+ What is + Requirement 1: Substantial discrimination and outside home country?
Except in split family cases [insert hyperlink to split family article], an applicant seeking to meet XB-202 primary criteria must be outside their home country and satisfy officers that they are subject to substantial discrimination in their home country amounting to a gross violation of their human rights.
'Substantial discrimination amounting to gross violation of human rights' is not defined in legislation, therefore it should be taken to have its common meaning. 'Discrimination' requires an unfavourable distinction against the applicant in their home country.
In assessing claims of discrimination, officers should explore the following:
- arbitrary interference with the applicant's privacy, family, home or correspondence
- deprivation of means of earning a livelihood, denial of work commensurate with training and qualifications and/or payment of unreasonably low wages
- relegation to substandard dwellings
- exclusion from the right to education
- enforced social and civil inactivity
- removal of citizenship rights
- denial of a passport
- constant surveillance or pressure to become an informer.
In situations of civil disorder where the rule of law has broken down, many people may lose their jobs and homes, experience hardship and become a victim of criminal behaviour. These circumstances do not constitute discrimination unless it is apparent an unfavourable distinction has been made against the applicant.
For 'substantial discrimination', s65 delegates should assess whether the amount of discrimination or the impact of the discrimination is considerable and real (not imagined or fanciful).
Officers should consider whether the amount or impact of the discrimination is such that it would extend to or qualify as gross breaches or infringements of human rights. The impact of cumulative actions may be assessed as whether they extend to gross violations of human rights. 'Gross violations' are flagrant or cumulative actions that are breaches or infringements of human rights.
Officers also need to be aware that they shouldn't embark on an exercise of comparison, nor require applicants to be subject to a higher level of substantial discrimination than others in their country. Officers should undertake the assessment of whether the applicant is subject to substantial discrimination amounting to a gross violation of human rights on the basis of the individual case.
+ What is Requirement 2: Form 681 (Refugee and Special Humanitarian proposal)?
The applicant's entry to Australia is to be proposed in accordance with form 681 (Refugee and Special Humanitarian proposal) by an Australian citizen, Australian permanent resident, eligible New Zealand citizen or a body operating in Australia. Under policy, a body operating in Australia would normally be a recognised community, ethnic or religious organisation.
To satisfy this criterion, the applicant must submit a form 681 completed by an eligible proposer:
- split family applicants must submit form 681 at time of application
- all other applicants are required to have submitted form 681 by the time of decision
If the proposer is a minor.
If the applicant's proposer is a minor, the form 681 should be completed and lodged in the minor's name, as it is the minor who is the proposer.
A responsible adult may assist the proposer to complete and lodge form 681. The adult would be expected to meet all proposer obligations on the minor's behalf.
+ What is Requirement 3: Compelling reasons ?
There must be compelling reasons for giving special consideration to granting the Applicant a permanent visa, including:
- The degree of persecution the Applicant is subject to in their home country;
- The extend of the Applicant’s connections with Australia;
- If there is a suitable country available to the Applicant, other than Australia;
- The capacity of the Australian community to provide for the Applicant’s settlement;