Tag Archives: the Hague convention

‘Second class citizen’: A call to action on Australian visas which the UN says is a problem | Instant News


The Federal Government is urged to take “urgent and immediate” action to tackle visas that trap foreign parents in Australia with restrictions that the UN says have a “serious impact” on human rights.

The 461 visa allows foreign nationals who are partners with New Zealand citizens to live and work in Australia – but problems arise when the relationship ends.

It can be renewed every five years, even when the relationship has ended, but only as a temporary visa, not permanent – and with no way to change it.

This means foreign nationals who are primary caregivers and are ordered to live in Australia, living without many rights.

This includes access to government financial support, housing subsidies and child care, and those who are unable to vote.

Other aspects include that they face harsh penalties for buying property because they are classified as “foreign investors”.

There are widespread problems for foreign women on temporary visas.(ABC News: Emma Machan)

Mary * is one of many women ABC has heard who are treated as she calls “second-class citizens.”

Mary, a foreign national, moved to Australia from a prosperous London suburb with her New Zealand husband and two young sons in 2014, but the relationship soon broke down.

She said she and her ex-husband spent nearly $ 500,000 in legal fees in the family court, which ruled she had to stay in Sydney.

She has three master’s degrees and is working in Sydney in property.

Now, the employer is restructuring and the owner wants to sell the place he is renting.

With the potential to lose her job and need a new lease, Mary said she and her son are at risk of poverty and homelessness.

‘I feel left out’

Mary has taken her case to the United Nations, which wrote to the Australian Government in July voicing concern about the impact of visas, which are said to have a “serious impact” on the human rights of migrant women.

Women like Mary cannot return to their homeland with their children, where they will have greater rights.

This could be because restrictions under the Hague Convention where children cannot be carried across the border without the permission of both parents, or because the family court has rejected relocation applications.

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Experts say the Hague Convention causes problems for children who should be protected.(AAP: Dave’s hunting)

Mary and her advocates are pushing for changes in migration rules so that if they are ordered by a court to stay in Australia as primary caregivers, they should be granted the rights and privileges of permanent residents.

If she has been married to an Australian citizen, it is possible that the temporary visa is changed to permanent in the event of a breakdown.

The government says it has issued 2,450 permanent visas on that basis over the past five years.

But on an Australian visa attached to a New Zealand citizen, there is no such route.

Mary said a lawyer told her the visa had so many restrictions it was “inconceivable” that she would have to be detained in Australia.

“This violates the principles of family law and immigration,” he said.

Over the years, he said he had been obsessed with situations of “injustice and injustice”.

“Despair and sadness are eating me alive,” he said.

“I feel like I’m not a citizen of any country. I feel left out.

Illustration of a woman behind bars.
Foreign parents in Australia can be trapped in very precarious situations.(ABC News: Emma Machan)

Intervention

Mary’s situation made it to the United Nations after she was inspired by a similar case where women approached the body because of perceived injustice.

Last year, Melbourne mother of three, Juanita McLaren, went to the United Nations Commission on the Status of Women as part of a human rights complaint about the poverty levels single mothers face in Australia.

And in a landmark case in the Netherlands in 2017, it was decided that under EU law, foreign nationals who are the primary caregivers will have the same rights as Dutch citizens if they are ordered to remain in the country by the Family Court.

The United Nations wrote to the Australian Government on Mary’s behalf in July and raised some concerns.

National unity building with rows of flags
United Nations office in Geneva, which is investigating Mary’s case.(Provided: UN.org)

It said Mary had lived in Australia “in conditions of vulnerability and uncertainty, with restrictions on movement and inability to access social protection and support, as a result of the discriminatory impact of the intersection of family law and immigration law”.

She added: “We are concerned that while her freedom of movement has been limited on the grounds that children have the right to have relations with both parents, the Government has not at the same time ensured she has the same residency rights as her children and ex-husbands.”

Mary said she was very pleased the UN was highlighting her case.

“I feel very empowered,” he said.

The Government response sent in September provided no solution other than suggesting that Mary look at other visa options, such as skilled migration.

However, Mary is not eligible for skilled migration because her employer has a company policy not to sponsor employees, and she also needs to retrain to qualify under the skills category.

Mary said her response was disappointing, but not surprising.

“I really think they don’t understand what’s going on.

“They simply don’t understand their 461 visa has caused so much trouble and trouble for the children and the mother.”

Urgent action

Pip Davis is the lead attorney at the NSW Women’s Legal Service and said the state and federal governments needed to take “urgent and immediate” steps.

A woman with short blonde hair and black glasses.
Pip Davis of the NSW Women’s Legal Service.(Provided)

“This is a loophole that the Government needs to address urgently so that all visa holders benefit from the same protection regardless of visa status,” he said.

Assistant Shadow Minister for Community and Family Violence Prevention Senator Jenny McAllister said the government had “many tools” to deal with problems with migrants on temporary visas.

A woman in brown earrings and short silver earrings.
Labor Senator Jenny McAllister called for immediate action.(AAP: Lukas Coch)

“The Minister for Women’s Affairs said this was a ‘priority’ for her but her actions said otherwise,” she said.

“At the very least the Minister should commit to including this at the next COAG Women’s Safety Ministers meeting and direct his department to work across government to provide practical options for supporting these women and children.”

A spokesman for New Zealand’s Ministry of Foreign Affairs and Trade said he had regularly raised the issue with the Australian Government.

“New Zealand is aware that some of its partner New Zealand citizens who have 461 visas face various challenges in Australia and that in some cases those challenges will increase during the COVID-19 pandemic.”

The Ministry of Home Affairs confirmed there was no “direct path” to the permanence of the 461 visa, but said “applicants can meet the eligibility criteria for permanent residency under different visa streams”.

A spokeswoman said: “This issue is a priority for the Women Minister, who is working closely with ministry colleagues across the government to advance practical policy solutions to better support women on temporary visas.”

Mary said she would continue to fight for her and her children not to be treated as “second class citizens” – and to raise awareness.

“I don’t expect that to change next month or next year, or maybe even in the next five years.

“But I really don’t want anyone else, no other parent with primary care responsibilities, to be in this situation.

“They shouldn’t – that’s surprising.”

* Not his real name

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New Zealand woman trapped in Australia and jailed for abuse under the Hague Convention | Instant News


This is a nightmare scenario that is common to international women living under the shadow of domestic violence in Australia.

New Zealand women in particular face a unique set of circumstances that pose major obstacles in enabling them to avoid partner abuse.

Under the general visa 444, New Zealanders have the right to live and work in Australia, but because they remain citizens of their homeland, they are not entitled to government benefits.

When faced with domestic violence and without funds to leave, many people as a last resort flee back to New Zealand, but can then be forced back by their abusers to Australia.

The legal instrument is the Hague Convention, which prevents children from being carried across the border illegally, and is primarily judged on the black-and-white fact of a border crossing, not mitigating circumstances.

Risk of serious harm

A case earlier this year uncovers the tragic and torrid story of a New Zealand mother and child caught in a nightmare of domestic violence in Australia, with no choice but to run away.

New Zealand women are not always entitled to Australian government benefits.(ABC News: Margaret Burin)

The Court of Appeal in New Zealand heard how the perpetrator, an Australian man, had multiple sentences for assault and breaching a protection order.

Tasmanian child protection services have files about families running across “several hundred pages”, the court heard.

The risk of harm to children – boys born in 2015 – is rated by protection services on a scale of 0 to 10 as “approx. 8”.

In 2017, the mother fled to a shelter and then to her homeland in New Zealand, unable to access financial support because of her visa status and returned to a place where she could get state aid, and support from her family.

The New Zealand lawyer working on the case, Daniel Vincent, has seen this scenario several times before.

“Of course there are problems for New Zealanders in Australia accessing support there, whether it be housing or financial support benefits, because of the limitations associated with their visas,” he said.

‘Anger’

Lawyers and experts say the Hague Convention, which was signed by many countries including Australia 40 years ago on 25 October 1980, is outdated and used as a weapon of harassment, control and entrapment.

It was designed to stop men, who traveled more and more in the 1970s, from kidnapping children after breaking up and taking them to their home countries, where mothers would never see them again.

Now, it’s more commonly used against women, who make up more than 70 percent of runaway parents, according to The Hague

Globalarrk, a charity that supports families in the The Hague case, said its research showed 91 percent of the women in the Hague case had experienced abuse.

More than a third of Hague applications in Australia relating to a child taken abroad are for New Zealand – in the 2017/2018 financial year, there were about 30 cases according to the Attorney General’s Department.

The case of the woman who fled Tasmania has had tremendous results, however, in a decision that could affect future cases.

The court ruled in April that the mother could stay in New Zealand, nearly three years after her mother fled.

Vincent said he hopes the case shows how “unfair” the scenario is.

A man in black and white smiles at the camera.
Daniel Vincent specializes in family law cases and The Hague Convention.(Provided)

“We feel that if the spotlight is put on this, right-minded people will feel the same anger at how difficult it is for people with children in Australia who can’t access support there, and then be forced back into that. [abusive] environment with the operation of the Hague convention, “he said.

“The Hague Convention ended up being used as an instrument by abusive and controlling partners to bring victims back in their control because that person became dependent on them, for financial support.

Call for legal assistance and benefits

The mother has struggled for legal aid, which requires due diligence that the case will be won, usually meaning that the “taking parent” is not eligible because under The Hague they have undeniably “wrongly” moved the child – and vice versa, abandoned parents usually get it.

Stock image of a child hiding, looking annoyed.
Experts say the Hague Convention causes problems for children who should be protected.(AAP: Dave’s hunting)

“The irony doesn’t disappear with us that dad can get legal help to appeal in a country he hasn’t even been to. Even though my client cannot get legal assistance for the very sad situation in Australia, ”said Vincent.

However, the importance of court decisions is that they go beyond the traditional assumption that the best interests of the child will be served promptly back and accept the defense that repayment will be a “great risk of psychological and physical harm or an intolerable situation”.

This defense is included in The Hague regulations, but rarely works because it is not required to account for domestic violence against its mother.

“What the appellate court is doing is acknowledging the psychological dangers for a child in being in a violent environment in the country – so there is no need to physically abuse the child directly,” said Vincent.

Both points, said Vincent, “will support the way the Hague convention case is resolved in New Zealand over the years”.

Cartoon giant thumbs up on a group of women
Women have nowhere to turn for “good laws go bad.”(ABC News: Emma Machan)

He said the way to improve the way cases are handled under the Hague Convention is to interpret them as “living documents”.

He also said it must ensure that those forced to return under The Hague’s orders can access legal aid and benefits.

“If anything can be brought in, especially in Australia, it seems, where protecting children and providing them with money is a problem, that’s fine,” he said.

The Australian Attorney General’s Office did not respond directly to questions about legal aid funding for “taking” parents, but said “people who experience, or are at risk of, family violence and their children are identified as the national priority client group for services.”

The problem of government ‘admitting’

A New Zealand Department of Foreign Affairs spokeswoman said it was regularly communicating with the Australian Government about the plight of New Zealanders facing domestic violence.

It said their concerns had been “acknowledged”.

“We are aware of the difficult situation some New Zealanders face who are subject to an Australian Family Court ruling and are unable to leave Australia with their children, who may also have limited access to Australian social support payments, despite living and working there for many. people. years, “said a spokesman.

It said the Australian Government had granted an exemption to the income threshold when applying for permanent residence under a 189 visa, for New Zealand citizens who were unable to leave the country due to a family court decision.

But the person has to live here for five years, and it costs $ 4,045, with a processing time of 15 to 25 months.

Responding to a question about the circumstances facing New Zealanders in Australia, the Department of Home Affairs said: “New Zealand citizens, permanent residents and eligible New Zealand citizens can sponsor partners to Australia through the Partner visa program.”

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