September 11, 2014
Judges say asylum seeker who accepted a temporary visa could not be barred from applying for a permanent one.
The high court has dealt another blow to the federal government’s plans to give asylum seekers temporary protection visas (TPVs), ruling an earlier move to force asylum seekers on to temporary visas was invalid.
In a joint unanimous decision the high court ruled on Thursday that an asylum seeker who had been in detention for two years and accepted a temporary humanitarian concern visa – a type of of temporary visa employed by the government earlier in 2014 – could not be precluded from making an application for a permanent protection visa.
Asylum seeker casework organisations began receiving mass refusals of permanent protection visa applications in February and many of their clients were “invited” to accept temporary humanitarian concern protection visas in what was described as a back-door reintroduction of temporary protection visas.
The Senate voted to disallow the regulation that permitted the use of the visas in May, but in the three months that the regulation was in force, many asylum seekers were placed on the visas. The high court decision relates to one of those asylum seekers.
The high court’s release on the decision said: “The high court unanimously held invalid the grant by the minister for immigration and border protection of a temporary safe haven visa to the plaintiff which had the effect of precluding the plaintiff making a valid application for a protection visa, in circumstances where the plaintiff’s detention had been prolonged for the purpose of the minister considering the exercise of power to allow the plaintiff to make a valid application for a visa of his choice.”
The executive director of the Refugee and Immigration Legal Centre, David Manne, welcomed the decision.
“It is significant because the high court has found yet another attempt by government to block people being given permanent protection and circumvent parliament is unlawful,” he said.
But Manne cautioned that the further ramifications of the decision remained unclear as the government attempted to negotiate with crossbench senators over the introduction of TPVs through parliament.
The decision follows a possible U-turn on offshore transfers announced in a speech by the immigration minister, Scott Morrison, on Wednesday, in which he indicated the Coalition would consider granting temporary protection visas to some asylum seekers who arrived between 19 July and 31 December 2013 and had not already been transferred for offshore resettlement.
The government has been attempting to secure the support of crossbenchers to reintroduce a temporary protection visa bill or regulation.
When asked about the possible changes signalled in his speech, Morrison told ABC AM on Thursday: “What we are talking about with the crossbench is those who arrived last year and none of those would be given a permanent visa in Australia either. No permanent resettlement in Australia either.”
“So, I think they are very clear measures but we have to work with the Senate that we have and if we have to make some changes to get TPVs in then that’s what we are talking to them about.”
Detention centre sources on Nauru have told Guardian Australia that news of Morrison’s possible U-turn filtered through to asylum seekers on Wednesday evening.
“The whole camp is talking about it,” a source said, adding that asylum seekers, including family groups, misinterpreted the potential U-turn as applying to them. “Last night the mood was quite elated.”
The source said centre workers were now having to explain that the announcement only applied to those on Christmas Island and had been warned that adverse reactions to the news could be expected.
Greens senator Sarah Hanson-Young reiterated that the Greens would not support the introduction of temporary protection visas.
“Offshore processing has collapsed and the Greens won’t be bullied into backing the government’s cruel and punitive temporary protection visas,” she said.
“It’s entirely inappropriate of the immigration minister to hold children in detention to ransom so that he can get TPVs through the Senate. The parliament has rejected TPVs and today the high court has ruled that the immigration minister’s use of two other types of temporary visas is unlawful.”
Katie Wrigley, principal solicitor of the Refugee Advice and Casework Service (RACS), welcomed the high court decision.
“This case has a positive effect for those who were issued with or offered these visas. RACS continues to oppose grants of temporary visas, including grants of temporary safe haven visas,” she said.
“The clients that are affected by this case have spent incredibly long times in detention in Australia, and RACS supports a process that is efficient and that will allow them to be considered for permanent protection.”