Changes to temporary protection visas are welcome - and won't encourage people smugglers

Refugees in Australia on temporary protection visas (TPVs) and Safe Haven Enterprise Visas (SHEVs) now have a pathway to permanent protection, the federal government has confirmed this week.

The long-awaited changes will bring much-needed certainty to around 20,000 people who arrived in Australia before January 1 2014, and who were found to be refugees or at risk of serious human rights violations.

These people have endured years in limbo under a policy that research has shown to be unfair, expensive, impractical, and inconsistent with our international obligations.

Temporary protection not only inflicts significant mental harm on asylum seekers, but also created a costly bureaucratic burden for the government. It’s also out of step with the practice of other countries, where temporary protection is reserved for exceptional circumstances.

The changes are a welcome development for people who have lived with uncertainty for a decade, providing them with an opportunity to rebuild their lives with a sense of security. The decision is also highly unlikely to encourage asylum seekers to try to reach Australia by boat.

Yet, the fate of thousands of other refugees and asylum seekers in limbo in Australia remains uncertain.

How did we get here?

The Coalition announced in 2013 that the temporary protection regime would be reintroduced as part of Operation Sovereign Borders.

It was deployed alongside boat pushbacks at sea and offshore processing, with the goal of deterring asylum seekers from travelling by boat to Australia.

The temporary nature of such visas meant refugees had to have their protection claims reassessed every few years. This left refugees in a state of constant fear and anxiety, unsure if they would be allowed to remain in the country or be forced to leave.

Learn more: The trauma of life in limbo for refugees and asylum seekers in immigration detention – podcast

Those on SHEVs who met certain requirements relating to work and study in regional areas were – at least on paper – potentially eligible for other visas. But in practice, those requirements were beyond reach, with only one person ever qualifying.

The changes announced overnight mark a welcome development. But they don’t resolve the precarious fate of all those in the so-called “legacy caseload”. There’s more to do to bring fairness to thousands of other refugees and asylum seekers who remain tangled in Australia’s complex “fast-track” process.

Permanent protection

While the changes fall short of formally abolishing TPV and SHEV visas, people who currently hold such visas will now be able to apply for a “Resolution of Status Visa”. This will allow them to remain permanently in Australia, subject to character, health and security checks.

Permanent residency will provide access to a wide range of rights and benefits that have been out of reach. This includes a pathway to citizenship, access to social security and other benefits, the ability to travel abroad, and access to government subsidised higher education.

After a decade of being separated from their families, such visa holders will now be able to sponsor family members to join them in Australia.

The changes implement a promise the Albanese government took to the 2022 election, widely backed by the Australian public. Polling by the Kaldor Centre for International Refugee Law, the Behavioural Insights Team, and Macquarie University showed three out of four Australian voters supported this pathway to permanency.

The Albanese government’s announcement of $9.4 million of funding for specialist legal service providers is also welcome. This will allow TPV and SHEV holders to access free legal assistance as they go through the visa application process.

Who misses out?

Regrettably, the changes fall short of an across-the-board solution for all 31,000 people subject to the TPV and SHEV regime, called for by refugees, refugee-led organisations and other experts.

This means the approximately 12,000 people who hadn’t yet been issued a TPV or SHEV will continue to live in limbo.

This includes around 6000 people who had their initial visa application refused, and who are seeking merits or judicial review of that decision. That process is set to continue, and the good news is that those who succeed at review and are granted a TPV or SHEV will now automatically be able to apply for a permanent visa.

However, a further 2500 people who had their TPV or SHEV cancelled or refused are left out and expected to leave Australia. Anyone with a new credible claim may be able to request ministerial intervention. But this is a highly discretionary process and remains to be seen how willing the minister may be to exercise this power.

It’s concerning these people are left without a better process, given the well-documented flaws in the so called “fast-track” process that was used to assess these claims. This means there’s a real risk that many people who had their initial claims refused may in fact have valid protection claims.

The changes also don’t apply to anyone who tried to reach Australia by boat after January 1 2014, including the more than 1000 people transferred from offshore processing facilities to Australia for medical treatment.

The government’s position remains that these people will never be allowed to settle in Australia, and should pursue resettlement options abroad, including through Australia’s arrangements with New Zealand.

Read more: Aus-NZ refugee deal is a bandage on a failed policy. It's time to end offshore processing

It won’t encourage people smugglers

The changes also don’t affect asylum seekers who may attempt to reach Australia by boat in the future. Boat pushbacks at sea and offshore processing arrangements with Nauru remain in place, as does the bar on such arrivals applying for protection visas in Australia.

What this means is that TPVs and SHEVs remain on the books for future arrivals and would be available if the minister were to decide to lift that bar in any given case.

This makes claims that the changes could encourage asylum seekers to travel to Australia by boat completely baseless.

Prime Minister Anthony Albanese has expressed a commitment to being strong on borders without being weak on humanity. This week's announcement is a welcome first step in that direction, but there’s still a great deal left to be done to return a sense of humanity to Australia’s refugee policies.

Refugees affected by the changes can access information about legal assistance from the Refugee Council of Australia and Refugee Advice and Casework Service.

Daniel Ghezelbash, Associate Professor and Deputy Director, Kaldor Centre for International Refugee Law, UNSW Law & Justice, UNSW Sydney, UNSW Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.