In Summary

  • Analysis for Inside Story by Peter Mares, Adjunct Research Fellow, Swinburne Institute for Social Research, Swinburne University of Technology

For almost five years, Solomon Islander Francesca Teua has been trying to convince the federal government to let her stay in Australia with her two Australian-citizen children, Kamoa, aged nine, and Alexandra, two. Teua’s hope is that the new immigration minister, Peter Dutton, will use his discretion to grant her a permanent visa, but she has already had similar requests knocked back twice. And there is no telling how long it will take the minister to consider his position.

It might come as a surprise that the mother of two children, both of whom are Australian citizens by birth, doesn’t also have an automatic right to live in Australia. At the very least, given the federal government’s professed focus on families, close parental relationships and the best interests of the child, it would seem safe to assume that Teua, in the absence of serious health or security concerns, would be able to traverse a fairly short and straightforward path to a permanent visa.

The opposite is the case. Her only viable route runs via the minister’s office, and the way across the bureaucratic-legal terrain is tortuous and protracted. The nature of the journey is apparent from its very first step: Teua’s only option was to apply for a refugee visa she knew she was probably not entitled to and was almost certain to be refused.

Applying for protection in the full knowledge that your claim lacks merit under the Refugee Convention might sound like an abuse of the system, but it is Australian migration law that forced Teua to make such a manoeuvre. And she is not alone; in an increasing number of cases, the foreign parents of Australian citizen children have to engage in perverse legal contortions to win the attention of the minister and gain permission to remain in this country with their children.

“I would like to stay in Australia for the sake of my kids,” Teua tells me by phone from her home in Brisbane. I can hear Alexandra chattering away happily in the background. (“She’s trying to catch a butterfly,” says Teua.)

Teua’s story is a complicated one, and some of the details can’t be reported for legal reasons. It isn’t even possible to reveal why certain facts can’t be discussed, except to say that Australia’s system of family law deems that this in the best interests of the child.

Let’s begin the story with Teua’s son Kamoa, who was born in Solomon Islands to an Australian father. After that relationship ended, Kamoa’s father returned to Queensland. He missed his son, though, and asked Teua to bring him to Australia to visit, which she did, in 2008, travelling on a tourist visa.

A dispute over custody ensued; and since it is illegal for a parent to take a child out of Australia without the approval of the other parent, Teua was in an impossible position. She only had permission to stay in Australia temporarily, but if she went home she would have to leave her son behind. She stayed with relatives and managed to extend her tourist visa several times, but when the visa finally expired after about a year she had no choice but to go back to Solomon Islands alone, leaving Kamoa in the care of his father.

Determined not to lose her son entirely, Teua managed to return to Australia not long after, and since April 2010 she has been trying to secure the right to stay here long term. She was advised that the best chance she had was to apply for a visa that she was highly unlikely to get, namely a refugee visa.

As Angus Francis, principal solicitor with the Brisbane Refugee and Immigration Legal Service, explains, there is nothing in the law that allows Teua to apply for a visa on the basis that her son Kamoa is an Australian citizen. Things would be different if Teua had been engaged or married to Kamoa’s father or if she had originally come to Australia on a spousal visa. “In such circumstances,” says Francis, “there are provisions in Migration Act for a person to have a visa application considered, even if the relationship breaks down.”

A woman in Teua’s situation can only gain the right to stay in Australia if she can persuade the immigration minister to exercise ministerial discretion. And the minister can only exercise that discretion after every other possible avenue of application and appeal has been exhausted.

“It’s a huge waste of everyone’s resources and time,” says Francis. “Departmental officers have to consider the case and make a decision. A tribunal hearing has to be held and the tribunal member must be present.” All this must be done before the minister can be asked consider the case, despite the fact that a negative outcome is entirely predictable at every stage along the way.

(One alternative to this circuitous process can bring a swifter resolution, but it involves an even more perverse legal workaround. Section 195A of the Migration Act allows the minister to issue any kind of visa to a person being held in immigration detention. Francis says he is aware of instances of the immigration department deliberately detaining a person for a brief period of time simply in order to create the legal foundation for the minister to intervene.)

All this meant that Teua had to try to clear a series of administrative and legal hurdles that were manifestly set too high. She applied for a protection visa knowing that her case was weak and was rejected by the immigration department. She requested a departmental review of the decision and was knocked back. She appealed to the Refugee Review Tribunal and lost.

Only after she had jumped through all these hoops – a process that took years – was she able to ask the minister to intervene and replace the review tribunal’s decision with one “more favourable to the applicant.”

It is a convoluted, slow and expensive process, but at least the outcome in such cases has generally been positive – until recently, that is. “Under the Labor government, under the Howard government and under governments before that, ministers would usually intervene on behalf of a Australian-citizen child whose parent does not have a visa to remain in Australia,” says Francis. But since the Coalition took office things have been less predictable. Francesca Teua has appealed twice for ministerial intervention and has been knocked back both times. The most recent rejection, in October, came via the assistant immigration minister, Michaelia Cash.

The decision not to intervene is all the more surprising because Teua now has a second child, Alexandra, who, like Kamoa, is an Australian citizen because she has an Australian father. Teua’s relationship with Alexandra’s father ended and he now lives in another state, leaving Teua with full-time care of their daughter. Alexandra’s paternal grandparents live near Brisbane, though, and she often spends time with them at the weekend.

As if the case were not difficult enough, there is yet another dimension to Francesca Teua’s story. She also has four children in Solomon Islands.

The eldest, twenty-one-year-old Maria Rosa, is married to an Australian and has been able to visit her mother in Queensland. Jennifer, now sixteen, has also been able to visit and expects to move to Australia to study as an international student in the near future. The twins, Liam and Liza, are just over a year older than their Australian-citizen brother Kamoa.

So Teua’s return to Australia in 2010 to pursue her right to maintain a relationship with Kamoa involved a gut-wrenching decision, even though she did not know at the time how long the process would take. The result has been a separation of almost five years from Liam and Liza, who live with Teua’s sister. They have not been able to visit their mother in Australia, and nor has Teua been able to go back to Solomon Islands to visit them, because this would almost certainly result in the cancellation of her bridging visa.

“If Francesca were to leave Australia at any time before the minister had finally considered her case, it would be extremely unlikely that she would ever be allowed to return,” explains her lawyer at Brisbane Refugee and Immigration Legal Service, Bruce Wells. “She therefore had to choose between temporary separation from her family in the Solomons, or possible permanent separation from her children in Australia.”

“I miss the twins, I really miss them,” Teua tells me, “and when I talk to them they are always asking to come and see me here.” Kamoa is also keen to be reunited with his older brother and sister. “Kamoa is always saying to me, ‘when are you going to bring Liam and Liza over to be with us?,’” she says.

If she could secure Australian residency, then she would bring the twins to Australia. “They are still young,” Teua says. “I want to raise them and be a good parent for them.”

But she is not asking for charity or handouts. She describes herself as “a hardworking person.” She has no access to welfare benefits, and not only supports herself and Alexandra by working behind a bar but also manages to send money home to her other children. If she were granted a visa, she would have to wait a further two years, like other permanent migrants, before becoming eligible for Centrelink payments.

Francesca Teua’s case is unique and uniquely complicated. But human lives are like that. People end up in situations they didn’t plan or anticipate, and they don’t always fit neatly into the categories that divide up our system for selecting migrants.

This is why the Migration Act provides for ministerial discretion. These “public interest powers,” as the immigration department calls them, are based on an understanding that the “structured and transparent statutory framework for the implementation and management of Australia’s migration and humanitarian program… cannot address every situation where there may be compelling reasons for a person to enter or remain in Australia.”

But these public interest powers are non-delegable, non-compellable and non-reviewable. In other words, the minister alone can make such decisions, he or she can’t be forced to consider any particular case, and no decision made in this way can be challenged in any court or tribunal. Questions of natural justice don’t arise. “Ministerial intervention is not an extension of the visa application or review process,” the immigration department points out; it is intended as “a safety net.”

In order to apply this safety net in a consistent manner, immigration ministers issue guidelines to advise officials about the types of cases – those involving “unique and exceptional circumstances” – that can be brought to their attention.Two of the examples cited on the immigration department website are particularly relevant to Teua and her children. The first involves “circumstances that may bring Australia’s obligations as a party to the Convention on the Rights of the Child into consideration.” In such cases, the best interests of a child will be “a primary consideration” in reaching a decision. The second set of circumstances are those that “would result in irreparable harm and continuing hardship to an Australian citizen or permanent resident.” Severing the bonds between a mother and her child would appear to fit squarely into both categories.

The sole requirement for the ministerial discretion to be exercised is that “the minister thinks it is in the public interest to do so.” When the powers are exercised, the minister must table a statement of reasons in parliament. But if the minister decides not to exercise discretion, then no reasons need be given. (Labor’s immigration minister Chris Bowen initiated a twice-yearlystatistical bulletin on the use of the public interest powers, but this seems to have lapsed since the change of government.)

Francesca Teua’s file shows that the immigration department advised the (Labor) minister back in May 2012 that she had “met health requirements and does not have any character concerns that would preclude a visa grant.” So all we know for certain is that it was concluded at the highest level, on two occasions, that it was not “in the public interest” for Teua to be granted a visa to remain in Australia with her children. “The best interests of her children were clearly not considered sufficient to override other considerations,” says Bruce Wells.

We can only speculate as to what those other considerations might be, but one possibility is that the government is keen to send out the message that getting pregnant is not an automatic route to permanent residency. “The popular narrative in these cases is that the woman has deliberately entered into the relationship and got herself pregnant in order to secure a visa to stay in Australia,” says Angus Francis. “But there is no evidence whatsoever that I’ve seen that people are manipulating the system – that is, that they are having a child to get a visa.”

Francis thinks that his legal service and similar organisations are seeing an increasing number of cases involving foreign parents with Australian-citizen children because of the increasing number of temporary migrants living long term in Australia. “Think about how many international students we now have in Australia,” he says. “Yet we get surprised when people enter into relationships here and end up falling pregnant?

“Not only is there a dramatic increase in student numbers,” he goes on, “but also more and more Australian men are bringing partners here on tourist visas rather than traditional spousal visas, and some of those women end up having children.” If the relationship breaks down and no partner visa application has been lodged, the woman has no right to remain and there is no visa she can apply for on the basis that her child is an Australian citizen.

Francis says such cases put an incredible strain on resources and tend to drag on longer when the minister chooses not to intervene. “We’re only a community legal centre,” he says. “To have a case open for five years is a long time. And these cases are very intensive. Mounting a request to the minister involves marshalling a whole lot of support from family friends and community. It is an incredible drain on our services that would be better spent on other cases if there was an easier avenue for these types of cases to be resolved.”

It is not just women who are affected, of course. Melbourne immigration lawyer Carina Ford has been representing an overseas student who fathered a child with his Australian girlfriend. The child, who is automatically a citizen, is now three years old. “As a student, the father had a legitimate visa to stay in Australia, and so the couple did not get around to putting in a partner visa,” says Ford. “There did not seem to be any rush and visa applications cost thousand of dollars. But now the father has finished his studies, the relationship has fallen apart, and he no longer has any legal right to remain in the country and maintain a relationship with his child.”

Ford thinks offering an alternate visa pathway for the father to remain in Australia is in the best interests of the child, the mother and the Australian taxpayer. “If the father was given a permanent visa to remain in Australia then he would also be required to contribute financially to the child’s upbringing,” she says. “It’s unlikely that he’s going to pay maintenance for a three-year-old child he can’t see when he’s back in his home country where wages are significantly lower.”

All three lawyers agree that Scott Morrison seemed less inclined than his predecessors as minister to intervene in cases brought to his attention by the Migration and Refugee Review Tribunals, even when the interests of an Australian child may have been affected.

“The ministerial guidelines on how to deal with unique circumstances and exceptional circumstances didn’t change with change of government,” says Wells. “The key criteria applicable in these cases are still Australia’s obligations under the Convention on the Rights of the Child and the risk of doing harm to an Australian citizen or permanent resident, particularly a child. It is the application of policy that seems to have changed, rather than policy itself.”

According to Wells, “Australian citizen children ought to enjoy the same rights to be with both their parents as any other Australian citizen child. They should not be held responsible for things that happened prior to their birth and over which they had no control.”

Since her request for ministerial intervention was rejected in October, Teua has readied herself psychologically to return to Solomon Islands, expecting that she will take Alexandra with her but leave Kamoa behind. She is deeply concerned about the pain this will involve.

“Alexandra’s grandparents would be very sad and upset if I had to move back to Solomon Islands with her,” she says. She tells me that Alexandra’s father, who lives in Tasmania, has also been hoping to move back to Queensland to be closer to his daughter.

When she discussed the impending separation with a distraught Kamoa, she told him that he was a big boy and would have to accept that she must leave him behind in order to look after his little sister. “I told him we would keep in touch by Skype,” she says forlornly.

There is another twist in Teua’s tale, though, and some further glimmers of hope.

In September, former minister Scott Morrison used his discretionary powers to grant a visa to thirty-two-year-old South Korean woman Eunsil Park, enabling her to stay in Australia with her five-year-old Australian daughter Ari.

Park originally came to Australia on a working holiday visa, and met Ari’s father eleven months later. But the relationship ended and Ari’s father is now living and working overseas. As was the case for Francesca Teua, there was no visa that Park could apply for that would enable her to stay in Australia even though her daughter is an Australian citizen.

In March 2014, Morrison formally rejected an application to intervene in Park’s case even though his predecessor, Chris Bowen, was reportedly on the verge of intervening in the case before Labor lost office. But Morrison changed his mind after intense media coverage, passionate appeals by Ari’s paternal grandfather, and lobbying by federal Liberal National MP Bert Van Manen.

Teua’s removal from Australia is still pending, and she has not initiated any further legal action to seek to prevent it. Recently, though, she received correspondence indicating the immigration department is considering referring her case to the minister for a third time.

It appears that there are at least some government officials who believe that it is in the public interest for this Solomon Islands mother to remain in the same country as her Australian children. Francesca Teua must now wait to see whether or not the new minister, Peter Dutton, sees things the same way.

Written by Peter Mares, Swinburne University of Technology. This article originally appeared in Inside Story. Read the original article