The enormous difficulties faced by families separated by forced displacement and resettlement have been consistently raised as a primary concern for communities who have resettled through Australia’s Refugee and Humanitarian Program.
The right to family unity is evident in many of the international treaties to which Australia is a party:
- Article 16 of UDHR;
- Articles 17 and 23 of ICCPR;
- Articles 10 of ICESCR; and
- Articles 9, 10 and 22 of CROC.
There is no specific family provision in the Refugee Convention, which focuses on the protection and rights of the individual.
A 1952 conference on the Convention however gave a strongly worded recommendation that governments take necessary measures to ensure the ‘essential right’ of family unity for refugees (a recommendation in the Final Act of the Conference of Plenipotentiaries at Section IV, part B.).
Australian law determines which family members of permanent residents are able to come to Australia and how they may enter. For refugee and humanitarian entrants, provision for family reunification is primarily through the Special Humanitarian Program (‘SHP’ or visa subclass 202), split family provisions in the Refugee Program, and through a range of visa subclasses within the family stream of the Migration Program. In reality, opportunities for humanitarian family reunion are extremely limited both in terms of the number of places available and eligibility restrictions.
Australia’s refugee resettlement
The broader international context in which Australia’s Refugee and Humanitarian Program sits represents an enormous global challenge. The UNHCR’s 2009 Global Trends document reports the following information:
- There were some 43.3 million forcibly displaced people worldwide, including 15.2 million refugees, 983,000 asylum-seekers (pending cases) and 27.1 million internally displaced persons (IDPs);
- In 2009, the UNHCR estimated that 5,468,900 refugees remained in what it classified as protracted situations. The UNHCR’s definition of a ‘protracted refugee situation’ is one in which a refugee population of 25,000 persons or more has been living in exile for five years or longer in a developing country; and
- Developing countries are host to four-fifths of the world’s refugees. Pakistan is host to the largest number of refugees worldwide (1.7 million), followed by the Islamic Republic of Iran (1.1 million).
In terms of responding to this global situation, the UNHCR looks for durable solutions in three different forms:
- voluntary repatriation to home countries;
- finding appropriate permanent integration mechanisms in countries of asylum; and
- resettlement in another country.
Australia’s offshore humanitarian program is our contribution to category three. In any given year less than one per cent of the world’s refugees are resettled. This creates a real need for resettlement approaches to be very strategic in order to have a qualitative impact on global refugee situations. The role of resettlement was described in the following way during the Global Consultations on International Protection in 2002:
Resettlement serves three equally important functions. First, it is a tool to provide international protection and meet the special needs of individual refugees whose life, liberty, safety, health or other fundamental rights are at risk in the country where they have sought refuge. Second, it is a durable solution for larger numbers or groups of refugees, alongside the other durable solutions of voluntary repatriation and local integration. Third, it can be a tangible expression of international solidarity and a responsibility sharing mechanism, allowing States to help share each other’s burdens, and reduce problems impacting the country of first asylum.
The UNHCR has key criteria to identify refugees in need of resettlement (These criteria are outlined in detail in the UNHCR Resettlement Handbook, chapter 4:
- legal and physical protection needs, including: the threat of refoulement or expulsion to another country from where the refugee may be refouled; the threat of arbitrary arrest, detention or imprisonment; or threats to physical safety or human rights in the country of refuge, rendering asylum untenable;
- survivors of violence and torture;
- medical needs, including conditions which are life-threatening, risk irreversible loss of function;
- women and girls at risk facing protection problems as a result of their gender;
- family reunification, including dependent members of the family unit who do not fit the nuclear family definition;
- children and adolescents, particularly unaccompanied and separated minors;
- older refugees; and
- refugees without local integration prospects, where adequate legal, social and economic protections are not provided in the country of asylum, where there is no meaningful prospect for local integration and where voluntary return to the country of origin is unlikely.