Choosing the right path

I recently came across siblings trying desperately to reunite the ‘right way’. They were separated through marriage and migration. One lived here in Australia. The other in a war torn country.

This man wanted information on how to help his sister apply for a refugee visa. His sister was in a country at war. The war had been going on for many years and the safety of his sisters and her husband and children was now at a crisis point.

The whole family had fled to a neighbouring country but were returned by the authorities. They now had no options open to them other than legitimate migration or forced migration.

Unfortunately for this family there is no legitimate migration pathway to Australia. None whatsoever. The reaction to my news was disbelief. And many questions.

After all, this man said to me:

‘I am an Australian citizen so my family should be a priority. What if I told them I am trying to stop my sister, my brother in law and their small children getting on a boat and sailing to Greece? I can write down the story of what is happening to them and I can get all the documents we need …this is legitimate’.

I had no doubts at all about the legitimacy.

I went through the visas available under Australia’s humanitarian program. The program includes a number of offshore visas that the government likes to point to as one of the most generous in the western world. These include the;

Refugee visa subclass 200,

Special Humanitarian subclass 202, and

Woman at Risk subclass 204.

For these visas, the applicant must be outside of their country and must be persecuted in their country (presumably why they fled and are now outside). Leaving aside how hard it is to meet the Convention definition of a refugee, let alone navigating the way it is defined under our migration legislation, the family was not outside their home country. They had tried to leave and have been forcibly returned. So these visas don’t apply.

In Country Special Humanitarian subclass 201 seemed like a hopeful option until the details of the visa are examined.

The visa applicant must be proposed by either an approved proposing organisation (that is willing to pay over $18,000 for the application) or a person who is now an Australian citizen or permanent resident …well this seems ok.

Except that Australian citizen must have come to Australia on the same visa (subclass 201) within 5 years of the proposal.

And of course you must be a member of the immediate family — a spouse, de-facto partner or dependent child — to be a sponsor. So siblings don’t count.

There is a good clause in this visa. It is made available for those who have been in Iraq or Afghanistan working as interpreters or in specific capacities with the Australian army. But this is not useful for this family.

In other words if you are an Australian citizen trying to sponsor a member of your immediate family to Australia you cannot do so unless you yourself where granted this particular visa less than 5 years before. If you did have a visa such as this and you want to sponsor your siblings you cannot do so because sisters and brothers are not considered immediate family.

So my client came to Australia on skilled visa 15 years ago. The country he left was not great but it was not in the crisis it is now. His parents had not been killed. His brother had not disappeared and his sister and her family were not in danger. They are now and he has no options for her.

She cannot meet the criteria for an Aged Dependent Relative, Remaining Relative, Carer, Orphan Child or Parent visa.

She does not have a Distinguished Talent, nor is she is not highly skilled and she is definitely not someone who can invest gold bullion or millions in cash.

She is a loved family member. Her family is a young one with small children. There is no doubt they need to be safe. And no doubt that because countries like Australia have closed all options to them they will try to find that safety in an unsafe way.

Marianne Dickie






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