Who do TPVs protect?

‘Justice is the first virtue of social institutions, as truth is of systems of thought … laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.’ – John Rawls, A Theory Of Justice

In 2013, when Scott Morrison said that, under the Refugee Convention, there is ‘no guarantee or requirement for permanent residency’, he was not wrong. There is no provision in the act that means signatories must provide permanent protection, even to those found to be legitimate refugees. It would be unreasonable to require countries facing an influx of asylum seekers to grant each person permanent protection. Since the 2011 Syrian crisis, more than 3 million refugees have fled. As of December 2014, the UNHCR reports Jordan has accepted over 620, 000 people, generally over the shared land border. In such a case, most people would agree that granting temporary protection to most is not only acceptable but just – what use would it be to offer refugees resources that a country simply doesn’t have?

At of 30 November 2014, Australia reported that 3,176 people were being held in immigration detention facilities, both onshore and offshore. Of these, 81.6 percent were ‘illegal maritime arrivals’ (formerly referred to as ‘irregular maritime arrivals’). Under new laws, any person who arrives in this way will only be granted a three year Temporary Protection Visa (TPV) and, in a best case scenario, will be able to move on to a five year long visa after that. But there are, naturally, no guarantees. Such is the nature of a TPV, which is not a mechanism of necessity but is explicitly punitive. These are very different to the kind of temporary protection envisaged under the Convention.

When advocates say that TPVs deny asylum seekers’ rights, they’re correct. Pauline Hanson first formally proposed TPVs in 1996, while she was leader of the One Nation Party, an organisation that still claims to ‘[adhere to] the principles for which she fought.’

The current One Nation Immigration Policy website makes the party’s views abundantly clear, with a rather ingenious (if grammatically tenuous) metaphor.

What we have here is someone coming into your home telling you they like your house better than theirs and they are going to live with you. You have to feed, cloth, care, and educate them while looking after their needs … They don’t have to work you are providing for them.

It’s a sentiment similar to the rhetoric of ‘queue jumping.’ Perhaps the most troubling aspect of the people smuggling debate relates to the idea of ‘paying’ to get a better life. This is what seems to strike a chord among Australians, the fundamental misconception that being an asylum seeker is the same as being an economic migrant. It’s not. To be a refugee is to face a real threat of persecution. It’s about paying to keep your family alive at all.

When TPVs were adopted by the Howard government in 1999, the debate was framed around the idea of deterrence. On paper they were a very neat solution: stop people smuggling, take in refugees pre-screened by the UNHCR and do humanitarian good, while maintaining tight control over who gets in. People smuggling undermines this system, and has been deemed ‘illegal’.

But perhaps a better view is that the demand for people smuggling is driven by the increase in humanitarian crises, rather than because smugglers offer a premium illegal ‘queue jumping’ service.

When the Australian government says it has ‘stopped the boats’, it is not wrong. Increased powers for maritime authorities mean that boats can be dragged to any country other than ours, ensuring they never reach our shores. TPVs will come in for those that slip through. Those people will never be able to settle here permanently, and they will not be able to reunite with their families. The much-criticised way the policy denies fundamental rights to asylum seekers and the psychological impact of this denial – including the promotion of uncertainty, helplessness, the compounding of PTSD and prolonged periods in detention – are not just side effects of the policy. They are its underlying goals.

From 1999 until 2008, the boats did not stop leaving the shores of developing countries. They still haven’t. They are carrying children too – the same children used as leverage by our government to pass new laws unprecedented in Australia’s history, laws that give the Immigration Minister sweeping and untested powers, and mean the rules of natural justice no longer apply for asylum seekers intercepted at sea, the rules of natural justice no longer apply.

The Australian government says its policies don’t break any laws. But asylum seekers haven’t broken any laws, either. So perhaps a better question is whether punishing them, as TPVs are designed to, can be considered in any way just.

Emily Meller

Emily Meller is a Sydney-based writer and law student. Her work has appeared in The Lifted Brow, Vertigo and The Full Bench Law Journal.

Overland is a not-for-profit magazine with a proud history of supporting writers, and publishing ideas and voices often excluded from other places.

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  1. What a timely reminder of the dire political situations and human rights abuses leaving no option for many of our world citizens to flee and seek asylum.

    After the brutal murder of Tori Johnson and Katrina Dawson this week, the negative side of ‘illegal arrivals’ will gain traction so it is imperative that voices of reason like yours prevail in the media.

    Keep on speaking for the oppressed – they need you.

  2. The snowball effect: someone gets in, sends word back up the line, and so a number >1 start their own journey. This happened to/under Gillard.
    At last count there were around 50,000,000 refugees on the UNHCR list, mainly refugees from Islam’s endemic sectarian wars.
    How many of those 50,000,000 do you propose we welcome in, and what do we do with the excess arrivals after them?

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