Submission to Senate Inquiry: Visa submissions for family and partner reunions
RE: The efficacy, fairness, timeliness and costs of the processing and granting of visa classes, which provide for or allow for family and partner reunions.
Refugee Voices welcomes the opportunity to provide a submission to the Senate Standing Committee on Legal and Constitutional Affairs into the efficacy, fairness, timeliness and costs of the processing and granting of visa classes, which provide for or allow for family and partner reunions. In drafting this submission, Refugee Voices has consulted closely with members of its community with lived refugee experience.
Refugee Voices expresses general concern about Australia’s migration framework and acknowledges the many difficulties faced by refugees on permanent protection visas in terms of family reunion. Consultations with our community, however, have shown that the most significant concerns relating to family unity surround refugees who arrived in Australia by boat on or after 13 August 2012. These refugees are precluded from accessing permanent protection visas and cannot sponsor their family members under either the Refugee and Humanitarian Stream or the Family Stream of Australia’s Migration Program. We have therefore confined our submissions to the terms of reference most applicable to refugees on temporary protection visas.
(i) Summary
1. Refugee Voices submits that seeking asylum is a human right, and a refugee’s right to family unity is well-established in international law. Family separation is often a consequence of fleeing persecution and refugees must “make difficult decisions about leaving their family behind to find safety in another country”1. Family unity has a profound effect on the refugee experience, and with this in mind, we note that the UNHCR “advocates for family reunification mechanisms that are swift and efficient in order to bring displaced families together as early as possible.”2
2. Refugee Voices submits that Australia’s policy of continually subjecting individuals who hold Temporary Protection Visas (TPVs) or Safe Haven Enterprise Visas (SHEVs) to punitive measures that preclude them from accessing meaningful options for family reunion has caused long-term, but wholly preventable, psychological trauma. This has occurred in direct contravention of Australia’s international obligations.
3. Refugee Voices strongly recommends that the Australian Government urgently acknowledge the detrimental effects of this policy and allow all people who have sought protection in Australia to have access to family reunion options, regardless of their mode of arrival.
(ii) Limitations on eligibility to apply for relevant visas; and eligibility for and access to family reunion for people who have sought protection in Australia:
4. Refugee Voices work with many members of the refugee community who arrived in Australia by boat on or after 13 August 2012. We agree with the Refugee Council of Australia that the lack of meaningful family reunion options for over 30,000 individuals on TPVs or SHEVs is “one of the most pressing issues raised consistently”3 in consultations with the refugee community.
5. Many of these individuals have waited a significant number of years for an opportunity to formally apply for protection in Australia. During this time, they have been forcibly separated from their family members as a result of mandatory and indefinite detention, as well as an inability to obtain a visa status that has allowed them to travel to third countries to visit family members.
6. Once placed on a TPV or SHEV, they are ineligible to propose any family members under the Refugee and Humanitarian stream or Family Stream – a right reserved for permanent protection visa holders. A lack of durable protection options has ensured that some individuals face the devastating prospect of never being reunited with their family. The trauma this presents is often exacerbated by the knowledge that many family members abroad are in precarious situations. Our consultations with members of our community echo the concerns of a 2020 Red Cross research project that states:
“A number of participant’s families were still living in conflict-affected regions or in unsafe environments including refugee camps. This situational factor appeared to increase the potency of worries relating to the safety and wellbeing of family.”4
7. Although SHEVs can provide a pathway to permanency, there are further limits to the types of visas that can be applied for under this. Permanent protection visas are not an option and many refugees on SHEVs do not meet the eligibility criteria to apply for many visas on the SHEV pathway list. Their status in Australia therefore remains unresolved, their ability to sponsor family members remains permanently barred, and the situations in their countries of origin continues to deteriorate, meaning return for the purposes of facilitating family reunion is not an option
8. Refugee Voices agrees with the Refugee Council of Australia that prolonged family separation in the refugee context “hinders people’s successful settlement and often impacts on people’s ability to work and study”5. A lack of hope of being reunited subjects many refugees who have overcome conflict and persecution to further cruel and unnecessary trauma, despite their desire to contribute meaningfully to Australian society. Refugee Voices submits the following case studies from members of our community holding TPVs or SHEVs to further illustrate the practical effect that this harmful policy has on the refugee experience:
CASE STUDY #1 E* is a Kurdish refugee in Australia who has been separated from her son for 8 years. In Iran, a male is not eligible for a passport unless he completes two years of military service. The family fled persecution with the understanding that, by the time her son, eighteen at the time, had completed his military service and was eligible for a passport, E, her husband, and daughter would have obtained permanent protection visas in Australia. They had no reason to believe otherwise. Upon being taken to Christmas Island, E expressed her happiness that her ‘hard situation’ had ended and that they were safe.
8 years later, despite holding a SHEV, the family are ineligible to apply for any SHEV pathway visas that could facilitate a reunion with their son. They say that they would be willing to relocate to a regional area for the specified 42-month period if they were eligible for any subsequent permanent visas. After receiving permission from the Government to travel abroad, E has been able to see her son for two two-week periods in Thailand, although this has presented a financial burden for the family. She expresses her concern for families who are not even able to reunite for short periods in third countries for financial reasons. E’s family cannot return to Iran, where they remain a persecuted minority group.
E describes the feeling of being separated from her son as “killing her slowly”. She has not celebrated traditional family events such as Iranian Eid for 8 years. Although she receives Government support to pay for trauma counselling and medication, she says the Government is not helping her by continuing their policy of family separation. Since COVID closed international borders, the psychological effects of being separated from her son have increased.
E has stated that, despite the many years of war and conflict in her country of origin that saw her lose family and friends to systemic violence, this is by far the hardest period of her life. She wants the Government to know it is not only her suffering. This is reality for 30,000+ refugees in Australia.
*full name redacted for confidentiality purposes.
CASE STUDY #2 M* is a refugee from Iran who has been separated from his sister since he was 9 years old. As Iranian men cannot get a passport without completing compulsory military service, his sister was unable to flee Iran with her husband at the same time that M’s family did.
His family now hold a TPV and are barred from sponsoring their last remaining sibling and daughter to join them in Australia. M recalls the severe psychological effect that this long term separation has had on himself and his family. His mother cried herself to sleep every night and he felt as though at times he was not welcomed into the family home because it was incomplete. He could no longer see joy on his mother’s face and so this distanced him from her.
M remembers that in primary school he struggled to contribute in class, kept to himself and had difficulties improving his English. His results were affected, and he did not take pride in any awards because he felt as though his incomplete family could not fully appreciate his achievements. M’s sister had been a central part of his life and he describes her as ‘a second mother’. As he got older, he avoided video calls with his sister because he wanted to see her in person and not through a screen.
In 2020, his family spent approximately $40,000 to reunite with his sister for just over a fortnight in Turkey after 8 years.
The family remained concerned about the status of their visa while outside of Australia because they understood that the Government has continually sought to punish them for the mode by which they arrived in Australia. They did not feel reassured that, despite having to obtain permission from the Department to travel abroad, their visa would not be cancelled while they were overseas.
M wants the Government to know that the policy of barring TPV holders from family reunion has a profound impact in the form of emotional distress, especially in minors, a lack of hope and inability to look forward in life, a lack of concentration caused by trauma and separation, and emotional distancing between family members already in Australia.
*full name redacted for confidentiality purposes.
(iii) The suitability and consistency of government policy settings for relevant visas with Australia’s international obligations:
10. A refugee’s right to family unity is well-established in international human rights law, and Australia’s international obligations require the provision of fair and positive pathways to facilitate family reunion for refugees who have sought Australia’s protection.
11. The Final Act of the Conference that adopted the 1951 Refugee Convention (Refugee Convention)6, which Australia signed in 1954, recommended, in no uncertain terms, that:
“Governments... take the necessary measures for the protection of the refugee’s family, especially with a view to: (1) Ensuring that the unity of the refugee’s family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country:”7
12. Under the International Covenant on Civil and Political Rights (ICCPR), which Australia signed in 1972, the family unit is defined as “the natural and fundamental group unit of society and the State”8, while the ICCPR stipulates that an individual’s family shall not “be subjected to arbitrary or unlawful interference”9.
13. The Human Rights Committee has stated that the inclusion of ‘arbitrary interference’ is relevant in that it recognises that interference with an individual’s family may be permitted under domestic law10, however, even if lawful, any interference should be reasonable, proportional and have regards to the aims of the ICCPR11, which Australia has committed to implement in good faith12.
14. Refugee Voices expresses its concern that, despite the importance of family unity in international law and Australia’s obligations in relation to this, government policy settings that prevent TPV and SHEV holders from accessing family reunion is a purely punitive measure, arbitrary in nature and with long term traumatic consequences that far exceed any justification.
15. Additional concerns surround Australia’s commitment to implement the provisions of the Refugee Convention without discrimination against a subset of the refugee population13. TPV and SHEV holders are subject to a concerning limitation of many of their rights, including their lack of ability to sponsor family members, while permanent protection visa holders enjoy these rights. Refugee Voices submits that this is a blatant act of discrimination and wholly inconsistent with Article 3 of the Refugee Convention.
(iv) Recommendations
16. Refugee Voices strongly recommends that the punitive measures that seek to continually punish refugees for their mode of arrival in Australia are removed, including the bar on accessing visas that facilitate family reunion. Refugee Voices recommends that this is done by granting TPV and SHEV holders permanent protection visas, however, at an absolute minimum, holders of both TPVs and SHEVs should have the same rights to sponsor their family members that permanent visa holders have.
17. Should the recommendation contained in paragraph 16 not be observed, then Refugee Voices strongly recommends that the types of visas available through the SHEV pathway are expanded to include permanent protection visas so that all SHEV holders who satisfy the pathway requirements have access to meaningful family reunion options.
18. Refugee Voices strongly recommends that refugee-led organisations are closely consulted in order to humanise Australia’s Migration Program with respect to the refugee experience.
19. Refugee Voices recommends that the Australian Government acknowledge a refugee’s right to family unity, as well as the positive impact that family reunion has on the refugee
resettlement process and seek to shape migration policy with this in mind.
20. Refugee Voices welcomes the opportunity to consult further on a confidential basis should the Committee wish to. If you would like to discuss any of these matters further, please contact Ahmad Hakim, CEO and Founder of Refugee Voices, by email at refugeevoicesaustralia@gmail.com.
About Us Refugee Voices is a newly founded refugee-led community organisation, with expertise across community mobilisation, refugee policy and campaigning. We are committed to ensuring that when it comes to the policies, campaigns and decisions that affect us, our voices are heard loud and clear. We build the capacity of people from refugee backgrounds to shape the debate, and we open the doors for them to be heard. Because when it comes to decisions affecting our communities, we are the voices that need to be heard.
1 Nicholson, F on behalf of UN High Commissioner for Refugees (UNHCR), The Right to Family Life and Family Unity of Refugees and Others in Need of International Protection and the Family Definition Applied, January 2018, 2nd edition.
2 Ibid
3 Refugee Council of Australia ‘Family separation and family reunion for refugee issues: the issues’, 1 March 2021 available at <https://www.refugeecouncil.org.au/family-reunion-issues/5/>
4 Liddell B, Batch N, Bulnes-Diez M, Hellyer S, Kamte A, Wong J, Byrow Y, Nickerson A. 2020. The Effects of Family Separation on Forcibly Displaced People in Australia. Findings from a Pilot Research Project. Australian Red Cross, Carlton, Vic. 5 Refugee Council of Australia ‘Family separation and family reunion for refugee issues: the issues’, 1 March 2021 available at <https://www.refugeecouncil.org.au/family-reunion-issues/5/>
6 Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189 p. 137 7 United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, held at Geneva from 2 to 25 July 1951, Recommendation B 8 International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol 999, p 171, art 23. 9 International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol 999, p 171, art 17. 10 UN Human Rights Committee (HRC), CCPR General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988 11 UN Human Rights Committee (HRC), CCPR General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988 12 Australia is also party to the Vienna Convention which stipulates that, under Art 26, treaties shall be implemented in good faith. United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331.
13 Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189 p. 137, Art 3
Thank you to Refugee Voices volunteer and solicitor, Caitlin Caldwell for putting this submission together.