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The return of Temporary Protection Visas

The Immigration Minister Scott Morrison has introduced a new type of visa to parliament today named the “Safe Haven Enterprise Visa” which will be a visa of a temporary nature will offer similar support as that offered by the Temporary Protection Visas which will be reintroduced six years after they were abolished by the Rudd Government This Bill will also create the Immigration Assessment Authority which would have the purpose of fast tracking and processing the backlog of over 30, 000 current asylum seeker applications leftover from the previous Government.

Titled the Migration and Maritimes Powers Legislation Amendment (resolving the asylum legacy caseload) Bill 2014, the Bill itself amends the Migration Act 1958, the Migration Regulations 1994, the Maritime Powers Act 2013, the Immigration (Guardianship of Children) Act 1946 and the Administrative Decisions (Judicial Review) Act 1977 with the goal being in  order to support and implement the current Government’s strategies for combatting people smuggling as well as implementing policies which will greatly assist in managing asylum seekers both onshore and offshore.

The Bill introduces some key changes to the current approach adopted by Australia in regards to people smuggling and the managing of claims for asylum, namely;

  • Reinforces the Government’s powers and support in regards to conducting maritime operations with the aim of stopping people smugglers whilst at sea.
  • The introduction of temporary protection for these who engage Australia’s non-refoulement obligations and who arrived in Australia in an irregular manner.
  • Implementing arrangements which will lead to a more rapid processing of claims for asylum and streamlined review arrangements resulting in a different processing model which acknowledges the diverse range of claims made by asylum seekers and also will resolve protection applications more efficiently.
  • Deterring the making of claims for protection lacking merit as a method in which to delay an applicant’s departure from Australia.
  • Supporting the removal from Australia of these who do not engage Australia’s protection obligations in a timely manner.
  • Codifying Australia’s interpretation of its protection obligations under the 1951 Convention relating to the Status of Refugees and 1967 Protocol within the Migration Act 1958.

 In regards to the Migration Act 1958, some of the key changes include;

  • Introducing a new visa class known as a Safe Haven Enterprise Visa (SHEV).
  • The authorisation of making regulations that deem an application for one type of visa to be an application for a different type of visa.
  • The creation of a new fast track assessment process and removal of access to the Refugee Review Tribunal (RRT) for fast track applicants who are defined as unauthorised maritime arrivals who entered Australia on or after 13 August 2012 and who additionally make a valid application for a protection visa.
  • Establish The Immigration Assessment Authority which will conduct limited merits reviews regarding claims for asylums and either affirm the fast track reviewable decision or remit the decision for reconsideration in accordance with prescribed directions or recommendations.
  • Removes most references to the Refugees Convention from the Migration Act and replaces them with a new statutory framework which states Australia’s interpretation of its protection obligations under the Refugees Conventions.
  • Clarifies with retrospective effect that children born to unauthorised maritime arrivals either in Australia or in a regional processing country are also unauthorisied maritime arrivals for the purposes of the Migration Act.
  • Restore the Government’s ability to place a statutory limit on the number of protection visas granted in a year and additionally repealing sections 65A and 414A of the Migration Act which require application for protection visas to be decided within a 90 day time period.

These changes will attempt to implement the current Government’s objective that any irregular arrivals who seek asylum within Australia will not be granted a Permanent Protection visa but rather that these in need of protection will be eligible only for a grant of Temporary Protection Visas. The amendment will also prevent anyone who has been granted a Temporary Protection Visa from being eligible to apply for a Permanent Protection Visa which would allow the holder to remain within Australia on an indefinite basis. An additional new visa known as the Safe Haven Enterprise Visa will also be created however information and criteria for this visa will be introduced in 2015. In addition to this, the Bill creates the explicit authority for the creation and implementation of conversation regulations which will deem that an application for one type of visa to be an application for a different type of visa if one or more specified events occurs. This will apply most notably so to applications for Permanent Protection which will be deemed as rather being applications for Temporary Protection Visas.

An additional important change to the Migration Act is that of the new subsection 5J(3) which states that a person does not have a well-founded fear of persecution if they could objectively take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country. The purpose of this particular amendment is to clarify that any assessment of a well-founded fear of persecution takes into account not only what a person would do but also what they could do upon returning to a receiving country in order to avoid persecution. This could prove problematic however the Amendment states that it will be applied in a reasonable manner in order to prevent unjust decisions being imposed upon asylum seekers.

In summary, this Bill attempts to implement a new set of policies which will grant asylum seekers Temporary Protection Visas with this protection lasting for up to three years. The Safe haven Enterprise Visa will be of a similar nature but differs in that it will provide protection for up to five years and visa holders will be required to work within designated regional areas. Holders of both visas may be eligible in some instances to apply for further visas but will not be deemed eligible for visas granting permanent protection or residency. These changes will possibly see over 1,500 asylum seekers freed from detention on Christmas Island.

 Overall, a rather important Bill which if passed by both Houses of Parliament when it is tabled before them will radically change the manner in which claims for asylum will be processed. Removal of asylum seekers from detention facilities along with quicker and more efficient processing times will ensure that asylum seekers are treated in a humane manner and also not left in a limbo in regards to an uncertain future.

If you require further information regarding this this topic or need help with another migration matter, feel free to contact us and we will be more than happy to assist you in your query.

 

Justin Rickard is an Australian based lawyer and registered migration agent operating mainly in and around Sydney, Melbourne & Brisbane. He helps migrants understand the complexities of Australian migration and successfully represents them in their migration applications. He also teaches compulsory professional development to migration agents and lawyers with Legal Training Australia and writes migration articles for his website www.australianimmigrationlawyers.com, the Migration Alliance blog and ethnic community newspapers.

Grab his FREE guides, “3 Quick Fixes for Australian migrants” or “5 secrets to becoming a better migration agent” by emailing him at  This email address is being protected from spambots. You need JavaScript enabled to view it.

JUSTIN K. RICKARD B.A LL.B M.A (Syd.) M.M.I.A Australian Lawyer since 1986 N.S.W Law Society # 11272* Migration Agent since 1994 Lic'd # 97-90625 Member of Migration Institute of Australia & Migration Alliance

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  • Mubashir - Rafique
    Mubashir - Rafique Sunday, 28 September 2014

    Hi Justin Rickard,
    I need some advice if possible.
    I was on student Visa 573 and my visa expired on 31st of August. I made a mistake of not checking my Expiry date properly and overstayed my visa. My degree was completed before the visa expired. I went to Community Status Resolution Service (CSRS) on 23 September 2014 and they granted me WD / 040 visa till 30 September 2014. I have obtained a letter of offer for a diploma and Masters degree. I didn’t know that i have to apply Within 28 of my Last Visa expiry to make a valid application for 572/573 and thought i can apply until 30 September(Expiry of WD/040) . Just found out and it is weekend now and immigration is closed. Sunday 28 September 2014 is the 28th day from my last expiry date. Will my application be considered within 28 days if i just fax completed 157A with Offer letter to Immigration and visit the immigration office Monday 29th or there is no other way to make a valid application now?
    Are Paper based student visa(572/573) applications submitted by fax are considered valid applications, assuming that Application Form is complete and required documents are also submitted with application?
    Thank You

  • Guest
    Justin Rickard Sunday, 28 September 2014

    Pls contact Justin Rickard visas@australianimmigrationlawyers.com

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