Prominent human rights lawyer Julian Burnside has told Crikey that the government’s proposed changes to reintroduce temporary visas for certain asylum seekers is worse than Howard-era Temporary Protection Visas (TPVs). But what are TPVs and why has Immigration Minister Chris Bowen proposed these changes? Crikey clarifies…

What are Chris Bowen’s proposed changes?

Under a toughened character test, the government will bar asylum seekers who commit criminal offences in detention from gaining permanent protection in Australia.

What’s the difference between these changes and the Howard era TPVs?

The immigration minister’s office told Crikey the main difference between the Howard-era TPVs and the changes that Chris Bowen proposes is that instead of TPVs being introduced across the board, as they were under the Howard government, they will now be enforced only on those who are convicted of criminal activity while in detention.

What are TPVs?

TPVs were introduced by the Howard government in 1999 in response to a surge of unauthorised arrivals by boat. The visa allowed the holder to remain in Australia for 36 months from the date of visa grant. TPV holders needed to apply for another protection visa if they wanted to stay in Australia when their three year temporary visas expired.

Are they used around the world?

Australia was the only country to have legislated permitting refugees under the 1951 Refugee Convention to remain in the limbo of temporary protection forever. The complex provisions relating to deterrence of secondary movement by means of the “seven day rule” meant that some persons granted Australian TPVs could be banned from ever applying for a permanent protection visa.

Why are they considered inhumane?

When TPVs were abolished in 2008, then-immigration minister Chris Evans called them “one of the worst aspects of the Howard government’s punitive treatment of refugees, many of whom had suffered enormously before fleeing to Australia”.

The former TPV did not entitle the holder to apply for her/his family to be reunited with them in Australia, nor did it allow the holder the right of re-entry, meaning that a TPV holder could not travel to a safe third country to meet with their family and then return to Australia.

Why is Bowen proposing the visa changes?

Bowen says the new measures will send a strong message to those who are thinking of engaging in unacceptable behaviour in immigration detention that their chances of being granted a permanent visa were slim.

If and when the amendments are passed at the next sitting of parliament, they will be backdated to April 26,  making those involved with the recent protests at Christmas Island and Villawood Detention Centre, if convicted of criminal acts, unable to apply for a permanent visa.

How do the changes work under the Refugee Convention?

Dr Michelle Foster, director of the research program in International Refugee Law at Melbourne Law School, explained: “Under the Refugee Convention the only basis for returning a person to persecution is where he or she has ‘been convicted by a final judgment of a particularly serious crime’ and constitutes ‘a danger to the community’.

“It is highly unlikely that such a justification could be relied upon in relation to those protesting against indefinite mandatory detention, which is itself in violation of both the Refugee Convention and the ICCPR. The minister’s proposal to subject those refugees who fail the character test to an inferior visa regime raises serious concerns as to whether the full range of rights to which refugees are entitled under the Refugee Convention would be respected.”

How do the minister’s proposed measures stack up against TPVs?

Burnside told Crikey the new measures are not only very close to the former TPVs, but worse: “What it’s saying is if you are found to have broken the law the criminal justice system will deal out a punishment, and then the minister will impose additional punishment. The worst part of it is we take vulnerable and damaged people, put them under immense pressure and when they break we punish them for it.”

Ian Rintoul, co-ordinator of activist group Refugee Action Coalition, says Bowen is potentially “inflicting a life sentence out of all proportion” in responding to crimes asylum seekers commit while in detention. “This is a step to the very worst of Howard-era policies and the only thing that separates the Gillard government from the Howard government is the TPV, which in some way is now being brought back,” he said.

Will the changes act as an effective deterrent against bad behaviour in detention centres?

The minister insists the additional requirements to the character test will discourage misbehaviour and act as a deterrent, but Burnside fails to see the rationale. “People who have committed any offence [in detention] are almost always fleeing persecution,” he said.

Rintoul agrees: “It’s a draconian measure and it won’t change anything unless the underlying problem is addressed.”