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RAILS
Refugee and Immigration Legal Service Inc
THE GUIDE REFLECTS THE LAW AS AT MARCH 2013 ALWAYS CHECK FOR LEGISLATIVE CHANGES
Assistance with formatting kindly provided by Allens. Photograph courtesy of UNHCR/S. Phelps.
RAILS
Refugee and Immigration Legal Service Inc
170 Boundary Street, West End, Queensland 4101 Phone: 07 3846 9300 Email: admin@rails.org.au Web: rails.org.au
CONTENTS
Using this Guide Essential definitions 1 Permanent Visa Pathways Overview What visas are available? Making the right choice: Humanitarian Program or Family Migration Program? Other visa options 2 Proposing Immediate Family under the Humanitarian Program How long will it take for the visa to be granted? Who can propose immediate family under the humanitarian program? Who are Immediate Family? Who is a dependent child? Who is Immediate Family to people under 18? Criteria that must be satisfied What are compelling reasons criteria? How much will it cost? What visa will be granted? What do I need to do to apply? What if the application is refused? 4 4 5 6 7 7 8 8 8 9 9 9 9 9 10 10 10 10 4 Family Migration Program Who can sponsor family under the Family Migration Program? What visas are available under the Family Migration Program? Are there any other costs involved? What are the chances of success? What if the application is refused? What do I need to do to apply? 13 13 13 14 14 14 14
5 Issues for Proposers, Sponsors and Applicants from refugee backgrounds 15 Alternative forms of evidence 15 Consent for children to migrate 16 6 Who can give assistance? APPENDIX A Humanitarian Visa Help Kit Useful Resources APPENDIX B Useful Contacts 17 19 23 24
3 Proposing non-immediate Family under the Humanitarian Program 11 What are my chances of success? 11 Who can propose non-immediate family under the humanitarian program? 11 What visas are available? 11 Can both immediate family and nonimmediate family be included on the same application? 12 How long will it take for the visa to be granted? 12 What if the application is refused? 12 What do I need to do to apply? 12
Family reunion is a vital part of the resettlement process. This guide will assist people who are seeking to bring family members to Australia under the Humanitarian Program and the Family Migration Program. However advice should always be obtained from a registered migration agent.
The first section discusses permanent visa pathways and the relative merits of reunification through the Humanitarian Program and the Family Migration Program. This section discusses the advantages and disadvantages of each Program and is intended to guide the reader as to their best reunification options given their circumstances. The second section gives details on proposing immediate family through the Humanitarian Program while the third section gives details on proposing nonimmediate family through the Humanitarian Program.
The fourth section examines family reunion options available under the Family Migration Program. These sections each examine the types of visas available, define relevant concepts and terms and discuss significant features of the application process such as costs involved with making an application and chances of success. The fifth section observes some of the issues associated with people from refugee producing countries applying for family reunion visas including issues relating to evidentiary requirements and what is needed when applying for visas for children. The sixth section explains who is able to provide immigration assistance. Finally, the Appendix A provides an RFR Humanitarian visa help kit with a to-do list and practical advice to assist Proposers and Applicants through the application process. Appendix B lists useful contacts. The guide is written in plain English as much as possible.
ESSENTIAL DEFINITIONS
Applicant the Department Family Migration Program Means the person/s applying for the visa. Refers to the Department of Immigration and Citizenship. Means the permanent migration program through which visas are granted to family members of Australian permanent residents and citizens. Means the permanent migration program through which visas are granted to refugees, immediate family of refugees and people in refugee-like situations. Has the meaning given in Regulations 1.03 and 1.12AA Migration Regulations 1994, being: 1. proposers married or de facto partner and dependent children; or 2. if Proposer under 18, their parents and parent/s dependent children. Non-immediate family Proposer Sponsor All family members that are not Immediate Family. Means the citizen or permanent resident in Australia proposing family members under the Humanitarian Program. Means the citizen or permanent resident in Australia proposing family members under the Family Migration Program.
Humanitarian Program
Immediate family
Onshore protection visas Offshore refugee & humanitarian visas, which include: cases referred by UNHCR Immediate Family non-Immediate Family with humanitarian claims.
Various visas for eligible family members, including: Partner Prospective spouse Child Adopted child Orphan relative Aged dependent relative Carer Parent
Various visas available, including business and employer nomination visas however the Applicant must normally: have skills or resources which are in high demand speak very good English.
Figures are current as at 6 February 2013 and relate to the years 2012-2013.
Type of Proposer Adults and people under 18 who arrived by boat after 13 August 2012
Humanitarian Program You can propose NO family members for entry to Australia under the Humanitarian Program.
Family Migration Program You can sponsor Family under the Family Migration Program. You can sponsor Family under the Family Migration Program.
You can propose your Immediate Family Mother and/or father and their dependent children (if you are under 18); or De-facto or married partner and any dependent children. DIAC gives these claims the highest processing priority, however there are still lengthy processing times (currently many years). You can also propose your non-Immediate Family Sister, brother, uncle, aunt, cousin. However, there is a HIGH chance of failure applying for visas for non-immediate family.
You can propose your Immediate Family... Mother and/or father and their dependent children (if you are under 18 years old). You can also propose your non-Immediate Family Sister, brother, uncle, aunt, cousin. However, there is a HIGH chance of failure applying for visas for non-immediate family.
You can propose your Immediate Family De facto or partner and any dependent children. DIAC gives applications proposed by adults who arrived by boat before 13 August 2012 the lowest processing priority. You can also propose your non-Immediate Family Sister, brother, uncle, aunt, cousin. However, there is a HIGH chance of failure applying for visas for non-immediate family.
Humanitarian Program
Advantages Cost effective. N o application fees. No medical fees. Travel costs paid for visas 200, 201, 203, 204. 2 02 visa you must pay travel costs. International Organization for Migration (IOM) or other schemes can help with no-interest loan schemes. These usually need a deposit first. No waiting period for Centrelink. Access to Humanitarian Settlement Services. Disdvantages N on-Immediate Family applications have very little chance of succeeding. L engthy processing times (currently averaging many years). N o review of negative decisions. C ompelling reasons criteria must be addressed by: o nshore authorised arrivals; or a dults that arrived by boat prior to 13 August 2012.
These limitations apply to applications made under both the Family Migration Program or Humanitarian Program. This is a complicated area and Proposers should see a migration agent for advice.
If all criteria is NOT met look to visa options under the Family Migration Program. If the Proposer is on an 866 visa and is over 18 the Applicant must address the compelling reasons criteria in their application. See below.
Regulations 1.03 and 1.12AA Migration Regulations 1994 The law changed in late 2011, see Shahi v Immigration for Citizenship [2011] HCA 52 (14 December 2011)
iii). whether or not there is another suitable country that can provide for the Applicants settlement and protection; and iv). the capacity of the Australian community to provide for the Applicants permanent settlement. Information should be included in the application about the Applicants fear of persecution in the Applicants home country, what family or other connections the Applicants have to Australia, what skills and employment prospects they have which would help them settle and integrate, and that there is no other third country where they can settle and be secure.
ii). Costs of Providing Evidence There are a number of costs that may be incurred by the Proposer in providing evidence required by the Department. The Proposer must meet, for example, the expense of having official documents translated (i.e. marriage certificates and ID cards) and producing passport-sized photos. Costs of couriering the application and the applicants travel to be interviewed can be significant. The Proposer may also be requested to provide further evidence to the Department including DNA evidence.
i). Travel Costs If a subclass 202 (Global Special Humanitarian) visa is granted, the Australian Government is not responsible for the Applicants travel to Australia, including airfares. The International Organization for Migration (IOM) helps with no-interest loan schemes. These usually need a deposit first.
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Can both Immediate Family and non-Immediate Family be included on the same application?
Where a person wants to propose both Immediate Family and non-Immediate Family it may be best to lodge a separate application for the non-Immediate Family members which include detailed information about the risks of harm feared (i.e. in Part G of Form 842 Humanitarian Claims). It needs to be made clear in the separate applications that the family are linked. If non-Immediate Family members are put on the application form as Immediate Family then DIAC may remove them and treat them as a separate application. This will delay the application.
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It is important to note that visa application fees are non-refundable. If the application fails, money will not be returned by the Department to the Sponsor and/or the Applicant.
Categories of Visa
Partner (Spouse or De Facto) Prospective Marriage (Fianc) Dependent Child (Natural, Adopted or Step-Child) Orphan Relative (under 18) Remaining Relative Aged Dependent Relative Parent Contributory Parent
Processing Times*
6-8 months 5-12 months 3-14 months 3-14 months 15 year wait before processing 15 year wait before processing 15 year wait before processing 12-24 months wait before processing
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These people can give immigration assistance without being registered as a Migration Agent provided there is no fee, reward or gift: i). a close family member (i.e. spouse, child, parent, brother or sister) of the visa Applicant; or ii). the sponsor or nominator of the visa Applicant; or iii). any person helping prepare a request for ministerial intervention; or iv). state or Federal Parliamentarians; or v). members of diplomatic missions in their capacity as members of a diplomatic mission; or vi). Commonwealth or State/Territory Government officials (including members of staff of a parliamentarian) in the course of their duties as an official; or vii). members of a consular post in their capacity as members of a consular post; or viii). members of an office of an international organisation in their capacity as members of an international organisation.
Anyone can make Immigration Representations provided there is no fee, reward or gift 'Immigration representations' are communications with the Department or Ministerial staff on behalf of an Applicant, nominator or sponsor, about their application. This also includes representations about Ministerial intervention requests. Anyone may lawfully make immigration representations on behalf of a visa Applicant or cancellation review Applicant so long as there is no payment of fee, reward or gift. Only lawyers can provide Immigration Legal Assistance Lawyers can provide 'immigration legal assistance' without being registered Migration Agents and can charge fees for doing so. Immigration legal assistance means advising, preparing for proceedings or representing an Applicant before a Court in relation to the application. Strict Penalties The offence of giving immigration assistance without registration is a strict liability offence. This means the prosecution does not have to prove the person intended to commit the offence doing the act is itself enough for a conviction. There are also other associated offences for advertising the provision of immigration assistance and charging fees for immigration assistance, by people who are not registered Migration Agents. High fines and imprisonment terms are imposed for the various offences. Seek Legal Advice If you are considering providing some kind of assistance to a visa Applicant or Sponsor/Proposer, always seek legal advice if you are unsure whether it is lawful to do so.
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Proposers current address; and list of documents attached to application (if there is more information to come say that it will be provided to the Department as soon as it is received).
Step 5 Keep a copy of all documents sent. Step 6 Lodge these forms at the right place.5 Step 7 Keep a receipt of postage as it is proof the application was lodged. Step 8 An acknowledgement letter and file number will be sent by Immigration. An application lodged in Australia will be assessed to see if it should go to the next stage of being sent to the overseas Immigration Office. Step 9 Applicants and authorised recipients can check with the Immigration Office in Australia or overseas about the progress of the case. The Department must be advised throughout the whole process of any change in circumstances, for example, if there are any changes of address, changes in any of the family relationships, the birth of a child or a marriage occurs.
Check the DIAC website for correct lodgement address and means of lodgement. Some applications are lodged at the Offshore Humanitarian Processing Centres in the Sydney or Melbourne offices of DIAC, depending on where the Applicant is now living.
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Step 10 If the application is sent to the overseas Immigration office for further processing, the family overseas may be interviewed by officers from the Australian overseas mission to check the identity and family relationship of each Applicant and, if required, the humanitarian claims. DNA tests may be requested. Step 11 Family members may then be asked to do medical and police checks. Step 12 If the application is accepted then the process of finalising visas and travel arrangements begins. Step 13 If the application is refused, the decision cannot be reviewed in Australia. However another application can be lodged. There may be a chance to have judicial review by a court.
9. jobs held in past 15 years (where, when, type of job and name of employer); 10. education (when did they complete primary, secondary, post secondary); 11. languages spoken (and how well each speaks English); 12. any serious medical conditions; 13. if convicted of any crimes or been deported from a country; and 14. details of parents and brothers/sisters of main Applicant and their spouse names (plus mothers name before marriage), when born, whether married by law or religion, where born, where now, visa status in country they now live.
Humanitarian claims
Applicants should tell their own personal story of why they left their home country, what they will suffer if returned, and why. Who will harm them and why cant government protect them? Why cant they return to another part of the home country where it might be safe? Do not just give a general account of problems in their country. Write about what happened to them with as much detail as possible.
Forms to complete
Form 681 proposal signed by Proposer. Form 842 visa application signed by all Applicants 18 or over. Form 956A signed by all Applicants 16 or over and the Proposer (if Applicants want the Proposer to receive correspondence about the application. If Applicants have appointed a Migration Agent, use Form 956). Answer all questions honestly. Make sure everything in the form is true and the forms are signed. False answers may make the application fail. If there is a difference with any information previously given to the Department then put reasons for the difference in a statement.
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Information that cannot fit on the forms should be on a separate signed page. Documents need to be translated into English. Certified copies means documents are stamped as true copies by a Justice of the Peace or Solicitor, or if outside Australia someone in a similar position. Applicants and authorised recipient must advise the Department of change of address after the application has been lodged.
Part A Summary of people included in the application For each person included who is not the main Applicants partner or child under 18 years explain why this person is dependent on the main Applicant. Dependence can be financial, psychological or physical. This can be financial support for basic needs like food and shelter; making important decisions about school and medical matters; and living together for a very long time. Psychological dependence is more serious than normal emotional ties between family members. It relates more to things like serious mental or medical conditions which stops the person living independently. If children are married or are independent or have their own income then they are non-dependent family members and they should complete their own application form. However they should still be listed in Part D. Any other relatives should fill in separate forms for their own family unit. A family unit includes all members of someones family who usually live with them and are dependent on them. Part B Mandated or registered Applicants Registration with the UNHCR or similar organisation will help the case. Part C Contact details A physical residential address must be given or the application wont be accepted. A post office box address will not do. You must also advise if you change your residential address after the application has been lodged. Part D Family background Copies of documents (eg birth certificates, marriage certificates) that prove the relationships should be included and certified. A statement from the Proposer with evidence which helps prove the family relationship is essential. Statements from others who know of the relationship can also be helpful. Its important to declare all the relatives of the main Applicant and their spouse, even those that may be missing, as this could assist sponsorship in the future.
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Part E Links to Australia This shows what family ties you have in Australia. The details of any Proposer go here and the Proposer must also complete a Form 681. If the Applicant has other links such as employment, business, education or friends, these details are put here. Part F Background information Give details of Applicants identity documents and where they have lived before. Part G Humanitarian claims Applicants should tell their own specific personal story of why they left their home country. Give as much detail as possible when things happened, where they happened, the names of people involved, why these things happened to the Applicant, and any other details that will help the person making a decision on the application to understand the story better. Extra pages can be added. These should be signed and dated with a reference to what question the information refers to. For Immediate Family cases, proving the relationship is most important; however, it is also useful to add any humanitarian claims. Part H Employment history List all Applicants jobs and unemployment they have had in the last 15 years. Part I Language and education For each person in the application, give details of their language and education.
Part J Health and character Police clearances are required for every country in which an Applicant over 16 has spent 12 months or more over the last ten years. Australian Security Agencies do checks on applications. Part K Assistance with this form Put down who helped fill in the form. Part L - Options for receiving written communications If a Migration Agent is not being used then its usually best to have the Proposer as the contact. A Form 956A should be included. Part M Declaration The Applicant and those over 18 must sign declaring the information is true, that the Department will be advised of any changes in circumstances before coming to Australia and that Immigration can use their personal information. If applying as non-Immediate Family the Applicant will be assessed against the 5 subclasses. Therefore, it is imperative that submissions include: - a completed Part G in Form 842; - statutory declaration of the Applicant; and - supporting country information,which detail the claims as they relate to the criteria listed in any one of the applicable 5 subclasses. All of this goes towards making a successful humanitarian claim.
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Useful Resources
The Agents Gateway website is designed to keep Migration Agents up to date on the Departments policy changes, as well as providing useful visa related information, links and resources. It is available to anyone to access. See: http://www.immi.gov.au/gateways/ agents/ The Department has developed a one page guide titled Improving the Integrity of Australian visa Applications - A Guide For Migration Agents See: http://www.immi.gov.au/gateways/ agents/pdf/visa-integrity-strategies.pdf ImmiTV Video Are you giving migration advice? explains what someone can and cannot do as an unregistered person giving migration advice, and related penalties. See: http://www.youtube.com/ user/ImmiTV?feature=mhum#p/c/ F4EFEEE1C3DD40C2/1/y7gpgMpHXgQ
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Department of Immigration and Citizenship Immigration Advice and Rights Centre (IARC) Migrant Resource Centre of SA
Salvos Legal
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