REFUGEE FAMILY REUNION

Guide for applicants, migration agents and volunteers

RAILS
Refugee and Immigration Legal Service Inc

Authors: Robert Lachowicz. Updated by Taya Hunt.

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

This publication may be copied in full for educational purposes.1

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

USING THIS GUIDE

Only a Registered Migration Agent can provide immigration assistance. Refer to the Who can give assistance? section (page 17) of this Guide for further information.

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

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 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.

What visas are available?

Depending on the circumstances in which the Proposer migrated to Australia, there are different family reunion options available under the Humanitarian Program and Family Migration Program.

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.

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.

People under 18 granted 866 Visa

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 sponsor  Family under the Family Migration Program.

Adults granted 866 visa

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.

You can sponsor  Family under the Family Migration Program.

Making the right choice: Humanitarian Program or Family Migration Program?

Previously many refugees would have pursued family reunion through the Humanitarian Program. However, the changes introduced on 13 September 2012 and the increasingly lengthy processing times for Humanitarian Program Applicants, have made the Family Migration Program the preferred or only option for many humanitarian entrants. Applying through the Family Migration Program can be very expensive, and may be inappropriate or undesirable for some Proposers. The table below outlines the advantages and disadvantages of the Humanitarian Program and the Family Migration Program.

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.

Family Migration Program

Advantages G  enerally quicker processing. B  roader range of family members eligible. Disadvantages C  ostly: l arge application fees; a  irfares; and m  edical checks. M  ay need Assurance of support. Visa application fees are non-refundable. May not get Centrelink immediately.

Other visa options

i)  Permanent visa under Skilled Migration Program Skilled  visa options should be considered, though refugees from conflict ravaged countries often have little opportunity to get the formal education or required experience for a skilled visa. ii) Temporary visas There  may be difficulties for a person from a refugee or conflict situation obtaining a temporary visa, as the Department may suspect that the intention is not for genuine temporary stay, but rather to come to Australia to apply for refugee status onshore. However an application is worth submitting where there is strong evidence that return is planned.

2 PROPOSING IMMEDIATE FAMILY UNDER THE HUMANITARIAN PROGRAM

How long will it take for the visa to be granted?
As of March 2013, the Department advises that processing of applications will take many years for an Immediate Family Application. Family Migration visas may have quicker processing times and applicants should look at options under both programs. EXCEPTION: Proposers in Australia on Woman at Risk Visas A woman on a Woman at Risk (subclass 204) visa is prohibited from proposing the Applicants entry to Australia if: i)   she was granted a subclass 204 visa within 5 years immediately preceding the application; and ii)  on the date of grant of that visa the Applicant was: a.  a former spouse or former de facto partner of that woman, having been divorced or permanently separated from that woman; or b.  the spouse or de facto partner of that woman and that relationship had not been declared to DIAC.

Who can propose Immediate Family under the Humanitarian Program?

The following permanent residents or citizens can propose their Immediate Family under the Humanitarian Program: 1.  people who were granted a refugee and/or humanitarian visa overseas and migrated to Australia (Subclass 200204); 2. people under18 on 866 visas; and 3.  adults on 866 visas however the compelling reasons criteria need to be addressed (see page 9 for details). People who arrived by boat after 13 August 2012 cannot propose family under the Humanitarian Program and should look to the Family Migration Program for visa options. For more details see the table on page 6.

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.

Who are Immediate Family?

Immediate Family includes: A.  a Proposers married or de facto partner and dependent children; or B.  where the Proposer is under 18, their parents and parent/s dependent children.3 All other family members are defined as non-Immediate Family.

Criteria that must be satisfied

  The Proposer must have told the Department about the family members before the Proposer was granted their refugee or humanitarian visa; and  The Applicant must continue to be a member of the Proposers Immediate Family; and  The Applicant must apply within five years of the date of grant of the Proposers visa; and   The family members must have been Immediate Family on the date:  The Proposer was granted their visa (for subclass 200-204 visa holders), or  On the date the Proposer applied for their visa (for subclass 866 visa holders).

Who is a dependent child?

Dependent child includes: A.  natural, adopted or step children under 18; or B.  children aged over 18 who normally live with the Applicant, are not married, and have to rely on the Applicant for support; or C.  children aged over 18 who have a serious disability and cannot work. Dependence is defined more broadly in the Humanitarian program than in the Family Migration Program. For Immediate Family it includes economic or physical or psychological dependence. Psychological dependence should be more than close family bonds, according to Departmental policy.

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.

What are compelling reasons criteria?

Applicants need to satisfy the Minister that there are compelling reasons to grant the Applicant a permanent visa. If the Proposer is on a 200-204 visa OR is under 18 at the time of application, the Minister is said to be satisfied that there are compelling reasons having regard only to the Immediate Family relationship. If the Proposer is on an 866 visa and is over 18 OR if the Applicants are non-Immediate Family, the Applicant must address the following criteria in their application: i).  degree of persecution to which the Applicant is subject in the Applicants home country; and ii).  extent of Applicants connection with Australia; and
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Who is Immediate Family to people under 18?

If the Proposer is under 18, Immediate Family includes: i).  the Applicants parent/s; and ii). t he Applicants parent/s dependent children. The Proposer must be under 18 at the time the application is lodged. The Proposer does not have to continue to be under 18 at the time of the decision.4

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.

What visa will be granted?

A successful Applicant will normally be granted the same Humanitarian Visa as the Proposer. However, if the Proposer is on an 866 visa the Applicant will be granted a subclass 202 visa.

How much will it cost?

Applying through the Humanitarian Program is free. No visa application charge is required. If the Applicants are granted a humanitarian visa (subclass 200, 201, 203 or 204) the Australian Government will pay for their: travel costs; medical examinations; and x-ray examinations.

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 decision cannot be reviewed in Australia however judicial review to the courts on questions of law may be available. Another application can be lodged but there would need to be very important new information for it to succeed. Advice from a Migration Agent should first be obtained urgently.

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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3 PROPOSING NON-IMMEDIATE FAMILY UNDER THE HUMANITARIAN PROGRAM

What are my chances of success?
Most non-Immediate Family applications will fail because there are only a very small number of places each year in Australias refugee program. These applications are given much lower priority than Immediate Family applications. An application under the Humanitarian Program for someone who does not fit within the Immediate Family provisions has a high chance of failing as the number of applications received is far greater than the visa places available. Decisions to admit family members take into account what are the most compelling cases based on the Applicants connection to Australia, the threat of harm in the home country, whether there is another safe country to go to and whether it is in Australias interests and global priorities. For a definition of Immediate Family and non-Immediate Family see page 9. 2.  In-country Special Humanitarian Program Visa (Subclass 201)  For people living in their home country and subject to persecution in their home country. These visas are usually only granted when there has been diplomatic intervention. Only a very small number of these visas are granted each year. 3.  Global Special Humanitarian Program Visa (Subclass 202)  For people who, while not being refugees, are subject to substantial discrimination and human rights abuses in their home country. They must be proposed for entry by an Australian citizen, permanent resident, eligible New Zealand citizen, or an organisation operating in Australia. 4.  Emergency Rescue Visa (Subclass 203)  Accelerated processing for people subject to persecution in their home country and where delays could put their life or freedom in danger. These visas are usually only granted when there has been diplomatic intervention or through referrals from UNHCRs regional office in Canberra. Only a very small number of these visas are granted each year. 5.  Woman at Risk Visa (Subclass 204)  For female Applicants, and their dependents, who are subject to persecution or are of concern to UNHCR, are outside their home country without protection of a male relative and in danger of victimisation, harassment or serious abuse because of their gender. Most Applicants considered are those who are referred to the Australian Government by UNHCR.

Who can propose non-Immediate Family under the Humanitarian Program?

The following permanent residents or citizens can propose their non-Immediate Family under the Humanitarian Program: 1.  people who were granted a refugee and/or humanitarian visa overseas and migrated to Australia (Subclass 200204); and 2. people on 866 visas. People who arrived by boat after 13 August 2012 cannot propose non-Immediate Family under the Humanitarian Program.

What visas are available?

Non-Immediate Family applications will be assessed against the criteria of all of the five subclasses below: 1. Refugee Visa (Subclass 200)  For people subject to persecution in their home country and in need of resettlement. Most Applicants are referred to the Australian Government by the United Nations High Commissioner for Refugees (UNHCR).

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How much will it cost?

Where an Applicant is applying as non-immediate family the Applicant will be automatically assessed against the criteria of all 5 humanitarian visas. Therefore, it is important that submissions include: a completed Part G in Form 842;  statutory declaration of the applicant; and  supporting country information, detailing the claims as they relate to the criteria listed in any one of the applicable 5 visa subclasses above. Costs are the same for applications for Immediate Family under the Humanitarian Program. See How much will it cost? on page 10.

How long will it take for the visa to be granted?

As of March 2013 the Department would not provide an estimated wait-time for visa grant. As mentioned above, when applying for non-immediate family there is a high chance of failing as the number of applications received is far greater than the visa places available.

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.

What if the application is refused?

If the application is refused, the decision cannot be reviewed in Australia. However another application can be lodged at any time and new information can be included. Examples of new information include improved links to Australia and claims that have not previously been declared to Immigration. However even with new information, a non-immediate family application is likely to fail.

What do I need to do to apply?

See Appendix A Humanitarian Visa Help Kit.

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4 FAMILY MIGRATION PROGRAM

It is important to obtain full migration advice from a Registered Migration Agent prior to making a decision to pursue this avenue. Registered Migration Agents need to advise carefully about: application fees, visa caps and length of queues, limitations on social security and settlement support, the need for the Sponsor to be settled, Assurances of Support and review rights.

Who can sponsor family under the Family Migration Program?

All Australian permanent residents and citizens can sponsor certain family members under the Family Migration Program. Sometimes it may be better for a humanitarian visa holder in Australia to apply for family members under the Family Migration Program rather than the Humanitarian Program. If they wanted, an Applicant could have applications ongoing under both programs. They would have to withdraw one before any visa could be granted. There are restrictions on sponsoring for people who are in Australia on Woman at Risk Visas. See page 8 for details.

What visas are available under the Family Migration Program?

Family Migration visas are different to Humanitarian visas in that there are a broader range of visa options, faster processing times, and substantial application charges. The following table provides the categories of visa available through the Family Migration Program, the Visa Application Charge which applies to each and their estimated processing time.

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

Visa Application Charge*

$2680 $2680 & $1995 $2060 $1260 $2060 & $1795 $2060 & $1795 $1995 & $1795 $2060 & $42220

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

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

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Are there any other costs involved?

In addition to the Visa Application Charges listed in the table above, a number of other expenses have to be met by the Sponsor and/or the Applicant, such as: i). Travel Costs  The cost of airfares and any costs in travelling to be interviewed by the Department 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, not necessarily the Sponsor, to repay the Australian Government certain welfare payments paid to migrants during a set period.  Some Family Migration Program Applicants are subject to a mandatory Assurance of Support. Other Applicants may be subject to a discretionary Assurance of Support if they are assessed as being at risk of becoming a charge on Australias welfare system.  For further information consult Fact Sheet 34: Assurance of Support on the Departments website. iv). Evidence Costs  There are a number of costs that may be incurred by the Sponsor in providing the evidence required by the Department. The Sponsor must, for example, cover the expense of having official documents translated (i.e. marriage certificates and ID cards) and producing passport-sized photos. The Proposer may also be requested to provide further evidence to the Department including DNA evidence.

What are the chances of success?

The chance of success varies depending on the individual circumstances of each case. Chance of success depends on whether a valid application has been lodged, all criteria is satisfied, requested evidence has been supplied and if the Department considers both the Sponsor and Applicant to be credible.

What if the Application is refused?

Rights to review If an application is refused, the Department will advise in writing of the reasons for the refusal decision and the review rights. Review of migration decisions is undertaken by the Migration Review Tribunal. There are strict time limits which depend on what way the refusal decision is advised to the applicant. Urgent advice from a Registered Migration Agent is needed. Can I apply again? There is no limit to how many applications you can lodge through the Family Migration Program. However you have to pay a new application fee each time.

What do I need to do to apply?

It is important to obtain full migration advice from a Registered Migration Agent prior to making a decision to pursue Family Migration visas.

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5 ISSUES FOR PROPOSERS, SPONSORS AND APPLICANTS FROM REFUGEE BACKGROUNDS

Alternative forms of evidence
Whether applying through the Humanitarian Program or the Family Migration Program, claims made in applications must be supported by evidence. There are many reasons why someone from a refugee producing country may have difficulties demonstrating their claims. Many come from war-torn countries where their documents have been lost or destroyed and where birth, death and marriage certificates are not provided as a matter of course. The Department holds both humanitarian and family migration visa Applicants to a high standard, requiring strong evidence of claims made. When an Applicant cannot provide official documents as evidence then they should be strongly encouraged to provide alternative forms of evidence. The following is a non-exhaustive list and Applicants should explore all options to produce evidence of their claims. i). Statutory Declarations   Statutory Declarations from the Applicant, their Sponsor or Proposer, friends and family members are useful to establish claims of births, deaths and relationships.  For example, for the purposes of a Partner visa, a roommate may describe in a statutory Declaration, regular phone calls made between the Sponsor and the Applicant, to help try to establish a genuine and continuing relationship.  It is important to note that Statutory Declarations from Australian citizens and permanent residents carry more weight and should be sought where possible. ii). Steps taken in pursuit of evidence   Where evidence cannot be obtained, Applicants should advise the Department of all the steps they have taken trying to obtain evidence. For example, where an Applicant is seeking to provide evidence that a parent is deceased for the purposes of an Orphan Relative Visa, they should detail their understanding of the situation in a Statutory Declaration. Applicants should also document all attempts to locate the individual, including using the Red Cross Tracing Service or other NGOs or Government agencies. iii). DNA testing  Where establishing a biological relationship is necessary, include in a Statutory Declaration the willingness of the Applicant and their family to undergo DNA testing. iv). Country of origin information   If an Applicant does not have official documentation to evidence death, country of origin information can be provided to evidence the cause of death. For example if someone died in a violent attack, country information can evidence that such an event occurred at the time the Proposer and Applicant say it did. v). Pursued every avenue   At all stages of the application, document the attempts to secure evidence. Demonstrate to the Department that the Proposer and the Applicant have made every effort to find the evidence required.

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Consent for children to migrate

Before the Department will grant a visa to a child, the Department needs to be satisfied that: i).  each person who can lawfully determine where the child is to live (each legal guardian) consents to the grant of the Australian visa; and ii).  the law of the childs home country permits the child to come to Australia; or iii).  there is a court order from the childs home country granting permission for the grant of the visa. The Department needs to be satisfied that all legal guardians of a child consent to their child being granted an Australian visa. The Department will not grant a visa in circumstances where consent is not obtained. If the child has a legal guardian, who is not already in Australia or not travelling with the child to Australia, then the legal guardian needs to complete and sign Form 1229. Applicants and Sponsors need to be aware of what the law in their home country says about the removal of children to other countries. If a parent is deceased then the law in their home country might require the child Applicant to have legal forms such as the Form 1229 signed by someone else, eg: their deceased fathers family. See a Migration Agent or Solicitor for further advice about this complex area. Missing parents If a parent is missing it is very unlikely that the Department will presume that the parent has passed away unless it is stated by the Applicant. Where a parent is missing and there is no evidence that the parent is dead, the Department may request a completed and signed Form 1229 be obtained from the missing parent. See Tahiri v Minister for Immigration and Citizenship [2012] HCR 61 (13 December 2012).

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6 WHO CAN GIVE ASSISTANCE?

Under the Australian Migration Act 1958 there are strict rules as to who can give assistance to visa Applicants, review Applicants and Sponsors/ Proposers.

Only a Registered Migration Agent can provide Immigration Assistance

It is a criminal offence to provide immigration assistance if you are not a registered Migration Agent. A list of registered migration agents can be found at www.mara.gov.au or by contacting the Office of the Migration Agents Registration Authority on 1300 226 272. Immigration Assistance is defined in the Migration Act as assistance provided by a person who uses or purports to use knowledge of, or experience in, migration procedure, to assist a visa Applicant, or cancellation review Applicant, by: i).  preparing or helping to prepare the application; or ii).  advising the Applicant about the application; or iii).  preparing for proceedings before a court or review authority in relation to the application; or iv).  representing the Applicant in proceedings before a court or review authority in relation to the application. Immigration Assistance also includes providing such advice and assistance to sponsors and nominators of visa Applicants. Immigration Department policy states that in some instances there may be a fine line between what is or is not immigration assistance and officers must be satisfied, as well as be able to demonstrate, that a person has in fact used their knowledge of migration law and procedures to give assistance.

Anyone can provide Administrative Assistance

It is lawful to provide administrative assistance without being registered as a Migration Agent. The Act defines the following as administrative assistance: i).  clerical work in the preparation of an application or other document; ii).  translation or interpreting services to help prepare an application or other document; iii).  advising someone that they must apply for a visa; iv).  passing on to another person information produced by a third person, without giving substantial comment on or explanation of the information. Clerical work is not defined in the Migration Act, but the Immigration Department view, outlined in their procedures manual, is that the type of activities would include but not be limited to, the following: i).  typing or writing answers into an application/document; ii). photocopying or collating documents; iii).  indicating where certain information should go in an application form; iv).  paying the visa application charge and physically lodging an application.

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Costs of Migration Agents

See the website of the Office of the Migration Agents Registration Authority to find average fees charged for different types of visas:
https://www.mara.gov.au/ConsumerInformation/default.aspx

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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APPENDIX A HUMANITARIAN VISA HELP KIT

APPLICATION PROCESS
After Application is Lodged If a migration agent takes on the case, the agent will follow up the processing after lodging. However in many cases an agent may not take the whole case on and follow up after lodgement is the Proposers and Applicants responsibility. Step 1 P  roposer in Australia completes Form 681 Refugee and Special Humanitarian Proposal. Step 2  Form 842 Application for an offshore humanitarian visa should be completed and signed by all Applicants over 18. If someone else is filling it in for the Applicant, make sure the answers are those of the Applicant.  Form 956 or 956A completed and signed by all Applicants over 16 if appointing a Migration Agent or an authorised representative. Step 3  Attach all the identity documents and evidence, including:  8 passport photographs of each person included in the application with the name of the person written on the back;  certified copies of their passport, identity or travel documents;  certified copies of Proposers passport, identity or travel documents showing permanent residence or Australian citizenship and the date first granted permanent residence in Australia, and  a statement from Proposer with evidence which helps prove there is an Immediate Family relationship and what support Proposer will give for nonImmediate Family members a statement should include details of: the risks they face now and if they have to return to their home country; the 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.  There may be additional relevant evidence to include consult the Alternative Forms of Evidence section on page 15 of this guide for more information. Step 4  Attach a cover letter to the application form with:  name and birth date of Proposer and main Applicant;

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.

APPLICANT TO-DO LIST Details needed for each Applicant

1.  8 passport size photos (with full name on back of each); 2.  full names, date (or year) of birth, where born, marriage status, how related; 3.  any UNHCR registration or mandate cards; 4.  Applicants physical address (not a post box) of where living now; how long been there; what countries went through to get there; 5.  identity documents (passport, identity document, birth certificates or a written statement explaining why you dont have them); 6.  marriage evidence (marriage documents, wedding photos or statements); 7.  family relationship evidence (eg identity documents showing parents, family photos, written statements); 8. addresses in the last 10 years;

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.

FILLING IN FORM 842

NEVER PUT IN FALSE DOCUMENTS It can harm the application, and there may be criminal penalties or visa cancellation. If there is no document, just explain why. Form 842 is for the person who is applying overseas (the Applicant). If someone else is filling it in for the Applicant, make sure the answers are those of the Applicant. Read the instructions on the front of the form carefully. Answer all questions honestly. Wrong answers in the form or at an interview may make the application fail. The application should match with any information given to the Department before. Check it against the Proposers previous visa application. If there is a difference then put reasons for the difference in a statement. Put in certified copies. If an Applicant is using a registered Migration Agent, the agent can certify copies for them. If you dont have any documents explain why there are none. Do not put in fraudulent documents. This may make the application fail because the decision-maker may not be satisfied the Applicant meets the criteria. Other evidence is best given by a Statutory Declaration properly witnessed. If a family member is missing still include their details and explain in Part D where, when and how they went missing and what steps have been taken to try to find them. Write in the cover letter to the Department that if they cant be found by decision time then they can be taken off the application. If there are no identity documents explain why not. All names and dates of birth should be accurate. If the exact birth date is unknown put the year.

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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FILLING IN FORM 681

Form 681 should be completed by people or organisations wanting to propose. Applicants under the Humanitarian Program. The role of the Proposer is to assist in the settlement of the people proposed. This includes: meeting the entrant at the airport; providing accommodation on arrival; and assistance with settling in and finding permanent accommodation. To be eligible as an individual to propose, you must be an Australian citizen or permanent resident or an eligible New Zealand citizen. Part A Details of the persons being proposed for entry Put in details of all people you are proposing in the Form 842. Part B Proposers details Individuals To be completed if a person who is proposing visa Applicants is proposing as an individual, and not as the representative of any organisation. Part C Proposers details Organisations Where the Proposer is an organisation. To be completed by a person with authority to represent an organisation. Part D Your ability to provide settlement assistance Give details about whether the Proposer is willing and able to assist in the settlement of the people proposed. Part E Assistance with this form Proposers should ensure the person assisting is an Agent registered with the Office of the Migration Agents Registration Authority (OMARA), or fits into one of the exceptions. A close family member, sponsor or nominator can give immigration assistance provided there is no fee, reward or gift, and anyone can give administrative and clerical assistance (see 'Who Can Give Assistance in this guide on page 17). Part F Options for receiving written communications It is usually best if the Proposer receives all written correspondence on behalf of the visa Applicants. To do this the main Applicant will need to complete a form 956A (Appointment or Withdrawal of Authorized Recipient) authorising the Proposer to receive all communications from the Department in respect of the visa application. If a Migration Agent is appointed, the Department will assume the Migration Agent will be the authorised recipient, unless it is indicated otherwise. The Migration Agent will need to complete Form 956 or advise the Department in writing. Part G Acknowledgement The Proposer acknowledges that; they are responsible for the settlement of the entrants to the extent they have indicated, that information in the form can go to the Department and to settlement service providers, and that government is not responsible for subclass 202 travel costs.

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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APPENDIX B USEFUL CONTACTS

CASE for Refugees 245 Stirling Street Perth, WA 6000 Ph: (08) 9227 7311 email: admin@caseforrefugees.org.au www.caseforrefugees.org.au www.immi.gov.au Level 5, 362 Kent Street Sydney, NSW 2000 Ph: (02) 9262 3833 www.iarc.asn.au 59 King William St, Adelaide, SA 5000 Ph: (08) 8217 9510 email: admin@mrcsa.com.au www.mrcsa.com.au www.nla.aust.net.au Level 8, 22 Market Street, Sydney NSW 2001 Ph: (02) 9078 3552 or 1300 226 272 Fax: (02) 9078 3591 www.mara.gov.au Casselden Place, 2 Lonsdale Street GPO Box 241, Melbourne, Vic 3001 Ph: 1300 658 095 (within Australia) (03) 9235 3850 (outside Australia) Fax: (03) 9235 3851 Level 3/26 Lee Street GPO Box 9984, Sydney, NSW 2001 Ph: 1300 658 731 (within Australia) (02) 8666 5652 (outside Australia) Fax: (02) 02 8666 5909 Level 12, 173-175 Phillip St, Sydney, NSW 2000 Ph: (02) 9114 1600 Fax: (02) 9114 1794 email: admin@racs.org.au www.racs.org.au Level 1, 121-123 Brunswick Street, Fitzroy, Vic 3065 Ph: (03) 9413 0101 Fax: (03) 9413 0144 email: rilc@rilc.org.au www.rilc.org.au Level 1, 170 Boundary Street, West End, QLD 4101 Phone: (07) 3846 9300 Fax: (07) 3844 3073 email: admin@rails.org.au www.rails.org.au 85 Campbell Street, Surry Hills, NSW 2010 Tel: (02) 9213 3910 Fax: (02) 9213 3920 email: salvoslegal@aue.salvationarmy.org www.salvoslegal.org.au

Department of Immigration and Citizenship Immigration Advice and Rights Centre (IARC) Migrant Resource Centre of SA

National Legal Aid Office of Migration Agents Registration Authority

Offshore Humanitarian Processing Centre Melbourne

Offshore Humanitarian Processing Centre Sydney

Refugee Advice and Casework Service (RACS)

Refugee and Immigration Legal Centre (RILC)

Refugee and Immigration Legal Service (RAILS)

Salvos Legal

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