For nearly a decade, Australia’s notorious hardline asylum regime has forcibly separated refugee families. But a group of refugees are now challenging the practice of family separation through the United Nations.
Maya*, who is 35 years old, and her mother and siblings fled Iran in 2012, arriving in Australia a year later after an arduous journey through Malaysia and Indonesia.
Maya said she was forced to flee her homeland because she had been stalked and threatened with an acid attack by a government sympathiser.
Even in Indonesia, she says she did not feel safe.
“The fear of hiding from Iran’s regime agents in Indonesia, witnessing the Iranian consulate’s coercion for forced returns and unsafe deportations by the Indonesian government was truly terrifying,” she told Al Jazeera in Farsi.
But when Maya, her mother and brother arrived in Australian waters, they did not find the safety they hoped for. Instead, they found themselves sent to the Pacific Island nation of Nauru and told they would never be allowed to settle in Australia.
Maya’s sister had arrived by boat just four months before, but after about 50 days in Australian immigration detention on Christmas Island – an Australian territory south of Indonesia – she was allowed to apply for a temporary protection visa and has lived in Australia ever since.
The two sisters’ starkly different experience was simply down to timing.
Maya arrived after Australia toughened its policies in a bid to stop asylum seekers coming by small boats. Under the new law, every person arriving by boat was to be sent offshore, regardless of the reasons they had made such a dangerous journey or whether they had family in Australia.
“I felt dizzy and suffocated as if I faced sudden death,” Maya told Al Jazeera about the time she learned she was being sent to the remote island. “But on Nauru, I came to the realisation that what awaited me was an agonising slow death.”
‘No solution’
Maya is one of 13 families involved in the largest-ever UN complaint against the Australian government over its refugee policies. Initiated in 2018, they submitted their final evidence and legal arguments in March and are now awaiting the decision of the UN Human Rights Committee. There is no timeframe for the ruling, although the families hope it will not take several more years.
In their complaint, the families argued the Australian government had breached its obligations – and their rights – under the International Covenant on Civil and Political Rights (ICCPR) by forcibly separating them from family members who had settled in Australia.
The committee instructed the Australian government to urgently reunite the families while the complaint process was under way. The government of then-Prime Minister Scott Morrison did not comply but as a result of a short-lived policy enabling urgent medical evacuations from Nauru, many of the families were reunited in Australia anyway, including Maya’s.
But they remain at risk of separation because those subjected to offshore processing still have no right to reside in Australia permanently and are being pushed towards resettlement in third countries such as New Zealand or the United States.
Josephine Langbien, a senior lawyer at the Human Rights Law Centre, which filed the complaint on behalf of the families who together include 63 refugees and asylum seekers, says successive Australian governments have deliberately kept refugee families apart for more than a decade as a form of punishment and deterrence.
“We represent families who survived years of separation from Australia and Nauru, only to face the threat of separation again,” she told Al Jazeera.
“Resettlement in New Zealand is no solution for people who have families, communities and lives established in Australia. Maya is being asked to disrupt her daughter’s medical care and recovery for no good reason. Maya’s mother is being asked to say goodbye to one of her daughters and her grandchildren and leave them behind.
“Families like Maya’s are continuing their fight in the UN because they want the global community to recognise the human rights violations they are experiencing. The Albanese Government could end this mistreatment immediately by ensuring all families have the right to remain together permanently in Australia.”
The complaint argued that the Australian government had also breached its obligations under the ICCPR by failing to offer the separated families a pathway to reunite.
Under the Covenant, which Australia ratified in 1980, the government is obliged to provide a remedy to people whose rights are violated.
For Maya, the complaint is her sole recourse “for seeking justice against the oppression and coercion inflicted by the Australian government”.
“After enduring eleven years of intense psychological torture, I yearn to maintain my family’s unity in Australia or New Zealand and find peace,” she told Al Jazeera.
Maya says the trauma of her displacement has made it impossible for her to complete her graphic design degree.
“Despite my artistic aspirations, exhibiting my paintings remains an unattainable dream,” she said.
Louise Newman, a developmental psychiatrist affiliated with the University of Melbourne and Monash University and one of the mental health experts who provided expert evidence in support of the complaint, told the UN experts that family separation was a type of psychological trauma that could trigger suicidal behaviour in vulnerable people.
Such separation could cause long-term developmental delays and attachment issues in children, which are then compounded by the emotional distress of the parent raising them, she explained in her evidence.
This often leads to experiences of distress, anxiety, and grief, comparable with the bereavement process, Newman added.
Recompense
Australia implemented its offshore processing regime to deter boat arrivals after a significant increase between 2010 and 2012. Mounting criticism from various groups and court orders exposed the policy’s inhumane nature and violation of international obligations, leading to its eventual unravelling, but those who arrived by boat are still barred from making their home permanently in Australia.
Sara Dehm, a refugee law expert at the University of Technology Sydney, says the UN complaint is an example of how refugees, with the support of legal advocates, are “actively resisting Australia’s punitive attempts to expel them and deny them their right to seek asylum”.
“The UN Human Rights Committee, as a body of independent experts, has the mandate to offer authoritative interpretations of long-accepted human rights norms and to determine in individual cases whether a state has violated one or more of these norms. By bringing their case to this Committee, refugees are utilising UN processes to amplify their voices, claims and struggles”.
Dehm notes that such legal actions can hold states accountable for egregious breaches of human rights and reinforce refugees as “rights-bearing political actors and legal claimants, rather than passive victims of inhuman state border violence”.
While the committee’s decisions are not legally binding, the United Nations High Commissioner for Human Rights (OHCHR) emphasises that states are under a moral obligation to implement the rulings, Dehm explained. Possible remedies could include compensation or a recommendation that existing laws be changed to prevent rights from future breaches, she added.
In Nauru, Maya secured refugee status in 2014 under the Nauruan status determination system and subsequently got married on the island to another refugee. Two years later and still in detention, she gave birth to her daughter following a high-risk pregnancy with multiple suicide attempts.
The hospital, she says, was “overrun by rats and contaminated bins filled with worms”.
The couple was forced apart again, just two days after celebrating their daughter’s second birthday when the little girl came down with encephalitis, a serious infection affecting the brain, and Maya had to travel to Papua New Guinea (PNG) for her to get treatment.
Following the child’s illness, lawyers in Australia reached out to Maya and, acting on her behalf, challenged the Australian government’s handling of her case.
The Australian Federal Court ordered the Department of Home Affairs to provide medical care to Maya’s daughter in Australia, not PNG, within 48 hours and to bring Maya’s partner from Nauru so they could be reunited.
It was that ruling that brought them eventually to Australia, with Maya’s mother and brother joining them six months later.
New Zealand has offered to resettle the group but for Maya, this would be “another division from my close-bonded sister and her Australian-born children”.
Maya’s sister and her children, because they arrived before the offshore policy was introduced, will be eligible for permanent residence in Australia if their refugee claims are accepted.
Maya says the prospect of relocating to another country is also upsetting for her mother, who recently recovered from cancer, and her daughter, who has been having psychiatric care since she was two. She says being without her sister and family would feel like captivity, even though she longs for freedom, talking of the “persecution of forced family separation”.
Officials say that next year, for the first time since offshoring began, there will be no refugees on Nauru, but the government of Anthony Albanese, which took power a year ago, has said it will retain the capability for offshore detention on the island to deter future arrivals by boat.
As at the end of April, there were 32 people in immigration detention on the island, with 22 of them considered refugees, according to the Department of Home Affairs.
A spokesperson for the department told Al Jazeera that “Australia takes its international human rights obligations seriously and engages in good faith with the United Nations Human Rights Committee”.
The spokesperson said that Australia supports Nauru’s regional processing arrangements “in observance of our international human rights obligations”.
According to the spokesperson, a Memorandum of Understanding for regional processing, which was agreed on between Australia and Nauru in 2021, includes a commitment to “treat transferees with dignity and respect, in accordance with international legal obligations, including relevant obligations under international human rights laws”.
*Maya’s name has been changed for her security.
