成年子女申请子女签证被拒签怎么办

18岁以上子女如果要申请子女类别签证必须要满足以下几个条件
1. 不能超过25
2. 不能结婚或结过婚
3. 必须不能全职工作
4. 必须持续学习不能有超过6个月 或者reasonable 时间的学习空档期。
must not be engaged in full time work: and (except in the case of applicants who are incapacitated for work) since turning 18 or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
很多移民官和移民代理都忽略了这个reasonable time 的选项。认为超过6个月的空档期,子女就无法加入父母的配偶签证。实际上在2005年Sok v MIMIA [2005] FMCA 190 at [15]. 这法庭判决中 法官 Reithmuller FM, 认为这个reasonable time 是个情景词汇,需要考虑当时的具体情况比如空档期的长度,在空档期的活动等等。
In determining what is a ‘reasonable time’ within the meaning of this subclause consideration of the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why would be relevant: Sok v MIMIA [2005] FMCA 190 at [28].
所以只要申请人子女空档期有活动和持续学习相关,比如做学校申请,考IELTS,都是可以作为考虑reasonable time 的理由来满足802.214 和父母一起移民的
这6个月的时间和reasonable 时间的考虑是否必须是紧接这12年级之后的,不同的member 有不同的看法,TRIBUNAL MEMBER: Mary Cameron 在1401894 [2015] MRTA 323 (6 March 2015)
中认为,这个reasonable time 可以不必紧接12年级学习。

In this case, the applicant has not undertaken more than one course at a time. Each course she has undertaken has been leading to the award of a single professional, trade or vocational qualification in the business field. Therefore, the facts of this case can be distinguished from the facts of Sok. The requirement is further qualified by Reithmuller FM’s comments that clause 101.213 (or clause 802.214) might well extend to cover courses at alternative institutions (at paragraph 16) and consideration must be given to the course taken ‘in order to prepare for the vocational course ultimately pursued’ (at paragraph 25).
Departmental policy (PAM 3) also states that ‘the criterion does not require the study to be for a first qualification. Further studies (eg graduate diploma) are acceptable’. The Tribunal has also had regard to Reithmuller FM’s comments in Sok that ‘the condition contemplates the extent to which it is reasonable for a parent to support a child until they obtain a ‘professional trade or vocational qualification’ and, ipso facto, are able to support themselves.’(at paragraph 24).
In light of the above factors, the Tribunal considers that in some circumstances, applicants who have changed full time courses are still able to satisfy the provisions of clause 802.214
但是另一位TRIBUNAL MEMBER: Dr Hannah McGlade 在1408333 [2015] MRTA 343 (4 March 2015) 认为这个6个月和reasonable time 必须紧接着12年级后考虑。”The review applicant submits that the break in 2010 – 2011 was a reasonable one in the circumstances of the claimed financial barriers. The tribunal considers that cl.101.213(1)(c) is limited to an assessment of whether a break is reasonable in relation to the period following the completion of high school. In this case, there was no break from high school. The issue in this matter concerns a break that happened subsequently after the applicant turned 18 years (and finished her studies at Imus College). The tribunal is not authorised by cl.101.213(1)(c) to consider the reasonableness or otherwise of the break in studies that occurred in this case, as it did not occur in the relevant period (that is, following high school).”
所以碰到类似的问题, MRT上诉也有运气的成分啊。

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如果子女和自己没有血缘关系如何办理签证

澳洲法律规定,只有在出生的时候确认的父母子女关系,才可以作为申请签证和公民的依据。
一般移民局认可所在国发的出生公证,但是对以下情形会产生父母子女关系的怀疑。比如母亲是在怀孕28周之后离境的,或者有旅行记录。大龄产妇。无法提供孕前产检记录。递交签证时候父母在澳洲,小孩在国内。老旧的出生证明。旅行记录显示夫妻在受孕时不在同一个地方。应该可以直接或者公民身份的确申请签证。任何试图通过欺诈手段获取公民身份的行为,一经发现都会被记录在移民局的MAL系统里面。一旦产生怀疑就会要求申请人和担保人去进行DNA比对, 有匹配的DNA自然没有问题, 但父母子女有时DNA也不匹配, 这时父母子女关系的确认就不是显而易见的。如果比如 子女出生时就被抱错,或者是子女是代孕出生,父母双方都没有提供遗传基因。
这种情况下就比较麻烦,但不是完全没有机会。 Full Federal Court (FFC) in H v Minister for Immigration and Citizenship [2010] FCAFC 119 (‘H’)) on 15 September 2010 the FFC held that in the absence of a definition of parent in the Act, the meaning of parent in section 16 (concerning citizenship by descent) is not limited to biological parents. The FFC held that it is sufficient that, at the time of birth, an Australian citizen is a parent as that word is understood in ordinary usage. Therefore citizenship by descent, until then available under the Act to children of Australian citizen biological parents, can also be accessed by children of Australian citizen non-biological parents. 澳洲最高法院规定,移民法里的子女不一定要有血缘关系。这就给非血缘关系的子女提供了机会。
申请人需要提供充足的证据说明父母子女关系是存在的,包括
1 澳洲父母在小孩出生前的照片,给未出生小孩的安排
2 小孩是被社会认可的澳洲父母的子女。
3 如果是代孕,需要提供法律认可的代孕协议 (一般美国和泰国可以做到,千万不要把父母的姓名在出生公证上写错了,否则麻烦很多)
4 抚养小孩的历史记录等。
值得注意的是在澳洲ACT QLD, NSW 商业代孕是非法的,但是并不能否认代孕的结果。换句话说,虽然出生手段不合法,该认公民的还是要认可。

收养子女移民的最新要求,无注册的收养关系无法被认可

在上个星期的FCC 的裁定中 Minister for Immigration v Abigail & Anor [2014] FCCA 2532 (6 November 2014) ,彻底断绝了没有政府注册的在1992年4月1日之前的事实收养关系申请子女或父母签证的可能。
申请人成功的用事后追认的民政部门的证明在Mrt胜诉,移民不服Mrt的决定在FCC上诉。FCC 裁定申请人和支持申请人的Mrt 败诉,移民局胜诉。在这个裁定之前,申请收养类子女签证,或者收养子女担保担保养父母是可以通过县级以上民政机关事后出文件追认的。
这个裁定明确要求,在收养的当时,这个关于必须是当时注册的。事后追认不能等同于当时注册。
In the circumstances, it is not surprising that the Tribunal made its decision by reference to the Bureau Certificate. However, contrary to the Tribunal’s ultimate finding of fact, the Bureau Certificate made it plain, on its face, that Ms Liao’s adoption had not been registered. There was no other evidence which suggested that the adoption had been registered and there was no discussion by the Tribunal of any interpretation of art.15 of China’s Adoption Law which would support a reasoned conclusion that the issuance of the Bureau Certificate certifying the relevant history was anything more than that and, in particular, was evidence of a registration which the certificate itself certified had not occurred.

收养子女和父母的关系是通过 以下法律定义组合规定的
reg 1.03 定义的什么叫做child
5.Regulation 1.03 of the Regulations relevantly provides:◦ dependent child, of a person, means the child or stepchild of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

(a) has not turned 18…

reg 1.14 定义了收养子女
6.The definition of “child” in s.5CA of the Migration Act 1958 (“Act”) includes someone who is an adopted child within the meaning of the Act. Regulation 1.14A, which defines the term “parent and child”, relevantly provides:◦ 1.14A Parent and child ◾ …
◾ (2) For subsection 5CA (2) of the Act, if a child has been adopted under formal adoption arrangements mentioned in paragraph 1.04 (1) (a) or (b) by a person or persons (the adoptive parent or parents): ◾ (a) the child is taken to be the child of the adoptive parent or parents; and
◾ (b) the child is taken not to be the child of any other person (including a person who had been the child’s parent or adoptive parent before the adoption).

reg 1.04 定义了收养行为的要求包括正式收养和非正式的收养

7.Regulation 1.04 relevantly provides:◦ 1.04 Adoption ◾ (1) A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under: ◾ …
◾ (b) formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised;(正式的收养) or
◾ (c) other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.

◾ (2) For the purposes of paragraph (1) (c), arrangements are taken to be in the nature of adoption if: ◾ (a) the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and
◾ (b) the childparent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and
◾ (c) the Minister is satisfied that: ◾ (i) formal adoption of the kind referred to in paragraph (1) (b): ◾ (A) was not available under the law of the place where the arrangements were made; or
◾ (B) was not reasonably practicable in the circumstances; and

非正式收益必须在法律未有明文规定之前,或者在极端情况下无法按照法律执行 (一般来说国家战乱)

◾ (ii) the arrangements have not been contrived to circumvent Australian migration requirements.

中国收养法1992 年规定,收养关系必须在县级以上民政部门注册.
现在如果你们的收养关系没有政府注册,已经这种事实的关系申请澳大利亚签证志杰移民也是无能为力。

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