Resolving the status of Temporary Protection Visa holders: a quick guide

16 May 2023

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Dr Susan Love
Social Policy

The Government announced on 13 February 2023 that it would fulfil an election commitment and move Temporary Protection visa (TPV) and Safe Haven Enterprise visa (SHEV) holders onto permanent visas.

It is implementing this by allowing eligible visa holders to apply for a Resolution of Status (RoS) visa, which is an existing permanent humanitarian visa. This is enabled through changes to the Migration Regulations 1994, primarily via the Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023 instrument. TPV holders were previously not able to apply for any visa other than a subsequent TPV or SHEV, and while SHEV holders do have a pathway to apply for certain permanent visas, in practice, very few have met the eligibility criteria.

This quick guide provides an overview of this policy measure, including who is eligible, what entitlements the permanent visa will provide, and how much the measure is expected to cost.

Who is eligible?

The measure applies to a group of people known as the ‘asylum legacy caseload’ who arrived in Australia as unauthorised maritime arrivals (by boat without a visa) between 13 August 2012 and the end of December 2013, prior to the Coalition Government’s Operation Sovereign Borders measures coming into effect. (Some individuals whose arrival dated back to 2008, but whose Protection visa applications were not finalised before 19 July 2013, are also included.) Anyone subsequently arriving irregularly by boat is subject to transfer to an offshore processing centre. The Operation Sovereign Borders measures included legislation that re-introduced TPVs and introduced SHEVs.

The total number of people in the ‘legacy caseload’ is about 31,000 as at March 2023.

Over 19,000 of these people hold TPVs and SHEVs. TPVs expire after 3 years, and SHEVs after 5 years. Holders must therefore re-apply for new visas periodically. People in the caseload are therefore at various stages of the visa application or re-application process. The table below, from a response to a Senate Estimates Question on Notice on 13 February 2023, summarises the categories within the caseload that may be eligible for an RoS visa.

TPV/SHEV cohorts	Size of cohort at 8 February 2023
Undecided initial TPV/SHEV applicants in Australia	1,581
TPV/SHEV holder with an on-hand, undecided subsequent application for TPV/SHEV	10,933
TPV/SHEV holder (no subsequent application on hand)	8,219
Former TPV/SHEV holders whose visas have expired	547 expired onshore 118 expired offshore
Refused a TPV/SHEV and at merits or judicial review	613 merits review 4,922 judicial review

Source: Senate Standing Committee on Legal and Constitutional Affairs, Answers to Questions on Notice, Home Affairs Portfolio, Supplementary Budget Estimates 2022–23, 13 February 2023, Question SE23-034.

Eligible people will continue to be allowed to apply for a TPV or SHEV, whether they are on a Bridging visa or are an unlawful non-citizen (without a valid visa). Applicants in any of these processes who are found to meet the criteria for a TPV or SHEV will have their application treated as an application for an RoS visa. This includes situations where the minister may allow a subsequent application to be made – for example, if new protection claims arise. Further detail is provided in the Explanatory Statement to the legislative instrument.

What about people who are not eligible?

People who have had their visa cancelled or refused will not be eligible to apply for an RoS visa. Evidence given at the Senate Estimates hearing on 13 February 2023 (p. 100) stated that 2,531 applicants had their applications refused with no ongoing matters. According to the Department of Home Affairs RoS fact sheet:

If you do not engage protection obligations, you are not awaiting a merits or judicial review outcome, and you have exhausted all avenues to remain in Australia, you are expected to depart Australia voluntarily and may be provided assistance to depart.

People who do engage Australia’s protection obligations (and therefore cannot return to their home country), but fail a character or security test, may be considered for third-country resettlement (Senate Estimates evidence, p. 94).

‘Transitory persons’ brought to Australia from regional processing countries (Papua New Guinea and Nauru) for medical treatment – around 1,100 people – and transitory persons still in those countries do not form part of the legacy caseload and are not eligible for the pathway.

How does the Resolution of Status visa work?

The RoS visa is a humanitarian visa that grants permanent residence. It has existed in the Migration Regulations since 1997 in various forms. A reworked form was introduced in 2008 to provide permanent protection when the Rudd Government ended TPVs and certain temporary humanitarian visas. (Further detail and background can be found in the 2022 policy brief by the Kaldor Centre for International Refugee Law, Temporary Protection visas in Australia: a reform proposal.)

About 1,000 RoS visas were granted following the 2008 measures, mostly in the first year. The numbers were counted towards the Humanitarian Program total – most had already been included, because TPVs also counted towards the program, and people were not counted twice (Department of Immigration and Citizenship annual report 2008–09, pp. 85–86 and Annual report 2010–11, pp. 119–120).

This time, many more people will be eligible for RoS visas, and the Government is not taking the same approach of counting RoS visas towards the Humanitarian Program. A departmental official confirmed in a Senate Estimates hearing on 13 February 2023 that the new RoS visa ‘does not impact on the humanitarian program intake’ (p. 95). For reference, in the Humanitarian Program planning figures for 2022–23, there are 13,750 places (plus an additional 4,125 places for Afghan nationals), 1,500 of which are allocated to the onshore protection component (permanent Protection visas).

The application requirements for the RoS visa do not include assessment of a person’s protection claims (determination of refugee status). This means that TPV and SHEV holders (who have already undergone this process) will not have to re-submit evidence for their protection claims in order to apply for an RoS visa. However, this also means it is necessary to leave the TPV and SHEV in place: people whose protection claims are still being considered as part of a TPV or SHEV application will need to complete that process.

What services will RoS visa holders be able to access?

The RoS visa grants permanent resident status, and therefore entitlement to full access to social security. It is considered a refugee visa for the purposes of the Social Security Act 1991, and holders are therefore exempt from residence requirements and waiting periods for payments. Permanent humanitarian visa holders are entitled to Commonwealth Supported Places in higher education and student loans.

In comparison, people on temporary visas or Bridging visas do not have the same entitlements and access to services as people on permanent visas. Most do not have access to social security payments and must pay full fees if they wish to enrol in higher education. While TPV and SHEV holders have some concessions as humanitarian visa holders – for example, access to Medicare and the Adult Migrant English Program – these are still quite limited.

Only offshore Refugee and some Global Special Humanitarian visa holders are eligible for the Humanitarian Settlement Program. The core program is intended to help people during their initial settlement in Australia, so it is not directed at people who have already been living in the community.

However, the RoS visa provides the same access to the Humanitarian Settlement Program’s Specialised and Intensive Services (SIS) as TPV and SHEV holders receive. TPV, SHEV and RoS visa holders ‘must be referred to SIS within 5 years from the date of their initial visa grant’. RoS visa holders will also continue to have access to services through the Program of Assistance for Survivors of Torture and Trauma.

Other entitlements of permanent residency include access to the National Disability Insurance Scheme, becoming eligible to apply for Australian citizenship, and being able to sponsor family members through the Migration Program.

The Government has recently removed a processing priority, which directed that Family visa applications where the sponsor arrived in Australia as an unauthorised maritime arrival were to be given the lowest priority. This previous setting effectively meant that such applications would never be assessed, given the large numbers of applications awaiting processing.

Permanent residents are also able to sponsor family members through the ‘split family’ provisions of the Global Special Humanitarian visa (subclass 202); however, the Migration Regulations 1994 still include a restriction that a proposer must not be an unauthorised maritime arrival who arrived after 13 August 2012 (see subregulation 202.211(2) for the criteria to be satisfied for the application for a subclass 202 visa and subregulation 2.07AM(5), which essentially describes a person as a member of the legacy caseload).

What will it cost?

Pre-election costing of the policy commitment to end TPVs and SHEVs indicated a negative impact on the underlying cash balance of $407 million over the 4 years from 2022–23 (p. 9). The 2023–24 Budget (p. 162) revised this to $732.5 million over 5 years from 2022–23 to provide for increases in payments for government services and benefits to RoS visa holders.

The announcement of 13 February included that $9.4 million over 2 years will be allocated for legal assistance to help people with their applications. The Senate Estimates evidence confirms this amount is additional to the pre-election costing, coming from within existing resources (p. 95). Service providers for this legal assistance are listed in the RoS visa fact sheet.

There is no charge for applying for an RoS visa.

Are TPVs and SHEVs being fully ‘abolished’?

The Labor Party’s 2021 National Platform included a policy to ‘abolish Temporary Protection Visas and Safe Haven Enterprise Visas and transition eligible refugees onto permanent visa arrangements’ (p. 123). Its costings of policy commitments issued ahead of the 2022 election included an item to ‘abolish TPVs and SHEVs and create a new permanent visa’ (p. 8). However, by the time the policy’s implementation was announced in February 2023, the language had shifted to providing ‘a permanent visa pathway’ for TPV and SHEV holders, rather than abolishing the visas themselves.

The TPV and the SHEV are provided for in the Migration Act 1958 (sections 35A(3) and 35A(3A)). This means that, unlike most other visas, they cannot be fully abolished without passing a Bill to amend the Act. Most other visas can be amended or repealed (or new visas created) through instruments to amend the Migration Regulations, as the Government has done in providing for the transition process. When the use of TPVs was ended in 2008, the provision for TPVs remained in the Act, despite being repealed from the Regulations.

As noted above, the pathway set out in the recent changes means that the TPV and the SHEV will remain in place in the legislation. Some people will still need to submit new or further TPV or SHEV applications for consideration. However, people currently on a TPV or SHEV who make a valid application for an RoS visa will have their TPV or SHEV extended until the application is decided – the 3 or 5-year expiry will no longer apply in this case, so subsequent applications (and associated re-submissions of protection claims) will not be needed.

The Home Affairs website states that the majority of the caseload will be processed ‘within 12 months of processing commencement’.

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