Migration and Refugee Law and Policy Trimester 3 2018

MLL394 – Migration and Refugee Law and Policy

Trimester 3 2018 – Exam Notes

Visa Checklist ... 3

Citizenship ... 5

Constitutional law ... 8

International law ... 10

Applying for a visa ... 16

Common Entry Criteria (PIC) ... 19

Character Test ... 20

Health Criteria ... 23

False / Misleading Info (PIC) ... 26

Partner Visas ... 28

Indicia of Marriage / Partnership ... 31

Child Visas ... 34

Parent Visas ... 37

Other Relatives visas... 40

Skilled Migration requisites ... 43

Skilled Visas ... 49

Employer Sponsored visas ... 52

Business visa ... 55

Working Holiday visa ... 57

Student visa ... 59

Visitor Visa ... 61

Refugee Criteria ... 62

Protection Visas ... 66

Visa Cancellation ... 71

Considerations 4 cancelling visas ... 77

Regularizing unlawful status... 73

Bridging Visas ... 75

Deportation PR ... 76

Merits Review ... 78

Judicial Review ... 86

Topic 5 – Family Migration

- Right to marry/family is a fundamental human right (Art 23, ICCPR) and domestic politics have made government reluctant to place too many restrictions on partner reunions.

- Partner & dependent children visas receive special treatment as these classes are demand driven & cannot be capped (see Migration Act ss 85-91) - Visas granted to parents are subject to capping. There’s discretion to impose

a quota on Aged Dependent Relative, Remaining Relative and Carer visas - You can include the following types of family members in your application:

spouses, de-facto partners, dependent children and other dependant family members (e.g. parents who live with you and are financially dependent)

Partner Visas

Offshore Applications:

Subclass 309 (Partner (Provisional)) visa

• Remains valid until decision is made on PR partner visa (usually two years)

• Applicant must be outside Australia at the time of grant (cl 309.412)

• Applicant must be spouse or de facto partner of an AUS citizen/perm resident (cl 309.211(2)) OR intend to marry AUS citizen/perm resident (cl 309.211(3))

- If spouse, marriage must be valid under Australian law (legal age for marriage is 18 as of right, and 16 with a court order)

- If de facto, must have been in de facto r/ship for at least 12 months

• Applicant must be sponsored by spouse or de facto partner, if they are over 18;

OR parent/guardian of spouse, if they are under 18 (cl 309.213)

• Applicant must satisfy PIC 4001, 4002, 4007, 4020 (cl 309.225)

• Each family member of the applicant must satisfy PIC 4001, 4002, 4007, 4020 (cl 309.228)

• After provisional period, the 309 visa holder may be eligible for a Partner (subclass 100) permanent residence visa: Sch2 r100.111

• Secondary criteria (for family members): Must be a member of the family unit of holder of subcl 309 visa (cl 309.321) and must satisfy PIC 4002, 4007, 4020 (cl 309.323)

Subclass 300 (Prospective Marriage) visa

• Applicant must be outside Australia when visa is granted (cl 300.412)

• Applicant must intend to marry an Australian citizen/perm resident (cl 300.211)

• Applicant must be over 18 (cl 300.212A)

• Applicant must be sponsored by the prospective spouse (cl 300.213(1)) who is also over 18 (cl 300.213(2))

• Applicant and prospective spouse must have met in person since each of them turned 18 (cl 300.214(1)) and be known to each other personally (cl 300.214(2))

• Applicant must establish that the parties genuinely intend to marry (cl 300.215(a)) within the visa period (cl 300.215(b)) – i.e. 9 months

• Minister must be satisfied that the parties genuinely intend to live together as spouses (cl 300.216)

• Must satisfy PIC 4001, 4002, 4006, 4020 (cl 300.223)

• Note: visa holder required to marry their Australian sponsor within 9 months.

After applicant has married the AUS citizen/perm resident, they are eligible for the subclass 820 visa (see cl 820.211)

• Secondary criteria (for family members): Must be a member of family unit of holder of subclass 300 via (cl 300.321) and Must satisfy PIC 4001, 4002, 4007, 4020 (cl 3002.323)

Subclass 100 (Partner (Permanent) visa

• Must be outside Australia when visa is granted (cl 100.411)

• Must hold a subcl 309 visa (cl 100.221(2)(a))

• Must be the spouse or de facto partner of the sponsoring partner (cl 100.221(2)(b))

• Must have been in Australia for 2 years (cl 100.221(2)(c)), however, exceptions:

- Sponsoring partner has died (cl 100.221(3)(b)) and the applicant satisfied the Minister that they would have continued to be the spouse/de facto partner of the sponsor (cl 100.221(3)(c))

- The relationship has ceased (cl 100.221(4)(b)) and the applicant and/or a member of the family unit of the sponsoring partner has suffered family violence committed by the sponsoring partner (cl 100.221(4)(c)(i))

- The relationship has ceased (cl 100.221(4)(b)) and there is at least 1 child of the relationship to whom the applicant has custody of/access to (cl

100.221(4)(c)(ii))

• Must satisfy PIC 4001, 4002 4020 (cl 100.222) as does each family member

Onshore Applications:

Subclass 820 (Partner (Temporary –

^{2 years}

)) visa

➢ Applicant must be the spouse or de facto partner of an Australian citizen/perm resident (cl 820.211(2)(a))

- If a spouse, marriage must be valid under Australian law

- If de-facto, must’ve been in de facto relationship for at least 12 months

➢ Must be sponsored by spouse or de facto partner if they are over 18 (cl 820.211(2)(c)(i)) OR the parent/guardian if the spouse if the spouse has not turned 18 (cl 820.211(2)(c)(ii))

➢ Must satisfy PIC 4001, 4002, 4007 (cl 820.223)

➢ Each member of family unit must satisfy PIC 4001, 4002, 4007, 4020 (cl 820.224)

Subclass 801 (Partner (Permanent) visa

➢ Must hold a subcl 820 visa (cl 801.221(2)(a))

➢ Must be sponsored by a sponsoring partner (cl 801.221(2)(b)(i)) who is the spouse or de facto partner of the applicant (cl 801.221(2)(c)) and an Australian citizen/perm resident/eligible NZ citizen (cl 801.111)

➢ Must’ve been in AUS for at least 2 years (cl 801.211(2)(d)), however, exceptions:

- Sponsoring partner has died (cl 802.221(5)(b)) and the applicant satisfied the Minister that they would have continued to be the spouse/de facto partner of the sponsor (cl 801.211(5)(c)), and the applicant has developed close business, culture or personal ties in Australia (cl 802.221(5)(d)) - The relationship has ceased (cl 802.221(6)(b)) and the applicant and/or a

dependent child has suffered family violence committed by the sponsoring partner (cl 801.221(6)(c)(i))

- The relationship has ceased (cl 802.221(6)(b)) and there is at least 1 child of the relationship to whom the applicant has custody of/access to (cl

801.221(6)(c)(ii))

➢ Must satisfy PIC 4001, 4002 4020 (cl 100.222) as does each member of family unit of visa holder of subclass 820 visa (cl 801.311-801.321)

Legal Indicia of Marriage / Partnership

Spouse

= in a married relationship (s 5F(1) MA); married relationship (s 5F(2)) =

(a) Marriage is valid (under Australian law):

- Holland (2001) → Mrs Holland was denied a partner visa. Mr Holland was an Australian citizen but already married. He had converted to Islam and married a 2^nd time.

They had been married under Islamic law but this could not be treated as married under Australian law because of the existing marriage. Held that 2^nd Islamic marriage had no status under Australian law.

(b) Mutual commitment to shared life as husband and wife to the exclusion of all others

- If an applicant is in a polygamous relationship, they will fail to demonstrate this requirement → In Holland, couldn’t show he was validly divorced & no longer had contact with 1^st wife, so couple failed to meet exclusivity requirement

(c) Relationship is genuine and continuing (MIBP v Angkawijaya [2016]) (d) They:

(i) Live together, or

(ii) Do not live separately and apart on a permanent basis

De-facto partner

= in a ‘df’ relationship (s 5CB(1)), df relationship (s 5CB(2)) =

(a) Mutual commitment to a shared life to the exclusion of all others (b) Relationship is genuine and continuing

(c) They:

(i) Live together or

(ii) Do not live separately and apart on a permanent basis →

SZOXP v MIBP [2015]: Chinese applicant denied partner visa because he did not live with Australian partner (were devout Buddhists who would not live

together until marriage)

Held: no requirement that de facto partners need to live together before they file a Partner Visa application

(d) They are not related by family

➔ The test is whether there’s a genuine commitment to the exclusion of all others – love and affection present in a relationship is not sufficient (MIBP v

Angkawijaya [2016])

➔ The Minister must consider the following circumstances in determining whether the relationship is genuine (de factos: reg 1.09A; spouses: reg 1.15A(3)):

(a) The financial aspects of the relationship, including:

(i) Joint ownership of assets (ii) Joint liabilities

(iii) Extent of pooling of financial resources

(iv) Whether one person owes any legal obligation in respect of the other (v) Sharing of household expenses

(b) The nature of household, including:

(i) Any joint responsibility for care/support of children (ii) Living arrangements

(iii) Any sharing of housework

(c) The social aspects of the relationship, including:

(i) Whether they represent themselves to others as being in a de facto relationship/married

(ii) Opinions of friends and acquaintances about nature of the r/ship (iii) Whether they plan and undertake joint social activities

(d) Nature of the persons’ commitment to each other, including:

(i) Duration of relationship

(ii) Length of time during which they have lived together (iii) Degree of companionship/emotional support

(iv) Whether the persons see relationship as long-term one

Protective Mechanisms

Sham Marriages

= stringent penalties where;

1. Persons arranging sham marriages or de facto relationships → Penalty:

$100,000 fine, 10 years imprisonment or both (ss 240-241 Migration Act) 2. Applying for a visa (or sponsoring an applicant) on the basis of a sham

marriage → Penalty: 2 years imprisonment (s 243)

Serial Marriages

= The Minister must not approve the sponsorship of an

applicant for a partner or prospective marriage visa unless the Minister is satisfied that no more than 1 other person has been successfully sponsored previously by the potential sponsor (Migration Regulations reg 1.20J)

• If another person has been granted a visa as a result of previous sponsorship, more than 5 years must have passed since the date of application for that visa before the new sponsorship will be approved

• BUT: Minister may approve the sponsorship if the Minister is satisfied that there’s ‘compelling circumstances’ affecting the AUS sponsor (reg 1.20(2))

- Babicci [2005]: Mrs Babicci’s application for a partner visa was refused.

Husband had sponsored two former spouses so was disqualified.

Mr Babicci sought review on the grounds of compelling reasons: he was psychologically unwell and needed support; he argued that it not his fault that previous marriages failed (even though there had been family violence) Held: ’compelling’ means “to force or drive, especially to a course of action”

(dictionary definition)

Family Violence provisions

= Allows the applicant to be granted permanent residence where otherwise ineligible because the partner relationship with the Australian sponsor has ceased

➢ Apply where acceptable evidence shows that the visa applicant and/or a family member/child has been subjected to violence inflicted by the sponsoring partner, or by third party at the instigation of the sponsoring partner

➢ Sok v MIMIA: Delegate refused applicant’s permanent partner visa – not

satisfied that he was the spouse of the sponsor. Applicant then claimed that he was a victim of domestic violence at the hands of his wife and her abusive brothers.

Held: “family violence” should be interpreted in same way as in the Family Law Act; can include psychological and emotional abuse, and economic deprivation

➢ Tribunal is permitted to look at evidence of violence subsequent to application:

Ally v MIAC, ‘acceptable evidence’ includes:

o Injunction granted under the Family Law Act (reg 1.23(2)) o AVO/protection order (reg 1.23(4))

o Conviction/finding of guilt of family violence offence (reg 1.23(6))

o Statutory declaration from the applicant and from two ‘competent’ persons stating their opinion that the applicant has suffered from violence (e.g.

doctor, nurse, Director of family violence recovery centre) (see reg 1.25)

➢ NOTE: if an application for a visa includes a non-judicially determined claim of family violence and the Minster is in doubt, can seek opinion of an independent expert (reg 1.23(10))

➢ In the case law, there is a tendency to conflate domestic violence with an absence of a genuine relationship → Muliyana v MIAC:

Indian woman married sponsor in arranged marriage. When she arrived at her AUS home, her husband refused to let her in, assaulted and threated to kill her.

Tribunal ruled that the man’s behaviour indicated that he did not consider himself to be in a r/ship

Held: applicant could obtain permanent visa – did not matter whether domestic violence occurred before or after the cessation of the spousal relationship. Policy is intended to cover both situations; not force people to stay in/go back to an abusive relationship

➢ Ally v MIAC: Tanzanian national married AUS citizen; did not know that he was HIV positive until he was arrested and charged by the police for infecting two other women with HIV/AIDS

Applicant wanted to leave the relationship; argued that she should be given permanent residence because she was subjected to family violence

Held: applicant’s story was evidence of an absence of a genuine and continuing relationship; application refused

TOPIC 7: REFUGEES & HUMANITARIAN MIGRATION

Non-refoulment:

• Under Article 33 of the UN Refugee Convention, signatory states have a legal obligation not to refoul, or send back, a refugee to a country where the refugee would face persecution on one of the five Convention grounds:

• Moreover, under Article 31, refugees coming directly from a country of

persecution are exempt from being punished on account of their illegal entry or presence, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence

Refugee definition:

• Per the 1967 Protocol to the U.N. Refugee Convention, A ‘Refugee’ is: a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, or membership in a particular social group, is outside the country of his nationality, and is unable, or, owing to such fear, is

unwilling to avail himself of the protection of that country.

• However, provisions of the Refugee Convention do not confer on refugees, as individuals, any general right to invoke international law to ensure their protection:

- MIMIA v Ibrahim per Gummow J at [137]: according to customary international law, the right to asylum is a right of States, not of the individual. No individual, including asylum seekers, may assert a right to enter the territory of a State of which that individual is not a national.

• Excludes: economic migrants, people escaping natural disasters, internally displaced people, fleeing crime → incorporated into ss 5H and 5J Migration Act

‘Well-founded fear’:

• Well-founded fear = subjective element (must be afraid) AND objective element (the fear must have a rational or objective basis): MIEA v Guo (1997)

• Refugees do not bear burden of proof

• Fear can be justified in cases where the where it was unlikely that the persecution would occur on the person’s return. BUT the applicant’s fear of persecution must be justified at the time of claiming refugee status - Chan Yee Kim v MIEA (1989)

• Once a well-founded fear of persecution has been established, onus on the govt.

to show that events following the applicant’s departure are sufficient to remove

any plausible basis for the applicant’s concern Chan Yee Kim v MIEA (1989)

‘Persecution’:

1. Must involve serious harm to the person (s 5J(4)(b)), AND

‘serious harm’ s 5J(5) =

(a) a threat to the person’s life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill treatment of the person;

(d) significant economic hardship that threatens the person’s capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist

- Per Chan Yee Kim: “persecution includes ‘the infliction of suffering or harm… in a way regarded as offensive’; ‘serious punishment or penalty’; ‘significant detriment or disadvantage’, or ‘selective harassment’ directed against a person either as an individual or because of that person’s membership of a group”

- A series of acts are not needed; a single incident can suffice, it depends on the facts of the case → MIMA v Ibrahim

2. Systematic and discriminatory conduct (s 5J(4)(c) Migration Act))

MIMIA v Ibrahim^→ Persecution will ordinarily be constituted by unjustifiable and discriminatory conduct directed at an individual or group for a reason which:

- Constitutes an interference with the basic human rights or dignity of that person or the persons in the group; where the country of nationality authorises or does not stop it;

Nexus Requirement:

• If a person fears persecution, the reasons for it must be the essential and significant (s 5J(4)(a) Migration Act)

a. Race:

- Key question is whether the claimant can show that he/she fears persecution because of his/her race

- Calado v MIMA: No single test for the meaning of ‘race’ but the term connotes considerations such as: whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour; national or ethnic origins

b. Nationality:

- Calado v MIMA: nationality encompasses linguistic groups and other culturally defined collectives, thus overlapping to a significant extent with the concept of race

c. Religion:

- HCA has confirmed that it is acceptable for decision-makers to distinguish between the practice of a person’s religion (for which protection from persecution is available) and evangelistic behaviour that might attract adverse attention (which is unprotected) →NABD/2002

d. Membership of a particular group: s 5L: person will be a member of a

‘particular social group’ (other than a family) if:

- a characteristic is shared by each member of the group (s 5L(a)) and

- the person shares, or is perceived as sharing the characteristic (s 5L(b)) and - the characteristic is innate/immutable (s 5L(c)(i))

OR so fundamental to the member’s identity or conscience that the member should not be forced to renounce it (s 5L(c)(i))

OR the characteristic distinguishes the group from society (s 5L(c)(iii))

- MIMA v Zamora: Characteristic must set group apart from the wider society, such as being homosexual in Iran and must be seen from the perspective of an “objective observer” (Applicant S v MIMA (2004))

e. Political Opinion: Applicant must hold (or be believed to hold) views which are antithetical to those of the government or instrumentalities to which the

applicant is subject → Chan Yee Kim v MIEA (1989)

Excluded Situations: Prescribed situations that prevent a person from meeting the definition of a refugee

1. Safe third country: applicants who spent seven or more days in certain countries where they “could have sought” protection must have their asylum seeker applications rejected such as PNG or Indonesia → S 36(3)-(5) of the Migration Act

2. Internal Relocation: applicant will not be found to be a refugee if it would be reasonable to expect the claimant to return to another part of their country…

individual circumstances to be considered regarding what is reasonable and practicable for that person, taking into account what it is really like to live in

the place said to be safe → MZANX [2017]

3. Exclusion: For persons seeking refugee status:

- Provisions of Refugee Convention don’t apply to a person who has (Article 1F) (a) Committed a war crime/crime against humanity

(b) Committed serious non-political crime

(c) Is guilty of acts contrary to purposes and principles of the UN

- Non-refoulment obligations don’t apply to a person for whom there are reasonable grounds for regarding as a danger to the security of the country, or has been convicted of a particular seriously crime and is thus a danger to the community (Article 33(2))

- MA s 36(1C): ‘for a protection visa to be granted, Minister must not consider the person a danger to Australia’s security or to the community, having been convicted of a particular serious crime’

“Particular serious crime” = personal violence offence, serious drug offence or property damage offence that it punishable by imprisonment for more than 3 years → SZOQQ v MIAC [2013]

4. Cessation of Refugee status: when a person ceases to be a refugee, the non- refoulement provisions (Art 33) also cease to apply.. can occur if:

- Voluntarily returned home, voluntarily reacquired lost nationality, acquired new nationality that offers protection or;

- Changed circumstances in home country make return reasonable →

changes to a home country must be “substantial”, “effective” and “durable”, and of substantial political significance before changed country conditions justify ending refugee protection. Burden is on applicant seeking further TPV

Two broad ways that refugees might enter a country like Australia:

1. Refugees who are brought to Australia through a government-run program of resettlement.

2. Applicants apply for asylum on their own, “in country”. This is called seeking

“first asylum”, the first asylum seekers can arrive via boat without any visa or arrive in Australia on a visitor visa and then apply for asylum for example.