Migration (Granting of Contributory Parent Visas, Parent Visas and Other Family Visas in Financial Year 2022/2023) Instrument (Lin 23/016) 2023 - Concluded Matters [2023] AUPJCHR 94 (6 September 2023)

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FRL No.	F2023L00609
Purpose	This legislative instrument determines the maximum number of visas that may be granted for certain classes of visas in the financial year from 1 July 2022 to 30 June 2023.
Portfolio	Home Affairs
Authorising legislation	Migration Act 1958
Disallowance	Exempt from disallowance
Rights	Protection of the family; rights of the child

1.326 The committee requested a response from the minister in relation to the instrument in Report 8 of 2023.^[267]

1.327 This legislative instrument determines the maximum number of visas that may be granted for certain classes of visas^[268] between 1 July 2022 and 30 June 2023 (inclusive). In particular, the instrument specifies that a maximum of 6,700 contributory parent visas, 1,700 parent visas and 500 other family visas may be granted in the 2022–2023 financial year.^[269]

1.328 Capping the number of parent visas and other family visas, which may limit the ability of certain family members (including parents of children aged under 18) to join others in Australia, engages and may limit the right to protection of the family and the rights of the child.^[270] An important element of protection of the family^[271] is to ensure family members are not involuntarily separated from one another. Laws and measures which prevent family members from being together will therefore engage this right. While the state has a right to control immigration, the right to protection of the family requires Australia to create the conditions conducive to family formation and stability, including the interest of family reunification.^[272] The term 'family' is to be understood broadly as to include all those comprising a family as understood in the society concerned,^[273] and is not necessarily displaced by geographical separation if there is a family bond to protect.^[274] This includes couples and the parent-child relationship, and may include parents and their adult children^[275] and other family members,^[276] depending on the level of dependency, shared life and emotional ties. As such, in relation to those applicants who can demonstrate that there is a family bond with persons in Australia to protect, a failure to allow for their family reunification due to the visa caps set by this instrument limits the right to protection of the family.

1.329 Additionally, Australia is required to ensure that, in all actions concerning children, the best interests of the child are a primary consideration, and to treat applications by minors for family reunification in a positive, humane and expeditious manner.^[277] As such, capping the number of parent visas for parents of children aged under 18, which may result in the separation, or continued separation, of children from their parent (such as where a child is in Australia with one parent but the other parent is in another country and is ineligible for any other type of visa), engages and limits the rights of the child.

1.330 These rights may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

1.331 The committee noted that capping the number of parent visas and other family visas for the 2022–2023 financial year engages and may limit the right to protection of the family and the rights of the child. The committee considered further information was required to assess the compatibility of this measure with these rights and sought the minister's advice in relation to six specific questions, as set out in the minister's response.

Australia’s Family Migration Program facilitates the reunification of family members (including Parents and Other Family) with Australian citizens, permanent residents or eligible New Zealand citizens. The requirement not to arbitrarily or unlawfully interfere with the family unit under Articles 17 and 23 of the International Covenant on Civil and Political Rights (ICCPR) does not amount to a right to enter Australia where there is no other right to do so. While there is no absolute right to family reunion at international law, the Australian Government recognises that it is an important principle and it is facilitated where possible.

It has been the long-standing practice of successive governments to manage the orderly delivery of the Migration Program against planning levels. This is a legitimate state objective. Each year, the Australian Government sets Migration Program planning levels following consultations with state and territory governments, business and community groups and the wider public.

The Department of Home Affairs (the Department) manages the allocation of resources to deliver the Family Program, including Parent and Other Family visas, in line with the planning levels and priorities set by the Government.

Furthermore, section 85 of the Migration Act 1958 (the Act) allows the Minister to determine the maximum number of visas which may be granted in each financial year in certain visa categories, including Parent and Other Family visas. If a visa class has been ‘capped’ this means that if the number of visas granted within that financial year have reached the maximum number determined by the Minister, no more visas of that class may be granted in that financial year. Those visa applications will be ‘queued’ for further processing in the next financial year.

The ‘cap and queue’ power allows the annual Migration Program to be managed more efficiently by:

The number of Contributory Parent, Parent and Other Family visa application lodgements continue to exceed the visa places allocated each financial year by the Australian Government. In order to facilitate the orderly and equitable processing of visa applications in these categories, Parent, Contributory Parent and Other Family visas are capped at their respective planning levels via a legislative instrument under annual Migration Program arrangements that have been in place for over ten years. The cap on the number of visas remains a reasonable and proportionate measure to manage the orderly delivery of the Migration Program.

While the Australian Government recognises that family reunion is an important principle and will be facilitated where possible, as noted above, rights in relation to family reunion, including those under Articles 17 and 23 of the ICCPR, and Article 10 of the Convention on the Rights of the Child, are not absolute rights at international law and do not amount to a right to enter Australia where there is no other right to do so.

The capping of Parent and Other Family visas made under section 85 of the Act facilitates the orderly and equitable processing of all visa applications in these categories, including those involving children under 18 years of age.

In addition to Australia’s permanent Family Migration Program, the Australian Government also facilitates short-term family reunification through temporary visas, which allow for a temporary stay in Australia. Family visa applicants, including those awaiting an outcome of their permanent Parent visa, may be able to reunite with family members in Australia, subject to meeting the visa eligibility criteria. Visa options include:

The average processing times for visas capped under the legislative instrument are impacted by a range of factors, including the number of places allocated to the program each year within the broader Migration Program and the level of demand for the visas. High volumes of visa application lodgements for some programs, including Parents, which for a number of years exceeded annual migration planning levels, have impacted on processing times and the number of on-hand applications within these categories.

The Home Affairs website provides information on processing times for visas capped under the legislative instrument, including key processing milestone dates.^[279]

In addition to Australia’s permanent Family Migration Program, the Australian Government also facilitates short-term family reunification through temporary visas as detailed above, which allow for a temporary stay in Australia and have significantly shorter processing times. Family visa applicants, including those awaiting an outcome of their permanent Parent visa, may be able to reunite with family members in Australia, subject to meeting the visa eligibility criteria.

When developing policies and drafting legislation related to the Family Program, the Department carefully considers compliance with Australia’s international human rights obligations.

1.334 The minister has advised that it is the government's view that the right to protection of the family and the rights of the child do not amount to a right to enter Australia where there is no other right to do so, but that the government recognises that family reunion is an important principle that is facilitated where possible. The minister has advised the capping of the parent and other family visas would apply to all visa applications, including those involving children under 18 years of age. The minister has advised that in addition to the permanent family migration program, there is the possibility of short-term reunification through temporary visas, such as visitor visas – subject to applicants and sponsors meeting the visa eligibility requirements. In response to whether the right to the protection of the family and the rights of the child were considered when capping these numbers, the minister has advised that the department carefully considers compliance with Australia's international human rights obligations when developing policies and drafting legislation related to the family program. It is noted that this response is almost identical to that provided to the committee by the previous minister in 2021.^[280]

1.335 The right to protection of the family is found in both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Those treaties state that the family 'is the natural and fundamental group unit of society and is entitled to protection by society and the State' and that the 'widest possible protection and assistance should be accorded to the family'.^[281] While the state has a right to control immigration, this right does require Australia to create the conditions conducive to family formation and stability, including the interest of family reunification.^[282] The term 'family' is to be understood broadly as to include all those comprising a family as understood in the society concerned,^[283] and is not necessarily displaced by geographical separation if there is a family bond to protect.^[284] This clearly includes couples and the parent-child relationship, and may include parents and their adult children^[285] and other family members,^[286] depending on the level of dependency, shared life and emotional ties. As such, if parents are separated from their children (including children aged under 18 years and adult children), where it can be demonstrated that there is a family bond to protect, a failure to allow for family reunification limits the right to protection of the family. This is not an absolute right and may be limited, so long as the limitation can be demonstrated to pursue a legitimate objective, and the measure is rationally connected to (that is, effective to achieve) the objective and is a proportionate way in which to achieve the stated objective.

1.336 In addition, the Convention on the Rights of the Child requires that the best interests of the child must be a primary consideration, and children should not be separated against their will from their parents (except if in their best interests), and states should respect the primary responsibility of parents or guardians for promoting the development of children.^[287] In particular, article 10 of the Convention on the Rights of the Child requires that applications by a child or their parents for the purpose of family reunification must be dealt with in a positive, humane and expeditious manner. As such, capping the number of parent visas for parents of children aged under 18, which may result in the separation, or continued separation, of children from their parent (such as where a child is in Australia with one parent, but the other parent is in another country and is ineligible for any other type of visa) engages and limits the rights of the child. Similarly, to the right to protection of the family, many of the rights of the child may be permissibly limited, if necessary, reasonable and proportionate to do so.

1.337 As the minister does not recognise that the cap on the number of parent or other relative visas may limit the right to protection of the family or the rights of the child (despite the committee's advice to this effect in 2021),^[288] the minister has not advised what the legitimate objective of the measure is, and whether the cap is a reasonable and proportionate measure to achieve the stated objective. The minister has stated that the cap on visas allows the annual migration program to be managed more efficiently and facilitates the orderly and equitable processing of visa applications. Any limitation on a right must be shown to be aimed at achieving a legitimate objective. A legitimate objective is one that is necessary and addresses an issue of public or social concern that is pressing and substantial enough to warrant limiting the right. It is not clear that managing the migration program efficiently and facilitating the processing of visa applications would constitute a legitimate objective for the purposes of international human rights law.

1.338 Further, a key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective sought to be achieved. This includes considerations of whether the measure provides sufficient flexibility to treat different cases differently or whether it imposes a blanket policy without regard to the merits of an individual case, and whether it is accompanied by sufficient safeguards. The minister's response states that the minister determines the maximum number of visas which may be granted in relation to parent and other family visas, and when a visa class has been capped, no more visas of that class may be granted in that financial year. As such, it would appear there is no capacity for flexibility to grant any further visas, regardless of the individual merits of a case. So, for example, if the cap has been reached, the parent of an Australian child aged under 18 years of age would not be eligible to be granted a parent visa, regardless of whether to do so would be in the best interests of the child or promote the right to protection of the family. The only identified possible safeguard is if the parent were eligible for another type of visa, such as a temporary visa. However, if a person does not meet the eligibility requirements (which often include financial contributions by themselves or their sponsor) this cannot operate to safeguard these rights. In addition, it is noted that the minister's response states that many of these visa types would require sponsorship by a person aged over 18 years of age, so the child could not themselves sponsor their parent under these categories of visas. It is also noted that the Department of Home Affairs website, referenced by the minister, states that new visa applications for contributory parent visas (which require a contributory payment of close to $50,000)^[289] are likely to take 12 years for final processing, and new parent and aged parent visa applications (which do not require the contributory payment) are likely to take approximately 29 years for final processing.^[290] It therefore appears that the cap on the number of visas ensures there are significant delays in the processing of visa applications, making family reunification extremely difficult (particularly for those who cannot afford the contributory payment).

1.339 As such, in relation to those applicants who can demonstrate that there is a family bond with persons in Australia to protect, a failure to allow for their family reunification limits the right to protection of the family. In addition, where a child aged under 18 in Australia is separated from their parent or other close family member, this may also limit the best interests of the child. As it is not clear that the measure seeks to achieve a legitimate objective for the purposes of international human rights law, and as there is no flexibility to consider the individual merits of an application once the cap is reached, there is a significant risk of this measure being incompatible with the right to protection of the family and the rights of the child.

1.340 The committee thanks the minister for this response. The committee notes that capping the number of parent and other family member visas each year engages and limits the right to protection of the family. While States have a right to control their migration program, international human rights law requires Australia to create the conditions conducive to family formation and stability, and this includes the interest of family reunification. The committee also notes that such a cap limits the rights of the child, which requires that the best interests of the child must be a primary consideration, and applications by a child or their parents for the purpose of family reunification must be dealt with in a positive, humane and expeditious manner.

1.341 The committee considers there will be many cases of family reunification where capping the number of parent or other family member visas will not limit the right to protection of the family or the rights of the child under international human rights law (as the family member in question is not part of the core family). However, the committee is concerned that no consideration can be given to these rights once a cap is set, as no further visas can be granted in that year. The committee considers that the cap on such visas is contributing to the significant delay in the processing of visa applications and considers that an almost 30 year wait for a parent visa renders family reunification effectively impossible. As it is not clear that the measure seeks to achieve a legitimate objective for the purposes of international human rights law, and as there is no flexibility to consider the individual merits of an application once the cap is reached, the committee considers there is a significant risk of the measure being incompatible with the right to protection of the family and the rights of the child.

1.342 The committee notes with concern that it raised this same issue in 2021 and the response provided is almost identical to that provided by the previous minister, despite the department having the benefit of the committee's previous views.

Suggested action

1.343 The committee considers the compatibility with the right to protection of the family and the rights of the child of Australia’s Family Migration Program would be assisted if the cap on the number of parent or other family member visas did not preclude flexibility being applied by the department to ensure visas may continue to be granted to:

(a) those family members where there is a clear family bond to protect; or

(b) at a minimum, to ensure that visas may be granted to ensure children under the age of 18 years do not remain separated from their parents.

1.344 The committee draws these human rights concerns to the attention of the minister and the Parliament.

Additional Comment from Senator Rennick^[291]

1.1 In regards to the International Organisations (Privileges and Immunities) Amendment Bill I do not support giving the minister any unspecified regulatory powers that enable the minister to grant Privileges and Immunities to foreign bodies without the prior specific approval of the parliament.

^[266] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Migration (Granting of contributory parent visas, parent visas and other family visas in financial year 2022/2023) Instrument (LIN 23/016) 2023, Report 9 of 2023; [2023] AUPJCHR 94.

^[267] Parliamentary Joint Committee on Human Rights, Report 8 of 2023 (2 August 2023) pp. 97‑100.

^[268] The classes of visas are 'contributory parent visa', 'parent visa' and 'other family visa'. The types of visas that fall within each class are set out in subsection 3(1).

^[269] Sections 4–6. Subsections 4(2) and 5(2) provide that of the maximum number of contributory parent visas and parent visas, a specified maximum number of visas may be granted to applicants who satisfy additional criteria set out in the Migration Regulations 1994 relating to investor retirement and retirement subclass visas.

^[270] See, for example, Sen v the Netherlands, European Court of Human Rights Application no. 31465/96 (2001); Tuquabo-Tekle And Others v The Netherlands, European Court of Human Rights Application no. 60665/00 (2006) [41]; Maslov v Austria, European Court of Human Rights Application no. 1638/03 (2008) [61]-[67]. The Parliamentary Joint Committee of Human Rights has raised these human rights concerns in relation to similar instruments in previous years. See, e.g. Migration (Granting of contributory parent visas, parent visas and other family visas in the 2020/2021 financial year) Instrument (LIN 21/025) 2021 [F2021L00511], Report 6 of 2021 (13 May 2021) and Report 7 of 2021 (16 June 2021).

^[271] Protected by articles 17 and 23 of the International Covenant on Civil and Political Rights and article 10 of the International Covenant on Economic, Social and Cultural Rights. Those treaties state that the family 'is the natural and fundamental group unit of society and is entitled to protection by society and the State' and that the 'widest possible protection and assistance should be accorded to the family'.

^[272] See Ngambi and Nebol v France, United Nations Human Rights Committee, Communication No. 1179/2003 (2004) [6.4]–[6.5].

^[273] See General Comment No. 16, The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (art. 17), 8 April 1988.

^[274] See Ngambi and Nebol v France, United Nations Human Rights Committee, Communication No. 1179/2003 (2004) [6.4].

^[275] See Warsame v Canada, United Nations Human Rights Committee, Communication No. 1959/2010 (2011) [8.8].

^[276] See Nystrom v Australia, United Nations Human Rights Committee, Communication No. 1557/2007 (2011) [7.8], where the UN Committee referenced the applicant's family life with his mother, sister and nephews.

^[278] The minister's response to the committee's inquiries was received on 28 August 2023. This is an extract of the response. The response is available in full on the committee's website.

^[280] See Parliamentary Joint Committee on Human Rights, Report 7 of 2021 (16 June 2021)

^[281] International Covenant on Civil and Political Rights, article 23 and the International Covenant on Economic, Social and Cultural Rights, article 10.

^[282] See Ngambi and Nebol v France, United Nations Human Rights Committee, Communication No. 1179/2003 (2004) [6.4]–[6.5].

^[283] See General Comment No. 16, The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (art. 17), 8 April 1988.

^[284] Ngambi and Nebol v France, United Nations Human Rights Committee, Communication No. 1179/2003 (2004) [6.4].

^[285] See Warsame v Canada, United Nations Human Rights Committee, Communication No. 1959/2010 (2011) [8.8].

^[286] See Nystrom v Australia, United Nations Human Rights Committee, Communication No. 1557/2007 (2011) [7.8], where the Committee referenced the applicant's family life with his mother, sister and nephews.

^[287] Convention on the Rights of the Child, articles 2, 3, 5, 8–10, 18 and 27.

^[288] See Parliamentary Joint Committee on Human Rights, Report 7 of 2021 (16 June 2021)

^[291] This section can be cited as Parliamentary Joint Committee on Human Rights, Additional Comment, Report 9 of 2023; [2023] AUPJCHR 95.

Australian Parliamentary Joint Committee on Human Rights