The Abolition of the Temporary Protection Visa

END TO TEMPORARY PROTECTION VISAS

The Minister made the following momentous announcement on 15 May 2008:

The Rudd Government’s abolition of the Temporary Protection visa (TPV) regime will help about 1000 refugees rebuild their lives in Australia.

The Minister for Immigration and Citizenship, Senator Chris Evans, today said the move honoured a Labor election promise and reaffirmed the Rudd Government‘s commitment to human rights.

Under the unjust regime set up by the previous government, unauthorised arrivals who were owed protection under Australia‘s international obligations were only eligible for TPVs in the first instance.

It meant that refugees had no travel rights, reduced access to refugee settlement services such as English language programs, employment and income assistance, and could not be reunited with other family members.

From early 2008-09, refugees on TPVs who are currently in Australia will receive a permanent visa, regardless of their mode of arrival. Provided they meet security and character requirements, they will be granted permanent residency in Australia and will not need to have their protection claims reassessed.

It is that last point which changes the law substantially. Many of the refugees involved (TPV) holders had come from Afghanistan during the Taliban reign and Iraq during the Hussein reign. As both the Taliban and Hussien were ousted from power, DIAC had consistently argued that these visa applicants could return to their respective home countries because they were no longer refugees – the regimes that gave them a fear of persecution were no longer in power. That view was endorsed by the High Court in MIMIA v QAAH [2006] HCA 53 (15.11.06) in a 4/1decision. Of course no one in their right mind would return to Afghanistan or Iraq in current circumstances.

The High Court in QAAH said this:

When the visa expires, the holder of it must make a fresh application for another visa, in this case, another protection visa, because otherwise that person would have no entitlement to remain in Australia: and, a, or the relevant criterion for the grant of a protection visa at that time is that the non-citizen, the applicant, is a person to whom Australia has (not, it may be observed, “in the past had, or owed”) protection obligations under the Convention (s 36(2) and (4)).

Thus the High Court confirmed that when a person applied for a new TPV after the old expired the applicant had to prove refugee status afresh as at the date of the new visa application, the old ‘protection’ status was largely irrelevant.

So here is how the TPV regime ends – gone is the requirement to re-prove refugee status. All is set out in the Migration Amendment Regulations 2008 (No 5) with effect from August 2008 – here is the relevant extract adding a new Reg 2.07AQ:

[Note s. 46(2) states:

(2) Subject to subsection (2A), an application for a visa is valid if:

(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and

(b) under the regulations, the application is taken to have been validly made.]

2.07AQ Applications for Resolution of Status (Class CD) visas

(1) For s. 46 (2) of the Act, a Resolution of Status (Class CD) visa is a prescribed class of visa.

(2) An application for a Resolution of Status (Class CD) visa is taken to have been validly made by a person only if the requirements of subregulation (3) or item 1127AA of Schedule 1 have been met.

(3) The requirements of this subregulation are met for a person if the criteria set out in at least 1 of the items of the table are satisfied.

Item

Criterion 1Criterion 2Criterion 3Criterion 4

The person makes a valid application for a Protection (Class XA) visaThe person holds:(a) a Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa; or

(b) a Subclass 451 (Secondary Movement Relocation (Temporary)) visa; or

(d) a Subclass 785 (Temporary Protection) visa

NilNil

The person makes a valid application for a Protection (Class XA) visaThe person held, but no longer holds, a visa of a kind mentioned in criterion 2 of item 1, and the visa was not cancelledThe person:(a) has not left Australia; or

(b) while holding a visa that permits re‑entry to Australia, has left and re‑entered Australia

The person does not hold a permanent visa

The person holds:(a) a Temporary Safe Haven (Class UJ) visa; or

(b) a Temporary (Humanitarian Concern) (Class UO) visa

An offer of a permanent stay in Australia is made to the person by the Australian GovernmentThe person indicates to an authorised officer that he or she accepts the offer of a permanent stay in AustraliaThe authorised officer endorses, in writing, the person’s acceptance of the offer

Subclass 851 Resolution of Status

851.1 Interpretation

Note There are no interpretation provisions specific to this Part.

851.2 Primary criteria

Note The primary criteria have to be satisfied by all applicants for Subclass 851 visas.

851.21 [No criteria to be satisfied at time of application]

851.22 Criteria to be satisfied at time of decision

851.221 The applicant has undergone a medical examination carried out by any of the following (a relevant medical practitioner):

(a) a Medical Officer of the Commonwealth;

(b) a medical practitioner approved by the Minister for the purposes of this paragraph;

(c) a medical practitioner employed by an organisation approved by the Minister for the purposes of this paragraph.

851.222 The applicant:

(a) has undergone a chest x‑ray examination conducted by a medical practitioner who is qualified as a radiologist in Australia; or

(b) is under 11 years of age and is not a person in respect of whom a relevant medical practitioner has requested such an examination; or

(c) is a person:

(i) who is confirmed by a relevant medical practitioner to be pregnant; and

(ii) who has been examined for tuberculosis by a chest clinic officer employed by a health authority of a State or Territory; and

(iii) who has signed an undertaking to place herself under the professional supervision of a health authority in a State or Territory and to undergo any necessary treatment; and

(iv) who the Minister is satisfied should not be required to undergo a chest x‑ray examination at this time.

851.223 A relevant medical practitioner:

(a) has considered:

(i) the results of any tests carried out for the purposes of the medical examination required under clause 851.221; and

(ii) the radiological report (if any) required under clause 851.222 in respect of the applicant; and

(b) if he or she is not a Medical Officer of the Commonwealth and considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community, has referred any relevant results and reports to a Medical Officer of the Commonwealth.

851.224 If a Medical Officer of the Commonwealth considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community, arrangements have been made, on the advice of the Medical Officer of the Commonwealth, to place the applicant under the professional supervision of a health authority in a State or Territory to undergo any necessary treatment.

851.225 The applicant:

(a) satisfies public interest criteria 4001, 4002 and 4003A; and

(b) if the applicant had turned 18 at the time of application – satisfies public interest criterion 4019.

851.226 If the applicant was taken to have made an application because the criteria in item 4 of the table in subregulation 2.07AQ (3) were satisfied, the applicant and the other person mentioned in that item are members of the family unit.

851.227 If the criteria in item 3 of the table in paragraph 1127AA (3) (c) of Schedule 1 were satisfied, the applicant and the other person mentioned in that item are members of the same family unit.

851.3 Secondary criteria

Note There are no secondary criteria for the grant of a Subclass 851 visa.

851.4 Circumstances applicable to grant

851.411 The applicant must be in Australia.

851.5 When visa is in effect

851.511 Permanent visa permitting the holder to travel to and enter Australia for a period of 5 years from the date of grant.

851.6 Conditions: Nil.

Barbara DavidsonAugust 20, 2014