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Staff News
- Welcome Robert Liu
We are pleased to announce that Mr. Robert Liu has joined Parish Patience Immigration
as a solicitor and migration agent. Robert has substantial experience in
various businesses in Australia, New Zealand, East Timor and Malaysia. His areas of
legal practice have included matrimonial, criminal and corporate law and
litigation. Robert is fluent in English, Malay and Indonesian, and
speaks conversational Cantonese and Mandarin.
Robert is available to consult on all types of visa and migration
matters, and any other legal issues clients may have.
Contact Robert Liu (Registered Migration
Agent number 0425543).
- Were your children born in Australia?
There is a test case currently being considered by the High Court of Australia that will determine whether the Minister for Immigration has the power to detain or deport children born in Australia, if the children are not Australian citizens.
Parish Patience Immigration acts for a number of clients seeking orders preventing the detention or removal of children born in Australia who are under 10 years of age. It does not matter whether the child was born in an immigration detention centre, or if the child is born on an island that has been excised from the Australian migration zone.
So long as the child is born at a place within Australian sovereign territory, Parish Patience Immigration argues that the Minister for Immigration does not have the power under the Australian Constitution to remove or detain that child.
For further inquiries relating to the prevention of removal or detention of children born in Australia, contact Nigel Dobbie, Senior Associate.
- Nicholas McNally on Guantanamo Bay
The April 2004 issue of the Law Society Journal features a lengthy article, "Illegal Imprisonment at Guantanamo Bay," by Nicholas McNally. Mr. McNally is a solicitor at Parish Patience Immigration Lawyers, and treasurer of the Australian Section of the International Commission of Jurists (ASICJ). The article represents the official view of the ASICJ on this significant and controversial issue.
- Nicholas McNally registered as Migration Agent
Congratulations to Solicitor Nicholas McNally on becoming a Registered Migration Agent (Registered Migration
Agent number 0426524).
- Consultations in the Philippines
Managing Partner David Bitel will be travelling to Manila and Bataan for consultations from 23 June to 2 July.
Mr Bitel will be available to give advice to applicants for all
categories of migration to Australia and also for student visas.
Applicants for most categories must have English language fluency and need
to be aged under 35 years.
Applicants wishing to make an appointment should email a résumé with
their request for an appointment to Mr Bitel's secretary, Ina Tempra, or ring Ina on tel. +61 2 9286 8700. A consultation fee
will apply.
- New on the website
New on the articles page of our website:
- "Migration Amendment (Judicial Review) Bill 2004" - media release by Parish Patience Immigration; and
- "Whither Democracy: Australian immigration law since September 11 - musings of a human rights activist"
- paper presented at the Law Librarians Joint Study Institute, February 2004 - by David Bitel
- Office procedures
By now all new and existing clients of David Bitel should have received a letter clarifying our office procedures. If you have not received this letter, you may not have provided us with your current address. If you are Mr Bitel's client and have not received his letter, 'Immigration Advice', please contact his secretary, Ina Tempra, or ring Ina on tel. +61 2 9286 8700.
Skilled migration & business
entry
- Skills & migrants to increase
On 1 April, the Minister for Immigration Senator Vanstone announced increases to both the skills (pass & pool marks) and numbers of migrants. These changes apply to the
following independent visa subclasses:
-
Skilled Independent (subclass 136)
-
Skilled Independent Overseas Student (subclass 880)
-
Skilled Onshore Independent New Zealand Citizen (subclass
861)
|
VISA |
PASS MARK |
POOL MARK |
FOR
APPLICATIONS
LODGED
ON OR
AFTER | |
Skilled Independent
(Subclass 136) |
120 | 70 |
14 April 2004 | |
Skilled Independent Overseas Student
(Subclass 880) |
120 | 120 |
1 April 2005 | |
Skilled Onshore
Independent NZ
Citizen (Subclass 861) |
120 | 120 |
14 April 2004 |
The following applications are not affected by these changes:
- subclasses 136, and 861 which were lodged before 14 April 2004;
- subclass 880 which are lodged before 1 April 2005; and
- all sponsored visa subclasses.
The 2004-05 Program includes an extra 1,000 places for doctors and their families, and 5,000 places for the new two stage Skilled independent regional sponsored visa, designed to attract migrants to regional Australia. In total approximately 77,000 visas will be granted in the Skill Stream during 2004-05.
Additional information:
"Australia's skills and migrants to increase," Minister's media release VPS 059/2004, 1 April 2004
Gazettal Notices
- Regional migration opportunities
From 1 July 2004, there will be a
new class of visa for persons to migrate to
Australia and who are willing to live in regional
areas. The visa will be a temporary residence visa
for a period of three years. A migrant
holding that visa will be eligible to be granted a
permanent residence visa after two years, assuming
certain criteria are met.
To be eligible for the temporary residence visa,
the main visa applicant will need to have a positive
skills assessment for an occupation on the
Skilled Occupations List, have
vocational English and relevant work experience and
be under 45 years of age. Health and character
requirements must also be met. There is no further
information at this stage on how many points the
main applicant will need to have to qualify for the
visa, and the details of the sponsorship which will be required.
The Department of Immigration has also issued a
warning
about dishonest agents or people pretending to be
agents misleading and ripping off people about this
new visa. Be extremely cautious if you hear promises
and guarantees about this
For additional information about the new visa
arrangements for regional migration, we invite you
to contact
David Bitel from mid-June, by when we anticipate further details will be available.
Related:
DIMIA Regional Opportunities information
- Parliamentary Committee report on skilled migration
On 30th March, the Joint Standing Committee on Migration tabled its
Review of Skilled Migration Report.
The Report includes 14 recommendations to encourage skilled migrants to Australia, including removal of the 45-year age limit. The Committee found that other countries do not have such a limit, and that the limit contradicts the Government's policy to encourage people to stay in the workforce longer.
- Australian Institute of Medical Scientists written examinations
Through our membership in the Migration Institute of Australia, we have received an announcement that in 2005 the Australian Institute of Medical Scientists will introduce a written examination into the assessment process for medical scientists (ASCO 2115-11). Also in most cases 2 years relevant work experience will be a requirement for eligibility.
The Institute's website is at www.aims.org.au, or we invite you to contact Annette Aitken for additional information.
- Australian Federal Police clearance certificates
We are aware of some delays in obtaining AFP clearances for onshore skilled applications. Clients who have any queries about their AFP clearance are invited to contact Annette Aitken.
- New online guide for small business
The Minister for Small Business & Tourism, Mr Hockey, has launched a new website to help small business. The website -
www.smallbusiness.gov.au -
is intended to be a one-stop shop for navigating local, state and
federal government. The website includes information on contracts,
employment, fair trading, credit and debt recovery, and other common issues for
small business.
- Philippines women in management
During a recent trip to the Philippines, David Bitel was interested to read an article in the Philippine Daily Inquirer that the Philippines has the second highest percentage of women occupying management positions in medium sized businesses from 26 countries worldwide. Russia had the highest percentage. These findings were drawn from the
Grant Thornton International Business Owners Survey (IBOS).
Students & Visitors
- Changes to pass & pool marks
Effective 1 April 2005, the passmark and the poolmark for Onshore Skilled Independent Overseas Student (Subclass 880) will both be 120 points. More details in the Skilled Migration section of this Newsletter.
According to a recent article in The Australian newspaper, 50 percent of visas granted in the General Skilled Migration category in 2002-03 were awarded to recent graduates of overseas student programs. ("Degrees come with a visa," The Australian, 25 February 2004)
- Encouraging overseas students to study in & migrate to regional Australia
The Minister for Immigration, Senator Vanstone, has announced that from 1 July 2004, overseas students who complete a generalist undergraduate degree from a university in regional Australia will be able to apply for the new Skilled-Independent Regional
(SIR) visa without leaving Australia. A 20 April media release gives the following example:
|
Points test attribute |
Major metropolitan university |
Regional university
(e.g. Flinders University in Adelaide) | |
Skill |
50 points | 50 points | |
English ability |
20 points | 20 points | |
Age |
30 points for those under 30 years |
30 points for those under 30 years | |
Australian qualification |
5 points | 5 points | |
Regional study |
0 points | 5 points | |
Total |
105 points | 110 points |
This means that many overseas students graduating after studying fulltime at one of Australia's regional universities will be able to apply for the new SIR visa from 1 July 2004 whilst in Australia because they would meet the suggested passmark of 110 points for that visa.
Related:
- EU countries benefit from eVisa
Australia is the first country to offer electronic visas to the EU accession countries. From 1 July 2004, the electronic visa lodgement facility, eVisa, will be extended to people from Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovenia and Slovakia.
"EU countries benefit from eVisa," Minister's media release VPS 061/2004, 16 April 2004.
"Fact sheet 53: Australia's entry system for visitors," updated 22 April 2004.
- Sponsored family visitors
The March 19 issue of Business Review Weekly contains a letter from DIMIA's Director of Public Affairs, explaining the successes of the sponsored family visitor regime. The sponsored family visitor visa allows more people - not less - from higher immigration risk countries to come to Australia while at the same time ensuring they comply with the conditions of their visa.
"Letter to the Editor: Sponsored family visitor visa," Business Review Weekly, 19 March 2004.
For additional information about Student visas or Visitor visas, we invite you to contact Diana
Tong.
Asylum seekers and human rights
- 2004-05 Humanitarian Program: refugee intake to increase
The Minister for Immigration, Senator Vanstone, has announced a 50 percent increase in Australia's refugee intake for 2004-05.
- HREOC Children in Detention Report
The Human Rights and Equal Opportunity Commission
Report of the National Inquiry into Children in Immigration Detention was tabled in Parliament on 13 May 2004.
The Report is the result of an Inquiry announced in November 2001, and includes evidence from the period 1999-2002.
Although 92% of children in detention are eventually found to be
refugees (the figure is 98% for Iraqi children), Government policy
states that they must be detained for indefinite periods while their
applications for asylum are processed.
Evidence was received from a vast range of individuals and organisations - detainee
children and parents, human rights advocacy groups, medical and legal
experts, State governments, Australasian Correctional Management (ACM) and
the Department of Immigration and Multicultural and Indigenous Affairs
(DIMIA) amongst others.
The Inquiry found that Australia's immigration detention policy has failed to protect the mental
health of children, failed to provide adequate health care and education,
failed to protect unaccompanied children and those with disabilities, and subjected children to "cruel, inhumane and degrading treatment" in violation of the UN Convention on the Rights of the Child and the best interests of the children. According to the preface to the report:
"The results are clear. Immigration detention centres expose children to enormous mental distress - which confirms the need to ensure that children should only be locked up in this environment as a measure of last resort and for the shortest appropriate period of time."
In response, the Minister for Immigration and the Attorney-General have issued a
joint statement
rejecting the major findings and recommendations contained in the Report. The government also rejects the Commission's view that Australia's system of immigration detention is inconsistent with the UN Convention on the Rights of the Child. The Government considers that current Australian policies take all measures necessary to ensure that the rights of children are protected. The Government believes the model recommended in the Report would in practice encourage the inclusion of children in people smuggling operations.
Links:
Other recent items of note from the Human Rights and Equal Opportunity Commission:
- A new publication, Federal Discrimination Law 2004 examines caselaw and tribunal decisions in unlawful discrimination matters brought under the Racial Discrimination Act 1975, Sex Discrimination Act 1984 and Disability Discrimination Act 1992.
- The Attorney-General, Mr Ruddock, has announced the approval of a new
Draft National Action Plan on Human Rights. The new national action plan will be finalised following consultation with State & Territory governments, the Human Rights and Equal Opportunity Commission, and non-governmental organisations.
- NGOs watching NGOs
On 28 March, ABC Radio National broadcast a 'Background Briefing' on the topic of Non-Governmental Organisations (NGOs). The program revealed that NGOs comprise the world's eighth largest economy, with 700,000 NGOs in Australia alone. The Australian government is currently considering a report on how to regulate NGO activities, including issues of accountability and transparency.
Transcript: NGOs Watching NGOs
- Press Council finds linking of Islam and terror 'unfair'
An article in the 2 April edition of The Australian newspaper summarises recent complaints to the Press Council over the use of the words Islam, Islamic and Muslim in reports of terrorist attacks. One complaint was upheld and one complaint dismissed. The key was whether the headlines were within the bounds of 'normal usage,' and whether the terrorist organisations reported upon referred to themselves as representing all Muslims.
"Press Council finds linking of Islam and terror 'unfair'," The Australian, 2 April 2004, available from Newstext (News Ltd archive)
See also: "General Press Release 261: Religious terms in headlines," Press Council of Australia, April 2004
- UN Commission on Human Rights
The 60th Session of the United Nations Commission on Human Rights met from 15 March to 23 April 2004 in Geneva. Australia was the chair. Recent highlights to note:
- 14 countries have been elected to serve on the Commission on Human Rights: Guinea, Kenya, Sudan, Togo, Armenia, Romania, Ecuador, Mexico, Malaysia, Pakistan, Republic of Korea, Canada, Finland, and France.
United States voices objections as African group proposes Sudan
for election to Commission on Human Rights, Press release ECOSOC/6110, 4 May 2004.
- List of draft resolutions and decisions/voting results - 60th Session of the UN Commission on Human Rights
- "Commission on Human Rights, 60th Session Agenda item 14: Specific Groups and Individuals - rights of non-citizens," Amnesty International Public Statement, 8 April 2004
- Last year Brazil proposed a resolution calling upon all States to protect and promote human rights of all persons regardless of their sexual orientation. The resolution was postponed for a year due to opposition from several countries. At the 60th session Brazil opted to withdraw the resolution before it came up for a vote, on the ground that the Muslim countries and Vatican City had enough votes to defeat it. We urge concerned persons to lobby their governments to support this important resolution.
- Vale Alice Tay
We were saddened to hear of the passing of Professor Alice Tay, former President of the Human Rights and Equal Opportunity Commission and Challis Professor of Jurisprudence at Sydney University. All of us at Parish Patience Immigration extend our condolences to her family and many friends.
HREOC media release, 30 April 2004
- World Refugee Day June 20
Our coverage of asylum seeker issues
has been abbreviated for this month, in order that we may cover recent
developments more in depth in the June edition of our Newsletter, in
honour of World Refugee Day on 20 June.
Additional information about World Refugee Day is available from the
United Nations High Commission for Refugees website: http://www.unhcr.ch.
Legislation update
- Proposed Legislation for Winter Term 2004
The Department of Prime Minister & Cabinet has released a list of proposed legislation for Autumn Term 2004.The complete list is available at
http://www.dpmc.gov.au/docs/parlinfo.cfm
(scroll down).
Of particular note:
- Commonwealth Bills
A number of Bills relevant to immigration law are currently before
Parliament. Most of these Bills have been summarised in previous editions
of our Newsletter. Below is a
summary of their status as at 25 May 2004.
Full text of the Bills, Explanatory Memoranda, 2nd Reading Speeches and
Bill Digests may be found in the Parliament
Bills Index.
- Migration Amendment (Judicial Review) Bill 2004
This Bill reintroduces time limits in migration cases in the federal courts, including the High Court. The Bill was introduced by the Government in response to the High Court's decision in Plaintiff S157 v The Commonwealth, which was a case conducted by Parish Patience Immigration (Nigel Dobbie as instructing solicitor with Learned Counsel Duncan Kerr MP and Professor George Williams).
Parish Patience Immigration have published a comprehensive analysis of the Bill on our
articles page.
This Bill passed through the House of Representatives on 25 March 2004. The Bill was then introduced into the Senate, where it was referred to Senate Legal and Constitutional Legislation Committee with report due 15 June 2004.
Related:
Inquiry into the provisions of the Migration Amendment (Judicial Review) Bill 2004
- Committee's website, including links to submissions by the Refugee Council of Australia and others.
"Migration Amendment (Judicial Review) Bill 2004," article by Parish Patience Immigration 31 March 2004
"Reforms to the Migration Act to reintroduce time limits in Federal Courts," Ministers' joint media release 25 March 2004
"Migration law reform proposals need further scrutiny," Law Council of Australia media release 29 March 2004
- Migration Legislation Amendment (No 1) Bill 2002
This Bill contains some significant technical amendments to the Migration Act, including introducing strict liability provisions for some offences, and removing the "loophole" whereby the section 48 bar on repeat applications was available to persons granted a Bridging Visa B who re-entered Australia.
This Bill, along with the Migration Legislation Amendment (Procedural Fairness) Bill 2002, was referred to the Senate Legal and Constitutional Committee for enquiry and report. The final report was tabled on 5 June 2002.
The Migration Legislation Amendment (No 1) Bill 2002 was amended in the House of Representatives. The Bill was read a third time on 12 December 2002 and introduced into the Senate on 5 February 2003. Debate resumed in the Senate on 25 March 2004. The Bill was further amended in the Senate, and on 1 April 2004 the House disagreed with the Senate's amendments.
Related:
Senate Legal and Constitutional Legislation Committee Report 5 June
2002
- Migration Legislation Amendment (Migration Agents Integrity
Measures) Act 2004 no. 48 and Migration Agents Registration Application
Charge Amendment Act 2004 no. 31
These Acts are intended to implement key recommendations of the
2001-2002 Review of Statutory Self-Regulation of the Migration Advice
Industry.
The Bills were introduced in 2003 and have now passed through Parliament and
received Royal Assent.
Related:
Senate Legal and Constitutional Legislation Committee Report 25 November
2003;
"Changes to Integrity Measures Bill will benefit consumers," Minister for Citizenship media release H088/2004, 16 April 2004; and
"Migration professionals defend industry," Migration Institute of Australia media release 10 March 2004
- Age Discrimination Bill 2003
The Age Discrimination Bill 2003 and Age Discrimination (Consequential Provisions) Bill 2003 passed the House of Representatives on 26 November and were introduced into the Senate on 1 December 2003.
The main Bill was amended in the Senate on 29 March 2004. The Consequential Provisions Bill has passed through both Houses and received Royal Assent; it is now Act No 40 of 2004.
Other government news
- Budget fact sheets
On 11 May, the Federal Government released its Budget for 2004-05. A number of measures will be significant for visa applicants and migration advisors, including:
- Senate report on Ministerial Discretion
The
Senate Committee Report into Ministerial Discretion in Migration Matters was tabled on 31 March 2004. David Bitel was among the many individuals and groups who provided submissions and testimony to the Committee.
- Reappointment of Principal Member
Mr Steve Karas OAM has been reappointed as Principal Member of both the Migration Review Tribunal and the Refugee Review Tribunal.
Media Release V064/2004, 22 April 2004.
- Discussion papers on migration advice industry
On 10 May, the Minister for Citizenship, Mr Hardgrave, and the Immigration Minister, Senator Vanstone, issued a discussion paper: "Mandatory Professional Indemnity Insurance For Migration Agents Onshore - Implementation Issues."
It examines the issues of affordability and availability and the possible impact on small business and the not-for profit sector of requiring all migration agents to hold such insurance.
Insurance and migration advice industry stakeholders and other interested organisations are invited to make a submission to the Department by 30 June 2004.
It should be noted that Parish Patience Immigration already carries compulsory professional indemnity insurance, as do all firms of lawyers.
Related:
Mandatory Professional Indemnity Insurance For Migration Agents Onshore - Implementation Issues
Discussion paper
"Increased Protection for Migration Advice Consumers," Media Release H092/2004, 10 May 2004
On 26 May, the Minister for Citizenship, Mr Hardgrave, and the Minister for Education, Science and Training, Dr Nelson, issued a discussion paper: "Options for Regulating Migration Agents Overseas and the Immigration Related Activities of Education Agents."
Public consultations on the discussion paper will close on 9 November 2004.
Related:
"Protection from Unethical Migration Advice," Media Release H106/2004, 26 May 2004 (includes link to discussion paper).
- New rules to improve access to English tuition
The Minister for Citizenship & Multicultural Affairs, Mr Hardgrave, has extended the access period for the Adult Migrant English Program (AMEP).
Media Release H029/2004, 7 March 2004
Related:
"3.8m funding boost for English language tuition,"
Media Release H095/2004, 11 May 2004.
"Increased Assistance for Migrants through the Language Literacy and Numeracy Program,"
Media Release H099/2004, 11 May 2004
- Visa processing times
In April, DIMIA published its most recent table showing current estimated processing times for the various classes of visa at different posts around the world. Clients with queries about processing times are invited to contact us.
- DIMIA compliance operations
The Department of Immigration undertakes regular compliance operations, the results of which
are always publicised, illustrating the importance to visa holders to seek
professional advice in advance of expiry or cancellation, and not to breach conditions in relation to work limitations. Significant
government funds are devoted to the compliance and monitoring sections of
the Department of Immigration. Recent examples:
- "Immigration casts its net at Doyles [Restaurants],"
Sydney Morning Herald, 14 May 2004
- "Ten illegals located in North Coast operation,"
Media
Release DPS 022/2004, 18 March 2004
- "'Catch me if you can' - and we did," Media
Release VPS 050/2004, 11March 2004
- "Six detained after tip-off," Media
Release DPS 018/2004, 8 March 2004
- "Immigration officers locate 29 in metro Sydney,"
Media
Release DPS 019/2004, 8 March 2004
- "Pre-dawn operation in regional Victoria locates 13,"
Media
Release VPS 054/2004, 22 March 2004
- "39 illegal workers detained following compliance operations,"
Media
Release VPS 055/2004, 22 March 2004
- "15 illegals located in regional New South Wales,"
Media
Release DPS 026/2004, 25 March 2004
- "Eight illegals located in Cooma," Media
Release DPS 029/2004, 7 April 2004
- "Outlaw labour, rorts and all," The Age, 28 March 2004 (feature
article available from
Fairfax Newsstore)
Recent caselaw
Following is a brief outline of recent developments. Transcripts of High
Court hearings and full text of most decisions are available on Austlii.
High Court
- Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20 (29 April 2004)
In this decision the High Court held that the Family Court lacked jurisdiction to order the release of children from immigration detention. The Government subsequently declared the home where the children are staying and the school they are attending to be places of detention.
Related:
- "Detained children release decision overruled," Sydney Morning Herald, 29 April 2004
- "We won't lock up children straight away," Sydney Morning Herald, 29 April 2004
- "Minister rebuked by child case judge," Sydney Morning Herald, 1 May 2004
- "Vanstone 'sorry' to Court over children," The Age, 1 May 2004
- "Vanstone child detention move 'extraordinary'," Sydney Morning Herald, 30 April 2004
- "High Court rules not to protect children from Immigration Dept," Australian Democrats media release, 29 April 2004
- "Keep the children out of detention," Australian Labor Party media release, 29 April 2004
- Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 [2004] HCA 18 (21 April 2004)
This case involved asylum seekers from the Ukraine. The husband claimed
to suffer religious persecution as a Jehovah's Witness. The High Court was
called upon to interpret the meaning of "well-founded fear", "persecution",
and "protection". The High Court allowed the Minister's appeal from the
decision of the Full Federal Court. The High Court concluded that the
Refugee Review Tribunal's finding on future persecution was a finding of
fact not reviewable by the Federal Court even if that finding was not
correct.
- Singh v Commonwealth of Australia [2004] HCATrans 5, HCATrans 6 (10 & 11 February 2004)
Immigration
- citizenship - ramifications of birth in Australia - plaintiff was born in Australia on 5 February 1998 to two Indian citizens
- whether plaintiff acquired Australian citizenship by birth in Australia on 5 February 1998 and has retained it since that date. The High Court heard oral argument on 10 & 11 February 2004, and has reserved its decision.
Related:
- High Court special leave applications
Pending High Court special leave applications are summarised in the High
Court Bulletin.
- Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (S133/2002)
Immigration - primary decision-making - natural justice and procedural fairness - applicant is an Indian Tamil who claimed to fear persecution in Tamil Nadu because of his membership of a Muslim League Political Party - Refugee Review Tribunal ("Tribunal") conducted hearing into applicant's claims of persecution - at the end of hearing, Tribunal advised applicant that it would write to him and would give him a further opportunity to present submissions and information - the Tribunal did not
write to applicant as promised prior to rejecting his claims - whether failure of Tribunal to honour its undertaking to applicant to receive further submission amounted to failure to comply with principles of
procedural fairness - whether Tribunal's departure from undertaking actually created unfairness.
Appealed from FCA (FC). Date heard: 12 March 2004. Special leave granted on limited grounds.
Federal Court
- Herrera v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 428 (14 April 2004)
This was a deportation decision under the character provisions of the
Migration Act. The 24-year-old appellant, who had come to Australia from Chile as a young child, had never applied for Australian citizenship. The Minister for Immigration cancelled the appellant's permanent residence visa after he was convicted of several criminal offences.
This decision illustrates the importance to visa holders of seeking professional advice if they are accused of crimes while residing in Australia. In the Federal Court, Justice Sackville upheld the deportation order, but concluded his judgment with these remarks:
"I add a further comment. Obviously enough, the exercise of the Minister's power under s 501(2) of the Migration Act to cancel a visa can have profound consequences for permanent Australian residents. The exercise of the power can even affect people who have lived in this country since infancy. If the power of cancellation is exercised by the Minister personally under s 501(2), no merits review is available in the Administrative Appeals Tribunal or elsewhere. Moreover, as Ex parte Palme shows, the failure of the Minister to give reasons for his or her decision to cancel a visa does not of itself invalidate the decision. Thus a permanent Australian resident may be removed from Australia without ever having been told why the Minister has exercised his or her discretion to cancel the visa.
In the present case, the applicant became liable to cancellation of his visa by virtue of the sentence of 12 months imprisonment imposed on him on 11 December 2001 (Migration Act, s 501(7)(c)). No reference was made at his sentencing hearing to the fact that such a sentence (as distinct from one for a shorter period) exposed him to possible removal from Australia (see also par (d) of the definition of 'substantial criminal record' in s 501(7)). The first time he appears to have been made aware of the consequences of his criminality for his permanent residence in this country was when he received the Notice from the Department in July 2002. The applicant still does not know why the Minister considered it inappropriate to give him a formal warning, and instead chose to cancel his visa immediately.
It is for others ultimately to determine whether the current legislative scheme is satisfactory. In my view, however, there are strong grounds for reconsidering whether the scheme provides adequate protection to permanent residents of this country who face removal by reason of an inability to satisfy the character test."
New South Wales Industrial Relations Commission
- Masri v Santoso [2004] NSWIRComm 108 (28 April 2004)
Recently the New South Wales Industrial Relations Commission (IRC) upheld the rights of a migrant worker from Indonesia, and awarded her $95,000 compensation, plus legal costs, based on the unfair contracts provisions of the New South Wales Industrial Relations Act.
The applicant, Ms Masri, had been brought to Australia as an 18 year old from Indonesia to perform domestic tasks for a family living in Sydney. She had been promised by that family that she would work as a housemaid in return for wages. After 4 years' work, she had received only $5,000 from her employers, who had confiscated her passport, identification documents and
travellers' cheques.
The IRC did not accept the family's argument that Ms Masri was not their employee, and that they had merely done her a favour by offering an opportunity to come to Australia to learn English, and to find a job. It wasn't until 4 years later that Ms Masri was able to get a copy of her passport. When she inspected her passport she realized her previous visa had expired and she had in fact remained in Australia unlawfully.
The IRC accepted Ms Masri's claim that she was an employee of the family, entitled to wages and conditions under Australian law. The IRC found that it was unfair that she had been paid the tiny sum of $5,000 over that period and had been denied proper wages or employment conditions. The IRC cited "it is a plain matter or morals and not law" when concluding that the arrangement between the family and Ms Masri was unfair, and it ordered compensation in the sum of $95,000 for past wages, plus legal costs.
Parish Patience Lawyers also act in industrial and workplace relations disputes. If you have been taken advantage of by an Australian employer because you come from another country, or for some other reason, you may be entitled to compensation under the unfair contracts provisions of New South Wales Industrial Law.
You cannot be paid less than the minimum wage, and your employment conditions must comply with mandatory occupational health and safety and other standards. You may not be discriminated against on the basis of your race, disability, gender, or sexual orientation. Parish Patience Lawyers is well-equipped to bring a case in the Industrial Relations Commission to ensure that you are treated equally, fairly and without discrimination by Australian employers.
If you have any further queries, please contact Nicholas McNally, solicitor, on tel (02) 9286 8700, or email him at  with a brief summary of facts.
Diary dates
- April 21-May 30: "In Our Name," a powerful play telling the true story of a family of asylum seekers who were kept in detention for more than three years. More
information from the Belvoir Street Theatre, Sydney:
www.belvoir.com.au
- May - July: Workcover NSW Small Business Seminars. WorkCover is conducting a series of seminars throughout NSW to assist small business operators understand how occupational health and safety requirements apply to their workplace. Registration is free however bookings are essential. More
information from
http://www.workcover.nsw.gov.au/NoticesEvents/upcoming_events.htm
- May 29: International
Day of United Nations Peacekeepers. More information from:
http://www.un.org/events/peacekeepers
- June 1: Sydney launch of HREOC Children in Detention Report. More
information from Kate Temby at telephone (02) 9284 9767.
- June 4: International Day of
Innocent Children Victims of Aggression. More information from:
www.unicef.org
- June 20: World Refugee Day. More information from:
www.unhcr.ch
- August 27-29: ICJ Biennial Conference Berlin, Germany. David Bitel will attend in his capacity as Secretary-General or the Australian Section of the ICJ. More information at
www.icj.org
- October 24-29: International Bar Association Conference 2004, Auckland, New Zealand. Managing Partner David Bitel will attend. More
information from http://www.ibanet.org
-
Refugee
Council of Australia Coming Events - includes notice of several
Humanitarian Practice training courses.
- United
Nations Association of Australia 'Diary Dates'
Reader contributions of upcoming events may also be submitted to the Parish
Patience Immigration Update Newsletter Editor.
Quote of the month
"
There is only one good, Knowledge,
and only one
evil, Ignorance."
-
Socrates
We welcome reader contributions of quotable quotes to the
Editor.
Contact us
Parish Patience Immigration
Lawyers
Level 1, State Street Centre
338 Pitt Street
SYDNEY NSW 2000
AUSTRALIA
Tel: +61 2 9286 8700
Fax: +61 2 9283 3323
Web: www.ppilaw.com.au
Registered Migration Agents
9255523, 9359088, 9370721,
9800540, 9802999, 0004435, 0106541, 0322836,
0425543, 0426524
Liability is limited by the Solicitors
Scheme under the Professional
Standards Act 1994 (NSW)
Disclaimer
The contents of this newsletter are
not intended to be legal advice. Parish Patience Immigration accepts no
responsibility for any action taken in reliance on anything contained in
the newsletter. Individuals should seek advice about their own
circumstances only from a registered migration agent.
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