Migration law and the best interests of the child

5th May 2022

In March, an Afghan family launched legal action against the Morrison government for failing to process the family visa that would allow Abdullah’s wife and children to join him in Australia. Abdullah has permanent refugee status, but Fatima and their four children remain stateless in Pakistan. They have been waiting for their visas to be processed for more than four years.

Abdullah and Fatima fled Afghanistan with their children after a Taliban attack killed their daughter and destroyed their home. Following the fall of Kabul last year, when the Taliban reclaimed power in Afghanistan, their situation has taken a turn for the worse: Abdullah has lost his eyesight, preventing him from being able to work. The lax response by Australia, and its harsh migration policy, have only worsened their situation.

This article views this issue through the lens of family law by considering the effect of Australia’s migration laws on the best interests of the child. Australia’s broken migration system may pose an obstacle to one of the primary considerations under the ‘best interests’ principle – the benefit to the child of having a meaningful relationship with both his/her parents.

The Australian Government recently announced that ‘it will provide 31,500 places to Afghan nationals through the Humanitarian and Family Visa programs.’ This offers some hope to the countless families who have been separated. Afghan nationals will be allowed to apply for offshore humanitarian visas. But many families face unreasonable delays in obtaining the visas which will allow them to be reunited.

Migration law and family law

While the case of Abdullah’s family is not directly linked with family law, it does lead to questions of how migration law and family law may be interconnected. One of the main purposes of family law is to protect the interests of the child. When analysing the case of Abdullah’s family from this perceptive, the question of the children’s best interests becomes salient.

When discussing matters which lie at the nexus between migration and family law, case studies involving children are essential. It is important to be mindful of the negative impacts that staying away from a parent can have on a child, which ultimately affect the child’s motivation to learn and grow. Australia needs migration laws that acknowledge and address these concerns. In the case of Abdullah’s family, the deteriorating political situation in Afghanistan makes it impossible for the family to travel back to their homeland. The lack of avenues offered by Australia has left the family bereft.

One may wonder whether family law should be concerned with the reunification of families. While family lawyers are dedicated to resolving the conflicts families face – be it custody dispute, property settlement dispute or domestic violence – the importance of their role promoting unification of families affected by federal migration laws cannot be understated.

When we think of immigration issues within a country, we do not immediately link them with family law matters. However, in cases where ineffective migration laws lead to families facing separation and struggle, important principles of family law may need to be applied. Within this, consideration needs to be given to the best interests of the child.

The ALA would like to thank John Bui for this contribution.

John Bui is the Principal Solicitor of JB Solicitors. The firm primarily deals with matters falling under family law, criminal law, property law, and commercial law. John is a nationally accredited family law mediator and arbitrator.

The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Migration law Family Law John Bui