David Bitel client consultations in London and Dhaka
The managing partner of Parish Patience Immigration, Mr David Bitel, will be travelling to London at the end of April and to Dhaka from 3-12 May. Mr Bitel will be available to give advice to applicants for migration to both Australian and New Zealand, and also for student visas to both countries. Applicants must have English language fluency and be aged under 35 years.
Applicants wishing to make an appointment should email a resumé with their request for an appointment to Mr Bitel's secretary, Barbara Dixon, before 20 April. A consultation fee will apply.
Assistance to New Zealanders seeking to migrate to Australia
We are pleased to announce that we are now able to provide assistance to clients in New Zealand who are seeking to migrate to Australia, due to new rules in effect since February 2001. For additional information, please contact Nigel Dobbie.
News from DIMIA
- Immigration: Occupations in Demand [Teachers] - In response to a Question on Notice in the Senate, the Minister on 14 March 2002 provided information on the position of teachers in the skilled migration program. Teaching is not currently included in the Migration Occupation in Demand list. The Minister does not envisage that school teachers or any teaching qualifications will be included in the list in the foreseeable future. Therefore teacher applicants will not receive the bonus points for this factor when applying for skilled migration.
There may be opportunities in rural and remote areas such as the Employer Nomination Scheme and the Regional Sponsored Migration Scheme. The full text of the Minister's answer is available in the Senate Hansard for 14 March 2002. For additional information on skilled migration, please contact us.
- Multiple (Joint) Assurances of Support - In late 2001, the Minister for Immigration and Multicultural and Indigenous Affairs endorsed a new policy position allowing for multiple or joint assurance of support (AoS) Applications, in both required and discretionary AoS subclasses.
An upper limit of three assurers per AoS has been set in policy. In effect, assurers combine their income to satisfy the relevant threshold. For additional information on Assurances of Support, please contact Etienne Hugo.
- Changed screening practices for TB - For all visa classes where a formal health examination is required, the minimum recommended age for x-ray screening for tuberculosis is to be reduced from 16 years to 11 years. The change is being phased in from 25 March 2002, and by 1 July 2002 all visa applications should be processed under new arrangements. Media release MPS 15/2002.
- TIS consolidation to Melbourne National Centre - The Department's Translating and Interpreting Service is consolidating its operations to a single national centre in Melbourne. The Melbourne centre contact details are available on the TIS website.
Legislation Update
- The Higher Education Legislation Amendment Bill (No 1) 2002 passed through Parliament on 14 March 2002. The Bill creates a HECS-style interest-free loans scheme for overseas trained professionals who undertake a course of study to enable them to meet formal recognition requirements for their professions in Australia. The Government intends that the new loan scheme, to be called the Bridging for Overseas-trained Professionals Loan Scheme (BOTP Loan Scheme), will commence on 1 July 2002.
The full text of the Bill and an Explanatory Memorandum may be found in the
Parliament Bills Index.
- The Australian Citizenship Legislation Amendment Bill 2002 passed through Parliament without amendment on 14 March 2002. Once the Bill has received Royal Assent, Australian citizens who acquire another citizenship from the date of Royal Assent will no longer lose their Australian Citizenship. Media Release H27/2002
- The Migration Legislation Amendment (Procedural Fairness) Bill 2002 and the Migration Legislation Amendment (No 1) Bill 2002 were introduced into Parliament in March 2002. If passed, the first Bill will amend the Migration Act to specifically state that the provisions of the Act constitute a code with respect to the procedural requirements under the Act and that the common law requirements of the natural justice hearing rule do not apply to decisions in relation to visa applications made under the Act. The Bill reinforces the removal of judicial review grounds enacted in September 2001 with the introduction of the privative clause.
The second Bill contains some significant technical amendments to the 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.
Both Bills were referred to the Senate Legal and Constitutional Committee for enquiry and report by 15 May 2002. Full text of the Bills, Explanatory Memoranda, 2nd Reading Speeches and Bill Digests may be found in the
Parliament Bills Index.
Human rights and asylum seekers
Recent caselaw - High Court
- MIMA v Singh, [2002] HCA 7 (7 March 2002) - interpretation of "serious non-political crime" within the meaning of the 1951 Refugees Convention, and whether murder can ever be a political crime.
- MIMA v Bhardwaj, [2002] HCA 11 (14 March 2002) - In this case the High Court considered a complex procedural point in the context of a Tribunal decision cancelling a student visa. The initial Tribunal decision had been made in the applicant's absence after it had mistakenly assumed that the applicant had declined to appear. A majority of the High Court held that the Tribunal acted within its jurisdiction when it accepted the applicant's explanation and revoked the earlier visa cancellation.
Recent caselaw - Federal Court and 'privative clause'
There have been several recent cases addressing the privative clause provisions of s 474 of the Migration Act. In each instance a single judge of the Federal Court has upheld the Act and confirmed that it had no power to review the Tribunal's decision in the absence of jurisdictional error.
- Walton v Ruddock [2001] FCA 1839 (20 December 2001) - the first case to discuss the new law. The Court expressed the view that s 474 does not prevent the review of decisions involving a breach of rules of procedural fairness.
- NAAX v MIMA [2002] FCA 263 (15 March 2002) - extensive discussion of the Constitutional validity of s 474. The Refugee Review Tribunal's failure to abide by procedures was not shown to amount to jurisdictional error. The Court held that a denial of natural justice was not shown to found a claim of jurisdictional error in this case, but noted that Constitutional writs may still be available in certain circumstances.
- NABM of 2001 v MIMA [2002] FCA 335 (26 March 2002) - another RRT review case approving of the decision in NAAX and noting the pending Migration Legislation Amendment (Procedural Fairness) Bill 2002 (discussed above).
- NABE v MIMA [2002] FCA 281 (19 March 2002) - a mistake in findings held not to constitute jurisdictional error such as would invalidate the decision.
- VAAR of 2002 v MIMA [2002] FCA 337 (15 March 2002) - noting the differing judicial interpretations of the scope of s 474.
- Ratumaiwai v MIMA [2002] FCA 311 (20 March 2002) - a special need relative case in which the Court held there was not jurisdictional error since the Migration Review Tribunal did address the issues presented to it, whether or not there was an error of law.
- Park v MIMA [2002] FCA 346 (20 March 2002) - long stay temporary business visa applicant not informed that the refusal of her employer's application as a standard business sponsor meant that her own application would fail. MRT's decision held to be "privative clause decision" and application for review dismissed.
- Lachmi v MIMA [2002] FMCA 19 (6 February 2002) - a Federal Magistrate's Court decision reaching the same conclusion in regards to another temporary business entry visa application refusal.
Recent caselaw - Federal Court and time for appeal
A further series of recent cases has reaffirmed that there is no power for the Court to extend time to lodge an appeal, even where the delay arose through no fault of the applicant. Applications for judicial review of Tribunal decisions are subject to strict time limits. See for example:
Recent caselaw - other Refugee Review Tribunal review decisions
- NADR v MIMA [2002] FCA 361 (20 March 2002) - This case concerned an applicant from Bangladesh. It is a useful example of the waste of money that applicants will incur if they lodge hopeless appeals to the Federal Court. The Court stressed that a Refugee Review Tribunal decision which considered the independent country information which notes the problems in Bangladesh, but then finds against an applicant, is not appelable on the grounds of actual bias of the Tribunal. Much more needs to be shown to establish actual bias.
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Verma v MIMA [2002] FCA 324 (13 March 2002) - This case concerned a Fijian woman of Indian ethnicity. The applicant was found to have a fear of persecution, but not a "well founded" fear of persecution within the Refugees Convention. Mere harassment or even frightening treatment is not enough to establish a well founded fear of persecution. The Court affirmed the Tribunal's finding that a reasonable level of State protection existed in Fiji, including police, judicial and allied services which together provide sufficient protection. Absolute protection is not required, but only a reasonable level of protection.
- In
W321/01A v MIMA [2002] FCA 210 (11 March 2002) the applicant succeeded in gaining a remittal to the Refugee Review Tribunal in a case lodged before the privative clause section was introduced. The applicant was a Palestinian who claimed he had been imprisoned for refusing to spy for Syrian intelligence. The Tribunal had refused to consider the claim, terming it "implausible". The Court held that the Tribunal was bound to consider the events claimed by the applicant in assessing whether there was a real chance that future events feared by the applicant may occur.
- In
V120/00A v MIMA [2002] FCA 264 (15 March 2002), the Court considered the effect of the death of the primary applicant on secondary applicants. The primary applicant died after his application for protection had been refused and while an appeal to the Refugee Review Tribunal was pending. The secondary applicants were family members dependent upon the deceased's claim, who had made no independent claims for protection and who had specifically completed the Form 866 as members of the family unit without their own claims as refugees. As the principal claimant had died without being granted a protection visa, the Court found that it would be impossible for the family members to satisfy the criteria of cl 866.222(a) and cl 866.222(b) of Schedule 2 of the Regulations.
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Kola v MIMA [2002] FCA 265 (18 March 2002) - Discussion of "effective protection" test in the context of ethnic Albanians from Serbia, and whether the applicants could enjoy effective protection in Albania.
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NABD v MIMA [2002] FCA 331 (25 March 2002) - This case is notable not for the protection issues raised, but for the disturbing conduct imputed to the migration agent and/or solicitors firm alleged to be the firm of record representing the applicant. The case highlights the importance of lawyers who purport to act for clients remembering their duty to the Court in their conduct of proceedings.
Recent caselaw - other Migration Review Tribunal review decisions
- Awa v MIMIA [2002] FCA 291 (19 March 2002) - The Tribunal exercised its discretion to refuse an application for an interdependency visa. The Court held that there was no need for it to consider whether a Ministerial Direction had fettered the Tribunal's discretion, as the Court found sufficient evidence that the Tribunal had in fact exercised its discretion and balanced the various considerations at issue.
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MIMA v Saravanan [2002] FCA 348 (27 March 2002) - In this case the Full Federal Court considered the meaning of "a purpose related to business" as specified in the criteria for a Tourist (Short Stay) visa subclass 676.
Recent caselaw - Federal Magistrates Court and Administrative Appeals Tribunal
- Sim and MIMIA [2002] AATA 131 (1 March 2002) - Spouse visa - character test not passed where applicant had provided false and misleading information in connection with an earlier application for a tourist visa. Additional discussion about exercise of discretion, protection of the Australian community, the best interests of a child, and International obligations.
- Thorpe and MIMIA [2002] AATA 157 (11 March 2002) - Spouse visa - character test not passed where applicant had provided false and misleading information in connection with application for visa, passport fraud was proved and the marriage was found not to be genuine. Additional discussion about exercise of discretion, protection of the Australian community, the best interests of a child, and other considerations.
- Joseph and MIMIA [2002] AATA 100 (19 February 2002) - Citizenship - periods of residence to qualify for permanent residence not satisfied - the Tribunal found hardship or disadvantage would be suffered by the applicant if permanent residence not granted. The decision under review set aside and matter remitted to the Department for reconsideration taking into account the AAT's exercise of discretion under s 13(4)(b)(iv) of the Australian Citizenship Act.
- Dranichniko v DIMA [2002] FMCA 23 (18 February 2002) - This was a case brought under the Human Rights and Equal Opportunity Act 1986 and the Sex Discrimination Act 1984. The applicant alleged the Department of Immigration and Multicultural Affairs had discriminated against her in that her application for a protection visa was made under the family unit provisions with her husband as primary applicant, and that she should have been permitted to apply for protection in her own right.
The Court found that the applicant had not been prevented from bringing an application in her own right and found no other discriminatory conduct. The Court found that the applicant had in fact concurred in being included in her husband's application. The Court stated, "Whether further attention needs to be given by the Department to the explanations in Part A, B, C and D of such applications so that all potential applicants for refugee status (in their own right) are identified at the earliest opportunity, is ultimately a matter for the Department."
Contact
us
Parish
Patience Immigration
Lawyers
Level 1, State Street Centre
338 Pitt Street
SYDNEY NSW 2000
AUSTRALIA
Tel: +612
9286 8700
Fax: +612 9283 3323
Email
www.parishpatience.com.au/immigration/
Registered
Migration Agents 9255523, 9360676, 9359088, 9370721,
9800540, 9802999, 0004435, 0002240
Liability is
limited by the Solicitors Scheme under the Professional
Standards Act 1994 (NSW)
