Hampson, Ian --- "Nigel Hoffman (2004) Labour Rights and Border Protection: Attempts At A Viable Life on the Temporary Protection Visa. UNSW Studies in Human Resource Management and Industrial Relations in Asia, Industrial Relations Research Centre" [2004] AUJlHRights 13; (2004) 10(1) Australian Journal of Human Rights 13

Labour Rights and Border Protection: Attempts at a Viable Life on the Temporary Protection Visa

By Nigel Hoffman

UNSW Studies in Human Resource Management and Industrial Relations in Asia, Industrial Relations Research Centre, 2004

This study started life as a very attractive BA (Hons) thesis and has been edited into a monograph by Anne Junor of the Industrial Relations Research Centre. It addresses one of the most charged political issues in Australia: ‘illegal’ immigration by asylum seekers. Hoffman points out how the changed characteristics of modern warfare, with many ‘small scale and brutal ethnic conflicts’ (4) among the 25 civil wars in the past 25 years, entail a far higher proportion of civilian casualties (around 90 per cent) than previous conflicts (in the First World War, civilian casualties totaled around 17 per cent). Thus, displaced persons are far more numerous than previously — the UN puts the figure at 21 million — and their numbers have strained the welcome of the developed countries. As Hoffman points out, the trend has been to offer ‘temporary protection’, after which time the ‘host’ state seeks to return the refugee to his or her place of origin, as long as conditions permit. The earnestness with which advocates of globalisation insist on freedom of capital movement thus contrasts starkly with their restrictions on the movement of labour, protecting the inhabitants of the ‘high wage islands’ of the developed countries. Indeed, Hoffman argues that ‘border protection’ serves a largely symbolic function, as an assertion of national sovereignty in an era when the latter increasingly evaporates.

Australia has been foremost among the countries making use of the ‘temporary protection’ strategy, which makes no pretence of addressing the issue of mass population displacement, but is aimed at minimizing humanitarian obligations at home. This is because the Temporary Protection Visa (TPV) is meant to act as a deterrent to refugees — to provide protection from, rather than protection to, refugees. In the process Australia has, as Hoffman ably points out, appropriated the status of ‘victim’, but in doing so has found itself in repeated violation of the 1951 UN Convention on the Status of Refugees. Most notably, the UN Convention hopes to protect against refoulement, or sending refugees back to essentially the same situation they escaped from. The Convention also assumes that once refugee status has been granted, it is unreasonable to impose repatriation. However, this is at the discretion of the receiving states — which have become less generous, to say the least, even exploiting xenophobia for electoral advantage (difficult as that may be to believe!). Australia — the pioneer of this moral bankruptcy, and alone among ‘developed’ states, requires TPV holders to prove their refugee status again, after the period of temporary protection has expired. Hoffman also documents other violations of the UN Convention: how the TPV imposes penalties on TPV holders, denies them widely acceptable identity papers, denies them family reunion, and fails to give them the same opportunities as other foreigners regarding wage earning and education. Thus, they constitute a marginal category of workers, vulnerable to exploitation.

But this is not Hoffman’s main focus. Indeed, as he notes, if this were all there was to the research, documenting the grim life on the TPV with the aim of producing a critique would only play into the hands of the Department of Immigration, Migration and Indigenous Affairs (DIMIA) by reinforcing the role of the TPV as deterrence (indeed, it would constitute a ‘secret solidarity’ with those that humanitarian organizations wish to fight: 19). Hoffman ably resists mere polemic, and is quite restrained in his dealings with the bloodless dissembling of DIMIA, which insists that refugees are ‘not welcome’ because they have arrived ‘unauthorised’ at the border, expecting to ‘engage’ our legal obligations, and will not be allowed to achieve ‘migration outcomes’ (13, 26). One cannot help visualizing Phillip Ruddock as these words come to mind.

The main aim of the research is to ‘explain the social space of exclusion’ generated by the TPV, and the strategies employed by the TPV holders to make life bearable in the face of uncertainty. To this end, Hoffman has interviewed 30 refugees and brought to bear a formidable armoury of sociological concepts to understand their position. Foremost among these are Bordieu’s concept of ‘habitus’ and the methodologies of ‘reflexive sociology’ and ethnomethodology. Habitus refers to the mental structures through which people apprehend and internalise social worlds (10), and not only reproduce, but also (partially) reconstitute them. The concept registers how the TPV holders internalise their own illegitimacy (17), but also, through humour and the ‘manipulation of identities’, undertake attempts at agency within objective relations of social exclusion (10). Hoffman points out that the uncertainty of life on the TPV — when TPV holders do not know their status and future (essentially, whether they will be allowed to stay) — disturbs any attempted investment in the future, for example by undertaking education and training, or even learning English. The government seems to have gone out of its way to deny TPV holders access to social benefits and education that is available to other immigrants, thus dividing and conquering while underscoring the TPV as punishment and deterrence. He also describes in some detail, and with many intriguing anecdotes and quotes, how the TPV holders seek to act to reconstitute the terms of exclusion. For example, humour, which is often so deeply ironical as to be plainly black, is seen as a means of personal assertion and agency within a hostile situation, since ‘the joker is not exposed to danger [having] a firm hold on his own position in the social structure’(28). In acts of desperation, some TPVs acquire debts, the payment of which takes them beyond their period of ‘temporary protection’, as if that will sway the government to allow them to stay. They construct communities using mobile phones and the internet, often to retain links to their families. The refusal to allow family reunion is particularly harsh.

Hoffman exposes the stresses that ‘uncertainty as protection’ (as deterrence) produces in the TPV holders. This has been captured in a new clinical term: Anticipatory Traumatic Stress Disorder (ATSD), or ‘an alternative social reality, the anticipation of a traumatic future being the dominant factor in the daily lives of TPV holders’ (45). This condition has in the past been individualized through medicalisation. What Hoffman’s analysis does effectively is to lay bare how the objective sociological conditions of TPV holders’ exclusion effectively inscribe themselves in their very bodies and souls — despite TPV holders’ admirable attempts at reshaping them.

In this monograph, Hoffman has provided us with an important contribution to the sociological understanding of the TPV phenomenon. One might quibble sometimes at the big conclusions drawn from (or illustrated by?) single quotes, no matter how compelling. One might also get lost as the analysis approaches the realms of the post-modern. But, if one still has blood in one’s veins (something apparently missing from some of the architects of the TPV practices), one cannot fail to be moved by the plight of the TPV holders. Whether this constitutes ‘secret solidarity’ with the prosecutors of the TPV policies is something that people may have a range of views about. But it is hard to deny the force of Hoffman’s recommendations — that the way to help these people is to hear them, and to help them articulate with a social world that is not exclusionary.

Ian Hampson

Deputy Director

Industrial Relations Research Centre

University of New South Wales