Australia court rules refugees on temporary visas can be repatriated

[JURIST] The High Court of Australia [official website] has held in two separate cases that a "holder of a temporary protection visa is not entitled to further protection in Australia if they are no longer in danger in the country from which they fled" and that the person may not remain a refugee. The cases - NBGM v. Minister for Immigration and Multicultural Affairs [text; press release, PDF] and Minister for Immigration and Multicultural Affairs v. Qaah [text; press release, PDF] - were brought by two Afghan men, both Shiite Muslims, who fled from Afghanistan in 1999 and were granted temporary protection visas (TPVs) by Australia. Their claim for permanent protection, based on their assertion that the Taliban would likely return to power, was denied by the Immigration Department [official website] and upheld by the Refugee Review Tribunal (RRT) [official website]. The Tribunal held that since the Taliban had been removed from power, it "no longer posed a threat to the civilian population" and "was unlikely to re-emerge as a viable political movement in the reasonably foreseeable future." The High Court held in a 4-1 decision that neither the Migration Act [text] nor the Refugees Convention [text] offer any "promise or obligation to continue to afford protection or grant residence, whether permanent or otherwise, in the event that circumstances change."

Minister for Immigration and Multicultural Affairs Amanda Vanstone [official profile] welcomed [press release] the High Court decision, saying:

The 4-1 majority decision confirms that a refugee under Australia's temporary protection will not be guaranteed continuing protection once conditions in their former country have improved. The High Court found that there is no presumption that once a person has been granted a TPV they continue to be a refugee until the Government proves otherwise. TPVs are a key plank of our border protection measures, and help ensure more of Australia's refugee places are taken by those assessed by the UN High Commissioner for Refugees as being in most desperate need of resettlement.
Immigration experts and refugee advocates, however, fear that the court's rulings which shift the burden on asylum seekers to prove it is unsafe to return, rather than the government having to prove it is safe, may make it harder for asylum seekers asking for further protection. It is estimated 1430 holders of temporary protection visas in Australia [JURIST news archive] could be affected by the High Court's ruling. The top five nationalities granted protection visas are Iraqis, Afghanis, Iranians, Sri Lankans and Palestinians. The Age has more. AAP has additional coverage.


 

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