As the founding member of the Victorian Immigration Solicitors’ Alliance: VISA, I am proud to say that VISA whole heatedly commends and supports the latest paper from the Kaldor Centre for International Refugee Law.
The Kaldor Centre for International Refugee Law has released a paper regarding the current temporary protection visa regime and has proposed various changes, VISA commends the paper to all interested in the refugee law space and supports all 17 recommendations made:
One of the most detrimental elements of Australian refugee law and policy in the past decade has been the use of temporary visas. Temporary protection has been the only option available for people who arrived by boat and were recognised as refugees. Known as the ‘legacy caseload’, these people are caught in a system of law and policy that keeps them in a state of perpetual limbo.
This is an inhumane, unsustainable, and inefficient system that inflicts mental harm and creates costly, bureaucratic burdens. Providing permanent protection to the 31,000 men, women, and children in this group—many of whom have been recognised by Australia as refugees in need of protection—would provide them with a resolution of their legal status and enable them to move forward with their lives, while also acknowledging the significant contribution this group has already made to the community through work and social engagement.
This Policy Brief provides concrete recommendations about how to move refugees on temporary visas to permanent visas—using existing powers under the Migration Act 1958 (Cth) and minor amendments to the Migration Regulations 1994 (Cth)—as well as recommendations for people whose protection claims have not yet been assessed, or have been refused. The 17
recommendations are intended as a package of coherent and inter-related measures, rather than a suite of different options.
Recommendations
This Policy Brief makes 17 specific recommendations for the legacy caseload:
1. Refugees on Temporary Protection Visas (TPVs) and Safe Haven Enterprise Visas (SHEVs) should be moved onto permanent visas. People who have not yet been assessed or who have previously been refused protection should also be able to apply for a permanent visa that does not require another assessment of their protection claims. Trauma-informed approach: Establishing trust and clarity and rebuilding lives
2. An interagency group should be established to work with the Department of Home Affairs
(DHA) on developing a trauma-informed, integrated community legal and mental health strategy to accompany legal and policy changes.
3. Legal, social and mental health support, including access to interpreting, should be funded
to assist individuals with the visa application process.
Group one: People who currently hold, or who have previously held, a SHEV or TPV
4. Outstanding applications for a subsequent TPV or SHEV should be converted to an
application for a Resolution of Status Visa (RoSV) via s 45AA of the Migration Act. This will require an amendment to the Migration Regulations to convert a valid TPV or SHEV application to a RoSV application.
5. For individuals who have not applied for a subsequent TPV or SHEV, amend reg 2.07AQ ofthe Migration Regulations to deem them to have applied for a RoSV.
6. Schedule 1 item 1127AA(3)(c) of the Migration Regulations should be amended to include an applicant who holds, or has held, a Subclass 785 visa or Subclass 790 visa. Group two: People who have previously applied for, and been refused, a SHEV or TPV
7. The Minister should exercise their personal power under s 46A(2) of the Migration Act to enable people who have previously applied for, and been refused, a TPV or a SHEV to apply for a RoSV.
8. Regulation 2.08AQ and Schedule 1 item 1127AA(3)(c) of the Migration Regulations should be amended to enable people who have applied for, and been refused, a SHEV or TPV to make an application for a RoSV. Group three: People still waiting for a determination of their visa
9. People with outstanding applications for an initial TPV or SHEV should have their
applications converted to an application for a RoSV via s 45AA of the Migration Act. This will require an amendment to the Migration Regulations to convert a valid TPV or SHEV application to a RoSV application. Post-visa grant: Mental health, social and employment support
10. The government should consult with relevant non-government organisations (NGOs) and agencies to design a range of services tailored to different groups in the legacy caseload, including mental health and social services, and education, employment, and training assistance programs. Permission to travel and access to travel documents
11. The policy and process for managing requests for permission to travel should be revised to ensure that requests are processed quickly and with more flexibility when determining whether ‘compassionate or compelling’ circumstances exist for travel.
12. Individuals who hold a RoSV and who have previously held a TPV or a Subclass 790 SHEV should continue to be eligible for a Convention Travel Document.
13. Individuals who hold a RoSV and who have not had a positive refugee status determination, or who have not had their status determined, should be eligible for a Certificate of Identity (COI).
Family reunion
14. Ministerial Direction No 80 should be repealed, or amended by removing subsection 8(g) of the Direction and all references to subsection 8(g) within the Direction.
15. The policy for current processing priorities for the Refugee and Humanitarian Program
should be revised to prioritise those proposed by people on RoSVs.
16. A specialised team should be established within the DHA to work closely with relevant
migration agent/lawyer peak bodies, community legal centres and refugee communities to:
a. identify priority actions to manage and progress Partner visas sponsored by people from
the legacy caseload; and
b. identify policy and legislative reform options for close relatives and children who may no
longer fit within the current definitions of ‘member of a family unit’ or ‘dependent child’.
17. Funding should be provided to community legal centres/Legal Aid to provide immigration assistance to families to apply for relevant Family or Humanitarian visas, including access to interpreters.
Full paper at:
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Be advised this is general information only and is not intended to be relied upon as legal advice. VISA makes no warrantees or guarantees of the information on this webpage. For all legal issues we urge you to contact our Corporate Partners AR LAW SERVICES: Master Migration & Regulatory Lawyers. Specialist Crimmigration Law Firm. https://www.arlaw.com.au/
