[Homekara]

Dear friends,

I am glad my wife's visa 309/100 is being processed at this stage, however one un-usual query has arisen.

from previous relationship declared as null and void, there is one child. child custody was always with mother. as relationship was declared null and void, effectively mother becomes natural guardian. there was one agreement of settlement and understanding drawn between me and ex, according to following facts,
1. permanent custody to be with mother
2. were always single and null and void status is admitted by both parties and will not disturb the status quo.
3. no maintenance rights by either of them on either of them.
4. as permanent maintenance for child in some ____ money transferred by me to her mother account till she turns 18.
5. hence forth no cases to be filed on each other and i had filed few, which i will withdraw and are so withdrawn. her filed cases got dismissed and will not disturb status quo.

now there is no dispute that custody is with mother, however department telephonic queries;

1. no court custody order -- my reply -- never in dispute. moreover single mother is natural guardian as per applicable law in india and our settlement deed is according the same. so no court order required per se.


now S56 is sent for child 13 years now.

1. medicals
2. passport
3. national id card
4. birth certificate.

i replied with affidavit, stating.

1. cannot provided medical as i have no custody access to child. moreover i tried calling mediator who is also relative of ex, they categorically denied, i have attached call log of call to mediator immediately after ahc new delhi call.
2. passport i believe they wont have owing to low income category ppl
3. national id card --not shared with me.
4. birth certificate i dont have either.
total 12 years of judicial battle, cant risk welfare of 2 australian kids in my welfare for her s56 non migrating child details. hence neither feasible nor desirable.

now query is, can visa of my current wife/ partner be affected by above.

required info.
1. wife will be treated as de-facto partner due to some complications as told by dept on phone. i.e current marriage before final outcome of first null and void declaration of 1st marriage certificate. 1st marriage certificate declared to be null and void on grounds no performance of required and necessary rites and rituals on day certificate alleges.
2. two children out of current relationship both granted aus citizenship by descent.
3. long term relationship.
4. we both are lawyers.

 

[paulhand]

If I understand your post, you are an Australian citizen and the sponsor of your wife's 309/100 application. The Department has asked for your biological child, who is not included in the application, to undertake immigration medicals?

I can't comment on the specifics without knowing the exact details, but I recommend you seek some professional advice from a registered migration agent or specialist Australian migration lawyer. As a lawyer, you know what they say about lawyers who represent themselves!

 

[Homekara]

If I understand your post, you are an Australian citizen and the sponsor of your wife's 309/100 application. The Department has asked for your biological child, who is not included in the application, to undertake immigration medicals?

I can't comment on the specifics without knowing the exact details, but I recommend you seek some professional advice from a registered migration agent or specialist Australian migration lawyer. As a lawyer, you know what they say about lawyers who represent themselves!
[/QUOTE}

yeh the funny quote, a lawyer who represents himself has a fool for a client, is used to express to a person who has not studied law and is trying to defend himself is foolish.

I am earning in Indian rupee bro. savings are barely little. unable to afford.... paid help.

nevertheless. you have understood it in correct sense. i am Aus citizen, sponsoring my wife, from this relationship I have 2 kids, both are aus citizen so not included in application for 309/100

form 80 filled in had details of all children. so biological child from prev partner came in.

1. first partner and I had marriage certificate, which at that time I believed it to be true, however when I started studying law I realised solemnization of required rites and rituals gives right for a marr certi and inversely its not true. i pleaded so in court and got a null and void order, however as it was ex parte judgement, no order as to custody of child was made.

2. while I was sure that as necessarry rites and rituals are not done, I am single, I got married with my wife and have kids. case of null and void was for declaration of judgement and at that time judges got transferred.

If I understand your post, you are an Australian citizen and the sponsor of your wife's 309/100 application. The Department has asked for your biological child, who is not included in the application, to undertake immigration medicals?

I can't comment on the specifics without knowing the exact details, but I recommend you seek some professional advice from a registered migration agent or specialist Australian migration lawyer. As a lawyer, you know what they say about lawyers who represent themselves!

Friend, i wont be able to afford expert payments... honestly. moreover my query is very simple, s56 unable to meet for non-migrating family member who never lived with me for 1 single second except few hours in court, will it affect visa process of main applicant.

 

[wrussell]

A biological or adopted child under 18 years of age is automatically assessed as a dependant by AU immigration, even if s/he has spent no time with, or has no association with, a visa applicant.
It is sometimes possible to work around this, but it is not easy.

 

[Homekara]

For PIC 4007 waiver work around. I think i was told to also give evidence of attempts i made to meet information. I have sent details to ex's brother (only viable contact as she is married elsewhere and dont have her and childs real wherebouts). Had a phone call too.

On phone call he denied categorically after speaking to ex. They dont have anything to do with Australia. They are not ready to send daughter at my home town let alone be Australia. I have uploaded whatsapp chat screenshots, exported whatsapp chat, pdf of instructions sent as well as S56 pdf. He replied back not interested.

I have also uploaded two phone call logs, 1 with mediator (relative of ex) and 1 with brother of ex. I have uploaded to my gmail the recordings and provided links to immi dept to hear themselves and decide.

I dont know what else i can do.

Sending registered post legal notice is out of option as this will burn the bridges alltogether.

 

[wrussell]

Have you consulted a registered migration agent who has experience in such cases?

 

[Homekara]

Have you consulted a registered migration agent who has experience in such cases?

No bro, I am gathering information.
i am unable to meet consultancy expenses.

 

[Homekara]

Have you consulted a registered migration agent who has experience in such cases?

this was phone call info from delegate / delegate assistant, telephonic interview. he mentioned s56, I had asked its near to impossible. i was informed that in that case provide affidavit stating fact of not able to meet s56 and evidence of attempts made to meet s56. i have done so. i have also uploaded multiple litigations that I faced since 2013 to 2022 and during this litigations I studied law to only defend myself.

as far as compelling and compassionate circumstances are concerned, i am waiting for new s57 asking me to show pic 4007 compelling and compassionate circumstances.

 

[wrussell]

It might be time to stop trying to be your own expert.

 

[ZubiSim]

moreover my query is very simple, s56 unable to meet for non-migrating family member who never lived with me for 1 single second except few hours in court, will it affect visa process of main applicant.

If it was very simple you wouldn't be asking here. Yes, you have been told that it can affect the visa process. You should get some professional advice.

 

[Homekara]

If it was very simple you wouldn't be asking here. Yes, you have been told that it can affect the visa process. You should get some professional advice.

Thanks. Will post my discovery for help of everyone shortly. Alongwith applicable law, process, procedures and case laws.

Its not rocket science. Either peers help or everyone wash away hands by saying get professional help.

Nevertheless i have found sufficient info. Will post very shortly.

 

[Homekara]

Research and discovery is the only answer....

till 1400 --- many believed earth is flat and ppl will fall off and some believed sun is bound to go around earth...

I post what i found... for future help of others...

 

[Homekara]

i found Brahmos missile...

 

[Homekara]

Yet another Intercontinental missile of informations...

 

[JandE]

Research and discovery is the only answer....

till 1400 --- many believed earth is flat and ppl will fall off and some believed sun is bound to go around earth...

So, in layman's terms, what was the answer to your situation?

 

[Homekara]

Waiver only available if medical is done.
if medicals not done or not possible, then Delegate have to automatically consider it for criteria "UNREASONABLENESS"

Claims that health examinations cannot be undertaken due to custody arrangements

If a non-custodial applicant claims difficulty in having their children undergo the required health examinations, officers may wish to consider whether it is reasonable or not to require the child to undergo health assessment for visa applications if the 'unreasonableness' clause applies to the relevant visa category.

In such cases, officers should not, however, take an applicant's claims regarding difficulty in having their children undergo their health examinations at face value (for example, due to not having custody, being unable to contact custodial parent or because the custodial parent refuses to allow the children to undergo any health examinations).

They should undertake bona fides checks to corroborate such claims.

Officers are encouraged to contact the custodial parent by phone with the applicant's permission where possible, as this can save time, avoid misunderstandings and quickly verify the applicant's claims. Alternatively, ideally, an applicant's claims could be corroborated by:

• a statutory declaration or notarised statement from the custodial parent outlining that the relevant child will not be undertaking health examinations and why and

• a legal document regarding the custody arrangements between the migrating and custodial parents.

This may not be possible where family relationships have broken down significantly and the visa applicant no longer has custody of the child. However, in such cases, officers should still request a statutory declaration or notarised statement from the applicant themselves outlining the circumstances as to why their dependents cannot undertake health examinations, and attempt to have the applicant's claims corroborated by an independent third party where possible. Further evidence could include:

• a statutory declaration or notarised statement from an independent third party outlining the children’s circumstances

• a court order indicating that the visa applicant has been denied access to the child or

• written correspondence between the applicant and former partner which supports the applicant's claims of difficulty.

Case officers should inform the visa applicant that if false information is provided as supporting evidence, it might jeopardise their visa application. Officers should remain alert to the fact that any evidence provided might also be relevant to character criteria, including non-payment of maintenance in breach of court orders, concealment of true addresses and whether the current partner is aware of the true situation.

above are just samples.
test of unreasonableness is dictionary meaning as it is not defined in migration legislation.

Neither Feasible nor Desirable and impossibility is not the criteria.
generally a non-migrating family unit medicals would be reasonable when
1. likeliness of future application for visas to Australia
2. previously removed from application when medicals were asked
3. as custodial parents are migrating - child will be without parental custody/ welfare
4. instability or conflict zone
5. known medical issues
6. dependency on sponsor/ applicant
7. not in welfare for child to leave in country of current state
etc etc.


Flow of knowledge continues....

 

[Homekara]

So, in layman's terms, what was the answer to your situation?

lol ---- nice shot bro.
answer to my question was no it does not affect main applicant more specifically when no dependency on either applicant/ sponsor --- as stated by delegate on phone provide some proof of attempt and failure to obtain was perfect for meeting unreasonable criteria.

 

[JandE]

Its not rocket science. Either peers help or everyone wash away hands by saying get professional help.

Sometimes, Rocket Science is easier to understand than immigration law.

I don't think that people are washing their hands of it. Your situation is just too complex for most readers.

You say you are a lawyer, yet you appear to have had difficulties with this.

Most non-lawyers (99.99% of us) would have even less idea, and consequently shy away from being involved.

To say we are washing our hands of your situation is a little insulting.

Those that suggest using a Migration Agent, do so, as that is what we would do in your situation.

 

[Homekara]

Sometimes, Rocket Science is easier to understand than immigration law.

I don't think that people are washing their hands of it. Your situation is just too complex for most readers.

You say you are a lawyer, yet you appear to have had difficulties with this.

Most non-lawyers (99.99% of us) would have even less idea, and consequently shy away from being involved.

To say we are washing our hands of your situation is a little insulting.

Those that suggest using a Migration Agent, do so, as that is what we would do in your situation.

I expected way too much, my bad. In fits of disappointment i said my feelings.

I agree, way too complicated on both counts
1. Factuals
2. Applicable laws

Well the amount of time i spent leaving little time for one final arguments in important matter tomorrow, i seriously feel, migration agents are doing tough job.

But i found more easy answers from Canadian migration websites, more particularly for test on unreasonableness.

First finding relevant law, SOP for delegate to follow was not easy task.

However i was only expecting a directions to be pointed out. Rest of the job i would have done.

Nevertheless Boy its hell lot of mind crunching i did. Particularly for new law for me. I.e. Aussie migration endless saga...