Family Reunion for Refugees in Australia: Restrictive laws and policies

By Vanessa Bacchetti and Kobra Moradi

Refugee Family Separation

When refugees flee conflict or persecution in their home country, family members are often left behind or separated by borders or entire continents. The experience of displacement and resettlement involves a high degree of trauma and stress and is worsened when families are separated.

Recognition of Family

International law recognises the family as the fundamental unit of society and grants State protection. This protection extends to refugees, with international human rights bodies emphasising the need to reunite families separated due to conflict or persecution.

Governments are urged to take a generous and flexible approach in order to reunite refugee families. Moreover, family unification plays a significant role in the positive resettlement of refugees because families can provide emotional, financial and psychological support.

Family Reunion Issues in Australia

The main dedicated pathway to family reunion for refugees in Australia is through the ‘Special Humanitarian Programme’ (SHP). A refugee who has been granted a specific SHP visa or permanent protection visa can nominate specific members of their immediate family for entry into Australia. Family members accepted under this programme will generally be granted the same category visa as the refugee.

Unfortunately, the Australian Government has steadily eroded the available options for refugees to reunite with their families through successive years of policy changes. To begin, there are many barriers to family reunion through the SHP. These include limitations of eligibility for family reunion, processing priorities, prolonged delays and high costs. As a result of these challenges, more refugees rely on alternative avenues under the ‘General Migration Programme’. However options under the General Migration Programme have additional limitations for refugees.

Not all refugee visas entitle their holders to apply for family reunion. The main categories of visa which do allow family reunion are ‘Refugee and Humanitarian’ visas, the ‘Permanent Protection’ visa and the ‘Resolution of Status’ visa. ‘Temporary Protection’ visa holders and ‘Safe Haven Enterprise’ visa holders are not permitted to apply for family reunion.

In addition, refugees who have arrived by boat on or after 13 August 2012 are not entitled to apply for family reunion under the SHP. Due to a recent change in government policy, children under the age of 18 who arrived in Australia by boat are also excluded from seeking family reunion under the SHP.

Applications for family reunion under the SHP are processed according to a list of specified priorities. These priorities have a significant impact in determining whether an application will be successful. Humanitarian and Refugee visa holders proposing ‘immediate family members’ are given the highest processing priority. Permanent Protection visa holders and Resolution of Status visa holders are given the lowest processing priority and are highly unlikely to result in family reunion.

The term ’immediate family’ also has a restrictive definition based on the Western concept of the nuclear family. It includes a spouse or a de facto partner, a dependent child or a parent if the proposer is under 18 years old. There are several family configurations that are excluded from this definition, including polygamous relationships, children under 18 that are engaged to be married, children who have been informally adopted and children over the age of 18 who have been separated from their parents (unless financially, psychologically or physically dependent).

Refugees can only propose family members whose relationship was declared at the time of their own visa grant. A number of people fail to declare family relationships due to the family member not being present at the time, mistakes made in filling out the form, mistakes made by United Nations High Commissioner for Refugees workers or interpreters, or the occurrence of marriage or birth after the application was submitted.

The Refugee Council of Australia, through annual refugee community consultations, has found many refugees report waiting for many years to be reunited with their families. While the number of unprocessed applications for family reunification is unknown, in August 2012 there were more than 16,000 unresolved split-family SHP applications, with delays in family reunion expected to surpass 20 years.

Part of the problem is that there is a far greater demand for family union places than there are positions available. For example, there were 37,000 applications lodged in 2014 but there were only 5000 places available at that time. In addition, the hidden costs of relocation is prohibitive for many refugees.

The Way Forward

The Australian Government must make it easier for refugee families to reunite in Australia.

The Refugee Council of Australia recommends absorbing SHP split-families into a new, dedicated ‘Humanitarian’ allocation of family visas in the General Migration Programme. This would involve offering lowered or waived fees and need-based concessions.

There are also many ways forward within the SHP. These options include broadening the definition of ‘immediate family’, allocating more places in the SHP for family reunion and allowing unaccompanied minors who arrive as such to propose family members.

Making it easier for refugee families to reunite will bring Australia into line with international human rights norms and ensure refugees are supported in their resettlement.

Vanessa Bacchetti and Kobra Moradi are current students at La Trobe Law School and are undertaking an internship with Australian Lawyers for Human Rights. They are currently completing a detailed research project on Family Reunion for Refugees in Australia for the Refugee Sub-Committee. 

 

La Trobe