Do you have a child family member who has recently lost the care of their parents? If you are thinking of bringing them into Australia to care for them, they may be eligible for the orphan relative visa. This is a sponsored visa and it requires an eligible sponsoring relative to apply on behalf of the child.
It is a complicated situation to have to deal with but if a child needs help from relatives in Australia, this is something that should be taken care of quickly and as drama free as possible.
Australian relative
An eligible Australian relative who may sponsor a child must:
- Be an Australian citizen, permanent resident or eligible New Zealand citizen
The definition of relative under Department of Home Affairs (DOHA) for the purposes of this visa are the following relationships:
- A child
- A parent
- A brother
- A sister
- A grandparent
- A grandchild
- An aunt
- An uncle
- A niece
- A nephew
Step relationships are included.
It is important to prove the relationship. This can be done through proving:
- Birth certificates
- Marriage certificates
- Family status certificates that are officially issued and maintained
- Family books that are officially issued and maintained
If the applicant is a niece of the sponsor, the documents to provide would be the applicant’s birth certificate showing the applicant’s parents, the birth certificate of the sponsor’s parent whose sibling is the applicant’s sibling, and the birth certificate of the sponsor, showing that the sponsor and the applicant’s parent share the same parents.
In unfortunate cases where it is hard to procure the documents stated, the following may be used instead:
- Medical records
- Taxation records
- Health insurance
- Social security records
- Wills and testaments
- Departmental records
As these documents have less bearing, at least two different types of such documents must be used to support each line of relationship.
Orphaned child
The child must be:
- Under 18 years of age at the time of visa application
- The child cannot have a spouse or partner
Parents’ inability to provide care
A child cannot be cared for if it is clear that the child is not currently being cared for and will continue not to be cared for in the foreseeable future by a parent. Please be mindful that this has no bearing on the willingness of parents to provide care, but that they cannot.
Both parents must be unable to care for the child. A child is not an orphaned relative if one parent is alive, whose whereabouts are known and is not permanently incapacitated. There are three eligibility categories:
- Parents are dead
- Parents are permanently incapacitated
- Parents whereabouts are unknown
Parents are dead
In this circumstance, the child’s birth certificate (as proof of relationship) as well as the parent’s death certificates, or court order as to presumption of death.
However in countries where official documentation is unavailable or unreliable, the DOHA will seek evidence from a wide range of sources to determine whether the parents are dead. Evidence that could be considered in these circumstances include:
- Photos of the burial site(s)
- An explanation of what steps have been taken to obtain official documentation regarding birth, death and marriages
- Former applications by the sponsor (who may have been a former Protection visa applicant.)
- Death certificates from hospitals/medical centres
- Interviews with or accounts by various relatives/family friends/witnesses
In this situation, officers should be cautious about relying too heavily on evidence from any single source, but should instead seek to reach an overall conclusion based on all the evidence available.
Parents are permanently incapacitated
Incapacitation refers to physical or mental impairment but may include other situations. It is important that the incapacity directly and significantly impacts their ability to care for the child. In the case of physical or mental impairment, it is necessary that this is supported by a medical report of background report from the child’s social worker. The report should describe:
- The nature of the parent’s disability and when it was diagnosed, and
- The nature and degree, if any, of incapacity caused by the disability, and
- Whether medical opinion supports a view that the incapacity is permanent (and if so, why), and
- Available treatment (if any) for the disability, and
- Prognosis
Do remember that one of the eligibility requirements is that the parents are unable to be continue caring for the child for the foreseeable future. A temporary ailment will not meet these requirements.
Other situations include where:
- The child has been removed by court order from the parent’s custody and the reason for removal was the parent being considered to be an unfit parent, provided the reason why the court considered the parent to be an unfit parent is similar to Australia’s social and welfare values
- There are very strong cultural factors preventing a parent from exercising their normal parental responsibilities
In other situations, the DOHA will have to examine if there is truly incapacity and if it is permanent.
If the parents’ whereabouts are unknown
Any claims that a child’s parents whereabouts are unknown is one that must be investigated as it more a claim then the above categories. The DOHA will look at:
- The persons interviewed in regards to the parents’ disappearance and should be asked how thoroughly (and what, if any) efforts have been made to locate the parent and
- The time that has elapsed between the parent’s disappearance and the child’s visa application and the arrangements for the child’s care during that time
Child’s best interest
At the end of the day the visa is granted in the best interests of the child. Any reason that the DOHA finds in the application or through their investigations that the grant of the visa is not in the best interests of the child they may choose to interview the child to see if the child understands their situation and what the visa means for them.
The need for this visa means trying times. If you need help, book a consultation to our visa specialists, who are well versed in the intricacies of immigration law. Call +61 2 8054 2537, 0434 890 199 or book online.
