Family separation and the character test

The criminal justice system may impose a sentence of imprisonment on a person. While the person’s family is affected in obvious ways by this, once the sentence is served, the family member returns home.  There is no family separation beyond the sentence.  But where the person is not an Australian citizen but is here on a visa, even a permanent residence visa, they may be held to have failed the character test under section 501 of the Migration Act, and have their visa cancelled.  They are at once put in immigration detention.  Between July 2018 and December 2020 there were 2,517 such cancellations.   

A person can even have a visa cancelled under section 501 of the Migration Act, apply for a protection visa but be refused under subsection 36(1C) because of character, have that finding overturned on review, but have the visa refused again under section 501.  

The character test processes separate families through detention, within Australia by shifting detainees to centres remote from their families, by permanent removal to the counties of their citizenship, and, still, by sending them to Christmas Island or leaving them in Nauru or Papua New Guinea.  Some have been subjected to protracted, indefinite detention in remote locations, under poor conditions with limited access to technology and communication, especially private communication.  They have been moved to such places without notice to their families or legal representatives.    

Some have been removed to places where their lives are in danger, where their family members are unlikely ever to be able to visit.   

An individual whose visa has been cancelled or refused is prohibited from making further applications for a visa, apart from a protection visa.  If the cancelled visa was a protection one, they are prohibited from making a fresh application for one.  Thus they are permanently prevented from being re-united with their families.  Nor can they sponsor family members in humanitarian need, meaning that they have no way of re-uniting with family members who are in danger overseas.

Consequently, families are permanently divided, with ongoing psychological, financial and practical consequences, especially for children.  Their grief and uncertainty may never end.  Parents will not be involved in raising their children.  They will miss significant family events—may not be able to say goodbye to a dying relative or go to a funeral, will miss birthdays, school events, graduations.  

Between 2015 and April 2020, 30,137 people were removed from Australia following visa cancellation.  Some were sent to Sudan, South Sudan, Syria, the Palestinian Authority, Eritrea, Somalia, Afghanistan, Sri Lanka, Pakistan, Lebanon, Iran, Liberia, Kenya, and Iraq.

Families suffer grief and uncertainty.  They do not know whether their loved ones will be woken in the middle of the night and removed to a remote location.  They do not know that their loved ones are safe—a significant problem, because people have died in immigration detention.  If a family member is detained on Christmas Island, the family cannot visit, meaning that they may not have the chance to see him before he is removed to another country. 

The law allows children’s visas to be cancelled.  Recently a 16 year-old boy was sent to New Zealand, a country with which he had no connection.  

Having minor children in Australia does not often lead to the Administrative Appeals Tribunal overturning a visa cancellation.  It has even used the physical removal of a parent to a detention centre as evidence that the parent has a limited parental role.  

Even when families members are finally united, they can have faced separation for years.  Families are separated while one waits for a visa.  (The average waiting time has been 978 days, and over 100 people have waited more than 5 years.)  When a visa has been cancelled, a revocations request again takes a long time—on average more than 300 days. 

More information: Refugee week: five steps the Government should take



Key source: in preparing this content, the NSWCCL relied heavily on Family Unity and the Visa Cancellation and Refusal Framework, a submission to a Senate inquiry examining the processing of family and partner reunion visas.