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AussieDude

What Not To Do On An Australian Visa Application

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On 11/8/2018 at 9:44 PM, AussieDude said:

  I stayed with her in Thailand for 2 years while we sorted out family, visa's etc.  Like you said, it was very hard initially, but I would pick Thailand over Mainland China anyday.

Well it's 13 years for me now. Her father passed last year, we're getting older so now time to make hay for both country's access.

I don't know Thailand, but quite happy here in the middle of China, in beautiful Sichuan Province at the foothills of the Himalayas. Mind you after 40 years of being able to walk to the beach, being inland is a bit of a shock, especially the humidity at night that doesn't go away with sea breezes. It's oddly bizzare having 4 directions in which to travel after a lifetime of only 3! (I always had the ocean in one direction). China is larger than Australia, and has every weather and landscape type known, and a large variety of peoples/cultures, so there's something for everyone somewhere here.

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I see a lot of discussion about bringing kids to Australia as part of a Migration Visa with one parent, and then challenged by the other parent. Either at the tim eof initial immigration, or in some cases years later.

This is a very complex aspect of international law, and is governed by the Hague Child Abduction Convention or HCAC.

(see https://en.wikipedia.org/wiki/Hague_Convention_on_the_Civil_Aspects_of_International_Child_Abduction). 

Although some countries (like India) are not a signatory to the Convention, Australia is, and all the owness is placed on the 'receiving country'.  So a child Immigrating to Australia, without BOTH parents permission, is subject to the HCAC, in full.

The convention states that any child removed (peacefully,  forcibly or otherwise) , from his/her country of habitual residence (their natural home), without the FULL permission of ALL the childs guardians or parents, then the child MUST be returned by the host country (Australia) to their natural home.  If you were to bring the child into Australia, without BOTH parents permission, and one parent raises a complaint to the Australian Authorities, the following may happen;

  1. If Australian Immigration are advised before the child flies, they will place a 'No Entry Ban' on the Child, and the airline will not let the child and the accompanying adult board.
  2. If your (the accompanying adult) was able to actually enter Australia with the child, you would be technically committing Child Abduction, a very serious offence in Australia
  3. If you manage to get through all the checks, and you arrive inside Australia, then the local Authorities will be advised.
  4. The Australian Authorities must return the child to its natural home, REGARDLESS of circumstances.  This also applies even though the child could be an Australian Citizen.
  5. However, this does not apply if there are grounds for a protection visa.

But, I stress that the objecting parent would have to raise a formal complaint through their home countries law enforcement service, for the Australian federal Police to take formal action on any of the above.  There is no time limits or statutes of limitation to child relocation cases, with exception to the child being considered an Adult in its home country

The convention exists to ensure that family custody disagreements are settled in the child's natural home or country of habitual residence, with the child and the parents/guardians in front of the local courts.

My advice is ALWAYS to settle custody permission with the other parent, by whatever way works, and get written or formal  permission for the child to leave with the other parent.  This usually involves one parent obtaining sole legal custody, or a legal letter of permission.

I see this situation occurring often with Thai women wanting to immigrate with their child to Australia, sponsored by an Australia partner, under a Partner Visa to marry an Aussie, and the Biological Thai husband blocks the immigration, usually for money. Yes blackmail.

Depending on how long the child has been in living in its natural or habitual home, there are remote possibilities of challenging the definition of 'country of habitual residence' (this will require a lot of legal work), two considerations exist;

  1. If the child has spent his/her whole life in their natural county, then there is NO QUESTION, that county is the country of habitual residence.
  2. If the Child has spent a 'significant' amount of time in Australia (i.e that would be probably 12 months or more for a 2 year old), then there may have a chance to challenge that of country of habitual residence is Australia.

The only other option is to make a case for the child's wellbeing, that is if the child was returned to his/her country of habitual residence, it would place the child in direct risk of harm from the mother or others.  Even in this case, the convention is usually upheld and the child is return home.

So my opinion is always....

Please, please, please, under no circumstances should you remove a child from any country without the full consent of BOTH PARENTS, or Guardians**, that would be a very bad thing for all involved. ESPECIALLY THE CHILD.

**A note, in some countries (i.e Pakistan) if the Father of a child is missing, estranged or just not contactable, the Fathers guardianship rights are automatically transferred to the Fathers Parents or surviving blood relatives.  I understand that in Pakistan's case, this is an aspect of Sharia Law, and adds another layer of complexity for all.  A missing or uncontactable parent does not automatically imply the other parent has absolute guardianship.


 

 

Disclaimer:

Makes me sick, in the fact that I must include a disclaimer. All opinions, advice and comments expressed by me are of my own personal opinion, and not that of a Immigration Agent, Lawyer, or related professional. They are given in the spirit intended, as an independant contributor, to a public forum. No implied, or expressed guarantee or undertaking as to accuracy or relevance is given.

 

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This weeks gem of common sense...

Using Agents

I have talked to this subject before, but I am seeing an increasing rate of posts regarding using and agent, and regrettably, posts about bad or incompetent agents.

I won't discuss if or when you should use an agent, there are too many factors to generalise on a position.  But I want to discuss what you should and should not do when you engage an agent.

To be clear, I am not an agent, nor ever have been. I do not represent an agent, or related immigration companies. I dont get any benefit monetary or otherwise from suggesting (or not suggesting) the use of an agent.  They have their place, and purpose.

When choosing an agent in Australia, its fairly easy to be assured that you will be dealing with a professional.  By law, anyone providing Immigration or related visa advice for a fee, must be registered by MARA, the Migration Agents Registration Authority, an Australian Government Agency. They register all suitable qualified agents, and publish these registration database so anyone can check.  MARA is the only registration Authority for anyone, anywhere in the world to legally offer immigration services for a fee.  However, its not as policed as we would like.  There are countless fake agents operating in Australia, usually within a specific ethnic community, who are not MARA registered.  Some, maybe most of these unregistered agents are very capable and professional, as they rely on their reputation to survive. But some are just crooks and con-artists.  Confirming that your chosen agent is MARA registered is easy, and simple, and assures you that you will get a professional service. I will mention that there is a loose exemption for registered Travel agents to provide basic visa advice, but never for a fee.

Overseas is a whole different situation.  Especially in the higher risk countries (ie India, China, Thailand, and most of SE. Asia, Africa, Eastern Europe) where there is often no government controls over who can operate as an Immigration agent, let alone them enforcing Australian law in another country.  MARA and the Australian government can do nothing to stop bogus and fake agents claiming to be Australian Visa Agents when they are not in Australia.  Again check if they are MARA registered.  There are many MARA agents operating overseas, again they are listed on the MARA website.

Check, just always check:  https://www.mara.gov.au/search-the-register-of-migration-agents/


 

 

Disclaimer:

Makes me sick, in the fact that I must include a disclaimer. All opinions, advice and comments expressed by me are of my own personal opinion, and not that of a Immigration Agent, Lawyer, or related professional. They are given in the spirit intended, as an independant contributor, to a public forum. No implied, or expressed guarantee or undertaking as to accuracy or relevance is given.

 

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