The High Court ruled on September 11 that an asylum seeker given a temporary visa should be allowed to apply for permanent protection. It said that immigration minister Scott Morrison's issuing of a form of temporary protection visa to a Rohingya man was "invalid".
The court said an asylum seeker can only be detained for the purpose of removing them from the country, assessing whether to grant them a permanent visa, or assessing whether to allow them to apply for a visa to live in Australia.
The Rohingya asylum seeker involved in this case arrived in Christmas Island in December 2011. He was found to be a genuine refugee four months later, but was held in detention for two years while his application for a permanent protection visa was assessed.
The court ruled that the immigration minister must either deport a person or make the assessment as soon as possible. The Asylum Seeker Resource Centre (ASRC) said this "raises questions about whether the Minister has the power to detain people for unreasonable periods of time without finalising his assessment of their claims for protection". There are thousands of refugees waiting for assessment in detention.
Morrison had granted the Rohingya refugee, and others, a Temporary Safe Haven Visa and a Temporary Humanitarian Concerns Visa in February. The Senate disallowed the use of the visas in May.
These visas were used as substitutes for Morrison's failed attempt to reintroduce Temporary Protection Visas (TPVs), which was rejected by the Senate in December last year.
Under these visas, a refugee is allowed to work, access health care and social security, and their children can attend school. But they are barred from applying for family reunion. If they leave Australia they cannot return, unless they are granted another visa.
Most importantly, anyone with these visas is not allowed to apply for a permanent visa. The High Court statement said: "It was not disputed that the minister granted the seven-day visa for the purpose of engaging the prohibition on making a valid application for any visa". For this reason it was declared "invalid".
The ruling has cut off the government's attempt to use these visas as a "backdoor" form of TPV. But ASRC said: "Last week’s High Court decision means [Morrison] will be trying harder than ever to get the new Senate to allow Temporary Protection Visas as a way to deny permanent protection to refugees.
"We must continue to fight against Morrison’s efforts to get TPVs through the Senate and demand that he uphold refugees’ rights to permanent protection and the chance to settle properly in our community."
During a speech to the National Press Club on September 10, Morrison said the government would release asylum seekers from detention on TPVs, if TPVs are voted back into law. He told Fairfax Media that it was no secret he was in negotiations with crossbenchers, including MP Clive Palmer, to reintroduce TPVs.
Previously the offer of TPVs only applied to asylum seekers who arrived by boat before July 19 last year. That was when then-PM Kevin Rudd started the "PNG solution," which meant any asylum seekers arriving from then would be resettled in Papua New Guinea rather than Australia. To show they were just as tough on "border control", the Coalition adopted the same policy.
If TPVs are reintroduced, Morrison will now offer them to asylum seekers who arrived between July 19 and December 31 last year, and who have not been transferred offshore yet. This applies to about 2700 people being held in Christmas Island, including 450 children.
Morrison's backflip comes because of a huge backlog of 30,000 asylum claims. Greens immigration spokesperson Sarah Hanson-Young said this is a “clear admission that offshore processing has collapsed”.
Morrison defended the backflip in his speech, saying: "A temporary protection visa would ensure the people smugglers’ promise of permanent settlement would not have been honoured, maintaining the integrity of the government’s border protection regime, while providing an alternative to the costly and avoidable transfer of people, including families with children to Nauru.”
Spokesperson for the Refugee Action Coalition Sydney Ian Rintoul said: "It is transparently obvious that Morrison’s attempt to get TPVs through the Senate are going nowhere. Morrison is now dangling the prospect of children in detention on Christmas Island being released into the Australian community as a way of suborning parliamentarians to agree to violate their rights with TPVs.
"It is discrimination of the worst order, violating natural justice and sacrificing human rights to opportunistic government policy.
"It is exactly this kind of divide and rule, trading the rights of one group of asylum seekers against another, which has lead to the recent unrest and suicide attempts on Christmas Island."
While living in the community under a TPV is better than being in detention, the uncertainty of knowing they can be deported makes life unstable for refugees.
RISE, an organisation of refugees and ex-detainees, said: "At RISE many of our members and founding members were on TPVs during the Howard regime and many are still on permanent resident visas without citizenship status. We are aware of individuals from this group who are now Australian citizens are unable to reunite with their immediate family members.
"Irrespective of how people arrive in Australia, asylum seekers should not be punished for asking to be safe and protected. They should be treated with dignity and respect without being isolated behind barbed wire in remote deserts and islands or released into the community to face a life of deprivation and uncertainty due to punitive and discriminatory refugee policies."