RAILS Refugee Family Reunion Guide1[1]

7/30/2019 RAILS Refugee Family Reunion Guide1[1]

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RAILS

Refugee and ImmigrationLegal Service Inc

REFUGEE FAMILY REUNIONGuide for applicants, migration agents and volunteers


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Authors: Robert Lachowicz. Updated by Taya Hunt.

Assistance with formatting kindly provided by Allens.Photograph courtesy of UNHCR/S. Phelps.

170 Boundary Street,

West End, Queensland 4101

Phone: 07 3846 9300

Email: [email protected]

Web: rails.org.au

This publication may be copied in full for educational

purposes.1

1

Thanks to RAILS staff for their assistance with this update: Angus Francis, GraceGatbonton-Prince, Robert Lachowicz, Jennifer McComber, Patrick Turner, and Bruce Wells.This guide was originally published as an initiative of the Ofce of the Migration AgentsRegistration Authority with funding from the Department of Immigration and Citizenship.Input into the original guide was kindly provided by the Department of Immigration andCitizenship, Immigration Advice and Rights Centre, Migrant Resource Centre of SouthAustralia, Ofce of the Migration Agents Registration Authority Advisory Board, RefugeeAdvice & Casework Service and Salvos Legal.

THE GUIDE REFLECTS THE LAW AS ATMARCH 2013

ALWAYS CHECK FOR LEGISLATIVE CHANGES

RAILS

Refugee and ImmigrationLegal Service Inc


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CONTENTSUsing this Guide 4

Essential denitions 4

1 Permanent Visa Pathways Overview 5What visas are available? 6

Making the right choice: Humanitarian

Program or Family Migration Program? 7

Other visa options 7

2 Proposing Immediate Family under

the Humanitarian Program 8

How long will it take for the visa to

be granted? 8

Who can propose immediate family

under the humanitarian program? 8

Who are Immediate Family? 9

Who is a dependent child? 9

Who is Immediate Family to people

under 18? 9

Criteria that must be satised 9

What are compelling reasons criteria? 9

How much will it cost? 10

What visa will be granted? 10

What do I need to do to apply? 10

What if the application is refused? 10

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 non-

immediate family be included on the

same application? 12

How long will it take for the visa to be

granted? 12What if the application is refused? 12


4 Family Migration Program 13

Who can sponsor family under the

Family Migration Program? 13

What visas are available under the

Family Migration Program? 13

Are there any other costs involved? 14

What are the chances of success? 14

What if the application is refused? 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? 17

APPENDIX A Humanitarian Visa

Help Kit 19

Useful Resources 23

APPENDIX B Useful Contacts 24


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USING THIS GUIDE

Family reunion is a vital part of theresettlement process. This guide will

assist people who are seeking tobring family members to Australiaunder the Humanitarian Programand the Family Migration Program.However advice should always beobtained from a registered migrationagent.

The rst section discusses permanentvisa pathways and the relative merits ofreunication through the Humanitarian

Program and the Family Migration Program.This section discusses the advantages anddisadvantages of each Program and isintended to guide the reader as to theirbest reunication options given their

circumstances.

The second section gives details onproposing immediate family through theHumanitarian Program while the thirdsection gives details on proposing non-immediate family through the Humanitarian

Program.

The fourthsection examines familyreunion options available under the Family

Migration Program.These sections each examine the types ofvisas available, dene relevant concepts

and terms and discuss signicant featuresof the application process such as costsinvolved with making an application andchances of success.

The fthsection observes some of theissues associated with people from refugeeproducing countries applying for familyreunion visas including issues relating

to evidentiary requirements and whatis needed when applying for visas forchildren.

The sixthsection explains who is able toprovide immigration assistance.

Finally, the AppendixA provides an RFRHumanitarian visa help kit with a to-do listand practical advice to assist Proposers andApplicants through the application process.AppendixB lists useful contacts.

The guide is written in plain English as muchas possible.

Only a Registered

Migration Agent canprovide immigrationassistance. Refer tothe Who can giveassistance? section (page17) of this Guide forfurther information.

ESSENTIAL DEFINITIONS

Applicant Means the person/s applying for the visa.

the Department Refers to the Department of Immigration and Citizenship.

Family Migration Program Means the permanent migration program through which visas aregranted to family members of Australian permanent residents andcitizens.

Humanitarian Program Means the permanent migration program through which visas aregranted to refugees, immediate family of refugees and people inrefugee-like situations.

Immediate family Has the meaning given in Regulations 1.03 and 1.12AA MigrationRegulations 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 All family members that are not Immediate Family.

Proposer Means the citizen or permanent resident in Australia proposing family

members under the Humanitarian Program.

Sponsor Means the citizen or permanent resident in Australia proposing familymembers under the Family Migration Program.


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1 PERMANENT VISA PATHWAYS OVERVIEW2

Humanitarian Program Family Migration Program Skilled Migration Program

20,000

places offered

by DIAC 2012-2013

64,185

places offered

by DIAC 2012-2013

129,250

places offered

by DIAC 2012-2013

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 visashowever the Applicant

must normally:

have skills or resources

which are in high

demand

speak very good English.

2 Figures are current as at 6 February 2013 and relate to the years 2012-2013.


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Type of

Proposer

Humanitarian

Program

Family

Migration

Program

Adults and

people under 18who arrived by

boat after 13

August 2012

You can propose

NO family members for entry to Australia underthe Humanitarian Program.

You can

sponsor

Family under

the Family

Migration

Program.

People granted

200-204 Visas

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

sponsor

Family under

the Family

MigrationProgram.

People under

18 granted 866Visa

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




You can

sponsor

Family under

the Family

Migration

Program.

Adults granted

866 visa

You can propose your Immediate Family

De facto or partner and any dependentchildren.

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




You can

sponsor Family under

the Family

Migration

Program.

What visas areavailable?

Depending on the

circumstances in whichthe Proposer migratedto Australia, there aredifferent family reunionoptions availableunder the HumanitarianProgram and FamilyMigration Program.


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Making the right choice: Humanitarian Program or Family MigrationProgram?

Previously many refugees would havepursued family reunion through theHumanitarian Program. However, thechanges introduced on 13 September 2012and the increasingly lengthy processingtimes for Humanitarian Program Applicants,have made the Family Migration Programthe preferred or only option for manyhumanitarian entrants.

Applying through the Family MigrationProgram can be very expensive, and maybe inappropriate or undesirable for someProposers. The table below outlines theadvantages and disadvantages of theHumanitarian Program and the FamilyMigration Program.

Humanitarian Program

Advantages Disdvantages

Cost effective.

No application fees.

No medical fees.

Travel costs paid for visas 200, 201, 203, 204.

202 visa you must pay travel costs. InternationalOrganization for Migration (IOM) or other schemescan help with no-interest loan schemes. Theseusually need a deposit rst.

No waiting period for Centrelink.

Access to Humanitarian Settlement Services.

Non-Immediate Family applications have very littlechance of succeeding.

Lengthy processing times (currently averaging manyyears).

No review of negative decisions.

Compelling reasons criteria must be addressed by:

onshore authorised arrivals; or

adults that arrived by boat prior to 13 August2012.

Family Migration Program

Advantages Disadvantages

Generally quicker processing.

Broader range of family members eligible.

Costly:

large application fees;

airfares; and

medical checks.

May need Assurance of support.

Visa application fees are non-refundable.

May not get Centrelink immediately.

Other visa options

i) Permanent visa under Skilled MigrationProgram

Skilled visa options should beconsidered, though refugees from conict

ravaged countries often have littleopportunity to get the formal educationor required experience for a skilled visa.

ii) Temporary visas

There may be difculties for a personfrom a refugee or conict situation

obtaining a temporary visa, as theDepartment may suspect that theintention is not for genuine temporarystay, but rather to come to Australiato apply for refugee status onshore.However an application is worthsubmitting where there is strong evidencethat return is planned.


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2 PROPOSING IMMEDIATE FAMILY UNDERTHE HUMANITARIAN PROGRAM

How long will it take for the visa tobe granted?

As of March 2013, the Departmentadvises that processing of applicationswill take many years for an ImmediateFamily Application. Family Migration visasmay have quicker processing times andapplicants should look at options under bothprograms.

Who can propose Immediate

Family under the HumanitarianProgram?

The following permanent residents orcitizens can propose their Immediate Familyunder the Humanitarian Program:

1. people who were granted a refugeeand/or humanitarian visa overseas andmigrated to Australia (Subclass 200-204);

2. people under18 on 866 visas; and

3. adults on 866 visas however thecompelling reasons criteria need to beaddressed (see page 9 for details).

People who arrived by boat after 13August 2012 cannot propose family underthe Humanitarian Program and should lookto the Family Migration Program for visaoptions.

For more details see the table on page 6.

EXCEPTION: Proposers in Australia

on Woman at Risk Visas

A woman on a Woman at Risk(subclass 204) visa is prohibited fromproposing the Applicants entry toAustralia if:

i) she was granted a subclass 204visa within 5 years immediatelypreceding the application; and

ii) on the date of grant of that visa

the Applicant was:

a. a former spouse or former defacto partner of that woman,having been divorced orpermanently separated fromthat woman; or

b. the spouse or de facto partnerof that woman and thatrelationship had not beendeclared to DIAC.

These limitations apply toapplications made under both

the Family Migration Program or

Humanitarian Program.

This is a complicated area and

Proposers should see a migration

agent for advice.


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Who are Immediate Family?

Immediate Family includes:

A. a Proposers married or de factopartner and dependent children; or

B. where the Proposer is under 18, theirparents and parent/s dependentchildren.3

All other family members are dened as

non-Immediate Family.

Who is a dependent child?

Dependent child includes:

A. natural, adopted or step children under18; or

B. children aged over 18 who normallylive with the Applicant, are not married,and have to rely on the Applicant forsupport; or

C. children aged over 18 who have aserious disability and cannot work.

Dependence is dened more broadlyin the Humanitarian program than in theFamily Migration Program. For ImmediateFamily it includes economic or physical or

psychological dependence. Psychologicaldependence should be more than closefamily bonds, according to Departmental

policy.

Who is Immediate Family topeople under 18?

If the Proposer is under 18, ImmediateFamily includes:

i). the Applicants parent/s; and

ii). the Applicants parent/s dependentchildren.

The Proposer must be under 18 at the timethe application is lodged.

The Proposer does not have to continue tobe under 18 at the time of the decision.4

Criteria that must be satised

The Proposer must have told theDepartment about the family membersbefore the Proposer was granted theirrefugee or humanitarian visa; and

The Applicant must continue to be a

member of the Proposers ImmediateFamily; and

The Applicant must apply within veyears of the date of grant of theProposers visa; and

The family members must have beenImmediate Family on the date:

The Proposer was granted their visa

(for subclass 200-204 visa holders),or

On the date the Proposer appliedfor their visa (for subclass 866 visaholders).

If all criteria is NOT met look to visa optionsunder the Family Migration Program.

If the Proposer is on an 866 visa andis over 18 the Applicant must addressthe compelling reasons criteria in their

application. See below.What are compelling reasonscriteria?

Applicants need to satisfy the Minister thatthere are compelling reasons to grant theApplicant a permanent visa.

If the Proposer is on a 200-204 visa ORis under 18 at the time of application, theMinister is said to be satised that there arecompelling reasons having regard only to

the Immediate Family relationship.If the Proposer is on an 866 visa and is over18 OR if the Applicants are non-ImmediateFamily, the Applicant must address thefollowing criteria in their application:

i). degree of persecution to which theApplicant is subject in the Applicantshome country; and

ii). extent of Applicants connection withAustralia; and

3 Regulations 1.03 and 1.12AA Migration Regulations 1994

4 The law changed in late 2011, see Shahi v Immigration forCitizenship [2011] HCA 52 (14 December 2011)


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iii). whether or not there is another suitablecountry that can provide for theApplicants settlement and protection;and

iv). the capacity of the Australian

community to provide for theApplicants permanent settlement.

Information should be included in theapplication about the Applicants fearof persecution in the Applicants homecountry, what family or other connectionsthe Applicants have to Australia, what skillsand employment prospects they have whichwould help them settle and integrate, andthat there is no other third country wherethey can settle and be secure.

How much will it cost?

Applying through the Humanitarian Programis free. No visa application charge isrequired.

If the Applicants are granted ahumanitarian visa (subclass 200, 201, 203or 204) the Australian Government will payfor their:

travel costs;

medical examinations; and

x-ray examinations.

i). Travel Costs

If a subclass 202 (Global SpecialHumanitarian) visa is granted,the Australian Government is notresponsible for the Applicants travelto Australia, including airfares.The International Organization for

Migration (IOM) helps with no-interestloan schemes. These usually need adeposit rst.

ii). Costs of Providing Evidence

There are a number of costs thatmay be incurred by the Proposer inproviding evidence required by theDepartment. The Proposer must meet,

for example, the expense of havingofcial documents translated (i.e.

marriage certicates and ID cards) andproducing passport-sized photos. Costsof couriering the application and theapplicants travel to be interviewedcan be signicant. The Proposer mayalso be requested to provide furtherevidence to the Department includingDNA evidence.

What visa will be granted?A successful Applicant will normally begranted the same Humanitarian Visa as theProposer.

However, if the Proposer is on an 866 visathe Applicant will be granted a subclass202 visa.

What do I need to do to apply?

See Appendix A Humanitarian Visa Help

Kit.

What if the application is refused?

If the application is refused, the decisioncannot be reviewed in Australia howeverjudicial review to the courts on questions oflaw may be available. Another applicationcan be lodged but there would need to bevery important new information for it tosucceed. Advice from a Migration Agentshould rst be obtained urgently.


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3 PROPOSING NON-IMMEDIATE FAMILYUNDER THE HUMANITARIAN PROGRAM

What are my chances of success?An application under the HumanitarianProgram for someone who does not twithin the Immediate Family provisions hasa high chance of failing as the number ofapplications received is far greater than thevisa places available.

Decisions to admit family members takeinto account what are the most compellingcases based on the Applicants connectionto Australia, the threat of harm in the

home country, whether there is anothersafe country to go to and whether it is inAustralias interests and global priorities.

For a denition of Immediate Family and

non-Immediate Family see page 9.

Who can propose non-ImmediateFamily under the HumanitarianProgram?

The following permanent residents or

citizens can propose their non-ImmediateFamily under the Humanitarian Program:

1. people who were granted a refugeeand/or humanitarian visa overseas andmigrated to Australia (Subclass 200-204); and

2. people on 866 visas.

People who arrived by boat after 13August 2012 cannot propose non-Immediate

Family under the Humanitarian Program.

What visas are available?

Non-Immediate Family applications will beassessed against the criteria of all of theve subclasses below:

1. Refugee Visa (Subclass 200)

For people subject to persecutionin their home country and in needof resettlement. Most Applicants

are referred to the AustralianGovernment by the United Nations HighCommissioner for Refugees (UNHCR).

2. In-country Special HumanitarianProgram Visa (Subclass 201)

For people living in their homecountry and subject to persecution intheir home country. These visas areusually only granted when there hasbeen diplomatic intervention. Only avery small number of these visas aregranted each year.

3. Global Special Humanitarian Program

Visa (Subclass 202)

For people who, while not beingrefugees, are subject to substantialdiscrimination and human rightsabuses in their home country. Theymust be proposed for entry by anAustralian citizen, permanent resident,eligible New Zealand citizen, or anorganisation operating in Australia.

4. Emergency Rescue Visa (Subclass

203)

Accelerated processing for peoplesubject to persecution in their homecountry and where delays could puttheir life or freedom in danger. Thesevisas are usually only granted whenthere has been diplomatic interventionor through referrals from UNHCRsregional ofce in Canberra. Only avery small number of these visas aregranted each year.

5. Woman at Risk Visa (Subclass 204)For female Applicants, and theirdependents, who are subject topersecution or are of concern toUNHCR, are outside their homecountry without protection of a malerelative and in danger of victimisation,harassment or serious abuse becauseof their gender. Most Applicantsconsidered are those who are referredto the Australian Government by

UNHCR.

Most non-Immediate

Family applications

will fail because thereare only a very smallnumber of places eachyear in Australiasrefugee program. Theseapplications are givenmuch lower priority

than Immediate Familyapplications.


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Where an Applicant is applying asnon-immediate family the Applicant willbe automatically assessed against thecriteria of all 5 humanitarian visas.

Therefore, it is important that submissionsinclude:

a completed Part G in Form 842;

statutory declaration of the applicant;and

supporting country information,detailing the claims as they relate tothe criteria listed in any one of theapplicable 5 visa subclasses above.

Can both Immediate Family andnon-Immediate Family be includedon the same application?

Where a person wants to propose bothImmediate Family and non-ImmediateFamily it may be best to lodge a separateapplication for the non-Immediate Familymembers which include detailed information

about the risks of harm feared (i.e. in PartG of Form 842 Humanitarian Claims). Itneeds to be made clear in the separateapplications that the family are linked.

If non-Immediate Family members are puton the application form as Immediate Familythen DIAC may remove them and treat themas a separate application. This will delay theapplication.

How much will it cost?

Costs are the same for applications forImmediate Family under the HumanitarianProgram. See How much will it cost? onpage 10.

How long will it take for the visa tobe granted?

As of March 2013 the Department wouldnot provide an estimated wait-time for visagrant.

As mentioned above, when applying fornon-immediate family there is a high chanceof failing as the number of applicationsreceived is far greater than the visa places

available.

What if the application is refused?

If the application is refused, the decisioncannot be reviewed in Australia. Howeveranother application can be lodged at anytime and new information can be included.Examples of new information includeimproved links to Australia and claimsthat have not previously been declaredto Immigration. However even with newinformation, a non-immediate familyapplication is likely to fail.


See Appendix A Humanitarian Visa Help Kit.


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4 FAMILY MIGRATION PROGRAM

Who can sponsor family under theFamily Migration Program?

All Australian permanent residents andcitizens can sponsor certain family membersunder the Family Migration Program.

Sometimes it may be better for ahumanitarian visa holder in Australiato apply for family members under theFamily Migration Program rather than theHumanitarian Program. If they wanted, anApplicant could have applications ongoingunder both programs. They would have to

withdraw one before any visa could begranted.

There are restrictions on sponsoring forpeople who are in Australia on Woman atRisk Visas. See page 8 for details.

What visas are available under theFamily Migration Program?

Family Migration visas are different toHumanitarian visas in that there are abroader range of visa options, fasterprocessing times, and substantial applicationcharges.

The following table provides the categoriesof visa available through the FamilyMigration Program, the Visa ApplicationCharge which applies to each and theirestimated processing time.

Categories of Visa Visa Application Charge* Processing Times*

Partner (Spouse or De Facto) $2680 6-8 months

Prospective Marriage (Fianc) $2680 & $1995 5-12 months

Dependent Child(Natural, Adopted or Step-Child) $2060 3-14 months

Orphan Relative (under 18) $1260 3-14 months

Remaining Relative $2060 & $1795 15 year wait before processing

Aged Dependent Relative $2060 & $1795 15 year wait before processing

Parent $1995 & $1795 15 year wait before processing

Contributory Parent $2060 & $42220 12-24 months wait before processing

(* Charges and Processing Time estimates are accurate as of 24 January 2013)

It is important to obtain

full migration advice froma Registered MigrationAgent prior to makinga decision to pursuethis avenue. RegisteredMigration Agents needto advise carefullyabout: application fees,visa caps and lengthof queues, limitationson social security andsettlement support, theneed for the Sponsor tobe settled, Assurancesof Support and reviewrights.

It is important to note thatvisa application fees arenon-refundable.

If the application

fails, money will notbe returned by theDepartment to theSponsor and/or theApplicant.


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Are there any other costs involved?

In addition to the Visa Application Chargeslisted in the table above, a number of otherexpenses have to be met by the Sponsorand/or the Applicant, such as:

i). Travel Costs

The cost of airfares and any costs intravelling to be interviewed by theDepartment before a visa is granted.

ii). Medical Costs

All associated medical and x-ray costs.

iii). Assurance of Support

An Assurance of Support is a

legal commitment by a person, notnecessarily the Sponsor, to repay theAustralian Government certain welfarepayments paid to migrants during a setperiod.

Some Family Migration ProgramApplicants are subject to a mandatoryAssurance of Support. Other Applicantsmay be subject to a discretionaryAssurance of Support if they areassessed as being at risk of becoming

a charge on Australias welfare system.For further information consult FactSheet 34: Assurance of Support on theDepartments website.

iv). Evidence Costs

There are a number of costs thatmay be incurred by the Sponsor inproviding the evidence required bythe Department. The Sponsor must,for example, cover the expense ofhaving ofcial documents translated

(i.e. marriage certicates and ID cards)and producing passport-sized photos.The Proposer may also be requestedto provide further evidence to theDepartment including DNA evidence.

What are the chances of success?

The chance of success varies depending onthe individual circumstances of each case.Chance of success depends on whethera valid application has been lodged, allcriteria is satised, requested evidencehas been supplied and if the Departmentconsiders both the Sponsor and Applicant tobe credible.

What if the Application is refused?

Rights to review

If an application is refused, the Departmentwill advise in writing of the reasons forthe refusal decision and the review rights.

Review of migration decisions is undertakenby the Migration Review Tribunal. Thereare strict time limits which depend on whatway the refusal decision is advised to theapplicant. Urgent advice from a RegisteredMigration Agent is needed.

Can I apply again?

There is no limit to how many applicationsyou can lodge through the Family MigrationProgram. However you have to pay a newapplication fee each time.


It is important to obtain full migrationadvice from a Registered Migration Agentprior to making a decision to pursue FamilyMigration visas.


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5 ISSUES FOR PROPOSERS, SPONSORSAND APPLICANTS FROM REFUGEEBACKGROUNDS

Alternative forms of evidence

Whether applying through the HumanitarianProgram or the Family Migration Program,claims made in applications must besupported by evidence.

There are many reasons why someone froma refugee producing country may havedifculties demonstrating their claims. Manycome from war-torn countries where their

documents have been lost or destroyed andwhere birth, death and marriage certicatesare not provided as a matter of course.

The Department holds both humanitarianand family migration visa Applicants to ahigh standard, requiring strong evidenceof claims made. When an Applicant cannotprovide ofcial documents as evidencethen they should be strongly encouraged toprovide alternative forms of evidence.

The following is a non-exhaustive list andApplicants should explore all options toproduce evidence of their claims.

i). Statutory Declarations

Statutory Declarations from theApplicant, their Sponsor or Proposer,friends and family members are usefulto establish claims of births, deaths andrelationships.

For example, for the purposes ofa Partner visa, a roommate may

describe in a statutory Declaration,regular phone calls made between theSponsor and the Applicant, to help tryto establish a genuine and continuingrelationship.

It is important to note that StatutoryDeclarations from Australian citizensand permanent residents carry moreweight and should be sought wherepossible.

ii). Steps taken in pursuit of evidence

Where evidence cannot be obtained,Applicants should advise theDepartment of all the steps theyhave taken trying to obtain evidence.For example, where an Applicant isseeking to provide evidence that aparent is deceased for the purposes

of an Orphan Relative Visa, theyshould detail their understanding ofthe situation in a Statutory Declaration.Applicants should also document allattempts to locate the individual,including using the Red Cross TracingService or other NGOs or Governmentagencies.

iii). DNA testing

Where establishing a biologicalrelationship is necessary, include in aStatutory Declaration the willingnessof the Applicant and their family toundergo DNA testing.

iv). Country of origin information

If an Applicant does not have ofcialdocumentation to evidence death,country of origin information can beprovided to evidence the cause ofdeath. For example if someone diedin a violent attack, country information

can evidence that such an eventoccurred at the time the Proposer andApplicant say it did.

v). Pursued every avenue

At all stages of the application,document the attempts to secureevidence. Demonstrate to theDepartment that the Proposer and theApplicant have made every effort tond the evidence required.


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Consent for children to migrate

Before the Department will grant a visa to achild, the Department needs to be satisedthat:

i). each person who can lawfully determinewhere the child is to live (each legalguardian) consents to the grant of theAustralian visa; and

ii). the law of the childs home countrypermits the child to come to Australia; or

iii). there is a court order from the childshome country granting permission forthe grant of the visa.

The Department needs to be satised that

all legal guardians of a child consent totheir child being granted an Australian visa.The Department will not grant a visa incircumstances where consent is not obtained.

If the child has a legal guardian, who is notalready in Australia or not travelling with thechild to Australia, then the legal guardianneeds to complete and sign Form 1229.

Applicants and Sponsors need to be awareof what the law in their home country saysabout the removal of children to othercountries. If a parent is deceased then thelaw in their home country might require thechild Applicant to have legal forms such asthe Form 1229 signed by someone else,eg: their deceased fathers family. Seea Migration Agent or Solicitor for furtheradvice about this complex area.

Missing parents

If a parent is missing it is very unlikely thatthe Department will presume that the parenthas passed away unless it is stated by the

Applicant. Where a parent is missing andthere is no evidence that the parent is dead,the Department may request a completedand signed Form 1229 be obtained fromthe missing parent. See Tahiri v Minister forImmigration and Citizenship [2012] HCR 61(13 December 2012).


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6 WHO CAN GIVE ASSISTANCE?

Under the Australian Migration Act1958 there are strict rules as to who

can give assistance to visa Applicants,review Applicants and Sponsors/Proposers.

Anyone can provide AdministrativeAssistance

It is lawful to provide administrativeassistance without being registered asa Migration Agent. The Act denes thefollowing as administrative assistance:

i). clerical work in the preparation of anapplication or other document;

ii). translation or interpreting services tohelp prepare an application or otherdocument;

iii). advising someone that they must applyfor a visa;

iv). passing on to another personinformation produced by a third person,without giving substantial comment on or

explanation of the information.Clerical work is not dened in theMigration Act, but the ImmigrationDepartment view, outlined in theirprocedures manual, is that the type ofactivities would include but not be limited to,the following:

i). typing or writing answers into anapplication/document;

ii). photocopying or collating documents;

iii). indicating where certain informationshould go in an application form;

iv). paying the visa application charge andphysically lodging an application.

Only a Registered MigrationAgent can provide Immigration

AssistanceIt is a criminal offence to provideimmigration assistance if you are not aregistered Migration Agent.

A list of registered migration agents can befound at www.mara.gov.au or by contactingthe Ofce of the Migration AgentsRegistration Authority on 1300 226 272.

Immigration Assistance is dened in theMigration Actas assistance provided by a

person who uses or purports to use knowl-edge of, or experience in, migration proce-dure, to assist a visa Applicant, or cancella-tion review Applicant, by:

i). preparing or helping to prepare theapplication; or

ii). advising the Applicant about theapplication; or

iii). preparing for proceedings before acourt or review authority in relation tothe application; or

iv). representing the Applicant inproceedings before a court or reviewauthority in relation to the application.

Immigration Assistance also includesproviding such advice and assistance tosponsors and nominators of visa Applicants.

Immigration Department policy states thatin some instances there may be a neline between what is or is not immigrationassistance and ofcers must be satised,

as well as be able to demonstrate, that aperson has in fact used their knowledgeof migration law and procedures to giveassistance.


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Costs of Migration Agents

See the website of the Ofce of theMigration Agents Registration Authority tond average fees charged for differenttypes of visas:https://www.mara.gov.au/Consumer-

Information/default.aspx

These people can give immigrationassistance without being registered as aMigration Agent provided there is no fee,

reward or gift:

i). a close family member (i.e. spouse,child, parent, brother or sister) of thevisa Applicant; or

ii). the sponsor or nominator of the visa

Applicant; or

iii). any person helping prepare a requestfor ministerial intervention; or

iv). state or Federal Parliamentarians; or

v). members of diplomatic missions in theircapacity as members of a diplomaticmission; or

vi). Commonwealth or State/TerritoryGovernment ofcials (including

members of staff of a parliamentarian)in the course of their duties as anofcial; or

vii). members of a consular post in theircapacity as members of a consularpost; or

viii). members of an ofce of an

international organisation intheir capacity as members of aninternational organisation.

Anyone can make ImmigrationRepresentations provided there is no fee,reward or gift

'Immigration representations' arecommunications with the Department

or Ministerial staff on behalf of anApplicant, nominator or sponsor, abouttheir application. This also includesrepresentations about Ministerialintervention requests.

Anyone may lawfully make immigrationrepresentations on behalf of a visaApplicant or cancellation review Applicantso long as there is no payment of fee,reward or gift.

Only lawyers can provide Immigration LegalAssistance

Lawyers can provide 'immigration legalassistance' without being registeredMigration Agents and can charge fees fordoing so. Immigration legal assistancemeans advising, preparing for proceedingsor representing an Applicant before a Courtin relation to the application.

Strict Penalties

The offence of giving immigration assistance

without registration is a strict liabilityoffence. This means the prosecution doesnot have to prove the person intended tocommit the offence doing the act is itselfenough for a conviction. There are alsoother associated offences for advertisingthe provision of immigration assistance andcharging fees for immigration assistance, bypeople who are not registered MigrationAgents. High nes and imprisonment termsare imposed for the various offences.

Seek Legal Advice

If you are considering providing somekind of assistance to a visa Applicant orSponsor/Proposer, always seek legal adviceif you are unsure whether it is lawful todo so.


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APPENDIX AHUMANITARIAN VISA HELP KIT

APPLICATION PROCESSStep 1 Proposer in Australia completes

Form 681 Refugee and SpecialHumanitarian Proposal.

Step 2 Form 842 Application for anoffshore humanitarian visa shouldbe completed and signed by allApplicants over 18. If someoneelse is lling it in for the Applicant,make sure the answers are thoseof the Applicant.

Form 956 or 956A completed andsigned by all Applicants over 16 ifappointing a Migration Agent oran authorised representative.

Step 3 Attach all the identity documentsand evidence, including:

8 passport photographs ofeach person included in theapplication with the name ofthe person written on the back;

certied copies of theirpassport, identity or traveldocuments;

certied copies of Proposerspassport, identity or traveldocuments showing permanentresidence or Australiancitizenship and the date rstgranted permanent residencein Australia, and

a statement from Proposer withevidence which helps provethere is an Immediate Familyrelationship and what supportProposer will give for non-Immediate Family membersa statement should includedetails of: the risks they facenow and if they have to returnto their home country; thefamily or other connections theApplicants have to Australia;

what skills and employmentprospects they have whichwould help them settle and

integrate; and that there is noother third country where theycan settle and be secure.

There may be additional relevantevidence to include consult theAlternative Forms of Evidencesection on page 15 of this guidefor more information.

Step 4 Attach a cover letter to theapplication form with:

name and birth date ofProposer and main Applicant;

Proposers current address;and

list of documents attached toapplication (if there is moreinformation to come say thatit will be provided to theDepartment as soon as it isreceived).

Step 5 Keep a copy of all documents sent.

Step 6 Lodge these forms at the rightplace.5

Step 7 Keep a receipt of postage as it isproof the application was lodged.

Step 8 An acknowledgement letterand le number will be sentby Immigration. An applicationlodged in Australia will beassessed to see if it should go tothe next stage of being sent to theoverseas Immigration Ofce.

Step 9 Applicants and authorisedrecipients can check with theImmigration Ofce in Australiaor overseas about the progressof the case. The Departmentmust be advised throughout thewhole process of any change incircumstances, for example, ifthere are any changes of address,

changes in any of the familyrelationships, the birth of a child ora marriage occurs.

5 Check the DIAC website for correct lodgement address and meansof lodgement. Some applications are lodged at the OffshoreHumanitarian Processing Centres in the Sydney or Melbourne ofcesof DIAC, depending on where the Applicant is now living.

After Application is

Lodged

If a migration agent takeson the case, the agent willfollow up the processingafter lodging. Howeverin many cases an agentmay not take the wholecase on and follow

up after lodgementis the Proposers andApplicants responsibility.


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Step 10 If the application is sent to theoverseas Immigration ofce forfurther processing, the familyoverseas may be interviewedby ofcers from the Australian

overseas mission to check theidentity and family relationship ofeach Applicant and, if required,the humanitarian claims. DNA testsmay be requested.

Step 11 Family members may then beasked to do medical and policechecks.

Step 12 If the application is accepted thenthe process of nalising visas andtravel arrangements begins.

Step 13 If the application is refused, thedecision cannot be reviewedin Australia. However anotherapplication can be lodged. Theremay be a chance to have judicialreview by a court.

APPLICANT TO-DO LIST

Details needed for each Applicant

1. 8 passport size photos (with full nameon back of each);

2. full names, date (or year) of birth,where born, marriage status, howrelated;

3. any UNHCR registration or mandatecards;

4. Applicants physical address (not a postbox) of where living now; how longbeen there; what countries went through

to get there;5. identity documents (passport, identity

document, birth certicates or a writtenstatement explaining why you donthave them);

6. marriage evidence (marriagedocuments, wedding photos orstatements);

7. family relationship evidence (egidentity documents showing parents,family photos, written statements);

8. addresses in the last 10 years;

9. jobs held in past 15 years (where,when, type of job and name ofemployer);

10. education (when did they completeprimary, secondary, post secondary);

11. languages spoken (and how well eachspeaks English);

12. any serious medical conditions;

13. if convicted of any crimes or beendeported from a country; and

14. details of parents and brothers/sistersof main Applicant and their spousenames (plus mothers name beforemarriage), when born, whether marriedby law or religion, where born, wherenow, visa status in country they now live.

Humanitarian claims

Applicants should tell their own personalstory of why they left their home country,what they will suffer if returned, andwhy. Who will harm them and why cantgovernment protect them? Why cant theyreturn to another part of the home countrywhere it might be safe? Do not just give a

general account of problems in their country.Write about what happened to them with asmuch 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 orover and the Proposer (if Applicants want

the Proposer to receive correspondenceabout the application. If Applicants haveappointed a Migration Agent, use Form956).

Answer all questions honestly. Make sureeverything in the form is true and the formsare signed. False answers may make theapplication fail. If there is a differencewith any information previously given tothe Department then put reasons for thedifference in a statement.


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Information that cannot t on the forms

should be on a separate signed page.Documents need to be translated intoEnglish. Certifed copies means documentsare stamped as true copies by a Justice of

the Peace or Solicitor, or if outside Australiasomeone in a similar position. Applicantsand authorised recipient must advise theDepartment of change of address after theapplication has been lodged.

FILLING IN FORM 842

Form 842 is for the person who is applyingoverseas (the Applicant). If someone else islling it in for the Applicant, make sure theanswers are those of the Applicant.

Read the instructions on the front of theform carefully. Answer all questionshonestly. Wrong answers in the form orat an interview may make the applicationfail. The application should match with anyinformation given to the Department before.Check it against the Proposers previous visaapplication. If there is a difference then putreasons for the difference in a statement.

Put in certied copies. If an Applicant is

using a registered Migration Agent, theagent can certify copies for them. If youdont have any documents explain whythere are none. Do not put in fraudulentdocuments. This may make the applicationfail because the decision-maker may not besatised the Applicant meets the criteria.

Other evidence is best given by a StatutoryDeclaration properly witnessed.

If a family member is missing still includetheir details and explain in Part D where,

when and how they went missing and whatsteps have been taken to try to nd them.Write in the cover letter to the Departmentthat if they cant be found by decision timethen they can be taken off the application.

If there are no identity documents explainwhy not. All names and dates of birthshould be accurate. If the exact birth date isunknown put the year.

Part A Summary of people included in the

application

For each person included who is not themain Applicants partner or child under 18years explain why this person is dependent

on the main Applicant. Dependence canbe nancial, psychological or physical. Thiscan be nancial support for basic needs

like food and shelter; making importantdecisions about school and medical matters;and living together for a very long time.Psychological dependence is more seriousthan normal emotional ties between familymembers. It relates more to things likeserious mental or medical conditions whichstops the person living independently.

If children are married or are independentor have their own income then they arenon-dependent family members and theyshould complete their own application form.However they should still be listed in Part D.

Any other relatives should ll in separateforms for their own family unit. A familyunit includes all members of someonesfamily who usually live with them and aredependent on them.

Part B Mandated or registered ApplicantsRegistration with the UNHCR or similarorganisation will help the case.

Part C Contact details

A physical residential address must be givenor the application wont be accepted. Apost ofce box address will not do. You must

also advise if you change your residentialaddress after the application has beenlodged.

Part D Family backgroundCopies of documents (eg birth certicates,marriage certicates) that prove therelationships should be included andcertied. A statement from the Proposerwith evidence which helps prove the familyrelationship is essential. Statements fromothers who know of the relationship can alsobe helpful. Its important to declare all therelatives of the main Applicant and theirspouse, even those that may be missing, as

this could assist sponsorship in the future.

NEVER PUT IN FALSEDOCUMENTS

It can harm theapplication, and theremay be criminal penaltiesor visa cancellation. Ifthere is no document, justexplain why.


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Part E Links to Australia

This shows what family ties you have inAustralia. The details of any Proposer gohere and the Proposer must also completea Form 681. If the Applicant has other links

such as employment, business, education orfriends, these details are put here.

Part F Background information

Give details of Applicants identitydocuments and where they have livedbefore.

Part G Humanitarian claims

Applicants should tell their own specicpersonal story of why they left their homecountry. Give as much detail as possible

when things happened, where theyhappened, the names of people involved,why these things happened to the Applicant,and any other details that will help theperson making a decision on the applicationto understand the story better. Extra pagescan be added. These should be signed anddated with a reference to what question theinformation refers to. For Immediate Familycases, proving the relationship is mostimportant; however, it is also useful to add

any humanitarian claims.

Part H Employment history

List all Applicants jobs and unemploymentthey have had in the last 15 years.

Part I Language and education

For each person in the application, givedetails of their language and education.

Part J Health and character

Police clearances are required for everycountry in which an Applicant over 16 hasspent 12 months or more over the last tenyears. Australian Security Agencies do

checks on applications.

Part K Assistance with this form

Put down who helped ll in the form.

Part L - Options for receiving writtencommunications

If a Migration Agent is not being used thenits usually best to have the Proposer as thecontact. A Form 956A should be included.

Part M Declaration

The Applicant and those over 18 must signdeclaring the information is true, that theDepartment will be advised of any changesin circumstances before coming to Australiaand that Immigration can use their personalinformation.

If applying as non-Immediate Familythe Applicant will be assessed againstthe 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,whichdetail the claims as they relate tothe criteria listed in any one of theapplicable 5 subclasses.

All of this goes towards making asuccessful humanitarian claim.


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FILLING IN FORM 681

Form 681 should be completed by peopleor organisations wanting to propose.

Applicants under the HumanitarianProgram.

The role of the Proposer is to assist in thesettlement of the people proposed. Thisincludes: meeting the entrant at the airport;providing accommodation on arrival; andassistance with settling in and nding per-manent accommodation.

To be eligible as an individual to propose,you must be an Australian citizen or

permanent resident or an eligible NewZealand citizen.

Part A Details of the persons beingproposed for entry

Put in details of all people you areproposing in the Form 842.

Part B Proposers details Individuals

To be completed if a person who isproposing visa Applicants is proposing as an

individual, and not as the representative ofany organisation.

Part C Proposers details Organisations

Where the Proposer is an organisation. Tobe completed by a person with authority torepresent an organisation.

Part D Your ability to provide settlementassistance

Give details about whether the Proposer iswilling and able to assist in the settlement of

the people proposed.

Part E Assistance with this form

Proposers should ensure the person assistingis an Agent registered with the Ofce ofthe Migration Agents Registration Authority(OMARA), or ts into one of the exceptions.A close family member, sponsor ornominator can give immigration assistanceprovided there is no fee, reward or gift, andanyone can give administrative and clericalassistance (see 'Who Can Give Assistance inthis guide on page 17).

Part F Options for receiving writtencommunications

It is usually best if the Proposer receivesall written correspondence on behalf ofthe visa Applicants. To do this the mainApplicant will need to complete a form956A (Appointment or Withdrawal ofAuthorized Recipient) authorising theProposer to receive all communicationsfrom the Department in respect of the visaapplication.

If a Migration Agent is appointed, the

Department will assume the Migration Agentwill be the authorised recipient, unless it isindicated otherwise. The Migration Agentwill need to complete Form 956 or advisethe Department in writing.

Part G Acknowledgement

The Proposer acknowledges that; theyare responsible for the settlement of theentrants to the extent they have indicated,that information in the form can go to theDepartment and to settlement service

providers, and that government is notresponsible for subclass 202 travel costs.

Useful Resources

The Agents Gateway website is designedto keep Migration Agents up to date onthe Departments policy changes, as well asproviding useful visa related information,links and resources. It is available to anyoneto access.See: http://www.immi.gov.au/gateways/agents/

The Department has developed a one pageguide titled Improving the Integrity ofAustralian visa Applications - A Guide ForMigration AgentsSee: http://www.immi.gov.au/gateways/agents/pdf/visa-integrity-strategies.pdf

ImmiTV Video Are you giving migrationadvice? explains what someone can andcannot 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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APPENDIX BUSEFUL CONTACTS

CASE for Refugees 245 Stirling Street Perth, WA 6000

Ph: (08) 9227 7311email: [email protected]

Department of Immigration andCitizenship

www.immi.gov.au

Immigration Advice and RightsCentre (IARC)

Level 5, 362 Kent Street Sydney, NSW 2000Ph: (02) 9262 3833www.iarc.asn.au

Migrant Resource Centre of SA 59 King William St, Adelaide, SA 5000Ph: (08) 8217 9510email: [email protected]

National Legal Aid www.nla.aust.net.au

Ofce of Migration AgentsRegistration Authority

Level 8, 22 Market Street, Sydney NSW 2001Ph: (02) 9078 3552 or 1300 226 272Fax: (02) 9078 3591www.mara.gov.au

Offshore Humanitarian ProcessingCentre Melbourne

Casselden Place, 2 Lonsdale StreetGPO Box 241, Melbourne, Vic 3001Ph: 1300 658 095 (within Australia) (03) 9235 3850 (outsideAustralia)Fax: (03) 9235 3851

Offshore Humanitarian ProcessingCentre Sydney

Level 3/26 Lee StreetGPO Box 9984, Sydney, NSW 2001

Ph: 1300 658 731 (within Australia) (02) 8666 5652 (outsideAustralia)Fax: (02) 02 8666 5909

Refugee Advice and CaseworkService (RACS)

Level 12, 173-175 Phillip St, Sydney, NSW 2000Ph: (02) 9114 1600Fax: (02) 9114 1794email: [email protected]

Refugee and Immigration LegalCentre (RILC)

Level 1, 121-123 Brunswick Street, Fitzroy, Vic 3065Ph: (03) 9413 0101Fax: (03) 9413 0144email: [email protected]

Refugee and Immigration LegalService (RAILS)

Level 1, 170 Boundary Street, West End, QLD 4101Phone: (07) 3846 9300Fax: (07) 3844 3073email: [email protected]

Salvos Legal 85 Campbell Street, Surry Hills, NSW 2010Tel: (02) 9213 3910Fax: (02) 9213 3920email: [email protected]

RAILS Refugee Family Reunion Guide1[1]

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