Refugees on permanent visas can sponsor family members to come to Australia through the family stream of the Migration Program. In order to lodge an application for any family visa, the visa applicant (who is usually outside Australia) must be sponsored by an Australian citizen or permanent resident. However, current government policy makes it effectively impossible for refugees who came to Australia by boat to be reunited with their families.
The main policy impacting family reunion for refugees is Ministerial Direction 80 ‘Order for considering and disposing of Family visa applications under s47 and 51 of the Migration act 1958’.
Subsection 8(g) of Direction 80 places visa applications for family members sponsored by refugees holding permanent protection visas who came by boat at the end of the queue, or as the ‘lowest processing priority’. Visa applications sponsored by those who did not arrive by boat are automatically placed in front of those awaiting decisions. In practice, this means refugees who arrived in Australia by boat may never be able to reunite with their families as their visas may never be processed. This is despite paying the same significant application fee.
Denying family reunion to refugees because of their mode of arrival is cruel and unnecessary. It only serves to hinder refugees’ settlement outcome, creating an additional barrier to them making Australia home.
We recommend that subsection 8(g) of Direction 80 be abolished so that all Australian permanent residents and citizens be allowed equal access to family reunion pathways.
Direction 80 replaces Direction 72, which replaced Direction 62. Direction 62 was introduced by then Minister for Immigration Scott Morrison in 2013. Direction 62 set out the order of priority for processing family reunion applications. Relevantly, it placed the family visa applications sponsored by refugees who arrived by boat at the lowest priority.
In 2015 the Australian Human Rights Commission found that Direction 62 constituted an ‘arbitrary and unlawful’ interference with family, in violation of articles 17 and 23 of the International Covenant on Civil and Political Rights. However, the Department of Immigration did not take any action in response to this finding.
In 2017, a complaint was made against the Minister for Immigration in the High Court on behalf an Afghan interpreter who helped the Coalition forces in Afghanistan who held a permanent protection visa. His application to sponsor his family was placed at the lowest priority as per Direction 62, which he claimed was unlawful. As a response to this challenge, and before it was finally determined the Minister for Immigration issued Direction 72.
Direction 72 continued to place applications for family members of people who came by boat at the end of the queue. However, it introduced a new section which allowed officials to depart from this policy if either:
- there were special circumstances of a compassionate nature and compelling reasons to depart from the processing priority; or
- The application would not be decided in a reasonable time.
Effectively, this meant that applicants could write to the Department to explain why their circumstances justified the waiver of the processing order and to request that the Department start processing their applications.
Direction 72 was recently replaced by Direction 80.
Direction 80 was signed by Minister for Immigration, Citizenship and Multicultural Affairs, David Coleman on 21 December 2018. Direction 80 continues to put applications for family visas made by people who came by boat at the end of the queue. While it also allows for compassionate and compelling circumstances, it makes these concessions even harder to achieve.
The most significant amendment is that Direction 80 has removed the requirement that an application is ‘disposed of within a reasonable time’. A possible effect of which being an application deemed lowest priority never being processed.
Anecdotally, lawyers practicing in the area have noted that there is no definition in the Migration Act or Regulations for ‘compelling and compassionate’ circumstances, however they believe that the ordinary meaning of those words is not being applied by the Department. Instead, the Department are requiring applicants to show extreme circumstances in order to be granted the exception.
Direction 80 provides no guidance on how to administer the poorly articulated ‘compelling and compassionate circumstances’ test required to enliven the exception at section 9. Consequently there is great uncertainty as to when a Delegate is allowed to depart from the priority processing requirements. Department do not provide reasons for their decisions.
For example, applicants from 2013 have still not been processed and have no timeframe for when they will be processed.
Consequences of Direction 80
Direction 80 means that refugees who arrived by boat are placed at the lowest processing priority, and have very little chance to be given special consideration for compelling or compassionate circumstances. Because of the significant backlog for family reunion, placing refugees at the end of the queue essentially denies them the chance of ever being reunited with their families.
The only exception to this policy is if people get Australian citizenship. However, the Department of Home Affairs has been found to have been intentionally stalling citizenship applications from refugees who arrived by boat, as highlighted in a recent Australian National Audit Office Report, and a Federal Court decision.
Family separation, especially for extended periods of time, causes significant mental distress and anxiety. It hinders people’s successful settlement and often impacts of people’s ability to work and study. Most refugees who are affected by Direction 80 have been in Australia for at least five years, without the ability to reunite with their loved ones.
There is no clear rationale for placing these people at the end of the queue. As the Australian Human Rights Commission noted, it does not act as a deterrent to other boat arrivals. It simply punishes people who are already in Australia and is an unnecessary barrier to successfully settling in Australia. We can’t expect people to make Australia their home until they are reunited with their family.
We recommend the Government amend Direction 80 (or issue a new Direction) removing any distinction based on refugees’ mode of arrival in Australia. This would mean removing subection 8(g) of the Direction, and all references to subection 8(g) within the Direction.