Abstract
During forced migration and resettlement, family separation is typically not a choice. Reunification in Australia is complicated by narrow definitions of family that reflect a restrictive, Western cultural tradition. In providing support for refugees, it is important to take a culturally sensitive and rights-based approach to constructions of the term ‘family’. If Australia was to adopt a domestic Human Rights Act, there is potential for this to enable a more culturally relevant definition of family for many refugees in Australia.
Visas issued in Australia under the Special Humanitarian Program (SHP) are frequently referred to as the ‘split-family visa’, suggesting they are designed to reunite families. 1 This visa program is appealing to families separated by conflict because it is free, whereas other visas for Australia can cost nearly AUD10,000. 2 Many other visas also require that the sponsor can financially support the applicant. The SHP visa would appear to be tailored for people who have been separated from their family due to human rights abuses, reuniting family members in Australia with family still in refugee camps or experiencing persecution in their home country. While at face value, the SHP provides refugee families with the hope, and perhaps the expectation, that they can be reunited in Australia, the reality is quite different. Over the past five years, the SHP visas available for families in Australia hoping to reunite with their families has had an average success rate of less than 20 per cent. 3 Applications take at least six years to process. 4 The high failure rate, and lengthy processing time, suggest that there is a need for practical reforms to the SHP visa. Further, the way that immediate family is defined runs counter to the way most people would conceptualise family. For this visa, if you are over 18 years old then your parents, your sister, or your brother are not considered immediate family.
Relevant to considerations about the operation of the SHP visa are contemporary conversations in Australia about adopting a domestic Human Rights Act. Australia implemented a Human Rights Framework in 2010, although gaps have persisted particularly in relation to effective enforcement. 5 The concept of a robust Human Rights Act ‘would require Government to consider human rights in their policy-making and decision-making, and would provide legal remedies for people whose rights have been breached’. 6 Australia has signed and ratified the International Covenant on Civil and Political Rights (ICCPR) in which Article 23.1 states ‘[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State’. 7 The International Covenant on Economic, Social and Cultural Rights (ICESCR), which Australia has also signed and ratified, similarly emphasises the need to protect the family, noting in Article 10 that the family needs the ‘widest possible protection and assistance’. 8 However, as Saul, Kinley and Mowbray explain, this ‘is not expressed as an absolute right’. 9 These treaties do not give refugees resettling in Australia a right to family reunification, although a positive duty to protect a family unit could be derived from these overarching rights. A rights-based approach to family, which reflects Australia’s international obligations, is not fully implemented domestically.
The ability to regulate borders is a defining aspect of the nation-state. In Australia, tension between that power and diverse conceptions of family is currently mediated in part by employing a narrow definition of family. It is possible that an Australian Human Rights Act may be the first step to provide families split by conflict a legal pathway to determine if the existing conception of family is overly narrow.
Resettlement and conceptions of family
While people have a right to seek asylum, there is no right to resettlement or, by extension, a right for refugees to resettle as a family unit. 10 Discussing resettlement, Professor FitzGerald has compared it to ‘winning the lottery’: the chance, and it often seems to be based on chance, is incredibly slim. 11 In September 2024, a licensed migration agent from RefugeeHub and Alice Neikirk, one of the authors of this article, hosted three workshops regarding visa pathways to reunite families separated by conflict. 12 The workshops were built around a resource that was co-designed using a legal design process to improve the understanding of the likelihood of SHP visa application success, the application process, and alternative visa pathways. 13 In our work with RefugeeHub, an organisation that supports refugees resettling in New South Wales, staff shared that significant misunderstandings existed in relation to this visa. RefugeeHub staff observed that people from refugee backgrounds had unrealistic expectations regarding the likelihood of success and processing times, as well as misunderstandings regarding the information that needs to be provided in any application for the SHP visa. The development of the resource over the previous year was undertaken to support the work of RefugeeHub and increase the capacity of families from refugee backgrounds to make informed decisions when considering the SHP visa. RefugeeHub was one of the few organisations in the Hunter Valley where people could meet with a migration agent for free or at a very reduced rate for assistance with matters including family reunification, although Legal Aid NSW also provides a travelling migration agent who visits Newcastle once a month.
The workshops were designed to support people making informed decisions regarding visa options that best reflected their situation – SHP or partner visas, for example. The workshops also were used to determine if the co-designed legal resource needed to be modified before being translated. The workshops (delivered in English as well as Arabic, Farsi and Swahili) demonstrated that the resource met the needs of these communities in most regards. People demonstrated a clearer understanding of the required documents and what information needed to be included on statements in applications for the SHP visa. The workshops did reveal, however, a significant gap between the way most people understood ‘immediate family’ and the way ‘immediate family’ is defined for the SHP. Immediate family for this visa is a nuclear family: husband, wife, and children under the age of 18. 14 While other family members (sisters, parents) can apply, they are not given priority. This gap was evident when one woman stated, ‘my sister is in the camps, I want her to come here’. In response the facilitator explained, ‘she would not be considered a priority for this visa, have her ask the UNHCR [United Nations High Commission for Refugees] if they can help prioritise her’. Another asked, ‘my parents are over 60 and we lived together in the camps, I don’t understand why we didn’t get resettled together. Can we get this visa for them?’. Again, the response was similar, ‘even if you lived together in the camps, that isn’t how immediate family is defined … the extended family – grandparents, aunties – doesn’t count as immediate’. Still another participant asked, ‘my sister is in the Burundi camp with her children and her husband. In the camp she was on our file, though why was she separated off?’ The response from staff was that for resettlement ‘the family is you, your husband, and your children’. Still another person asked, ‘our daughter is in the camps though, how can we bring her here?’ The facilitators asked for more details and whether the daughter was married. The response was ‘yes’. Again, it was explained that ‘she is not considered immediate family. You can try another visa but it will cost money’. These people are all hoping that they can live in Australia with their families but lack a reasonable pathway to achieve that goal. The adoption of a Human Rights Act in Australia would be an important first step towards a nuanced discussion of how family is defined for family reunification purposes.
The UNHCR advocates that governments ‘adopt inclusive definitions of family members, in recognition of the severe hardship separation causes to individuals’. 15 Australia’s SHP visa reflects a specific construction of family which precludes how many people would conceptualise their immediate family. Parents, grandparents, children over 18 (with a few possible exceptions), and siblings are not considered immediate family by Australian authorities for the purpose of the SHP visa. Australia’s approach to family is similar to other countries like the United States (US), the United Kingdom and Canada. For refugee resettlement, the US has a similar definition of immediate family. 16 In terms of family reunification more broadly though, it does include parents as immediate family and siblings as a preference group. 17 For reuniting with parents, the visa costs approximately USD445 (which would convert to around AUD687), is uncapped and processed in a matter of months. 18 Because it is low cost and readily available, it is frequently used by people from refugee backgrounds resettled in the US to reunite their family. 19 A similar visa in Australia costs approximately AUD5125, takes between 14 and 31 years to process, and is capped – meaning only a limited number of applicants are approved each year. 20 This means that to reunite with their family, and in particular parents, there is no practical visa option in Australia. The workshops thus revealed discrepancies between the rights and protections that family could have within the international human rights frameworks, the guidance of the UNHCR, the way people viewed their family, and the way family is defined for reunification purposes in Australia.
It is worth observing that a more embracive and culturally inclusive definition of family could be adopted in Australia for the SHP visa. Precedent exists for a broader understanding of who is family in Australia, as evident in recognition of Aboriginal and Torres Strait Islander conceptions of family and kinship. Federal, state and territory governments have sought to inform policy in Australia by recognising that Aboriginal and Torres Strait Islander conceptions of family include more than the typical, Western nuclear family. For example, the Queensland government’s Child Safety Practice Manual notes that ‘the [Aboriginal and Torres Strait Islander] family system has an extended family structure, as opposed to the nuclear or immediate family structure which is common in western society’. 21 The Family Court of Australia also recognises that Aboriginal and Torres Strait Islander family responsibilities frequently extend beyond Western constructions of the nuclear family and are willing to recognise ‘kin carers’, reflecting a more culturally inclusive approach to family. 22 Even local governments in Australia will extend the understanding of family beyond the nuclear family unit when it would be culturally appropriate to do so. 23 Further, ‘close family’ is defined in s 78A(2) of the Crimes Act 1900 (NSW) as including ‘a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent or grandchild’. It is likely that elsewhere in the same Act family would be construed even more broadly, particularly when it relates to offences under Division 6A regarding abusive behaviour towards intimate partners. Section 54F(2)(g)(i) of the NSW Crimes Act asserts that preventing relationships or contact with ‘family, friends or culture’ may constitute abusive behaviour and would indicate a broad construction of who may be considered family. Beyond legal definitions, the Australian Institute of Family Studies, polling a selective sample of Australians for its Families in Australia Survey, has shown that typical understandings of family are much more inclusive than the narrow definition applied in the context of visas and migration to Australia. 24
Why a Human Rights Act?
Australia may not have a bill of rights, but it does have a fairly robust human rights culture. While Australia’s common law and Constitution do provide protections for human rights, there are still ‘significant sections of our community’ who cannot enjoy basic human rights. 25 This gap may be felt most acutely by groups which lack political power in society such as those in care institutions, 26 incarcerated 27 and people without citizenship.
Australia has ratified the seven main treaties relating to human rights, and judges frequently interpret domestic law in relation to the country’s treaty obligations. 28 Gaps still exist, however. While Australia consistently meets its reporting obligations, the concluding observations and recommendations by the UN bodies which oversee compliance of treaties are not consistently integrated into practice. 29 These recommendations are not legally binding and there is little follow-up on the implementation of the recommendations (beyond the reporting provided by the State). 30 This is not necessarily because States are not interested in protecting human rights, although this may be the case in some situations. Other jurisdictions have noted the recommendations coming from the treaty body do not always reflect what is feasible on the ground or are too vague to implement. 31 States may be quite willing to implement a recommendation that is politically popular and relatively easy. For issues which are complex and politically fraught, such as migration – often presented as a threat to the welfare state, employment, housing, education, health and other issues 32 – the recommendations are more easily ignored. Part of this is because Australia has a dualist legal system. Even though treaties have been ratified, for them to be directly applicable they need to be further incorporated into legislation. 33 In Australia, there appears to be a strong preference for the ‘judicial articulation’ of human rights, which has resulted in piecemeal protections. 34 This suggests there is a persistent, structural gap between the spirit that ratifying an international treaty suggests and fully implementing it on the ground.
Evidence from 20 different countries, including Australia, suggests that ‘the international system has had its greatest impact where treaty norms have been made part of domestic law’. 35 Adopting a domestic Human Rights Act would provide an important safety net for some of our most vulnerable people. Adopting a domestic Human Rights Act is not just symbolic, but a commitment to ensuring people can claim their rights and identify duty bearers. 36 The focus on rights and duties is crucial for people from refugee backgrounds where humanitarian responses can inadvertently overshadow the justice needs of communities. In particular, for people who are from a refugee background and want to reunite with their family, a humanitarian framing suggests a discretionary gesture, which downplays potential rights and obligations of States to support family unity.
Since the European Union has adopted a human rights framework, there have been more complex cases moving through the courts regarding the right to a family vis-à-vis family reunification.
37
However, adopting a human rights framework does not guarantee the right to enter a particular country, but, when close family members live in the country where the foreigner intends to stay, the right to family life must be protected and balanced in a proportionate manner with the public security, pursuant to Art 8(1) of the ECHR.
38
In this context, States are still able to exercise discretion, but they are obligated to consider an applicant’s right to family life. In the US, the family reunification pathway is described as the ‘the heart of [their] immigration policy’. 39 While it has led to a higher-than-expected number of immigrants, it is almost universally viewed as positively contributing to families, the economy and society. 40
How family can support resettlement
During the workshops there was broad agreement among all in the room that a sibling, one’s parents, and even one’s grandparents are, in fact, your immediate family – despite the visa parameters. A narrow definition of family, like that adopted by Australia, is normalised when seeking to limit migration, either justified as a response to limited resources or for other reasons. Yet, extended families may better support wellbeing and improve resettlement outcomes, which could balance out financial concerns. The ‘protection of a right to family reunification for migrants is not only considered a benefit to migrants themselves, but also benefiting the wider community’ particular in relation to the mental health of migrants. 41 While this benefit refers to migrants in general, these benefits may be even more pronounced for people from a refugee or other forced migration background.
The difficult choices refugees must make to negotiate narrow definitions of ‘family’ during resettlement from camps has been well-documented. 42 The continued difficulties of reuniting families split by conflict has significant negative impacts on people. For single mothers, who are a priority group for resettlement in Australia, resettling without extended family means a lack of social support, increased loneliness and diminished sense of wellbeing. 43 A study in Australia with Sudanese families split by conflict found that ‘when relatives abroad are unsafe, refugees’ sense of wellbeing in Australia is also threatened’. 44 In that study, the concern about their families still in camps or active conflict zones was a source of distress. People who were safe in Australia can feel a sense of ‘personal responsibility for the wellbeing, safety, and livelihood of their separated family member’. 45 Other research found that not having family, and particularly extended family, can negatively impact on integration after resettlement. 46 Family separation coupled with PTSD can change the way the brain functions, making it harder to regulate stress and adjust socially. 47 While increasing services for this group is one way to address these issues, facilitating the reunification of extended family might also support resettlement.
The nuclear family is not an inherently safe unit, particularly for women. International research has demonstrated that extended family, and particularly the woman’s extended family, can serve as a protective buffer against domestic violence. 48 A service provider shared during the workshops that she was helping with a SHP visa application for a woman’s sister to come to Australia. The woman already in Australia was in an abusive relationship but did not think she could leave until she had family support, which was part of the motivation for the SHP visa application for her sister. This woman had already been waiting years for the SHP visa to process, contributing to her prolonged exposure to domestic violence. The alternative visas all cost a large amount of money, to which she did not have access. The likely outcome is that her sister will not be granted a visa. The service provider explained she had encouraged the woman not to wait for her sister to come and tried to support her leaving the domestic violence situation; however, this is a difficult thing to do without family support, a broader social network and with emerging English skills. 49 In this example, supporting family reunification could have the additional effect of upholding the Convention on the Elimination of all Forms of Discrimination against Women (1979), which Australia has signed (1980) and ratified (1983). 50
Of course, reuniting with family can create new stresses and complicate existing family dynamics. Women resettling in Australia must try to balance the expectations they inherited from their country of origin with potentially different expectations in their new country. 51 Further, extended family can provide pressure on women to stay in abusive relationships and, in some instances, the husband’s extended family (including mother or sisters) can be perpetrators of abuse. 52 Currently however, by stigmatising migrants’ families, ‘the state is able to define and mould a permissible migrant family in extremely narrow terms’. 53 Assumptions about family dynamics, even if done with the intention of protecting women, have the potential to quickly infringe on the right to family unity and a right to privacy. Balancing competing expectations is true for any family and is not limited to people from a refugee background. Adopting a domestic Human Rights Act with a more inclusive definition of family would not mean that Australia cannot still regulate its borders. However, it may mean that the people who are most vulnerable in our communities have their rights more robustly protected, which may ultimately improve resettlement outcomes.
Conclusion
If Australia was to adopt a domestic Human Rights Act, there is potential for this to enable a more culturally relevant definition of family for many refugees in Australia. This, however, is by no means guaranteed. None of the international human rights treaties that Australia has signed or ratified specify how family is constructed. If it was to adopt a Human Rights Act, Australia could continue to narrowly define family, thereby excluding in practice the reunification of refugees with family members who are not their spouse or dependent children. In interpreting a Human Rights Act, Australian courts may be willing to expand the definition of family. Broader, more culturally relevant constructions of family are adopted in limited circumstances in Australia, notably in relation to Aboriginal and Torres Strait Islanders. Additionally, legislation in Australia often employs broader constructions of family than typically applies with respect to SHP visas.
In a political climate where migration is a challenging topic, it seems unlikely that Australia would adopt a broader definition of family for the purposes of reunification of migrants, from forced migration backgrounds or otherwise. Adoption of a human rights framework in Australia would be a welcome reform for a number of reasons, but especially if it might facilitate more culturally relevant definitions of family for refugees and people from a forced migration background. This could be achieved by a Human Rights Act, or courts interpreting such an act, establishing a definition of family that in practice more closely reflects how family is understood, even for people from a Western tradition of nuclear families. While the recognition may still be a remote possibility, a Human Rights Act might be the most likely avenue for a more humanitarian approach built on rights defining who is in a family. For people in these circumstances, separating from family was not a choice but a necessity. In providing humanitarian support for refugees and people from forced migration backgrounds, it is important to take a rights-based approach to constructions of family.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: University of Newcastle Australia, G2400029.
