Having an Australian partner or child usually opens up potential visa options under the family migration stream. Considerable concessions are made to enable foreign partners of citizens and permanent residents to obtain visas. Migration law is tempered by recognition of the importance of family unity, unless the prospective visa applicant happens to be an asylum seeker.
The Migration Act 1958 prevents people who have had a visa refused or cancelled whilst in Australia from applying for another visa without first departing the country. However, a key exception to this provision allows for a partner visa application to be made. There is also a concession available in certain circumstance for partner visa applicants with serious medical conditions to obtain a waiver of the health requirement.
An individual who is present in Australia without a valid visa can obtain a partner visa, regardless of how long they have remained in the country after their previous visa expired or was cancelled. So too can those who failed to comply with the conditions of their previous visa. This is a particularly generous concession, given the visa duration and conditions are explained in writing when a visa is conferred.
In this context, the denial of family unity to those Australians who's loved ones are also asylum seekers is difficult to reconcile. Even with Australian spouses and children, presently asylum seekers who came by boat can only obtain a temporary humanitarian visa and those who arrived after July 2013 will be transferred to Nauru or Manus Island. Asylum seekers are excluded from the family migration stream due to a number of statutory provisions that bestow significant power to the Minister for Immigration.
Section 46A(1) of the Migration Act 1958 prohibits people who enter Australia byboat without holding a visa from making a valid visa application whilst in Australia. The Minister for Immigration retains a discretionary, non-compellable power to lift the bar and permit applications.
This bar applies inconsistently to asylum seekers' dependent upon when and where they arrived. As such, a largely disused visa, which contains a similar bar on further applications, has been given to asylum seekers upon release into the community. The Temporary Safe Haven visa, by the operation ofsection 91K of the Migration Act, prevents anyone who has received this visa from making a valid visa application whilst in Australia, even after its expiry. Again, the Minister has a non-compellable discretion to lift this bar.
Previously, the bar was lifted once Australia's protection obligations were found to be engaged to allow a protection visas application to be lodged. However, in line with the current Minister's vow to deny a permanent visa to anyone who came by boat to Australia, no applicants have had this bar lifted under the current government. This same bar precludes asylum seekers from being able to apply for any type of family visa.
The cumbersome, erratic protection visa regime has resulted in asylum seekers living in the community for extended periods of time awaiting an outcome on their claim for protection. During this time most try to carry on with life as best as possible, establishing ties to the Australian community through community groups, places of worship, employment and voluntary activities. Human nature has led to a number of asylum seekers forming partner relationships with Australians and some parenting Australian citizen children.
One example of the impact these provisions have on Australian families is Ali (not his real name) and his family. Ali arrived in Australia in 2009, he and his Australian citizen wife are expecting the birth of a child in a matter of weeks. Ali's case went to the in Federal Court, as his protection claims were not assessed adequately. His application was then sent back for reassessment by the Department of Immigration.
While Ali waits for an unknown amount of time, he is is not permitted to work and his wife is no longer physically able to, so the couple are struggling financially. Under the current system the best outcome Ali can expect is a temporary humanitarian visa, valid for up to 3 years. After that time it is not clear what his options will be to remain with his wife and children.
Not only is Ali excluded from applying for a partner visa, but as the soon to be father of an Australian citizen child, he is also prevented from applying for a parent visa. Because he is prevented from making an application, consideration cannot be afforded to Australia's obligations under the Convention on the Rights of the Child, as this only comes into play on appeal of a visa refusal.
Allowing asylum seekers such as Ali to apply for family visas will not open a floodgate of visas granted due to fabricated relationships. The Department has many robust mechanisms to scrutinise relationships, including a dedicated relationship bona fides unit. Just last week, The Assistant Minister for Immigration and Border Protection credited the Department's rigorous quality control and integrity processes when celebrating recent efforts to stop a fraudulent partner visa scheme.
Australia has continually resorted to extreme means to obtain an elusive political end with respect to asylum seeker policy. The obscene expense, disregard for enshrined legal principles and gross affront to human rights standards have been peddled to the Australian community as essential border protection measures. It appears that tormenting Australian families with uncertainty by denying spouses and parents access to permanent visas is now considered necessary and acceptable.
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