Introduction
Australia needs a faster, fairer, and more affordable family reunion visa system.
In Australia, only First Nations people are not migrants or the descendants of migrants. Since this country's initial European invasion and colonisation, Australia has become home to a society of people from more than 270 ancestral cultures, with nearly one-third of its population having been born overseas, and a further one-fifth having at least one parent born overseas.
Australia has achieved this level of multiculturalism despite many policy settings that have been racist and regressive. These destructive and discriminatory policies are built on our country's failure to recognise the sovereignty of First Nations peoples.
White Australia policies have existed since colonisation. Ostensibly these policies were dismantled between 1949 and 1973, yet their spectre lives on in today's immigration policy in English proficiency tests, balance of family tests, and how we treat white people seeking asylum compared to people of colour seeking asylum. Building a fairer family reunion system would be a critical part of changing that situation.
A Faster, Fairer, More Affordable Family Reunion Visa System
Numerous stakeholders submitted to the Committee that there are many and significant discriminatory and inequitable policy settings in Australia's family reunion visa system. These policies make it more difficult, more costly, or in some instances, impossible for particular groups of people to be reunited with family through Australia's migration program.
Definition of Family
A fundamental unfairness in Australia's family reunion visa system is how it defines family. Family for the purposes of Australia's immigration program is limited to parents, and children under 18, or under 23 if they are financially dependent (e.g. if they are a student), or of any age if they are considered dependent due to disability. However, regardless of age, a child will not be considered dependent, and therefore eligible, if they are married, engaged to be married, or have a de facto partner.
In many instances this limited view of family does not reflect the cultural understanding and experience of family in many of the countries from which people migrate to Australia. As an example of this cultural difference, the Multicultural Disability Advocacy Association and National Ethnic Disability Alliance (MDAA and NEDA) submitted:
… the Assyrian language does not have a word for 'cousin' as cousins are seen and treated as brothers and sisters.
The current, narrow definition of family is particularly problematic, and traumatic, for refugees who have sought asylum in Australia from conflict and/or persecution. As submitted by the Human Rights Law Centre (HRLC), for people who are refugees:
vital family relationships often extend beyond the 'nuclear' or 'immediate' family unit. The impact of persecution and displacement means that "refugee families are often reconstructed out of the remnants of various households, who depend on each other for mutual support and survival.
The use of a nuclear family model to underpin family reunion visa systems in some countries is culturally outdated and insensitive. This has been recognised in international convention. As submitted by the Castan Centre for Human Rights Law (the Castan Centre):
UN treaty bodies have occasionally indicated that States have obligations to take at least some measures to enable family reunification beyond that of the nuclear family.
Recommendation
That the definition of family for the purposes of Australia's family reunion visa system be broadened to enable family reunification beyond the nuclear family.
Balance of Family Test
Applications for any of Australia's permanent, temporary, or aged parent visas must pass the balance of family test. This test requires at least half the parents' children or stepchildren to be Australian citizens or permanent residents. It is more likely that smaller families can meet this test than larger families. Given white families are generally smaller than non-white families, in effect, the test favours white families.
Furthermore, the balance of family test punishes families who are already suffering because of members missing, but not declared dead, through forced civil, political, or environmental displacements. As submitted by the Multicultural Youth Advocacy Network Australia (MYAN):
Balance of family tests do not recognise extended families, or family members lost through forced displacements.
According to advice from the Parliamentary Library, no other country has an equivalent test.
Recommendation
That the discriminatory balance of family test be removed as a requirement for parent visa application.
English Proficiency Tests
The Government's proposed English language testing for partner visa applicants is another discriminatory provision of the family reunion visa system. Concerns regarding English proficiency testing were raised by numerous expert stakeholders, including the MDAA and NEDA, which submitted:
… the introduced language requirement is an example of favouritism as it directly favours applicants from an English-speaking country, which means it further disadvantages applicants from refugee backgrounds who as a cohort are more likely to not speak English upon arrival.
Not only is this proposed policy setting discriminatory, but it could also result in poor mental health and social inclusion outcomes for sponsoring partners residing in Australia. As submitted by the Federation of Ethnic Communities' Councils of Australia (FECCA), English language testing for partner visa applicants:
… will merely increase the feelings of isolation that many migrants experience. It will also increase the emotional and financial hardship of families that already face extended separation or uncertainty.
Recommendation
That the Government abandon its proposed reforms to English language requirements for partner visas.
Disability
Disabled people are also treated unfairly by Australia's migration program. Many applications for Carers visas are ultimately being rejected due to what FECCA submitted was a challenging application process, particularly for applicants whose first language is not English.
People with a disability, or families with a disabled family member, who want to migrate to Australia face discrimination due to being subject to a health requirement which is assessed against Public Interest Criteria under the Migration Act 1958. As submitted by the MDAA and NEDA:
People with disability are protected under the Disability Discrimination Act 1992 (DDA). However, the DDA provides an exemption for certain provisions within the Migration Act 1958 (Cth), which means that Australia's migration arrangements and treatment of disability are unable to satisfy the equal protection obligations under CRPD [the United Nations Convention on the Rights of Persons with Disabilities] … which the Australian Government has ratified.
An applicant will not meet the health requirement if they are considered to have a disease or a condition that would result in a significant cost to the Australian community, or that would prejudice the access that Australian citizens and permanent residents have to health care. As submitted by the MDAA and NEDA:
… for generations these systems [of policies within migration processes] have disempowered people with disabilities as they view them as being helpless 'unworthy' burdens … by inaccurately assuming that disability will always result in a certain cost to Australian taxpayer.
In 2010 a Joint Standing Committee On Migration report entitled Enabling Australia: Inquiry into the Migration Treatment of Disability found that the:
… Health Requirement reflects old-fashioned approaches to disability in particular and so unfairly discriminates against those who have disability … [and] should be replaced with a more modern form of a health requirement which has scope to positively recognise individual or overall family contributions to Australia.
Despite these findings, and numerous recommendations to reform the health requirement, including changes to the assessment criteria, processes, and waiver options, there has, as submitted by FECCA, been limited action by any government to implement any of the Committee's recommendations.
Recommendation
That the health requirement for people with disabilities be removed from the Migration Act 1958.
Recommendation
That the Disability Discrimination Act 1992 be amended to remove the exemption it provides for provisions within the Migration Act 1958.
Refugees
Refugee cohorts living in Australia face unfairness in accessing family reunion visas on a number of fronts, depending on their citizenship status or substantive visa conditions. Refugees often find themselves confused, unsupported, priced out, deprioritised, or ineligible for family reunion visas.
Many people on temporary protection visas are not eligible for family reunions. People on Safe Haven Enterprise visas have limited pathways to permanent residency, and people on Temporary Protection visas have no pathway to permanent residency. People on permanent protection visas are eligible for family reunions, but if they arrived by boat, they are subject to Ministerial Direction 80. As submitted by the HRLC, Ministerial Direction 80:
… dictates that all visa applications for family members of people who arrived by boat are to be given 'lowest processing priority'. The constant demand for family visas means those 'lowest priority' applications will likely never be considered …Despite paying the application fees and satisfying the criteria for the visa, their applications are never processed.
As submitted by the United Nations High Commissioner for Refugees (UNHCR), Australia's offshore processing system:
… has resulted in situations where immediate family members are separated indefinitely between Australia and Nauru or Papua New Guinea and other third countries such as the United States.
Refugees are, by definition, a particularly vulnerable cohort. Family reunification provides normalcy and stability to the lives of refugees and helps them adjust and integrate to their country of resettlement. Therefore, policy settings that deny refugees family reunification only add to their vulnerability and trauma. As submitted by Refugee Voices:
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.
This is why, as submitted by the UNHCR:
… governments in receiving countries are being encouraged to open up existing or establish new protection sensitive family reunification, employment or education pathways for refugees, including through removing legal, administrative, and physical barriers limiting refugee access.
Recommendation
That Temporary Protection Visas and Safe Haven Enterprise visas be abolished, and the right for all refugees to a Permanent Protection visa as part of a single statutory Refugee Status Determination process with access to full and independent merits review be reinstated.
Recommendation
That Ministerial Direction 80 be abolished.
Quotas
Under the Hawke and Howard governments, family reunion visas made up two-thirds of Australia's annual immigration program. But under successive Labor and Liberal governments, this component has been driven down to one-third. As submitted by the Castan Centre:
… the number of family visas (including children visas) granted by the Department of Home Affairs has declined significantly … it is skilled migration that has taken priority since the 1990s.
It was argued by numerous submitters that this shift in priority within Australia's immigration program was a shift towards prioritising economic benefits, whereas it once social and cultural benefits were prioritised.
This policy setting is simplistic, as many independent models have shown family visa streams in the migration program to provide a positive impact on Australia's economy. It also creates a backlog in the family reunion system. As submitted by the HRLC:
The backlog and waiting times are a result of the Australian Government's decision over several years to reduce the number of family visas available each year.
As the backlogs for family visa streams grow with increased demand and fewer places, the wait for family reunion visas becomes longer, and for many, unending. Currently, some family visa streams have a wait time of up to 50 years to be processed. The current non-contributory parent visa has a waiting time of more than 30 years, meaning many applicants - despite the significant fees they have paid - will have little to no chance of being accepted within their lifetimes.
Policy settings that prevent parent reunification cause social and economic exclusion, and disproportionately impact women, those on low incomes, and families. Bringing parents to Australia allows couples to plan for a family and have their children which frees the parents to participate socially and economically in our society.
To avoid the impossibly long wait times attached to non-contributory parent visa application, sponsors can opt to pay around $50,000 per visa for a contributory parent visa, which will reduce the waiting time to four or five years. But as submitted by many expert stakeholders, this is still too long, and is not fair to sponsors in Australia who cannot afford the costs, but are eager to start a family or develop their careers and/or businesses. Furthermore, some families would face a heart-breaking decision: whether to pay around $100,000 in fees plus legal costs to bring out their parents, or to put that money towards a house, a business, or the needs of their children.
Similarly, as submitted by the Castan Centre, there has also been a:
155% increase in partner visas in the pipeline between 2010 and 2015 and 245% between 2010 and 2020.
This backlog means people wanting to bring their partners to Australia now have to wait at least two years before their applications can be processed, plus the possibility of a ten-year exclusion period if they are subject to an identity refusal.
As submitted by the HRLC:
… we need a permanent increase in family visa planning levels to reduce the backlog and decrease visa processing times.
As submitted by the Castan Centre:
The excessive increase in processing and waiting times, coupled with what is now a significant backlog of cases, means that even core members of the family face waiting times that can be measured in years … many families will never be able to live together in Australia.
Despite increasing and exorbitant costs, expert submitters raised numerous concerns regarding the collection of those fees by the Department of Home Affairs, and how it resources its visa processing operations. As submitted by the Castan Centre:
… despite the alarming increase in application fees, there is no evidence that the higher fees have actually been used to increase resources that the Department dedicates to the processing of these visas. In fact, longer processing and waiting times … suggest the opposite, and raise the concern that visa fees are in fact used for revenue raising.
Recommendation
That Australia's family reunion visa quotas be increased sufficiently that current backlogs are cleared, and future applications can be processed in reasonable timeframes that are reflective of actual processing times.
Recommendation
That contributory parent visas be abolished and non-contributory parent visas for all applicants be retained and processed in order of application.
Recommendation
That the fee structure of Australia's family reunion visa system be reviewed to make fees more affordable, and in line with the actual administrative costs of processing.
Visa Cancellation
It is also worth noting that current immigration and citizenship policy settings, most notably section 501 of the Migration Act 1958—the so-called character test—are tearing families apart by cancelling the visas of people who have lived in Australia for a significant proportion of their lives. As submitted by the Visa Cancellations Working Group:
Australia's visa refusal and cancellation regime causes catastrophic and often irreversible harm to individuals, to families, and critically, to children.
Moreover, the character test has been used to cancel the visas of people who have come to Australia as refugees on protection visas, and Aboriginal and Torres Strait Islander people.
Although technically not within the scope of this inquiry, it adds to the argument that Australia's immigration program is not family-oriented.
Recommendation
That mandatory cancellation powers provided under the Migration Act 1958 be repealed.
Conclusion
In conclusion, the Australian Greens believe Australia's family reunion visa system is currently not fit for purpose. Australia has a long and proud history of welcoming migrants to our shores, and is all the richer for it: economically, socially, and culturally. However, it is becoming increasingly expensive and difficult for migrants to bring their family members here. Australia needs and deserves a family reunion visa system that actually reunites families - not keeps them apart. As submitted by the HRLC:
Everyone deserves to be together with their loved ones. But Australia's family migration system is broken and in urgent need of repair. Through punitive and discriminatory policies, exorbitant costs and unreasonable delays, the Australian Government is keeping thousands of people separated from their loved ones. Couples do not know when they will see each other again, children are deprived of the care of their parents, and older relatives are left isolated and alone.
The Australian Greens could not agree more. Australia's family reunion visa system must urgently be made fairer, faster, and more affordable.
Senator Nick McKim
Greens Senator for Tasmania