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Visa System and Refugee Law in Australia Report (Assessment)

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Updated: Oct 3rd, 2021

The case of the German Traditionalist Catholic

To give a brief overview of the case, the German traditionalist catholic, together with his family want to apply for protection visas under Australian immigration law. They cite religious persecution as the reason to why they want to be granted with the protection visa. According to them, their religious faith does not permit them to send their children to public schools, as is the case in Australia. They want to home-school their children, but Australian educational authorities and the police would hear none of it as it is illegal, according to Australian laws to home-school children. In this perspective, the authorities and police are seeking to remove the children from their parents’ care and place them to foster homes. But the parents, alleging religious persecution, want to apply for protection visa.

For an applicant to be eligible for a protection visa in Australia, he or she must present a specific claim to be a person to whom Australia owes protection obligations under the refugees’ convention. According to Fact sheet 61 of the Australian Immigration Laws (2008), Australia is bound to provide asylum seekers who meet the United Nations definition of a refugee with protection. According to Human rights and Refugees (2008), the refugee definition was established during the 1967 protocol relating to the status of refugees and the 1951 refugee convention, to which Australia is a signatory. According to Vrachnas et al. (2005), refugees are:

  • individuals who are outside their usual country of residence or their country of nationality;
  • individuals unwilling, unable to return, or to seek protection from that country due to well-founded fear of persecution for reasons of religion, nationality, race, political opinion, or membership to a particular social group.
  • Individuals who have not committed serious non-political crimes, and are not war criminals.

Though abolished on 9th August 2008, the temporary protection visas had been introduced by the Howard government in 2002 to cater for persons fleeing from persecution. Ever since it was scrapped, individuals who now qualify for Australia protection obligations receive a permanent protection visa (Human Rights and Refugees, 2008). According to Suhad et al. (2008), the basic requirements that individuals need to meet for them to be accorded the protection visa are processed by the Department of Immigration and Citizenship (DIAC).

In the case of my German traditionalist’s friends, it is worth noting that the humanitarian Migration component, international conventions, and the laws that underpin it are greatly influenced by Australia’s obligations under international law to a larger degree than to any other area of the migration law. According to the DIAC fact sheet 68 (2008), for one to qualify for the permanent protection visa, otherwise called the Resolution of Status (RoS) (Subclass 851) visa, security, health, and character requirements must be carefully scrutinized. Apparently, these are the only requirements that individuals need to meet for them to be considered. To this extent, the German traditionalist catholic qualifies to be granted the protection visa. But does he qualify to be called a refugee according to the definitions given above? What are the ethical considerations involved in allowing the German to home-school his children, contrary to established laws?

The German is not being religiously persecuted in Germany. Rather, he is seeking protection not to be religiously persecuted by the host nation- Australia. In a layman’s language, religious persecution can be defined as the systematic maltreatment of a person or groups of persons as a response to their religious affiliations and beliefs. To this extent, the German’s fear of religious persecution is not well founded. What the German is being required of by the state agents, including the police and educationists is to follow a legally established law- that of taking his children to school rather than home-schooling them. The Life in Australia booklet, which accompanies all immigration processes, makes it clear that the Australian society respects the dignity and freedom of the individual, freedom of religion, as well as commitment to the rule of law (Application for resolution 2008). It is thus imperative for the German to adhere to the rule of law requiring that he takes his children to school or follow the laid down procedures if he want to home-school his children based on his religious convictions. According McNeil (2006), my German friend should serve notices to the relevant education authority and register with the appropriate bodies rather than hide in the mask of religious persecution.

The ethical considerations of home-schooling are that such children may never be able to adapt to Australian environment due to lack of socialization. The German must be made aware that his religious convictions can not in any way be used to deny the children a healthy relationship through undergoing the standardized schooling system in a country which respects the rule of law. Though he qualifies to get a protection visa under subclass 851 of Australia Immigration Laws, I would not certainly recommend it basically because his reasons for application are invalid.

According to Suhad et al. (2008), the General Skilled Migration (GSM) programme is basically for people who have the skills in particular occupations required in Australia but who may not be sponsored by an employer. Suhad (2008) says that all applicants to the GSM must have reached the age of 18 years, but should not be older than 45 years. The applicants must have in their possession, one or more skills and qualifications listed on the Australia’s Skilled Occupation List (Professionals 2008). Mr. Patel is a professional, extensively qualified in electrical engineering. This makes him to pass one of the requirements set out in the SOL, according to Skilled Occupation List (2008). But he cannot qualify for the GSM programme basically because he is 46 years old.

Vranchnas et al. (2005) argues that lawfully operating Australian companies, including Northwest Engineers Pty Ltd, can sponsor and employ skilled workers who have skills and experience to work in particular occupations required in Australia. Mr. Patel is a qualified and experienced electrical engineer. According to ‘Employer Sponsored Workers’ (2008), Mr. Patel will be eligible to be employed in Australia on a permanent or temporarily basis. Under Standard Business Sponsorship (subclass 457), Northwest Pty can sponsor Mr. Patel to work in Australia on a temporarily visa. This sponsorship usually runs for between 3 months and 4 years. In this visa package, the applicant is allowed to bring in some secondary dependents for the time that he or she will stay in Australia.

Northwest Pty can also utilize the Employer nomination Scheme (subclass 121/ 856). This enables Australian employers to actually sponsor foreign nationals for a permanent visa to work in Australia. However the foreign nationals must be highly skilled in their respective fields. Highly skilled temporally residents currently residing in Australia can also benefit from the programme. According to Suhad et al. (2008), the subclass 121/ 856 visa will definitely allow Mr. Patel and dependent family members included in the visa application to live permanently in Australia. Patel and his prospective employer can also utilize the Labour agreements. Basically, these are formal arrangements made to recruit some overseas skilled workers. Under the subclass 121/ 856, an individual can reside in Australia for two months to three years.

Mr. Patel has a sister who is a permanent resident of Australia. He is not in any way close to his only other surviving brother. In such an instance, the Remaining Relative Visa (Subclass 115) can be used to ensure that Patel lives and works in Australia. This visa allows individuals to join their sisters, brothers, or parents, who are their only close relatives that are usually resident in Australia (Other family Visa 2008).

Patel meets the skilled-independent (Subclass 175) and the skilled-sponsored (Subclass 176) visa criteria. Though the skilled-independent visa is most probably used by individuals who wish to migrate to Australia but do not have any family members to sponsor them, Mr. Patel can qualify based on his skills. According to Suhad et al (2008), Australia uses a point’s based system for visa assessment. To be considered for subclass 175, individuals must attain 120 points to pass and 100 points to be placed in the reserve pool. To be considered for subclass 176, individuals must be able to attain at least 100 points or 80 points to be placed in the reserve pool (General Skilled Migration 2008).

There are some significant hurdles that Mr. Patel has to deal with for him to be granted temporary or permanent visa to live and work in Australia. First he must meet set medical requirements for him to be granted either the temporary or permanent visa. A successful health examination does not in any way mean that a visa will be accorded. All dependent family members, including those intending not to migrate, must meet the set health requirements for one to be granted a permanent visa (Health requirements 2008; Vranchnas 2005). Failure to meet one of the health requirements therefore would spell doom to Mr. Patel’s ambitions to live and work in Australia.

According to Suhad et al. (2008), English is the official language used in Australia. Mr. Patel must therefore have a good command of the language for him to succeed in the visa application. It should not be lost on us that Mr. Patel comes from Hyderabad, India, and may have problems communicating in English. He must also be conversant with the needed vocational English. Since the backbone of his success lies in his skills and experience as an accomplished electrical engineer, he must have the suitable skills assessment from the relevant assessing authority for the chosen occupation. Also, he must have been employed as an electrical engineer for 12 out of the last 24 months (General Skilled Migration 2008).

The best option there is for Mrs. Patel is for her husband to be able to secure a permanent Australian visa. Individuals applying for a permanent residence visa are given the choice of including members of their families. According to Vranchnas (2005), family members may include spouses, dependent children, dependent children of dependent children, and dependent relatives. Mrs. Patel cannot utilize the General Skilled Migration rule since she is a high school graduate, with no specialized skills or experience.

Letter to Mr. Patel

Dear Mr. and Mrs. Patel

This letter is in response to the questions you earlier represented at our offices regarding your desire to relocate to Australia. We analyzed all the queries you presented to us and are happy to report back to you that indeed there are several visa options that you could use to enable you and your family live and work in Australia.

We analyzed the various visa options that were open to you, bearing in mind that you have a trade to practice. Your skills and experience of 20 years in electrical engineering would very much be needed here in Australia. I’m happy to report to you that your field of specialization – electrical engineering – is one of the occupations listed in the Australian Occupation List. For purposes of your reference, the ASCO code of your area of specialization is 2125-11, the assessing authority is IEA, and you need to garner 60 points in the points based system for your visa application to be considered successful.

As for your request to be considered for the General Skilled Migration (GSM), I’m sorry to inform you that you can’t be eligible basically because of your age. The GSM only considers individuals who are between 18 and 45 years old. That not withstanding, we still have several visa options that are still open for your consideration.

In your last visit to our offices, you had indicated that a certain company in Queensland, by the name of North West Engineers Pty Ltd had shown an interest in recruiting you to be one of their workers. I’m glad to inform you that our company is willing and very much ready to help you explore the options that such a company may offer. It is our desire to make sure that your quest to live and work in Australia is fulfilled.

As far as the North West Engineers Pty Ltd is concerned, our deep analysis proved that you can indeed be helped to relocate to Australia by utilizing the provisions of the skilled-independent (Subclass 175) and the skilled-sponsored (subclass 176) visa criteria. On occasions, your skills and experience based on the consistent work you have been doing for the last 20 years will definitely guarantee you passage of the assessment tests. For your knowledge, you must attain a total of 120 points for you to be eligible for the skilled-independent visa criteria, and 100 points for the skilled- sponsored. If North West Engineers would agree to sponsor you, then the rest would be very easy for us. In Australia, it is perfectly legal for lawfully operating Overseas and Australian employers to sponsor and employ skilled individuals who have recognized qualifications, skills, and experience in specific occupations, just like you. Our discussions with the said company regarding your case are ongoing.

Through the said company, you are in pole position to be eligible for a temporary visa to live and work in Australia. Since the company is registered and lawfully operating in Australia, it is at liberty to sponsor and employ you as an approved skilled worker on temporary basis. Temporary Visas often are the gateways towards being eligible for a permanent visa, so, this should not break your heart. Rest assured that you are eligible for Temporary Business Long Stay, otherwise named the Standard Business Sponsorship (Subclass 457). This visa will enable you to work in Australia up to a period of four years. It is heartening to know that you can use this visa to bring in any eligible secondary applicants to Australia. In this case, you don’t have to worry about your wife any more.

Through our intervention, North West Engineers can be instrumental in helping you acquire a permanent visa because of your skills and area of specialty. In here, we can utilize the Employer Nomination Scheme (subclass 121/ 856) to make the company sponsor you to work in Australia on permanent basis. If we succeed in the visa application, you, together with other dependent family members included in your visa application will be allowed to live as permanent residents in Australia. Other fringe benefits involved in this visa programme is that you will have access to certain social security payments, receive subsidized healthcare through Medicare and Pharmaceutical benefits Scheme (PBS), and also be in a position to sponsor other people to be considered for permanent residence in Australia. This will give your wife the chance of accompanying you.

In your last visit, you had informed us that your sister is a permanent resident of Australia. We also did note that you are not close to the only remaining brother. Therefore, if all the above fails to produce the desired results, we would utilize the Australian family visa alternative, which has a number of migration options for children, partners, parents, and other relatives of Australian citizens. The Remaining Relative Visa (Subclass 115) option, which allows individuals to join their sisters, brothers or parents who are their only close relatives and usually resides in Australia, can be used. This will definitely give us some headway in as far as your visa application to reside and work in Australia is concerned.

However, it is imperative that I let you know some of the hurdles that you will come across. First, Australia is largely an English speaking county, with basically all official matters being undertaken in English. As a resident of Hyderabad, India, you may have difficulties communicating in English as it is not your first language. It is therefore important for you to polish your English speaking and writing skills in readiness for the visa application process. Also, you need to polish up on your vocational English since you will be coming to practice a trade in Australia. You may experience problems with the relevant assessing authority if your vocational English is questionable.

You must also be able to pass some set medical requirements. Also, you need to be in employment for at least 12 of the last 24 months for you to be considered for some of the various visa application programmes listed above. If you work on the listed hurdles, we guarantee you that the chances of your visa application going through will be high.

Name of official …………………………

Sign………………………………………..

Date………………………………………

References

Australia Skilled Occupations List 2008. Web.

Department of Immigration and Citizenship 2008. Other family visa options. Visas and Immigration. Web.

Department of Immigration and Citizenship 2008. Employer nomination Scheme (Subclass 121/856). Visas and Immigration. Web.

Department of Immigration and Citizenship 2008. Temporary Business (Long Stay) – Standard Business sponsorship (Subclass 457). Visas and Immigration. Web.

Department of Immigration and Citizenship 2008. Employer Sponsored Workers. Visas and Immigration. Web.

Department of Immigration and Citizenship 2008. Professional and Other Skilled Migrants. Visas and Immigration. Web.

Department of Immigration and Citizenship 2008. Fact sheet 68 – Abolition of Temporary.

Protection Visas (TPV’s), and the Resolution of status (Subclass 851) Visa. Media Centre. Web.

Department of Immigration and Citizenship 2008. Fact sheet 61- Seeking Asylum Within Australia. Media Centre. Web.

General Skilled Migration 2008. Web.

Human rights and refugees 2008. Web.

McNeil, M (2006). Home schooling in Australia – Where do I begin? Natural Parenting. Web.

Suhad, K., Rowana, I., Peter, B., Kerry, M., & Mark, W 2008. The Immigration Kit: A practical guide to Australia’s Immigration Law, Federation Press. ISBN 9781862876811.

Vranchnas, J., Boyd, K., Bogaric, M., &Dimopoulus, P 2005. Migration and Refugee Law: Principles and Practice in Australia, Cambridge University Press. ISBN 0521618083.

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