OPINION: The disallowance of the Migration Amendment (Temporary Protection Visas) Regulation 2013 may only provide a six-month reprieve, but it gives the opportunity to reflect on the detrimental impacts of this regime and how at odds Australia is with international practices.
TPVs were introduced by the Howard government in October 1999, abolished by the Rudd government in August 2008, and reintroduced by the Abbott government in October 2013.
Under international law, temporary protection is an exceptional measure generally only applied in situations of mass movements of asylum seekers, when individual refugee status determination is impracticable because of those large numbers.
Temporary protection is also used to grant protection to a broader class of individuals than those who are covered by the Refugee Convention, such as those fleeing armed conflict or other emergencies.
By contrast, the Australian TPV regime is used to grant protection to all asylum seekers who had been individually assessed to be convention refugees, simply on the basis that they have arrived in Australia without a visa. The harmful psychological effects of TPVs have been well documented. People are left in limbo, unable to go home because they fear persecution, and unable to build a life in Australia because they fear being returned when their visa is reassessed.
One study showed that TPV holders exceeded permanent protection visa holders ''on all measures of psychiatric disturbance and mental disability'', even though both groups had experienced similar levels of past trauma and persecution in their home countries.
The rationale for the Coalition's policy is the same as that which underpinned the Howard government's TPV regime: to deter asylum seekers from coming to Australia by boat by denying them rights and services that are available to asylum seekers who arrive by authorised means.
But as the Immigration Department has itself acknowledged, the evidence shows TPVs do not have a deterrent effect. The last time they were used there was an increase in the number of women and children making dangerous journeys to Australia. Many died in the process. Indeed, the ineffectiveness of TPVs was the reason the Rudd government abolished them.
No other country issues rolling TPVs. Most grant refugees permanent protection, either upfront or on renewal.
For instance, refugees in Canada may apply for permanent residence upon being granted refugee status. Refugees in the US are eligible for permanent residence after a year if they still need protection. In Germany, refugees are granted a residence permit valid for three years and, if then found to be in need of continued protection, are eligible for a settlement permit, which provides them with a permanent status. Unlike the Australian TPV policy, refugees on a German residence permit are given the same status as Germans within the social insurance system and have a right to family reunion.
In Denmark, refugees are granted a seven-year residence permit, and if then found to be in need of continued protection, are eligible for permanent residency.
The Australian TPV regime has significant implications for Australia's compliance with international human rights law.
By creating two classes of refugees - those who come by boat and those who come with a visa - the TPV regime discriminates unlawfully. Its explicitly punitive underpinning may also constitute a penalty in violation of the Refugee Convention.
And by denying refugees the ability to reunite with their families, the TPV regime infringes the right to family and the freedom from arbitrary interference with family life. The cumulative impact of all these factors, including on refugees' mental health, may constitute cruel, inhuman or degrading treatment in violation of Australia's obligations.
TPVs are clearly not in the best interests of children, whose suffering and distress have been well documented by the Australian Human Rights Commission, among others.
Quite aside from the human costs, the TPV regime is a huge waste of resources. Because it requires the full reassessment of an individual's protection claim from scratch at the expiration of the TPV, it is incredibly inefficient. And with the current backlog of claims, it may not even be possible to redetermine claims within a three-year period, leading to further uncertainty.
Finally, it has a knock-on effect for the Australian community as a whole. Refugees who are distressed because they cannot reunite with their families, or have difficulties gaining meaningful or any secure employment because of the temporary nature of their visa, may end up dependent on welfare.
Refugees granted permanent protection have been among Australia's most successful economic and social contributors. Denying them this opportunity not only compounds their loss, but our society's as well.
Scientia Professor Jane McAdam is Director of the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW.
This opinion piece was first published in The Age.