Denial of family reunion for people who arrived by boat
One of the most pressing issues raised consistently during RCOA’s annual consultations was the policy of preventing family reunion application for people who arrived in Australia by boat.
Refugees on permanent visas can sponsor family members to come to Australia through the family stream of the Migration Program. However, for many people, especially those who came by boat, government policy makes it effectively impossible for them to reunite with their family.
The main policy impacting family reunion for refugees is Ministerial Directive 80. Direction 80 places applications for family members of people who came by boat at the end of the queue. As there are always new visa applications which are placed in front, in practice this means these people cannot reunite with their family and their visas will never be processed. This is despite paying a significant application fee.
Denying family reunion to refugees because of their mode of arrival is cruel and unnecessary and only serves to hinder people’s settlement outcome and prevent them from making Australia their home. We recommend Direction 80 be abolished and that all Australian permanent residents and citizens have 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 application. Relevantly, it placed 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. His application to sponsor his family was placed at the lowest priority as per Directive 62, which he claimed was unlawful. However, in order to circumvent this challenge, the Minister for Immigration issued Direction 72.
Directive 72 still put applications for family members of people who came by boat at the end of the queue. However, it allowed officials to depart from this policy if there are special circumstances of a compassionate nature and compelling reasons. 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. Directive 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 provision which allows processing where the ‘application would not be disposed of in a reasonable time’. This means that applicants will not be considered simply because their application has a taken a very long time.
Further, when considering whether someone has compelling and compassionate circumstances, the Department is requiring circumstances to be even more severe than what most separated refugee families experience. The Department is looking for compelling and compassionate circumstances, not compared with other applicants, but with other refugee families affected by Direction 80.
Consequently, this makes it more difficult for those affected by priorities to satisfy the test. Additionally, Directive 80 still does not state which compelling and compassionate circumstances will allow an official to depart from the priority and the 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 getting family reunion.
The only exception to this policy is if people get Australian citizenship. However, the Department of Home Affairs has 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 on 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 deterrence to other boat arrivals. It simply punishes people who are already in Australia and prevents them from successfully settling in Australia. We can’t expect people to make Australia their home until they are reunited with their family.