Submission - Inquiry into the efficacy, fairness, timeliness and costs of the processing and granting of visas which provide for or allow for ...
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Submission – Inquiry into the efficacy, fairness,
timeliness and costs of the processing and
granting of visas which provide for or allow for
family and partner reunions
6 MAY 2021TABLE OF CONTENTS
1 Introduction ...................................................................................................................................2
2 Context for Family and Partner Reunion for Refugees in Australia...........................................2
2.1 Temporary Protection as a barrier for refugees seeking to reunite with family and partners .....3
2.2 Limitations on refugees seeking to reunite with family and partners under the Offshore
Humanitarian Visa Program ................................................................................................................5
3 Issues with the reuniting with family members and partners in the Family Visa Stream .........7
3.1 Explicit Limitations on refugees seeking to reunite with family and partners through the
family visa stream ...............................................................................................................................7
3.2 Waiting Times for Processing and Grant ..................................................................................7
3.3 Cost of applying........................................................................................................................9
3.4 Eligibility and access for people who have sought Protection in Australia ...............................10
3.5 Compatibility with International Obligations ............................................................................11
3.6 Other areas for concern..........................................................................................................12
4 Conclusion and Recommendations ...........................................................................................14
11 INTRODUCTION
1.1 The Refugee Advice and Casework Service (RACS) welcomes the opportunity to make this
submission to the Senate Legal and Constitutional Affairs Committee.
1.2 RACS provides free legal advice, assistance and representation for financially disadvantaged
and vulnerable people seeking asylum and refugees in Australia. We advocate for systemic
law reform and policy that treats refugees with justice, dignity and respect, and we make
complaints about serious human rights violations, to Australian and United Nations
complaints bodies.
1.3 This submission focuses the efficacy, fairness, timeliness and costs of the processing and
granting of visa classes that allow for family and partner reunions in relation to refugees in
Australia. This submission to the Standing Committee reflects our experience working with
refugees who are subject to this regime.
1.4 This submission provides a brief background to the importance of family reunion to refugees
and the current regime, and considers the regime in the context of its impact on refugees in
Australia. RACS’s experience with refugees is that reunion with family members is critical to
them being able to make Australia a permanent home and has great social and economic
benefits. RACS’ concerns are primarily with the limited eligibility for refugees applying for
family members to reunite with them and the cost associated with doing so.
2 CONTEXT FOR FAMILY AND PARTNER REUNION FOR
REFUGEES IN AUSTRALIA
2.1 Family is the fundamental unit of all cultural societies and foundational to human flourishing.
Yet Australian refugee policies and processes continue to create barriers inhibiting the
reunification of refugee families separated by the refugee process. 1
2.2 One of the aims of Australia’s Humanitarian programme is to ‘reunite refugees and people
in refugee-like situations overseas with their family in Australia’. 2 In contrast to this stated
objective of the programme, the policy discriminates against refugees depending on mode
and date of arrival in Australia and does not afford the same priority to reuniting individual
refugees in Australia with their overseas family members. 3 As such, “the Australian
1
Brooke Wilmsen, “Family Separation: The Policies, Procedures, and Consequences for Refugee Background Families”, (2011) Refugee
Survey Quarterly 30(1) 44.
2
Department of Immigration and Border Protection, 'Australia's Humanitarian Programme 2016-17' (Discussion Paper, Department of
Immigration and Border Protection, 2016) 3, available at https://apo.org.au/sites/default/files/resource-files/2016-02/apo-nid66602.pdf
accessed on 28 April 2021.
3
Savitri Taylor, ‘Refugee family reunion: What might have been’ (2018) 43(3) Alternative Law Journal 209-215. 209.
2Government deliberately and systematically separates family members” forcing refugees to
“make an unthinkable choice between their safety, their health and being with the ones they
love.” 4
2.3 People who have been granted a permanent protection visa without their family face unique
challenges negatively impacting their psychological, mental, and emotional health. Many
have left family members in unsafe circumstances. The uncertainty of not knowing whether
their family is safe takes a profound psychological toll on their mental health and wellbeing.
At the same time, they are deprived of the social and emotional support that family provides,
further damaging their mental health and wellbeing. 5
2.4 People recognised as refugees in Australia who wish to sponsor their family and partners to
reunite with them broadly have two avenues to do so. The first is through the Offshore
Humanitarian Visa program, in particular, the ‘Split Family’ provisions. 6 The second is
through the Family stream open to all Australian permanent residents and citizens. Both
processes have a number of serious limitations that delay and, in many cases, altogether
prevent refugees from reuniting with their families.
2.5 The limited number of places available for family sponsorship in the Offshore Humanitarian
Visa program mean a high proportion of applications for family reunion are unsuccessful. 7
The likelihood that applications will be unsuccessful means that the uncertainty around the
duration of family separation persists and continues to negatively impact refugees’ mental
health and wellbeing. At the same time, barriers to applying for visas in the family stream, in
particular deprioritising the order of processing applications for refugees and the high costs
of Visa Applications Charges make applying for Partner visas and other visas out of reach
for many refugees.
2.1 TEMPORARY PROTECTION AS A BARRIER FOR REFUGEES SEEKING TO REUNITE
WITH FAMILY AND PARTNERS
2.1 The inability for people holding temporary visas to sponsor family members or partners to
reunite with them in Australia is particularly damaging for refugees on Temporary Protection
Visas (TPVs) and Safe Haven Enterprise Visas (SHEVs). Refugees holding TPVs and
SHEVs are subject to a statutory bar under s46A of the Migration Act that prevents them
from applying for any visa other than a TPV or SHEV. While the Minister has the power to
allow people to make applications for permanent visas, this has not been the policy of
4
Human Righs Law Centre, Together in Safety (Report, 28 April 2021) 4.
5
Sahar Okhovat et al, ‘Rethinking resettlement and family reunion in Australia’ (2017) 42(4) Alternative Law Journal 273.
6
According to the Department of Home Affairs, “Applications made by immediate family members of a person who holds or held a
permanent Humanitarian Program visa are commonly referred to as ‘split family’ applications., see Department of Home Affairs,
“Australia’s Offshore Humanitarian Program: 2019–20”, 2020, available at: https://www.homeaffairs.gov.au/research-and-
stats/files/australia-offshore-humanitarian-program-2019-20.pdf accessed on 21 April 2021
7
Grant rates for visa applications in the Special Humanitarian Program were 9.8% in the 2019-2020 financial year. See the department
of Home Affairs publication, Australia’s Offshore Humanitarian Program: 2019–20, 2020, available at:
https://www.homeaffairs.gov.au/research-and-stats/files/australia-offshore-humanitarian-program-2019-20.pdf, accessed on 29 April
2021
3successive Ministers. As the then-Minister for the then-Department of Immigration and
Border Protection, Scott Morrison, in outlining the government’s position stated:
“There’s no way I will lift the bar to give someone a permanent visa … We gave an
absolute commitment on that and I’m not going to send a message … that permanent
visas are on offer in Australia again for people who have arrived illegally by boat.” 8
2.2 While there is some scope for people to be eligible to apply for permanent visas if they meet
certain criteria relating to work and/or study while holding a SHEV, it is widely understood
that this pathway will not be open to the vast majority of people granted SHEVs. In fact, the
criteria appear to have been deliberately set unrealistically high for most applicants in order
to offer no hope of permanent status to almost all SHEV holders. As the Immigration minister,
Scott Morrison stated at a press conference in 2014 in regards to the ability of most SHEV
holders to actually meet the work and study requirements:
“…these benchmarks of working or studying in these regional areas are very high.
Our experience on resettlement for people in this situation would mean that this is a
very high bar to clear. Good luck to them if they choose to do that and if they achieve
it. … There is an opportunity here but I think it is a very limited opportunity and we will
see how it works out.”9
2.3 As these benchmarks are so high, it leaves the most vulnerable indefinitely separated from
their family members and unable to reunite with their partners or children. Even in the best
case scenario, reuniting with family members through this pathway would likely take in
excess of 10 years given current processing times within the protection visa program and
for family visas. Returning to the country where they fear persecution is not an option for
refugees, and even visits to safe third countries require refugees to satisfy the Minister that
there are “compassionate or compelling circumstances justifying the entry” to any other
country to obtain written approval to travel. 10 This means that, in many cases, during the
potential decade or more that they are separated from their families, refugees in this situation
cannot even make short visits to their loved ones.
2.4 The impact of this policy is often devastating. Temporary protection visa holders have faced,
and continue to face, significant challenges sponsoring family members and partners. This
prolongs separation from family members, and restricts travel even to visit family members.
The damage caused to people, many of whom already suffer from past trauma, by
uncertainty about their future, unstable living conditions, lack of social supports, and isolation
from family is intuitive and obvious. It has also been borne out by study after study conducted
by healthcare professionals in the Australian context. 11
8
Lenore Taylor, ‘Scott Morrison may be forced to give 31, 000 asylum seekers chance of settlement’, The Guardian (Online, 27 November
2014) .
9
Scott Morrison, ‘Reintroducing TPVs to Resolve Labor’s Asylum Legacy Caseload, Cambodia’ (Transcript of Press Conference,
Canberra, 25 September 2014), page 5.
10
This stems from the imposition of condition 8570 on TPVs and SHEVs.
11
See e.g. Nickerson et al, ‘The association between visa insecurity and mental health, disability and social engagement in refugees living
in Australia’ (2019) 10(1) European Journal of Psychotraumatology; Byrow et al, ‘Perceptions of mental health and perceived barriers to
mental health help-seeking amongst refugees: A systematic review. Clinical Psychology Review’ (2020) 75 Clinical Psychology Review
4Case Study 1
In around 2013, Barry and Mark* i fled Iran* as young adults and came to Australia by boat, fleeing
the persecution they faced due to their sexual orientation. Their claims were assessed, and they
were quickly recognized as refugees. As they had arrived by boat, they were granted temporary
protection visas.
As a consequence of their having fled Iran the police began to severely harass their elderly parents
in Iran, Tom and Sally* threatening them with arrest and torture. Barry and Mark were horrified,
but were unable to do anything to help their parents escape Iran as they each only held temporary
visas and were unable to support their parents’ application to Australia.
In this case, Tom and Sally were fortunate enough to be able to escape Iran and make their way
to Australia by plane. When they arrived in Australia, their only options were to lodge their own
protection visa applications even though their children had been recognised as refugees.
Ultimately, and somewhat ironically, because Tom and Sally arrived by plane, they were granted
permanent protection visas.
While Tom and Sally were sufficiently resourceful and lucky to be able to escape Iran by other
means, their situation is exceptional. In most cases, RACS hears stories of relatives trapped
overseas with no way out, stranded and left to an uncertain fate.
2.2 LIMITATIONS ON REFUGEES SEEKING TO REUNITE WITH FAMILY AND PARTNERS
UNDER THE OFFSHORE HUMANITARIAN VISA PROGRAM
2.5 While family reunion through the Offshore Humanitarian Visa (OHV) program is not the focus
of this inquiry, it provides important context relating to people’s ability to sponsor partners
and other family visas and the importance of other avenues.
2.6 A major concern of the OHV program is that it simply cannot meet the demand for family
reunion. In the 2019-20 financial year, 70,621 people lodged applications for offshore
humanitarian visas despite that there were only 18,750 places available and only 11,521
were granted to people offshore. 12 Of the subclass 202 Special Humanitarian Program Visa
through which people can sponsor family members e.g. through the ‘split family’ provisions,
less than 10% of applications were granted for the 2019-2020 year. 13 The vast majority of
those refused were refused on the basis that Australia did not have capacity to accept further
applications – not because the applicants didn’t meet the relevant criteria. 14
101812; Schick et al, ‘Changes in post-migration living difficulties predict treatment outcome in traumatized refugees’ (2018) 9 Frontiers
in Psychiatry; Bryant et al, ‘Separation from parents during childhood trauma predicts adult attachment security and post-traumatic stress
disorder, (2017) 47 Psychological Medicine 2028-2035; Schick et al, ‘Challenging future, challenging past: The relationship of social
integration and psychosocial impairment in traumatized refugees’ (2016) 7 European Journal of Psychotraumatology 28057;
Nickerson et al, ‘Change in visa status among Mandaean refugees: Relationship to psychological symptoms and living difficulties’ (2011)
187 Psychiatry Research; Nickerson et al, ‘The impact of fear for family on mental health in a resettled Iraqi refugee community’ (2010)
44 Journal of Psychiatric Research, 229-235.
12
Department of Home Affairs, Australia’s Offshore Humanitarian Program: 2019–20 (Report, 21 September 2020) available at:
https://www.homeaffairs.gov.au/research-and-stats/files/australia-offshore-humanitarian-program-2019-20.pdf, accessed on: 23 April
2021.
13
Department of Home Affairs, Australia’s Offshore Humanitarian Program: 2019–20 (Report, 21 September 2020) 17. Available at:
https://www.homeaffairs.gov.au/research-and-stats/files/australia-offshore-humanitarian-program-2019-20.pdf, accessed on: 23 April
2021.
14
‘Statistics on people seeking asylum in the community’, Refugee Council (online, 23 April 2021).
52.7 While one might have expected, given the unique burdens of family separation involved for
refugee populations, that all humanitarian visa holders would be given priority within the
OHV programme, the opposite is in fact the case. Refugees holding permanent protection
visas in Australia are given the lowest priority for processing applications to reunite with
family members through the OHV program. 15 This means that people with other permanent
visas sponsoring friends and distant relatives are given priority over a Protection Visa holder
trying to sponsor their wife and children to reunite with them in Australia. As indicated above,
the demand for places under the OHV programme is so much greater than the number of
places available that it renders applications made by family members and partners of
Protection Visa holders futile. While Protection Visa holders can apply for citizenship, delays
in processing citizenship applications are likely to further delay processing for years; and
even becoming an Australian citizen would still only serve to put their application on level
footing with a holder of a non-Protection permanent visa. 16
2.8 The most reliable pathway for family and partner reunion in the OHV program is through the
Community Support Program (CSP). However, the eligibility requirements and extremely
high costs of applying for visas under this program (which RACS understands generally
amount to $50 000 or more 17) mean this is not an option for many refugees and cannot be
considered an accessible or appropriate response to providing humanitarian support to
refugees.
2.9 With limited ability to sponsor family members or partners to reunite with them through the
OHV program, refugees in Australia, in particular those holding Protection Visas, are forced
to pursue other options in the general Family Visa stream to have a realistic chance of being
reunited with their partners or other family members.
Case Study 2
Milo* sought protection in Australia whilst on a student tour, fearing harm their home country,
Uganda*. They were granted Subclass 866 Permanent protection visa.
As a minor in Australia, Milo sought to propose their parents to come and live with them under the
OHV Programme. As they hold a Subclass 866 protection visa, their family applications will be de-
prioritised, and even given the lowest level of priority of processing with the extremely limited
number of offshore applications granted per year.
There are no other viable options open to this young person, with the limited range of Parent visas
available either being prohibitively expensive (starting at $50,000 per parent for the Contributory
15
See Department of Home Affairs, Offshore humanitarian program – Visa application and related procedures (Procedural guidelines, 1 July
2012).
16
See ‘Delays in citizenship applications for permanent refugee visa holders’, Refugee Council of Australia (Report, 26 January 2019).
Available at: https://www.refugeecouncil.org.au/delays-citizenship-applications/2/, accessed on: 3 May 2021.
17
See e.g. ‘The Community Support Program: Providing complementary pathways to protection or privatising the Humanitarian Program?’,
Refugee Council of Australia (Report, 26 January 2019). Available at: https://www.refugeecouncil.org.au/community-support-program-
brief/, accessed on: 5 May 2021.
6Parent visa – Subclass 143), or exceptionally long wait times (30+ years for the standard Parent
Visa - Subclass 103).
Milo desperately wants to reunite with their family in Australia, however the current policy and cost
limitations create barriers that are presently insurmountable.
3 ISSUES WITH THE REUNITING WITH FAMILY MEMBERS AND
PARTNERS THROUGH THE FAMILY STREAM
3.1 There are a number of existing problems for people seeking to reunite with their family
members and partners. As alluded to by the terms of this inquiry, these include the waiting
times for processing and grant, the cost of making an application, and explicit hurdles to
make the process of applying more difficult. Many of these are directed at refugees on
protection visas, some of Australia’s most vulnerable people.
3.1 EXPLICIT LIMITATIONS ON REFUGEES SEEKING TO REUNITE WITH FAMILY AND
PARTNERS THROUGH THE FAMILY VISA STREAM
3.2 Aside from the policies described above, the most explicit limitation for refugees seeking
to reunite with family members is Direction 80. This Direction is a legal instrument
promulgated by the government that dictates the order of processing applications for family
visas including Partner visas. It explicitly makes applications of which the applicant’s
sponsor (or proposed sponsor) is “a person who entered Australia as an Illegal Maritime
Arrival and holds a permanent visa” the lowest possible priority for processing. 18 This
means that applications for family visas sponsored by people who arrived in Australia by
boat and are now permanent Protection visa holders can be lodged, but will be constantly
“leapfrogged” in priority by every single other application for this kind of visa. As a result,
most such family visa applications will never be processed; they will remain in the queue
forever, in a kind of Kafkaesque limbo.
3.2 WAITING TIMES FOR PROCESSING AND GRANT
3.3 Waiting times for a number of visa categories have increased substantially in recent years.
It must be remember that for protection visa holders the waiting times to sponsor family
members is additional to that of waiting for the processing of protection visas, which in
most cases already takes several years even where the initial application is accepted. 19
For many visas, the waiting times are absurdly long such that applications for certain visas
18
‘Family separation and family reunion for refugees: The issues’, Refugee council (Article, 1 March 2021) <
https://www.refugeecouncil.org.au/family-reunion-issues/5/>.
19
Department of Home Affairs, ‘Visa processing times’, Immigration and citizenship (Webpage, 21 August 2020)
.
7(e.g. parent visas) have essentially no prospects of being granted. For example, the
Department of Home Affairs website indicates, “New Parent and Aged Parent visa
applications lodged that meet the criteria to be queued are likely to take approximately 30
years for final processing.” 20
3.4 The impact of the delay is particularly difficult for refugees seeking to reunite with partners
and family members. As noted above in section 2, refugees are unable to return to their
country of origin where many have left partners or children. Such delays involve a complete
separation over and above that typically experienced by other families.
Case Study 3
Jeanine arrived in Australia in mid-2015 and applied for a Protection visa later that year which
was granted in July 2019. In that time, Jeanine supported herself as a swimming instructor and
disability care worker. She also married an Australian man and settled with him. Jeanine
continued to send money to support two young sons she had to leave behind in Burundi.
When Jeanine’s Protection Visa was granted, she was excited about the possibility of being
able to sponsor her young sons to reunite with her in Australia after several years of separation.
As Jeanine holds a permanent protection visa, if she tried to sponsor her children under the split
family provisions they would be consistently deprioritised.
Jeanine decided to apply for Child Visas for her sons. It took Jeanine months to save for the
Visa Application Charges needed to make Child Visa applications for her sons while she
continued to support them financially.
Jeanine has waited almost a year for the outcome of her sons’ Child Visa applications. As the
months go by, her excitement at seeing her sons turns to despair. She says work is the best
distraction she has from being separated from them. In tears, Jeanine reflected,
“I am helping others but I can’t get help for myself… I don’t know why they keep me
away from my children. I do not know why it takes so long. I go to the psychologist but it
doesn’t help. I don’t need to talk about it. I don’t need medication. I just need my children.
That’s the only thing that can fix how I feel.”
Jeanine feels personally the inconsistencies between what she knows about Australia and her
current circumstances:
“I don’t understand that a country that does so much for children here won’t let me see
my kids. You can imagine how I feel, I have been away from them for so long. They
are my only children. They are my blood.”
Jeanine feels like her life is on hold and will be until her sons can join her:
“I keep trying to look for schools for them. I keep thinking they are coming. I keep
trying to stay positive but they don’t come. I don’t know what’s happening. I don’t know
when they will come…when your child is suffering, it means you don’t have a life when
20
Department of Home Affairs, ‘Parent visas – queue release dates and processing times’, Visa processing times (Webpage, 19 February
2021) .
8you can’t see them. If they can be there in front of me, I can give life to my kids, then I
can do anything, I can start giving to others.”
Jeanine’s story and words epitomise the situation for many refugees who wait endlessly to
resume lives we take for granted.
3.3 COST OF APPLYING
3.5 The cost of applying for visas in the Family stream is excessive and is felt acutely by
refugees in Australia seeking to reunite with partners and family members. Refugees have
overcome a number of disadvantages to arrive in Australia. Many have had to continue to
support family members overseas who reside in refugee camps or informal settlements
and whose ability to earn a livelihood and support themselves has been curtailed by conflict
or persecution. This places a continuing financial burden on refugees seeking to save to
afford the application charges for Family stream visas to reunite with partners and other
family members. 21
3.6 The most significant barriers RACS sees for refugees wishing to sponsor their family
members through Family Stream visas are the fees and ancillary charges involved. In
particular, the cost of Partner Visas, is often prohibitive or delays refugees making
applications for these visas. The current minimum Visa Application Charge (VAC) of
$7,715 for subclass 309/100 Offshore Partner Visas renders these applications out of
reach for many refugees in Australia who are settling in Australia, while also often trying to
support family members in precarious situations overseas. The cost escalates for each
child who is part of the family. This includes an additional VAC of $1,935 for each child
who is under 18 years of age and $3,860 for each child who is over 18. These charges
represent relatively recent increases; for instance, as recently as the end of 2012, the VAC
for a 309/100 Partner Visa was only $3,060, with no additional charges for children. 22
3.7 There are additional costs associated with applying for these visas. These include the costs
of undertaking the mandatory medical examinations. Accessing such examinations can be
expensive. In some instances, international travel is required to take those said medical
examinations, undergo interviews and verify identification. RACS has had to help many
clients work out, for example, how they can safely and affordably make travel
arrangements between Afghanistan and Pakistan to fulfil these requirements. In some
cases, DNA tests are required to prove relationships, further adding to the costs and of
course travel to Australia. Where an applicant has more than one child this can quickly
multiply many of these costs.
3.8 While we accept that many of these processes are important as part of granting visas to
reunite partners and family members, some acknowledgement of the enormous burdens
21
Brooke Wilmsen, ‘Family separation and the impacts on refugee settlement in Australia’ (2016) 48(2) Australian Journal of Social Issues
241.
22
Migration Regulations 1994 (Cth) sch 1 item 1124B.
9placed on applicants ought to be made in adjusting the Visa Application Charge to make it
more affordable generally, or at the very least for refugees in Australia.
3.9 In a practical sense, the high cost of the Visa Application Charges and associated costs
further delays the period of separation as people need time to save or borrow money to be
even able to make the application.
Case Study 4
Mohammad* fled Somalia* due to religious violence there. He came to Australia where he
applied for and was granted a Protection Visa after years of waiting. He is concerned about his
wife and young son whom he barely knows after having to flee quickly. He wants to sponsor
them to join him in Australia but while he is still trying to find decent work and supporting his
family, the cost of the Partner visa is too high. He has tried borrowing from relatives but they no
longer have the money as their own work has been affected by the COVID-19 pandemic. So,
Mohammad has to wait until he can save the money. He watches his son grow up over
WhatsApp. The village his wife lives in is safe for now.
Case Study 5
Anna* from Saudi Arabia* sought (and was granted) protection in Australia due to her fears and
past experience of domestic and gender-based violence from her previous partner and the
wider community.
Tragically, Anna’s young daughter remains in Saudi Arabia with her own young baby and fear
for their safety for similar reasons that forced Anna to flee. Anna knows applying through the
Offshore Humanitarian Visa Programme will take too long as she has a Protection Visa so she
sponsors her daughter to apply for a Child visa (Subclass 101).
The biggest challenge Anna has faced is the high cost of the visa application. To sponsor her
daughter and her daughter’s baby came to a cost of $3,335. Experiencing a period of low
income, exacerbated by COVID-19, Anna struggled tremendously to gather enough money to
pay for the application. Relying on charity and good friends, she was fortunately able to cover
the visa application charge by the due date.
Without any special consideration for family visa applicants who are facing the risk of serious
harm while remaining in their home country, Anna and daughter now have to wait out the
potential 2 year processing time to see if they can reunite.
3.4 ELIGIBILITY AND ACCESS FOR PEOPLE WHO HAVE SOUGHT PROTECTION IN
AUSTRALIA
3.10 Even where refugees hold permanent visas and are therefore able to sponsor family
members, in many cases, they are specifically disadvantaged when it comes to sponsoring
family members and partners to Australia. For example, Ministerial Direction 80 explicitly
stipulates that visa applications for family members sponsored by illegal maritime refugees
(arriving prior to 13 August 20212) holding permanent protection visas, are given the lowest
10priority, despite paying the same fee. 23 While Direction 80 provides that this order of
processing can be departed from where there are ‘compelling reasons’, in our experience
this exception is rarely used.
3.11 Where refugees acquire Australian citizenship, applications for which they are the sponsor
are not deprioritised. While this provides an avenue for eventual reunification with family
members, the delays of applying for protection, applying for citizenship and applying for
family reunion are each steps which frequently take several years. This could result in
families being separated for upwards to a decade. 24
3.12 Direction 80 also removed the requirement of Direction 72, the precursor of Direction 80,
that the processing time be “reasonable”. This, in practice, has led to the possibility of an
application submitted by a permanent protection visa holder who came by boat never being
considered. 25
3.5 COMPATIBILITY WITH INTERNATIONAL OBLIGATIONS
3.13 International law recognises families as the “fundamental group unit of society” and obliges
States to protect them. 26 In relation to refugees and children, there are international
obligations on protecting family unity. 27 These obligations envisaged positive steps by
States to ensure family unity and an expectation it is done in an expeditious manner. As
such, the barriers to family reunion including explicit deprioritising of applications made by
refugees, the high costs and lengthy delays are inconsistent with Australia’s international
obligations.
3.14 These unnecessary and harmful barriers to family reunion also potentially breach
Australia’s obligations under the Convention on the Rights of the Child, where they affect
minors. Delays – and particularly unnecessary delays – in allowing children to make or be
the subject of family reunification. This applies to many of the scenarios discussed above;
23
‘Denying family reunion for refugees: Impact of Direction 80’ Refugee Council of Australia (Webpage, 15 April 2020)
.
24
Department of Home Affairs, ‘Bringing a partner or family’, Immigration and citizenship (Webpage, 20 December 2018) <
https://immi.homeaffairs.gov.au/visas/bringing-someone/bringing-partner-or-family>.
25
‘Denying family reunion for refugees: Impact of Direction 80’ Refugee Council of Australia (Webpage, 15 April 2020)
.
26
Article 16(3) of The Universal Declaration of Human Rights, states “The family is the natural and fundamental group unit of society and
is entitled to protection by society and the State.” Similarly, article 23 (1) of The International Covenant on Civil and Political Rights
(ICCPR), which recognises that the “…family is the natural and fundamental group unit of society and is entitled to protection by society
and the State.” Furthermore, Article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises that
“The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of
society…”
27
The United Nations Conference of Plenipotentiaries on the Status of Refugees and stateless Persons that led to the creation of the
1951 Convention Relating to the Status of Refugees (the Refugees Convention), to which Australia is a signatory, considered that “the
unity of the family, the natural and fundamental group unit of society, is an essential right of the refugee”. Consequently, the conference
recommended, “Governments take the necessary measures for the protection of the refugee’s family, especially with a view to…ensur[e]
that the unity of the family is maintained…” Similarly, Article 10 of the Convention on the Rights of the Child (CRC), specifically states that
State parties are to ensure that “applications by a child or his or her parents to enter or leave a State Party for the purpose of family
reunification shall be dealt with by States Parties in a positive, humane and expeditious manner.” This is in addition to broader obligations
to act in the best interests of the Child and to ensure children are not separated from their parents in Articles 3 and 10 of the CRC.
11as well as the underlying “no advantage” principle that has been used to justify many of
the measures. 28
3.6 OTHER AREAS OF CONCERN
3.15 There are a number of other areas where improvements could be made.
3.16 The differential treatment of refugees by mode and date of arrival and inflexibility of
processing have created some absurd and distressing outcomes. In some cases family
members have arrived separately and been processed under different regimes. For many
years now, it has been well known that refugees who arrive in Australia seeking asylum by
plane and by boat are treated subject to different regimes. Additionally, even within the
corpus of those who arrived by boat, multiple different systems apply in a manner that
regularly produces arbitrary results, with some people transferred to Nauru or Manus Island
for “offshore processing” while others were processed in Australia. Where mechanisms
exist to sort people between these systems, they have generally had scant regard for family
unity – meaning that families are often left separated by bureaucratic processing
decisions. 29
3.17 For instance, such family separation has occurred where a husband has been processed
as an unlawful maritime arrival and been granted a Temporary Protection Visa, while his
wife has been transferred to Nauru, recognised as a refugee and either remaining in Nauru
or brought to Australia for medical treatment (where, as a ‘Transitory Person’, she will only
be entitled to a precarious and very temporary Bridging Visa such that she faces the
constant threat of removal from Australia). The splitting of families held in offshore
detention is clearly extremely damaging and easily avoidable. Even in the above scenario
where both partners have ultimately arrived in Australia where they may live together and
share a house and a life, and where both have been recognised as refugees, they would
nonetheless continue to hold different visas and have no realistic way to sponsor each
other and ensure that they have the same visa status. For as long as this remains the case,
the family faces the risk of arbitrary splits based on processing decisions affecting one
cohort or another of people, or even one individual person. While the Minister has the
power to use their discretion to allow them to apply for the same visa, this discretion is
never used as part of a deliberate policy decision to place pressure on families who have
arrived by boat.
3.18 In other cases, families have been formed after a protection visa application has been
made and sometimes decided. Another example is the case of Thileepan, who arrived in
Australia in 2012 separate to his wife had his protection visa was refused but remained in
Australia living with his wife and had a daughter with her. Thileepan was removed four
28
‘Asylum seekers and refugees’, Australian Human Rights Commission (Webpage) .
29
Hathaway and Foster, The law of refugee status (Cambridge University Press, 2nd ed, 2014).
12days after his wife and 10 month old daughter were granted Safe Haven Enterprise Visas. 30
This forced removal of a parent from a child is the absurd and cruel outcome of an
impractical and inflexible system that pays little regard to family unity and relies too often
on the intervention of disinterested Ministers to work in a humane and practical manner.
3.19 One key concern is the absence of a co-ordinated mechanism to assist minor children to
sponsor their parents outside the Split family provisions in the OHV program. The current
law currently requires an adult spouse, guardian or community organisation to sponsor.
This leaves minor children in Australia often unable to reunite with their parents. A
dedicated organisation supported by government to facilitate family reunion would appear
to be a practical approach to minimise the time minor children are separated from their
parents.
3.20 We are also concerned with the proposed introduction of English language testing for
Partner visas and sponsors. We attach a submission we prepared in response to a recent
consultation paper on this issue.
Case Study 6
Anwar* was fleeing violence in Pakistan* due to his religion. He fled Pakistan eventually arriving
in Australia by boat but was transferred to Papua New Guinea* where he was found to be a
refugee. He was later transferred to Australia for medical treatment where he has been for
several years holding successive Bridging Visas, which need to be renewed every six months.
Anwar’s wife, Sufia* was able to arrive in Australia by plane after she started to be harassed
and threatened about her husband’s whereabouts and religious activities. Sufia was able to
apply for and was granted a Permanent protection visa. Even though Anwar has been found to
be owed protection on the same grounds as Sufia, Anwar cannot apply for a Protection Visa or
a Partner Visa in Australia.
30
Ben Doherty, “Australia deports Tamil asylum seeker, separating him from baby daughter”, The Guardian (Article, 17 July 2018)
.
134 CONCLUSION AND RECOMMENDATIONS
4.1 Currently people recognised as refugees in Australia face a number of unnecessary obstacles
to reuniting with their partners and family members. They are often faced to make a cruel
choice between remaining safe and supporting their family. It does not have to be this way,
as the rest of the World and Australia’s own immigration history has shown.
Recommendations
1. End discriminatory practices against refugees recognised in Australia including de-
prioritsation in Direction 80;
2. Allow all refugees in Australia to apply for permanent visas to allow them to sponsor
partners and family members or alternatively allow TPV and SHEV holders to sponsor
partners and family members;
3. Remove condition 8570 from the regulations to allow people on Temporary Protection
visas and Safe Haven Enterprise Visas to visit safe third countries to visit relatives without
the need to seek Ministerial approval;
4. Allow family members of TPV or SHEV holders to visit them in Australia;
5. Reduce processing times for all family applications and where possible expedite
applications sponsored by refugees;
6. Reduce the cost for those in financial hardship and those who have come through the
humanitarian stream;
7. Prioritise family reunion applications for unaccompanied children who are either the
sponsor or being sponsored; and
8. Increase the quotas for the Humanitarian intake to better reflect demand for refugees
sponsoring partners, children and other close family members.
Sarah Dale
Centre Director & Principal Solicitor | Migration Agent
Refugee Advice & Casework Service (RACS)
i*Names, Country of origin and other personal identifiers changed in case studies, where identified, in order to
protect confidentiality.
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