Regaining Australian PR by former permanent residents may be possible by applying for a subclass 159 visa, Subclass 159 visa is for eligible Norfolk Island or NI (click here to learn more) and former permanent residents who departed Australia without checking their visa status.

As a general rule, only Australian citizens have an automatic right to enter Australia. Permanent residents do not have an automatic right to return to Australia.

As a permanent resident, before you leave Australia you must always check to make sure you have a valid permanent visa (click here to learn more about RRV 155) for you to return if you wish to leave and return as a permanent resident.

If your permanent visa has ceased when you depart Australia and you cannot provide evidence that you was an Australian permanent resident, it is still possible for regaining your Australian PR by applying for a former PR subclass 159 visa if there is an urgent and compelling reasons for wanting to travel to Australia before being able to prove you are a former PR. Regaining Australian PR is only possible if you are outside Australia.

You should be aware that by regaining Australian PR, the subclass 159 visa has the following aspects for the grant of this visa:

• subclass 159 visa will cause any other visa, including RRV 155 held (s. 82(2));
• subclass 159 visa is only a single entry and valid for 3 months;
• You will be required to apply for a RRV 155 or 157 (click here to learn more about subclass 157 visa) in Australia after returning;
• While holding a subclass 159 visa, you may not be eligible for government payments and services;
• Holding a subclass 159 visa may adversely affect your future applications for Australian citizenship (click here to learn more about General Residence requirement); and
• As a subclass 159 visa is valid for 3 months, failing to apply for a visa within the 3 months validity will cause you to become an unlawful non-citizen.

If you previously held a Business Skills visa, such as subclass 132 or subclass 188 or subclass 888 or subclass 160 – 165, that was cancelled or subject to cancellation, you will not be able to apply for a subclass 159 visa. If you are a holder of 1 of these visa and have been granted a subclass 155 or subclass 157 or subclass 159 on the same business visa grounds, you will not be able to make a valid application for a subclass 159 visa. In addition, you did not leave Australia while subject to a deportation order or your visa was cancelled under s. 501 (you must satisfy SRC 5001 or SRC 5002). This rule applies to all secondary visa holders.

Regaining Australian PR, you must satisfy a number of at the “time of application” criteria:

1. You cannot satisfy the Department that before leaving Australia, you were an Australian PR who was usually resident in Australia. Generally, this occurs when your arrived in Australia before electronic records existed and left Australia (between 1 March 1976 and 31 December 1986; holder of an Authority to Return or Return Endorsement) after electronic movement records existed (cl. 159.211). You can also provide evidence of your Australian employment details, drivers licence, Medicare and credit cards.
2. You are eligible for a subclass 155 or subclass 157 (cl. 159.212);
3. You are not an Australian citizen as Australian citizens cannot make a valid visa application under s. 45(1) (cl. 159.212A).
4. You must provide a written statement that you have an urgent and compelling reasons for wanting to travel to Australia before your Australian PR can be proved, your entry to Australia will not prejudice Australia’s interests and there are reasonable grounds for you to prove that you were a former Australian PR (cl. 159.213). Urgent and compelling reasons is not defined, some examples may be, you booked a return flight but has lost your travel documents which contained evidence of your Australian PR or you have an important work appointment or serious family circumstances in Australia.

If your attempt at regaining Australian PR is refused, you may be able to apply to the AAT for a merits review. Whether you have the merits review rights will depend on where you falls within s. 338(6) – you have a parent or partner or child or sibling who is an Australian citizen or an Australian PR (s. 338(6)(c)). If s. 338(6) applies, only your Australian PR or Australian citizen relative will have a right to seek merits review on your behalf regardless of their place of residence (s. 347(2)(c)) and your location at the time your relative lodge the review application is irrelevant.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a detailed consultation (fee applies) or click here to find other Australian visas.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Regaining Australian PR | Subclass 159 (Non-NI) appeared first on Ozzie Visa.

Recovering PR using subclass 157 – if you have departed Australia as a PR and has not renewed your permanent visa (former PR), it is still possible for recovering your PR by applying for a RRV subclass 157 visa.

Generally, only Australian citizens have an automatic right to enter Australia. Australian permanent residents only have the right to live in Australia indefinitely but if they depart the country, they will need to have a right to re-enter.

All visas, including permanent visas, have an expiry date. Permanent visa holders may renew or re-apply for a further permanent visa by applying for a RRV or Resident Return Visa. There are 3 types of RRVs:

• Class BB subclass 155 (5 year Resident Return) visa (click here to learn more). If you are an Australian PR and been living in Australia for at least 2 years in the last 5 years, the Department will [automatically] grant you a subclass 155 valid for a further 5 years. If you do not meet the 2 in 5 year residence rule, the Department could still grant you a subclass 155 but with 12 months validity.
• Class BB subclass 157 (3 month Resident Return) visa. This is also a permanent visa but it is only valid for 3 months. Subclass 157 is usually granted to PR or former PR who do not meet the subclass 155 visa requirements. For example, for a PR who recently started to live in Australia, but has to travel overseas for compelling and compassionate reasons (compelling reasons for absence).
• Class TP subclass 159 (Provisional Resident Return) visa (click here to learn more). Subclass 159 visa can only be applied if the applicant is outside Australia. Subclass 159 is valid for 3 months to allow the holder to enter Australia and to apply for a permanent visa (example, Class BB visa).

To be eligible for a subclass 157 visa, you do not have to be an Australian PR at the time of application, i.e., recovering PR. However, you must have been a PR in the past, and your last held PR visa was not cancelled. It is the Department’s policy to support former PR who was originally given permission to settle permanently in Australia, but subsequently lost their PR for any reasons other than through visa cancellation. This Policy ensure that no applicant, regardless of their origin or date of migration, is inadvertently disadvantaged by the definition of “permanent resident” in the Migration Act. This applies to NZ citizens who hold a SCV Class TY subclass 444 (click here to learn more) who are former PR (either granted a PR or were a resident in Australia prior to 01 September 1994 as an exempt non-citizen or the holder of a permanent entry permit).

If you are a former PR and was subsequently granted a temporary visa or your RRV application is refused, you will always be a former PR and may be in the future eligible for an RRV.

If you have lost your PR and wanting to return to Australia as a PR, it is still possible for recovering your PR. If you are granted a RRV, you will be issued with a subclass 157 visa. However, subclass 157 cannot be applied via the internet. You will first be considered against the subclass 155 criteria and if you are ineligible, the Department will then consider you for a subclass 157 visa.

You should note that if your last permanent visa was cancelled (cl. 157.211(c)), you will not be eligible for an RRV. Or if your last visa was a Business Skills visa and was subject to cancellation order, you may not be eligible for this visa.

Recovering PR, when you apply for a RRV to return to Australia, the Department will 1^st consider you for a subclass 155 visa and if you are ineligible, the Department will then consider you for a subclass 157 visa. If you are eligible for both, the Department will grant you the most advantageous RRV which is subclass 155.

If you are applying for subclass 157 visa outside Australia and you do not satisfy the visa criteria, the Department may invite you to apply [under r. 2.11] for an alternate visa.

When applying for a RRV, the Department must be satisfied that you are of good character even though there is no character PIC (but character is a consideration for the grant of all visas specified in s. 501). There is no legal requirement for an RRV applicant to provide penal certificates or police clearance certificates.

Proving you are a former PR

From 01 September 2015, the Department stopped issuing visa labels. You may use the following historic evidence that you are a former PR:

• Information from National Archives
• Statutory declaration setting out the circumstances of your arrival in Australia and length of residence
• Australian tax assessments
• Australian bank statements
• Australian employment records
• Australian school, academic or other training records

If you have more than 1 citizenship, you may be eligible for an Australian declaratory visa (ADV). An ADV is not actually a visa but is an administrative document.

If you have lost or renounced your Australian citizenship, you can still be considered for the grant of an RRV. Alternatively, you could resume Australian citizenship if you renounced Australian citizenship to acquire the citizenship of another country (s. 17 of the Australian Citizenship Act 1948).

If you have lost your Australian citizenship while in Australia, s. 35 will automatically grant you an ex-citizen visa which allows you to remain indefinitely in, but cannot re-enter, Australia. You will need an RRV to leave and return Australia as a PR.

Recovering PR using subclass 157 visa, this visa is intended for PR who have not lived in Australia for more than 2 years and who have not yet established substantial ties of benefit to Australia.

Recovering PR, at the time of applying for subclass 157 visa (cl. 157.211) you must either be an Australian PR or a former PR (last permanent visa must not be cancelled).

In order to be successful in recovering your PR, you must satisfy 1 of the following 3 criteria (cl. 157.212):

1. You must be lawfully present in Australia as a PR for at least 1 day (but less than 2 years) in the last 5 years, and not holding certain specified visa (cl. 157.212(2)(a)(ii)), and
2. has compelling and compassionate reasons for leaving Australia; or
3. you are a member of your family unit who satisfied the RRV criteria and is also a RRV applicant, or is a member of your family unit holding a subclass 157 visa.

“Compelling and compassionate circumstances” is not defined but you must demonstrate that you have both compelling and compassionate reasons for leaving Australia. You should be aware that a reason which is considered ‘compelling’ will not necessarily also be a ‘compassionate’ reason for leaving Australia. However, ‘compelling and compassionate’ reasons include:

• unexpected severe illness or death of a family member or
• involved in custody proceedings for your child
• you need to travel in order to finalise your relocation to Australia

You should note that if you had compelling and compassionate reasons for leaving Australia (as required under cl. 157.212(b)), but later you chose to remain overseas after this reason ceased or no longer required your absence, for example, to take up employment.

If you are not successful with recovering PR using subclass 157 visa application, you may be able to apply to the AAT for a merits review. If you are outside Australia and you have Australian citizen or Australia PR parent or partner or child or sibling, they can apply to the AAT on your behalf. If you applied for subclass 157 while you are in Australia, you can apply to the AAT if you are in Australia at the time of the refusal decision and at the time of AAT application.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation to help you in recovering your Australia PR using subclass 159 or click here to find other Australian visas or click here to learn about regaining lost PR (Nolfork Island).

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Recovering PR using subclass 157 | How to regain lost PR appeared first on Ozzie Visa.

Australian citizenship residency discretions & exemptions – residence requirements or having lived in Australia is necessary to ensure that a person who wishes to become an Australian citizen has spent sufficient time in Australia to gain an understanding of Australia and the responsibilities and privileges of becoming an Australian citizen. Click here to learn more about Australian citizenship general residence requirements.

There is no general power under the Act to waive the residence requirements, however there is a number of ministerial discretions or Australian citizenship residency discretions & exemptions that may be applied to assist a person to meet the residence requirements for conferral of Australian citizenship.

While it is accepted that policy and procedures do not have the force of law, but when exercising powers or making decisions under the Act, decision-maker should give policy documents due weight. It is also accepted that policy and procedures should not be applied inflexibly, and merits of each individual case should be considered.

Certain CPI applies to those who are applying for Australian citizenship by conferral under:

• section 21(2) – general eligibility; or
• section 21(3) – incapacity; or
• section 21(4) – applicants aged 60+ or who have a sight, hearing or speech impairment;

who are required to satisfy 1 of the 4 residence requirements:

• section 22 – general residence requirement;
• section 22A – special residence requirement for those seeking to engage in activities that are of benefit to Australia and for which they are required to be an Australian citizen;
• section 22B – special residence requirements for those engaged in particular kinds of work requiring regular travel outside of Australia.

Section 22 – General residence requirement

You will meet the section 22 general residence requirement if you:

• were present in Australia for 4 years immediately before the day you apply; and
• were not present in Australia as an unlawful non-citizen at any time during the 4 year period; and
• were present in Australia as a PR for the period of 12 months before the day you apply; and
• were not absent from Australia for more than an accumulated period of 365 days during the 4 year, including no more than 90 days in the 12 months while you are holding a permanent resident visa and before you apply.

You will not satisfy the 12 months permanent residency period if, during the 12 month period:

• you were granted a temporary visa. You will need to wait 12 months from the day you last became a PR; or
• you were granted a temporary visa (for e.g., a Subclass 773 – click here to learn more) allowing you to enter Australia and failed to apply for a RRV Subclass 155 (click here to learn more) before the temporary visa expired, as a result you became an unlawful non-citizen. You will need to satisfy s 22(1) to re-apply; or
• your PR visa ceased when you departed Australia; or
• your PR visa ceased while outside of Australia and before you were granted a RRV.

Meaning of  in “Australia”

Section 3 defines “Australia” in a geographical sense, includes the external Territories (include Norfolk Island, Cocos (Keeling) Islands, Christmas Island, the Australian Antarctic Territory, Ashmore & Cartier Islands, the Coral Sea Islands and Heard and McDonald Island).

Working on ships, airplanes and other facilities outside Australia

If you are travelling on a plane or a ship and the vessel does not enter another country, it is taken that you did not leave Australia if you are transiting or remains a passenger, or a member of the crew; and you are outside the migration zone for no longer than the prescribed period (s. 80 of the Migration Act 1958). The prescribed period is 30 days (reg. 3.07). Notwithstanding s. 80, for the purposes of meeting the residence requirement when the vessel is outside Australia, you are deemed not to be present in Australia. However, you may be assessed against the special residence requirement in s. 22B (persons engaged in particular kind of work requiring regular travel outside Australia – Australian citizenship residency discretions & exemptions).

Imprisoned or in a psychiatric facility (s 22(1C))

You will not meet the 4 year residency requirement if you:

• are in a jail; or
• are confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law

If you are affected by the above, you could request for Australian citizenship residency discretions & exemptions – section 22(5A) ministerial discretion.

Former Australian citizens and people born in Australia (s 22(2))

If you are born in Australia or was an Australian citizen before making the application, you may not be required to meet:

• s 22(1)(a) – present in Australia for the 4 years before making the application; or
• s 22(1)(b) – not present in Australia as an unlawful non-citizen during the 4 years before making the application.

But you are still required to meet s 22(1)(c) – present in Australia as a PR for the 12 months before making the application. If you have been an unlawful non-citizen during the 12 month period, you will not satisfy this requirement.

Who are former Australian citizens

Former Australian citizens, include (not limited to):

• those born in the former Australian territory, the External Territory of Papua (before PNG Independence Day on 16 September 1975) – ceasing to be Australian citizens in accordance with the PNG Constitution; and
• those who renounced their Australian citizenship.

Ministerial discretions – general residence (Australian citizenship residency discretions & exemptions)

If you do not meet the general residence requirements, you may request the Minister to use his discretions. When making a request, you must provide a statement and supporting documents when you lodged your application. If you do not provide a statement or supporting evidence at the time of lodgement and there is no information available on the Department records that indicates you have applied for a discretion, the decision-maker is not obliged to request for further information and may proceed to a decision on the information before them.

Section 22(4A) – unlawful due to an administrative error

If the Department has made an administrative error recording that you were present in Australia as an unlawful non-citizen for a period of time, the Minister may disregard this period (s 22(4A)). However:

• there must be an administrative error; and
• the error must be the reason why you lack or lacked the necessary legal status.

Examples:

• The Department advised that you are lawful non-citizen when in fact your were unlawful, as a consequence you did not apply for a visa. If s 22(4A) discretion is applied, the time you were given the incorrect advice till when you became aware, or could reasonably be considered to have become aware, that you were unlawful.
• You lodged a valid application for a substantive visa, but a bridging visa was not granted prior to your current visa expiring, resulting you in becoming an unlawful non-citizen.

Section 22(5) – not a PR due to an administrative error

Example, if you are eligible for PR but made an application for a TR because of incorrect advice given by the Department, the Minister may treat this period as being present in Australia as a PR.

This discretion does not apply:

• you travelled on a NZ passport and is a PR but on arriving in Australia you were granted a SCV (click here to learn more about Subclass 444). If this applies, the granting of the SCV is affected by jurisdictional error because a PR cannot make a valid application for a SCV (Item 1219 of Sch1). The grant of the SCV will be treated as a nullity.
• the Department delayed in processing your PR application unless the delay was unreasonable and a mistake or an oversight.
• the AAT or a court sets aside a decision of the Department.

Section 22(5A) – In prison or in a psychiatric institution

If you are confined in a prison or a psychiatric institution, s 22(5A) allows the Minister to disregard the period you are confined if it is unreasonable for s 22(1C) to apply to you. The Minister, when deciding whether to use his discretion, must take into account the circumstances of your confinement:

• Whether your conviction is quashed, or you are pardoned
• If discretion is not applied, your 4 year residency period will commerce from the day you are released from confinement.

Section 22(6) – person in Australia would suffer significant hardship or disadvantage

Section 22(6) allows for periods of lawful residence, other than permanent residence, to be treated as periods of permanent residence for the purpose of meeting the 12 month PR requirement if the Minister is satisfied that you would suffer significant hardship or disadvantage if those periods were not treated as periods of permanent residence.

You must provide a supporting statement to allow s 22(6) to be assessed.

Subsections 22(9) and (10)

This discretion allows for the periods of time spent outside Australia to be counted as time spent in Australia for the purposes of satisfying s 22(1)(a) and s 22(1)(c) when you have exceeded the allowable s 22(1A) absences.

However, this discretion can only be applied to periods when:

• you are a partner of the Australian citizen during that period; and
• you were not presence in Australia during that period; and
• you were a PR during that period; and
• you have a close and continuing association with Australia during that period.

In addition, you must be the spouse, de facto partner or surviving partner of an Australian citizen at time of application. This discretion is only available if the surviving spouse or de facto partner has not become the spouse or de facto partner of another person after the death of their partner and before making the application (s 22(10)). In addition, s 22(9) does not require your partner to have been an Australian citizen during your periods of absence (MIBP v Han [2015] FCAFC 79). The test is whether you and your Australian citizen partner were in the spousal or de facto relationship at the time of making the application and not whether your partner was an Australian citizen for all the period of the relationship.

You will need to provide:

• evidence of your partner’s Australian citizenship; and
• evidence of relationship (e.g., marriage certificate or evidence of de facto relationship).

You should explain the circumstances of your relationship and may include:

• duration of your relationship
• nature and extent of your common residence
• whether a sexual relationship exists
• degree of financial dependence or interdependence
• ownership, use and acquisition of your property
• degree of mutual commitment to a shared life
• care and support of children
• reputation and public aspects of your relationship
  
  

You should note that an absence of the above does not necessarily mean you are not in a relationship.

Section 22(11) – interdependent relationship

This discretion is for those whose who has exceeded the 90 days allowable in the 12 months before making an application for the purposes of s 22(1)(c). However, this discretion is only for those who was granted a visa on the basis of being in an interdependent relationship (note that subclasses 110 and 814 were removed in July 2009) or same sex couple (s 22(9)).

SPECIAL RESIDENCE REQUIREMENTS

Section 22A – engaging in activities that are of benefit to Australia

This only applies to certain activities listed under s 22C(1).

Generally, these activities are:

• employment with the Commonwealth in a Department, an Executive Agency or Statutory Agency of the Commonwealth requiring a Negative Vetting 2 or higher security clearance; or
• participating in an Australian team (Olympic or Paralympic) in certain international sporting competitions.

The benefit to Australia must be something more than just your desire or the desire of a sporting association to compete in international sporting events. In addition, you must also be an Australian citizen to be able to compete (including qualifying events).

Furthermore, you must also demonstrate that there is insufficient time for you to satisfy the general residence requirement in order to engage in that activity (s 22A(1)(a)(iv)). And as letter from the head of a specified organisation that you have a reasonable prospect of being engaged in that sporting activity.

Section 22B – engaging in particular kinds of work requiring regular overseas travel

In order to request for section 22B discretion, you must be engaged in certain kind of work (s 22B(1)(a)) requiring regular overseas travel. Generally, you must be:

• a member of a crew of a ship;
• a member of the crew of an aircraft;
• working on a resources installation or sea installation;
• a CEO of an S&P / ASX All Australian 200 listed company;
• an Executive Manager or Executive Director of an S&P / ASX All Australian 200 listed company;
• a Scientist employed by:
  • an Australian university and having a PhD, and is undertaking R & D of benefit to Australia; or
  • Commonwealth Scientific and Industrial Research Organisation (CSIRO); or
  • a medical research institute (AAMRI)
• a medical specialist with certain qualification
• a writer or is engaged in the visual or performing arts holding or held a Distinguish Talent visa (click here to learn more).

Section 22B(1)(c)-(g) discretion – other criteria

You must also:

• be present in Australia for at least 480 days in the 4 years before making the application, including 120 days in the 12 months (s 22B(1)(c); s 22B(1)(d));
• be an ordinarily resident in Australia throughout the 4 years before making the application (s 22B(1)(e));
• be a PR throughout the 12 months before making the application (s 22B(1)(f)); and
• not be in Australia as an unlawful non-citizen at any time throughout the 4 years before making the application (s 22B(1)(g)).

Sections 22A(1A) & 22B(1A) – alternative residence requirements

The Minister with personal, non-compellable powers to apply an alternative residence requirement for those requiring Australian citizenship to engage in an activity of benefit to Australia but unable to satisfy the s 22 general residence requirement, or the special residence requirement set out in sections 22A or 22B.

However, the alternative residence requirement cannot be applied unless you also meet all the other criteria for conferral of Australian citizenship, including intention to reside or continue to reside or maintain a close and continuing association with Australia.

You must also be able to demonstrate that you are engaged in certain activities of benefit to Australia or are engaged in certain types of specific work.

Section 22A(1A) – engaging in activities that are of benefit to Australia

In order to require for alternative residence requirement consideration Australian citizenship residency discretions, you must:

• be seeking to engage in certain activities of benefit to Australia (s 22A(1)(a)(i) and you need to be an Australian citizen in order to engage in the activity but there is insufficient time for you to satisfy the general residence requirement;
• provide a letter from the head of certain organisation stating that you have a reasonable prospect of engaging in that activity and need to be Australian citizen to engage in that activity, and there is insufficient time for you to satisfy the general residence requirement;
• be or have been in Australia for at least 180 days in the 2 years before making the application;
• have been a PR for at least 90 days before making the application;
• have not been present in Australia as an unlawful non-citizen at any time in the 180 days before making the application;
• give the Minister an undertaking that if you become an Australian citizen, you will be ordinarily resident in Australia for 2 years after becoming a citizen and will be present in Australia for a total of at least 180 days during that 2 years. Section 34A allows the Minister to revoke your citizenship if you failed to keep your undertaking;
• your work requires you to travel regularly outside Australia;
• you have been working in that kind of work (requiring you to travel overseas regularly) for at least 2 years during the 4 years before you apply; and
• your work must be of benefit to Australia.

Australian citizenship law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you determine if you are eligible for Australian citizenship residency discretions & exemptions.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Australian citizenship residency discretions & exemptions appeared first on Ozzie Visa.

Citizenship by conferral and identity requirement – if you are applying for Australian citizenship by conferral under the Australian Citizenship Act 2007, the Department must be satisfied as to your identity pursuant to s. 24(3).

Section 24(3) states that the Department must not approve an Applicant becoming an Australian citizen unless it is satisfied of the identity of the Applicant. The decision maker in deciding whether the Applicant’s identify is satisfied, will be assisted by the Australian Citizenship Policy Statement including the Citizenship Procedural Instruction 16 and Chapter 13.

Citizenship by conferral and identity requirement – to fulfil the identity requirement, there are 3 pillars of identity to be considered and they are:

• biometrics;
• documents; and
• life story.

The term “identity’ is not defined in the Citizenship Act. However, the Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 states:

“There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.”

The Australian Citizenship Policy Statement provides at Chapter 13:

“The identify provisions prohibit the approval of a citizenship applicant in cases where the decision maker is not satisfied of the person’s identity.”

The Policy makes reference to the National Identity Proofing Guidelines 2016 which states:

“A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.”

The Citizenship Procedural Instruction 16 (Assessing Identity under the Citizenship Act) identities 3 pillars of identity: biometric, documents and life story. It also states that:

“Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.”

It also states with regard to being “satisfied of a person’s identity”:

“Reaching the point where a decision-maker is satisfied or not satisfied of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue(s) and the evidence and information has been rationally and impartially weighed.”

For the decision maker to be “satisfied”, s/he must consider whether or not s/he is persuaded on the basis of evidence of a person’s identity. What this mean is that the decision maker cannot be satisfied simply as a result of a “mere mechanical comparison of probabilities independently of any belief in its reality”. Similarly, the decision maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.

It is not just about information and documents, but its quality, plausibility and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. So, more documents do not necessarily result in better identification of a person.

It should be noted that while the production of documents to establish identity is not legally essential, however not producing requires a cogent and acceptable explanation: CDWB and WLVM v MIBP [2018] AATA 757 at [9]. In addition, failing to show positive steps in obtaining identity or supporting documents or provided an acceptable reason for not doing so, that failure will weight against an applicant: Dhayahpa and MIBP [2015] AATA 310 at [117].

To explain the citizenship by conferral and identity requirement, we will refer to the case of Karimi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1018 (26 April 2021).

Karimi arrived in Australia as an unauthorised maritime arrival on 21 December 2010. He claimed that he was born on 28 September 1977 and his citizenship was Iranian Kurd and had a Green card.

In his Unauthorised Arrival interview, he said he was born in Iraq in August 1975 and was stateless, he and his family were expelled from Iraq in 1978 and moved to IIam, Iran and did not have a Green card.

When he applied for a Protection visa he completed Form 80 (Character Assessment) he stated that he was born in Iraq on 27 May 1975.

In July 2011, Karimi requested his date of birth be changed from 27 May 1975 to 27 May 1972.

On 24 August 2015, Karimi applied for Australian citizenship by conferral stating that he was born on 27 May 1972 in Iran.

On 29 August 2018, he was granted a RRV (click here to learn more about subclass 155 visa) and departed the country on 8 November 2018. On 16 June 2019 on his incoming passenger card Karimi stated that he spent most of the time in Iran visiting friends and relatives.

The AAT noted that Karimi had provided 4 different birth dates more than 5 years apart. Karimi claimed that this was due to error of translation and calendar conversions.

The AAT said that Karimi has provided inconsistencies and implausibilities regarding his life story such as receiving payments for work done before coming to Australia. He also claimed that he had borrowed monies from his parents and brother, but no repayments were made in the last 10 years, no one has asked for him to repay yet the “debt is still in place”.

Karimi also claimed that he used fake passport to depart Iran, but the Tribunal did not accept that it was possible because all passports were checked against a computer system and there are multiple persons being responsible for the ultimate authority to board a plane. Hence, the Tribunal said many people would need to be  bribed if Karimi was to leave using a fake passport.

The Tribunal also said that it would be extremely dangerous, undesirable, difficult and even fatal for Karimi to return to Iran on his RRV. The Tribunal did not accept that Karimi’s claim that he was smuggled in and out of Iran for his visit. In addition, Karimi’s wife and children currently live in Iran as undocumented stateless persons and that they voluntarily choose to live in Iran.

More importantly, the Tribunal finds that Karimi return to a country where he claimed to fear great harm and danger, this undermines his credibility. The Tribunal finds that Karimi’s life story in this regard is implausible.

As Karimi did not provide biometric and documents, the Tribunal can only assess his “life story” pillar of the 3 pillars of identity. On balance, the Tribunal cannot be satisfied, as required under s. 24(3), of Karimi’s identity.

When completing the citizenship application or providing supporting document, it is important that you put effort into completing the task or risk refusal – click here to prevent your application being refused.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you understand Australian citizenship by conferral and identity requirement. Click here to learn about citizenship test; or click here for character requirement; or click here for residence requirements or click here for general residence requirement discretion.

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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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Domestic violence and your partner visa

Domestic violence and your partner visa – if you are on a partner visa (click here for more information on prospective marriage subclass 300 visa or offshore subclass 309 partner visa or onshore subclass 820 visa) and your relationship with your sponsor partner has broken down due to you having suffered domestic violence it is still possible for the Department to grant you a permanent partner visa (click here for more information on offshore subclass 100 visa or onshore subclass 801 visa).

Domestic violence or family violence refers to a conduct by your sponsoring partner that makes you fear for your own or your family’s safety and wellbeing. Domestic violence can be your sponsoring partner’s violent behaviour directed at you, your family (for eg, a child from your previous relationship), or pet(s), or property.

Domestic violence is a crime in Australia and you, and your family members do not have to remain in a relationship with your sponsoring partner if you fear for your or their safety in order to stay here.

What is domestic violence?

This article will help you to understand what is domestic violence and your partner visa.

Domestic violence can be physical violence against you or your family or your pet(s) and they can be:

• punching
• hitting
• kicking
• pushing
• choking
• sexual assault

Domestic violence can also be:

• verbal or emotional abuse against you or your family member, or
• your sponsoring partner’s controlling behaviour, or
• your sponsoring partner stalking you or your family member, or
• technological facilitated abuse such as abusive phone calls or messages, taking over your online account(s) or threatening to share or sharing sexual image of you without your permission or using fake online social media accounts to harass you or post bad comments about you online or using tracking or spyware to track you, or
• financial abuse such as taking money away from you or not providing you with money unless you follow your sponsoring partner’s instruction, or
• your sponsoring partner abusing your parent(s), or
• your sponsoring partner preventing you from seeing or talking to your friends or family or demanding dowry from you.

You should know that no one, including your sponsoring partner, can cancel your visa. Only the Department or the Minister has the power to refuse or cancel your partner visa.

If your sponsoring partner is on a permanent visa (click here to learn about RRV subclass 155 visa), his or her visa may be cancelled if they have engaged in domestic violence against you.

If you believe your sponsoring partner has committed domestic violence against you and you are in danger, call the Police on 000. The Police can apply for a protection order for you.

If you have experienced domestic violence you can apply for a protection order in any state or territory. A protection order granted to you will be recognised in all of Australia.

A domestic violence protection order is also known as:

• domestic violence order
• family violence order
• restraint order
• personal protection order
• intervention order
• apprehended violence order
• family violence intervention order

Domestic violence and your partner visa: What can the department do?

If your relationship has broken down or you are separated from your sponsoring partner because of domestic violence, you should contact the Department as soon as possible. The Department will work with you to resolve your visa status. However, unless you are facing immediate harm or where a child is involved, the Department will not refer the domestic violence to the police without your permission.

Domestic violence and your partner visa: Can you be granted permanent visa?

If your relationship has ended because your sponsoring partner had committed domestic violence against you or a family member while you are on one of the following temporary partner visa, the Department may grant you a permanent partner visa:

• you came to Australia on a prospective subclass 300 marriage visa and you married your sponsoring partner and applied for onshore partner subclass 820 visa, or
• you have been granted a temporary onshore subclass 820 partner visa, or
• you arrived in Australia while holding a temporary offshore subclass 309 partner visa.

Before the Department can grant you a permanent partner visa, you will be required to prove:

• if you are on a prospective marriage subclass 300 visa, you would have continued to be your sponsoring partner’s spouse if not because of your relationship breakdown, or
• if you are on temporary partner visas (subclass 309 and subclass 820), you would have continued to be your sponsoring partner’s de facto partner or spouse if not because of your relationship breakdown, and
• your relationship broke down because domestic violence was directed at you or your family member or your sponsoring partner’s family member, or your or your sponsoring partner’s property and the domestic violence took place during your relationship with your sponsoring partner.

Evidence to prove domestic violence and your partner visa

1. Judiciary or court evidence

You can provide 1 of the following court documents:

• a joint undertaking between you and your sponsoring partner, or
• a Family Law court injunction against your sponsoring partner, or
• a court order against your sponsoring partner under a state or territory law, or
• a record that the court has convicted your sponsoring partner of assault against you or your family member, or
• a record that the court has recorded a finding of guilt against your sponsoring partner of assaulting you or your family member.

• Non-judiciary or statutory declarations

You can complete form 1410 detailing details of your domestic violence incident(s) and provide 2 of the following documents with a statutory declaration.

• medical report, hospital report, discharge summary and/or statutory declaration made by a registered medical practitioner or a registered nurse identifying you as the victim, detailing the physical injuries or treatment for mental health caused by the domestic violence, and/or
• police report or record of the assault, witness statement (witness can be anyone but not you) or statutory declaration given to a police officer during the course of the police investigation identifying you as the alleged victim, identifying the person who committed the domestic violence and details of the domestic violence incident(s), and/or
• child welfare authority or child protection authority report or statutory declaration detailing fears for the child’s safety due to domestic violence in your family and identifying the person who committed the domestic violence, and/or
• social worker who is or eligible to be a member of the Australian Association of Social Workers and who has provided you with counselling or assistance and providing a statutory declaration stating their opinion that you were subject to domestic violence, the reasons for having this opinion and identifying the person who committed the domestic violence, and/or
• registered psychologist treating you and provide a statutory declaration identifying the person committed the domestic violence, their opinion that you were subject to domestic violence and the reasons for believing you are a victim of domestic violence, and/or
• family consultant appointed under the Family Law Act 1975 or a family relationship counsellor working at a Family Relationship Centre listed on the Australian Government Family Relationships website providing a statutory declaration stating that you have been treated or counselled, their opinion that you were subject to domestic violence, their reasons for believing and identifying the person who committed the domestic violence, and/or
• school principal or school counsellor providing a statutory declaration stating that they have made, or been made aware of, observations that are consistent with your claims of having experienced domestic violence, identifying the person who committed the domestic violence and detailing their observations.

Click here to learn more about family violence and how to obtain a permanent visa or click here to learn more.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help understand domestic violence and your partner visa.

041 222 402 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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Permanent residence visa cancellation – the Department has the power to cancel a permanent residence visa (click here to learn more about Subclass 155 RRV) for a number of reasons.

Permanent residence visa cancellation can be mandatory or “automatic” if you failed the character test under s. 501. What this mean is, the Department will proceed with your permanent residence visa cancellation then notify you. You will be given an opportunity to convince the Minister (the Department) why the cancellation should be revoked.

Permanent residence visa cancellation can be discretionary if you, for example, provided incorrect information or answer in a visa application under s. 109. In this case, the Department will provide you with a Notification of Intention to Consider Cancelling (NOICC) your permanent residence visa. If you received a NOICC, you explain to the Department why your permanent residence visa should not be cancelled.

This article will only discuss mandatory permanent residence visa cancellation (click here to learn more about discretionary permanent visa cancellation).

Mandatory permanent visa cancellation

If you are serving a 12 month or more jail term, the Minister will cancel your permanent residence visa under s. 501(3A) before informing you that you may request the Minister to revoke the cancellation under s. 501CA(4). The Minister may revoke the cancellation if you make representations and the Minister is satisfied that you pass the character test (as defined in s. 501(6)). If you failed the character test, the Minister must consider if there is another reason why the cancellation should be revoked (s. 501CA(4)(b)).

If the Minister refused to revoke your permanent residence cancellation, you can apply to the AAT. The Tribunal is required by s. 500(6L)(c) to publish its decision within 84 days.

Direction No. 79 – ‘another reason’

The principles of Direction No. 79 emphasise the fact that entry into, and the right to remain in Australia is a privilege and that you are expected to abide by the law and not cause harm to the Australian community. Non-citizens who commit serious crimes should generally expect to be denied the privilege of entering or remaining in Australia and that Australia has a low tolerance of serious offending by those who only have participate in, and contribute to, the community for a short period of time. Credit is given to those who have made a positive contribution to the community, especially over extended periods of time, and that the impact on minor children and immediate family members of your forced removal.

Crimes against women, children or vulnerable members of the community are identified as being of a particular serious character.

Direction No.79 primary considerations are:

• protection of the Australian community from criminal and other serious conduct;
• the best interests of minor children in Australia; and
• expectations of the Australian community.

Whether your permanent residence visa cancellation will be revoked depend, among others, the nature and seriousness of your conduct and the risk to the community if you were to commit further offences.

“Other considerations” may include:

• international non-refoulement obligations;
• strength, nature duration of ties;
• impact on Australian business interests;
• impact on victims; and
• extent of impediments if removed.

In considering whether your permanent residence visa cancellation should be revoked, the Tribunal must determine whether or not ‘another reason’ exists as set out in ministerial Direction No. 79.

Direction No. 79 lists 3 ‘primary’ and 5 ‘other considerations’ which must be addressed by the Tribunal. You should note that “primary” considerations are not necessarily given more weight than “other” considerations (Suleiman v MIBP [2018] FCA 594 [23]-[26]; Minister for Home Affairs v HSKJ [2018] FCAFC 217 [24] and [37]. The Tribunal has absolute discretion regarding the ‘choice of, and weight given to’ the material (Aporo v MIAC [2009] FCAFC 123 at [45]. The Tribunal is entitled to accept or reject weight to be given to the evidence (Lee v MIMIA [2005] FCA 464 at [27]). The weighing of various pieces of evidence is a matter for the Tribunal (MIAC v SZJSS [2010] HCA 48 at [33].

Evidence to support revocation of permanent residence visa cancellation

• Clinical psychologist’s report with tests (e.g., psychometric)  that determine the probability of your reoffending, factors (e.g. your age, gender, marriage, children, social ties, accommodation, employment, type of offence and your prison sentence) that are protective against your reoffending, impact of your deportation on yourself and your family.
• Character statements from friends, colleagues, supervisor who are aware of your offending
• Sentencing Judge’s remarks, whether your offending is at the bottom range of objective seriousness, whether you have demonstrated contrition and remorse, whether you are a willing or reluctant participant in the criminal activities, whether you have a low risk of reoffending (recidivism), whether you have a good prospect of rehabilitation, whether there are any special circumstances such as children, whether you are a person of good character before offending.
• The impact of the harm caused by your offending to the victim and the community
• Indication of any trend of increasing seriousness of your offending

The question of the risk of reoffending (recidivism) must be addressed by consideration of what expect opinion is (Vu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2876 (13 August 2020) at para 70).

The starting point is the remarks by the sentencing Judge (e.g. what motivate you to commit the offence, whether you voluntarily or forced to commit the offence, whether you had shown remorse and contrition, and your prospect of rehabilitation).

Next, the assessment made by the officer of Corrective Services (usually given to the Court as a sentencing assessment) detailing, among others, your character and behaviour while in custody.

The next expert opinion is your treating clinical psychologist outlining your risk of reoffending.

You should note that the decision-maker is “not under an obligation to evaluate in any particular way the risk of harm to the Australian community” of you reoffending (Coker v MIBP [2017] FCA 929 at [58] and [62]). And there is no “prescribed formula” which a decision-maker must follow in this regard (BSJ16 v MIBP [2017] FCAFC 78 at [43]).

In deciding whether to revoke your permanent residence visa cancellation, the decision-maker has to take into consideration the best interests of minor children in Australia.

Best interests of minor children in Australia

The decision-maker must make a determination about whether the revocation of your permanent residence visa cancellation is or is not in the best interests of the children (can be your children or children of your relatives), where they are or would at the time when the decision is made, be under 18. If you have more than 2 children, the best interests of each child should be given individual consideration, to the extent that their interests may differ (VKTT v Minister for Home Affairs [2019] FCA 1018 at [22]; Minister for Home Affairs v Stowers [2020] FCA 407 at [60]).

You should provide evidence (e.g. letters or statements) that you have played any significant part in the children’s development, care or upbringing. And you should highlight any significant differences (e.g. social [health and education services], political and economic) between Australia and your home country.

Often the best interests of a small children are sufficient to tip the balance for the decision-maker to revoke the cancellation of your permanent residence visa (Vu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2876 (13 August 2020) at [120]).

Expectations of the Australian community

It is important to know that it is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a ‘primary consideration” (FYBR v Minister for Home Affairs [2019] FCAFC 185 at [67]). In short, it is not the decision-make who makes an assessment of community values on behalf of the community. Community expectations are simply, and informally expressed as “if you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive. What this mean is that, if you committed serious criminal fences giving rise to character concerns should have your visa application refused or cancelled. If you have committed a serious offence, the expectations of the Australian community weigh against you. Community expectations are not necessarily punitive or seem to be punishing you a second time for a crime that you have already paid a price by been imprisoned (Waits and MIMIA [2003] AATA 1336 at [36]).  Usually people should be given a second chance and a chance at rehabilitation is something which is quintessentially Australian (Dang and Minister for Home Affairs (Migration) [2018] AATA 2095 at [91]).

However, it is a matter for the decision-maker to assign the weight to that negative conclusion that he or she sees fit. Nevertheless, the community has a low level of tolerance for criminal offending behaviour which is to be balanced against being given a second chance. Often the expectations of the Australian community will only be given marginally against the revocation of your permanent residence visa cancellation.

Other considerations

You should note that “other” considerations are not taken as “lesser” but rather simply as “non-primary”.

Other considerations often include, but not limited to:

• International non-refoulement obligations
• Impact on Australian business interests;
• Impact on victims.

Strength, nature and duration of ties

You should emphasize and describe the time you have spent in Australia. If you were to argue the potentially negative effect upon your family members should you be deported, you must provide evidence of such impact.

Extent of impediments if deported

This is more difficult for the decision-maker to assess. Nevertheless, you should explain the difficulties you may encountered if your are returned to your home country. Losing of face if you are deported will not be given weight in favour of revoking your permanent residence visa cancellation.

What is importance is your potential separation from your children or partner if they are unable to return with you if you are deported.

Please note that Direction No 79 is replaced by Direction 90, click here to learn more.

To learn whether long-term permanent residents can be deported, please click here.

To learn more about section 501(2) visa cancellation on character grounds, click here or to learn more about section 501 refusal and cancellation of visa or PR and visa cancellation for failing the character test.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you to understand how you can prevent your permanent residence visa cancellation.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Permanent residence visa cancellation | Direction No 79 appeared first on Ozzie Visa.

PIC 4005 health requirements – what are the purposes of PIC 4005 health criteria?

• protect the Australian community from threats to public health
• contain Australian public expenditure on health and community services
• safeguard the access of Australian residents to health and other community services in short supply.

Almost all temporary and permanent visa applicants are required to satisfy the PIC 4005 health requirements. Those who apply for offshore refugee and humanitarian visas are required to satisfy PIC 4007 health criteria. Those who are in Australia applying for the Protection subclass 866 visa (click here to learn more) only need to be assessed against public health risk. Children born in Australia to non-citizens are not required to satisfy health unless travelled overseas to a higher TB-risk country for more than 6 months.

The PIC 4005 health requirements require you and each applicant in your application for a visa to be free from a disease or condition where you or they would be likely to require health or community care. If required, it must not result in a significant cost (currently the threshold is $49,000 over 5 years) to the Australian community in the areas of health care and community services regardless of whether you or they actually use them. If you are applying for a temporary visa, the Department does not take state disability services into account as temporary visa holders are unable to access these services.

The MOC (Medical Officer) will assess whether your or their disease or condition would likely to prejudice the access of Australians to health care and community services that are in short supply. Prejudice to access will occur if a hypothetical person with the same condition and severity would likely to result in a significant cost to the Australian community in health care and/or community services that are in short supply. For eg:

• organ transplants; and
• dialysis

PIC 4005 Health Requirements – Do Not Meet

Factors cannot be considered to mitigate PIC 4005 health requirements

• Will choose not to use available services
• Costs will be met through a variety of alternative means such as savings, reciprocal health care agreements or having comprehensive health insurance
• Bringing own supply of medication or travelling with a carer
• Someone else will cover the costs (eg, a foreign government)
• Family members will be caring for them or providing support
• The services required are not available in particular locations in Australia.

This is because there is no way any of the above intention can be legally enforced once the (especially permanent residence) visa is granted.

PIC 4005 health requirements waiver

There is no PIC 4005 waiver. But there is a waiver for PIC 4007.

PIC 4005 must be met through a health clearance before the visa is granted. It the health outcome is a “Does Not Meet”, you have not met the PIC 4005 health requirements and the visa cannot be granted.

If you or a non-migrating family member fails to meet the PIC 4005 health requirements for the visa, there is no provision for a health waiver.

Visas with no PIC 4005 health requirements

• Maritime Crew Class ZM Subclass 988 (click here to learn more)
• Resident Return Class BB Subclass 155 (click here to learn more)
• Resident Return Class BB Subclass 157
• International Relations Class GD Subclass 403 (click here to learn more)
• Diplomatic Class TF Subclass 995 (click here to learn more)
• Special Category Class TY Subclass 444 (click here to learn more)
• Special Purpose visas
• Protection Visa (only require to undergo medical exams)

Who are exempted from PIC 4005 health requirements

• heads of state
• royals
• religious or spiritual heads
• partner of any of the above who are over 75
• DFAT supported
• ETA holders

Visa cancellation on health grounds

If you are granted a visa and arrived in Australia, your visa can be cancelled under s 116 (click here to learn more). However, visa cancellation on health grounds must be evidence based, and your presence in Australia is, or would be, a risk to the health, safety or good order of the Australian community. There must be evidence that you have, for eg, TB must be presented and not basing on a suspicion.

HIV and Hepatitis B are not threat to public health, therefore cannot warrant a cancellation.

Migration Regulations. Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you understand the PIC 4005 health requirements.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post PIC 4005 health requirements | Facts about PIC 4005 appeared first on Ozzie Visa.

s501 Apply To Protection Visa applicants? Unless you have been convicted of a particular serious crime, you cannot be regarded as someone who may pose a danger to the Australian community. The Department of Home Affairs should assess your Protection subclass 866 visa application according to the criteria (click here to learn how to apply for a subclass 866 protection visa). In short, the character test requirement in PIC 4001 and section 501 may not apply to you.

Who is a refugee?

A refugee who has a nationality is someone who is outside their home country due to a well-founded fear of persecution, is unable or unwilling to seek the protection of that country. However, s/he must not have committed a crime against peace, a war crime or a crime against humanity; or has not committed a serious non-political crime before entering Australia; or has been guilty of acts contrary to the purposes and principles of the UN.

What is a well-founded fear of persecution?

A well-founded fear of persecution requires that (i) effective protection measures are not available in a receiving country; (ii) the reason for the fear must involve serious harm (including a threat to his or her life or liberty, or significant physical harassment or significant physical ill-treatment to the person; and (iii) the persecution must involve systematic and discriminatory conduct.

Unlawful non-citizen must be deported

Section 197C provides for a non-citizen to be removed under s 198 irrespective of whether there has been an assessment of Australia’s non-refoulement obligations.

Section 198(2A) provided that if the Minister personally made a decision under s 501 to refuse to grant a visa, and subsequently the unlawful non-citizen has not made a valid application for a substantive visa while in the migration zone, the unlawful non-citizen must be removed as soon as reasonably practicable.”

Section 501 provides for refusal or cancellation of visa on character grounds, including not passing the character test if there is a risk that the person would represent a danger to the Australian community or a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, in violence threatening harm to, that community or segment, or in any other way (s501 apply to protection visa?).

PIC 4001

In most visas, the applicant must satisfy the PIC 4001. To satisfy PIC 4001, the applicant:

• passes the character test; or
• there is nothing to indicate that the person would fail to satisfy the Minister that s/he passes the character test; or
• the Minister decided not to refuse to grant a visa despite reasonably suspecting that the person does not pass the character test; or
• the Minister has decided not to refuse to grant a visa despite not being satisfied that the person passes the character test.

Do PIC 4001 & s501 apply to protection visa applicants?

In the case of BAL19 v Minister for Home Affairs [2019] FCA 2189, the applicant is a Sri Lankan citizen of Tamil ethnicity arriving in Australia on 20 March 2010 and has been in immigration detention ever since. He had been involved with the LTTE for 10 years from the age of 16. The Department accepted that if he was to be returned to Sri Lanka, would face a well-founded fear of persecution at the hands of the Sri Lankan Security Forces and paramilitary groups. The Minister accepted BAL19 was a refugee within the meaning of ss 5H and 36(2)(a).

The Minister accepted that BAL19 had been diagnosed with a number of complex health issues and mental conditions (both in Sri Lanka and Australia). The Minister further accepted that if BAL19 was granted a visa he would be supported by doctors, family and friends, and his behaviour may improve. However, the Minister still had concerns about the risk that his serious mental health issues might continue to pose. In short, the Minister said there is still a risk that he would represent a danger to the Australian community by becoming involved in activities that are disruptive to, or in violence threatening harm to the Australian community. For this reason, the Minister found that BAL19 had not satisfied him that he passed the character test by virtue of s 501(6)(d)(v) as the risk posed by him to the Australian community is unacceptable.

The Minister accepted that Australia has international non-refoulement obligations and deporting BAL19 back to Sri Lanka would breach those obligations. In short, BAL19 would be subject to indefinite detention as he cannot return to Sri Lanka and has no rights to enter any other country (NKWF and MIBP [2017] AATA 813). The Minister acknowledged that BAL19’s continuing immigration detention was arbitrary and inconsistent with Article 9 of the International Covenant on Civil and Political Rights.

The Department of Home Affairs refused to grant him a temporary protection Subclass 785 visa due to PIC 4001 (does not pass the section 501 character test; s 65(1)(iii) – grant of the visa is not prevented s 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by MOFU), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision): s 65(1(iii)) even though Australia owed him non-refoulement obligations.

BAL19 argued that he had satisfied the criterion in section 36(1C) (he is not a danger to Australia’s security; or have not been convicted of a particular serious crime and is a danger to the Australian community) and the Department had found him to be a refugee. Furthermore, asylum seekers will not be removed in breach of any non-refoulement obligations identified in any earlier processes. In addition, the Minister must also consider the human consequences of his removal can bring about (Hands v MIBP (2019) 364 ALR 423 at 424 [3], Allsop CJ).

BAL19 was put in a Catch 22 situation because he could not return to his home country as he is a refugee (ss 5H and 36(2)(a)) but the Minister would not grant him a visa (including under s 195A or s 48B) due to the risk he poses to the Australian community (s 501(6)(d)(v)) and he had to be detent indefinitely in immigration detention as he could not be refouled.

The Court said that a criterion in s 36(1C) for a Protection visa was (i) a person who had not been convicted of a particularly serious crime here or overseas was eligible for the grant of the visa and, (ii) even a person had been convicted of such a crime was eligible, unless the Minister also considered, on reasonable grounds, that the person was, in fact, a danger to the Australian community. What this mean is that the Minister had to engage in an active intellectual process in deciding whether any reasonable or rational change could occur to BAL19’s circumstances and the risk that the Minister found he posed in the period allowed b ss 197C and 198 so that the Minister can lift the bar under ss 48B or 195A and, to grant or refuse him any other visa (CAR15 v MIBP [2019] FCAFC 155. The Court also said that the Minister had to act in each of those respects according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself (Graham v MIBP (2017) 263 CLR 1.

Have you been convicted of a serious crime?

Section 36(1C) is not a discretionary (but a mandatory) power (at 63) because the Minister must, under s 36(1C)(b), have objectively reasonable grounds to consider that a person, (i) has not been convicted of a particular serious offence and, (ii) is not a danger to the Australian community. The criterion in s 36(1C)(b) required the existence of reasonable grounds for the Minister to consider that the person was actually (as opposed to the criterion in s 501(6)(d)(v) of there being a risk that s/he would represent) a danger to the Australian community, and that could occur only in the context of the Minister having reasonable grounds to consider that the person had been convicted of a particularly serious crime.

The Court said that the Minister’s duty required him to engage in an active intellectual process and to reason through the inevitable consequence of his findings that the potential harm that could occur by granting the applicant a visa is so great that any likelihood of granting the visa would represents a significant risk to the Australian community and that this risk was unacceptable.

The Minister had to address the inevitable consequence of his assessment of risk posed by BAL19, if he were to refuse to grant the visa under s 501(1), and that BAL19 would have to be refouled as soon as reasonably practicable in accordance with ss 197C (Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under s 198) and 198 (Removal from Australia of unlawful non-citizens) because there was not reasonable basis on which the grant of any other visa could occur having regard to that assessment of risk.

If you have not been convicted of a serious crime, PIC 4001 and s501 do not apply to protection visa applicants.

The Court in BAL19 concluded that the Minister’s decision was affected by jurisdictional error because (s501 does not apply to protection visa):

1. he did not approach the exercise of the discretion under s 501(1) on the basis that a refusal would have the legal or practical consequence of refoulement (as the direct and immediate result) that ss 197C and 198 mandated, in spite of Australia’s non-refoulement obligations owed to him;
2. he acted unreasonably (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; and
3. he did not address the correct question, namely what would happen to BAL19 (ie the legal or practical consequence) if the visa were not granted because of the “unacceptable” risk that the Minister found and, as must then happen, BAL19 was returned to Sri Lanka where, the Minister also found, there is a real chance that BAL19 would be persecuted as a person who had been involved with the LTTE for 10 years.

The particular importance of s 36(1C)(b) is, if a person whom the Minister does not have reasonable grounds to consider had been convicted of a particular serious crime, was eligible to be granted a protection visa, regardless of the danger s/he may be to the Australian community. The purpose is to ensure that such as person would not be refouled (subject to s 36(1B), (1C)(a) and (2)) despite the danger s/he may be to the Australian community, because that person, in those prescribed circumstances, consistently with Art. 33(3) of the Refugees Convention, was not be exposed to the real chance of persecution of which s/he had a well-founded fear (BAL19 at [65]). Hence, s 36(1C)(b) is enlivened if BAL19 has been convicted by a final judgment of a particular serious crime. The Minister can only act under s 36(1C)(b) if facts exist which are sufficient to induce a reasonable person in the position of the Minister to consider that the applicant for the protection visa has been so convicted and also is a danger to the Australian community.

Whereas s 501(6)(d)(v) provided that a person did not pass the character test if there were a risk s/he would represent a danger to the, or a segment of the, Australian community. That criterion operated by reference to the existence of a risk that the person would represent a danger to the whole, or a segment of the, Australian community without any additional qualification of a past conviction or the existence of reasonable grounds to consider the existence of the risk.

Section 36 does not provide that an applicant for a protection visa who satisfies the criteria in s 36(1B), (1C) and (2) may nevertheless be refused the visa under s 501(1). Similarly, s 197C does not apply as it would put Australia in breach of its international obligations under Arts 32 and 33(2) of the Refugees Convention.

It should be noted that s 501F provides that if the Minister makes a decision under s 501, 501A, 501B or 501BA to refuse to grant or cancel a visa, then all other visas, and applications for a visa, are taken to have also been refused or cancelled at the same time, except if the other visa, or application, is or is for a protection visa (or other prescribed visa).

The Court opined that PIC 4001 is broader than s 36(1C) and is inconsistent with s 36(1C) (BAL19 at [86]). Section 501(6)(d)(v) and PIC 4001 is inconsistent with the specific criteria for a protection visa in s 36(1C). Click here to learn more about the whether protection visa applicants are required to satisfy character.

Section 36(1C) is a specific criterion applicable only to an applicant for a  protection visa and it precludes the Minister using s 501(1) (BAL19 at [88]).

The application for the protection visa must be assessed in accordance only with the mandatory criteria in s 36 (and the 866 Sch 2 clauses) and the Minister cannot refuse the grant of the visa under s 501(1) or any other provision in Pt 9 of the Act. Hence, PIC 4001 and s501 does not apply to protection visa applicants.

Please note that BAL19 has been overturned by KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 [2020] FCAFC 121.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you determine if s501 apply to protection visa applicants.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post s501 Apply To Protection Visa? | Character Test appeared first on Ozzie Visa.

Australian citizenship by birth – children born before 20 August 1986 acquired Australian citizen by simply using their birth certificate issued by an Australian Registry of Births, Deaths and Marriages. This is enough to confirm you are an Australian citizen provided your parents were not in Australia as foreign diplomats or consular officers at the time of your birth.

Australian citizenship by birth : section 12

If you are born in Australia on or after 20 August 1986, you are an Australian citizen by birth if one of your parents was an Australian citizen or permanent resident. However, you will need to provide your parent’s birth certificate showing him or her was born in Australia before 20 August 1986. Or his or her Australian citizenship detailing their acquisition of citizenship before your birth.

If both of your parents are not Australian citizens or PRs at the time of your birth but you have lived in Australia for at least 10 years, you may still be entitled to Australian citizenship (click here to learn more).

Obtaining evidence for Australian citizenship

You can apply for evidence of Australian citizenship if one of the following applies:

• Born in Australia before 20 August 1986 and is an Australian by birth
• Born in Australia on or after 20 August 1986 and at least one parent was an Australian citizen or PR at the time of birth
• Born in Australia on or after 20 August 1986 and spent the first 10 years in Australia
• Previously issued with an Australian citizenship certificate (including being listed on a parent’s citizenship certificate) and is seeking to replace it
• Previously issued with an extract which showed your registration as an Australian citizen by descent
• A PR and adopted in Australia on or after 22 November 1984 and became an Australian citizen
• Born in the former Australian Territory of Papua before 16 September 1975 and retained your Australian citizenship
• Born outside Australia before 26 January 1949 to a father who was born in Australia, and you arrived in Australia before 1 May 1987 and acquired Australian citizenship

Eligibility for Australian citizenship certificate

Having an Australian citizenship certificate shows you are n Australian citizen. You can apply to get a certificate or replace one that has been lost, destroyed or damaged.

To be eligible for an Australian citizenship certificate, you must be:

1. Born in Australia between 26 January 1945 and 5 May 1966 and your father must be an Australian citizen and not a foreign diplomat
2. Born in Australia between 22 November 1984 and 19 August 1986 and at least one of your parents was an Australian citizen or PR and one of your parents must not be a consular officer of a foreign country or was entitled to diplomatic privileges and immunities
3. Born in Australia on or after 20 August 1986 to at least one parents who was an Australian citizen or PR when you were born.
4. Born in Australia on or after 20 August 1986, and you were ordinarily resident in Australia for the first 10 years after you were born. You do not need to be in Australia on your 10^th birthday, if you meet the other requirements. Your parents must not be foreign diplomats as you would not have been ordinarily resident in Australia
5. Previously issued with a citizenship certificate or extract because you have lost the original certificate, or you were a child on your parent’s citizenship certificate, or you applied for and became a citizen by descent
6. Born in the former Australian Territory of Papua before 16 September 1975 and did not lost your Australian citizenship when PNG achieved independence on 16 September 1975 or acquired PNG citizenship by making a Declaration of Loyalty to PNG.
7. Adopted in Australia on or after 22 November 1984. You must be adopted under a law of an Australian state or territory, or adopted by an Australian citizen on or after 22 November 1984, or you were a PR in Australia at the time of your adoption
8. Born in Australia to NZ parents:
9. born between 26 January 1949 and 19 August 1986 to NZ parents who were not a diplomat, consular officer or entitled to diplomatic privileges and immunities
10. born in Australia between 1 September 1994 and 26 February 2001 and at least one of your parents as ordinarily resident in Australia held a permanent resident visa, SCV 444 or Special Category visa as an airline crew member or airline positioning crew member at the time of your birth. You were not an Australian citizen at birth if one of your parents:

            * held a special purpose visa on a different basis; or

            * was a diplomatic representative of NZ; or

            * the spouse or dependent child of a diplomatic representative of NZ

       c. born in Australia on or after 27 February 2001 and at least one of your parents held a permanent residence visa

       d. born in Australia on or after 27 February to NZ parents present in Australia on a SCV 444 if at least one of them:

            * was in Australia on 26 February 2001; or

            * had been in Australia for a period, or periods that total at least 1 year in the 2 years immediately before 26 February 2001; or

            * had been issued with a Centrelink certificate stating that they were resident in Australia on a particular date.

xi.        Born in Australia before 26 January 1949 and were a British subject on 25 January 1949 unless your father was a foreign diplomat.

x.         Born in New Guinea before 26 January 1949 and you were a British subject on 25 January 1949.

xi.        British subject born outside of Australia before 26 January 1949 and you were:

            * a British subject on 25 January 1949 and lived in Australia for the 5 years from 26 January 1944 till 25 January 1949, or

            * born to an Australian father and you entered Australia before 26      

              January 1949 on an unrestricted basis or were granted PR in             

              Australia before that date, or

            * a woman who was a British subject on 25 January 1949 and married an Australian before 26 January 1949, and you entered Australia and were granted a PR before 26 January 1949, or

            *  born in New Guinea and were a British subject on 25 January 1949.

Assessment of claimed Australian citizenship by birth

If the Department of Home Affairs or Australian Passport Office is not satisfied that one of your parent who is an Australian citizen or PR is your parent at the time of your birth, you will be invited to undertake deoxyribonucleic acid (DNA) testing. This is not mandatory but is a useful mean to establish a biological relationship when documentary evidence such as birth certificate is not sufficient to show the parent-child relationship.

If you decided to provide a DNA testing result, you will need to complete Form 1526 DNA Consent declaration. By completing this form, you are agreeing to disclose your information to the Department.

In addition, you are also required to complete Form 1527 and Form 1528.

DNA testing centres

The followings are Australian based laboratories for DNA testing:

i).         NSW

• DNA Labs (1300 663 244 or 02 9855 5369)
• International Biosciences (02 9098 8450)

ii).        Queensland

• DNA QLD (1300 172 837 or 07 3054 4302)
• Easy DNA (1300 482 165)
• Identilab (1300 114 294)

iii).       Victoria

• DNA Solutions Pty Ltd (1800 000 362 or 03 9800 1550)
• Genomics Diagnostics (1800 822 999 or 03 9918 2020)
• Insight Genomica (1800 436 663)

Other alternative evidence to prove parent-child relationship

If you choose not to provide DNA testing, you may provide any other evidence that can demonstrate the parent-child relationship at the time of your birth.

You can provide the following (but is not limited to):

• Evidence to show your Australia citizen or PR parent is named as a parent on your birth certificate and was included with their prior consent;
• Evidence to show your Australia citizen or PR parent was involved in providing care for you and/or your mother during the pregnancy. This can include, for e.g., emotional, domestic or financial support, making arrangements for your birth and prenatal and postnatal care; and
• Evidence that you have been acknowledged socially from or before birth as your Australian citizen or PR’s child. This can include you have been presented to your parents’ family and social groups as being their child.

There are 7 ways you could lose your Australian citizenship, click here to learn how.

A child abandoned in Australia could also acquire Australian citizenship, click here to find out how.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you determine if you are able to obtain Australian citizenship by birth.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Australian citizenship by birth | How to obtain evidence appeared first on Ozzie Visa.

Australian Visas & Visa Fees – the table below shows all the currently available visas and the visa fee or visa application charge (VAC) applicable to each of the visa. VAC will be revised at least once a year, on 1 July of each year.

The Migration Act 1958 regulates, in the national interest, the coming into, and the presence in, Australia of non-citizens: s 4(1). The Migration Act 1958 provides for visas permitting non-citizens to enter or remain in Australia on the basis that the Australian Parliament intends that this Act be the only source of the right of non-citizens to enter or remain: s 4(2).

An Australian visa is a grant of permission to a non-citizen to either travel to and enter Australia, to remain in Australia or to do both: s 29(1). A visa to remain in Australia may be permanent visa or it may be temporary visa: s 30. The Act provides for different classes of visas. A visa can be of a class provided for by the Migration Regulations 1994 made under the Act (s 31(1)) or to be provided for by a section of the Act (s 31(2)). For eg, the Act directly provides for permanent protection visas (s 35A(2)), temporary protection visas (s 35A(3) and safe haven enterprise visas (s 35A(3A)). Each of those classes of visa is defined by s 35A to be a ‘protection visa’. That provision also identifies that the criteria for a protection visa is that set out in s 36 together with any relevant criteria prescribed by the regulations for the purposes of s 31 (s 35A(6)). Section 36 then sets out the criteria for a protection visa (KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 at [15]).

A non-citizen who wants a visa must apply for a visa of a particular class: s 45(1). The requirements for a valid visa application are set out in s 46 and include that it be an application for a visa of a class specified in the application: s 46(1)(a).

Section 47 imposes on the Minister a duty to consider a valid application for a visa (s 47(1)), and a corresponding duty not to consider an application for a visa that is not a valid visa application (s 47(3)). That duty continue, subject to exceptions (such as visas quota filled: s 39 or consideration suspended: s 84), until a decision to grant or refuse to grant the visa (s 47(2)(b)) in the performance of a complementary duty imposed by s 65 (for eg satisfying the health criteria, if any and the other visa criteria, and the grant of the visa is not prevented by s 40 (circumstances when granted) or s 91W (evidence of identity and bogus documents) or s 91WB (applications of protection visas by members of same family unit) or s 500A (refusal or cancellation of temporary safe haven visas) or s 501 (special power to refuse or cancel) or others). What this mean is that satisfying the visa grant criteria is not necessary enough for the visa to be granted. The visa applicant must also satisfy s 65. It should be noted that ss 91W, 91WA and 91WB apply only to protection visas.

Most Australian visas have visa conditions attached to the visa (click here to learn more).

Australian Visas are categorised by Class and Subclass. A subclass is the visa number and some visa subclasses may come under 1 Class, for eg, in Class TU there is subclass 500 (Student) visa and subclass 590 (Student Guardian).

As a general rule, when applying for most Australian visas while you are in Australia, the Department of Immigration (Department of Home Affairs) will grant you a bridging visa (BV) to allow you to stay in the country until the visa application is finally determined.

If you are in Australia and your visa was cancelled or your visa application was refused, you may be prevented from applying for most visa. This is known as “section 48 bar” (click here to learn more about section 48 bar).

You can only apply for some Australian visas if you are in Australia (Onshore) while other visas require you to be outside of Australia when lodging the application (Offshore).

If you holds an APEC card, you do not need a visa to enter Australia (click here to learn more).

The below are currently (1 July 2021) available Australian Visas & Visa Fees (VAC: Sch 1). Click on the subclass to learn more.

Click here to learn if you can apply for more than 1 visa at the same time.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you understand Australian Visas & Visa Fees or to decide which is the best visa for you.

O41 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Australian Visas & Visa Fees | Which Visa Is For You? appeared first on Ozzie Visa.