » Act 1958,

determined that the maximum number of permanent protection visas that could be

granted in the financial year 2013—2014 was to be 1,650. This was the number already

issued prior to the swearing in of the Abbott Government. Thus effectively, the Minister

was declaring that no more permanent protection visas would be granted until the next

financial year.

At the same time, Minister Morrison announced that he would also be exercising his

powers under section 46A of the « Migration » Act to prevent people who had arrived by

boat making applications for permanent protection visas. This bar would remain in effect

until TPVs were reinstated. Section 46A of the « Migration » Act prohibits asylum seekers

who have arrived by boat from applying for a visa unless the Minister thinks that it is in

the public interest to permit them to do so.

On 9 December 2013, Senator Hanson-Young of the Australian Greens introduced the

« Migration » Amendment (Visa Maximum Numbers Determinations) Bill 2013. The primary

purpose of this Bill was to make instruments made under section 85 of the « Migration » Act

subject to disallowance by Parliament. However, Labor did not support this Bill in the

Senate when it came up for debate at the end of last year on the basis that all

instruments made under section 85, including those that enabled the Government to

manage the « migration » intake under the family and skill streams, would also become

subject to disallowance.

On 14 December 2013, the Government’s « Migration » Amendment (Unauthorised Maritime

Arrival) Regulation 2013 came into effect. The primary purpose of this instrument was to

introduce a new visa criterion so that asylum seekers who have arrived in Australia by

boat would effectively not be eligible for grant of a permanent protection visa. Two days

after the Regulation came into effect, legal action was commenced in the High Court to

challenge its validity on the basis that it was the same in substance to the previously

disallowed TPV regulation. Section 48 of the Legislative Instruments Act 2003 prohibits

the making of a legislative instrument that is the ‘same in substance’ as a previously

disallowed instrument within six months of the disallowance. The plaintiffs argue that

both instruments are the ‘same in substance’ because both deny permanent protection

to boat arrivals. The plaintiffs are also questioning the Regulation’s compatibility with

other sections of the « Migration Act.

Only a few weeks after it imposed the cap on the number of protection visas that could

be granted, the Government revoked the cap, arguing that it was no longer necessary

because the Unauthorised Maritime Arrival Regulation had come into effect. However,

commentators have linked the revocation to High Court challenges. In January 2014, the

Immigration Department reportedly began advising agencies that it would be inviting

applications for Temporary (Humanitarian Concern) Visas from asylum seekers who had

arrived by boat. Commentators have likened this visa to the TPV as both achieve the

same end—denial of permanent residency and the imposition of restrictions, such as

family reunification.

On 5 March 2014, Senator Hanson-Young will move a motion that the Unauthorised

Maritime Arrival Regulation be disallowed. It is not known whether Labor will again

support the Greens but irrespective of parliamentary proceedings, at the end of this week

the full bench of the High Court will begin considering the validity of the Unauthorised

Maritime Arrival Regulation.