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| Issue No 41 | February 2003 | ||||||
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Plaintiff S157 of 2002 v The Commonwealth of Australia
As reported in our previous newsletter, Parish Patience Immigration, Lawyers, are acting for the Plaintiff in a High Court challenge to the Government's recent 'privative clause' legislation, Plaintiff S157 of 2002 v The Commonwealth of Australia.
The High Court announced its decision on 4 February 2003. The unanimous decision by the High Court confirms the principle that asylum seekers have a Constitutional right to appeal their cases on the ground of jurisdictional error. The decision has been hailed as a "victory for the rule of law and for the principles of democracy."
A Canberra Times editorial gives a clear, simple summary of the issues in the case: "The latest fiasco was quite predictable - indeed it was predicted by this newspaper when it was before Parliament. The Constitution gives original jurisdiction to the High Court to issue prerogative writs against Commonwealth officials. That is not jurisdiction that legislation can take away. What it means is that every time a Commonwealth official makes a decision, it is open to a person affected to go to the courts to argue that the official exceeded the powers given by law, misconceived them, exercised them for improper purposes, took into account factors which should not have been taken into account, or failed to take into account matters which should have been, or failed to give natural justice if this was required. Such errors go, as the lawyers put it, to the jurisdiction of the decision. A court cannot substitute its own view of what the decision ought to have been, but if it finds that there were errors in the way the official went about making the decision, or a lack of power to make it, then it can order that the decision be reconsidered and made properly, according to law. This constitutional power of the courts is one of the great bulwarks of our civil liberties, the basis of the saying that no person, even the king, is above the law."
"Minister can't turn tide," Canberra Times 7 February 2003.
Additional information:
Managing Partner David Bitel will be travelling to Manila in early March. Mr Bitel will be available to give advice to applicants for all categories of migration to Australia and also for student visas. Applicants must have English language fluency and for most categories need to 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, or ring Barbara on tel. +61 2 9286 8700. A consultation fee will apply.
We are pleased to announce new agency arrangements with firms in South Africa and England. Parish Patience Immigration will work with these firms on behalf of visa applicants to and from these countries. Applicants, especially skilled migration applicants, who may not initially qualify for an Australian visa may be able to obtain a visa to one of these countries.
Graeme Kirk has offices in London and Bury St Edmonds, Suffolk. He is a leading immigration lawyer in England, and is Chairman of the Immigration and Nationality Law Committee of the International Bar Association. Mr Kirk will assist clients who are interested in temporary visas to the UK, for example employer sponsorships, and also those seeking to stay permanently. These arrangements will be of particular interest to people who have relatives in the UK who are prepared to assist in finding employer sponsors.
For South Africa, we have arrangements with firms in Pretoria, Pietermaritzburg, Capetown and George. We can offer assistance to people in South Africa wishing to come to Australia, and also people from other countries wishing to go to South Africa as that country has a developing migration program.
For additional information about our arrangements in England and South Africa, please contact Etienne Hugo, or ring Etienne on tel. +61 2 9286 8700.
On 11 November 2002, Nigel Dobbie spoke at the Migration Institute of Australia's NSW State Conference. Mr Dobbie's paper, "Current State of Judicial Review of Decisions under the Migration Act 1958 (Cth)" is found on the Articles page of our website.
Skilled migration & business entry
Major changes to Business Skills visas are due to commence from 1 March 2003. The changes affect both temporary and permanent business migration.
According to the November issue of DIMIA's Focus on Business newsletter, the new arrangements are intended to result in:
From 1 March, business migrants will be granted a provisional visa for four years and, after establishing the requisite level of business activity, be eligible for permanent residence.
Immediate permanent residence will still be available for those business migrants sponsored by state or territory governments (Business Talent visa).
Applications for most existing Business Skills subclasses will cease as of 1 March 2003. Instead:
Certain applicants may find it more advantageous to lodge their applications prior to the new arrangements; while other applicants will benefit from the new system. It is important for all business applicants to seek professional advice based upon their individual circumstances.
For additional information about changes to skilled migration, we invite you to contact Rania Skaros or Etienne Hugo.
Related:
Migration Amendment Regulations 2002 (No 10), SR 348 of 2002
Business Skills Migration (DIMIA)
The Federal Minister for Health & Ageing, Senator Patterson, and the Minister for Immigration & Multicultural & Indigenous Affairs, Mr Ruddock, have announced a new program to increase the number of medical practitioners working in hospitals. Approximately 50 international medical students, who have undertaken their training in Australia, will be eligible for placement as interns in public hospitals.
Media Release 15 December 2002
Related: Visa Options for Nurses (DIMIA)
We have been advised by senior officers at the Trades Recognition Authority that permanent skilled migration applicants who hold only a Certificate III, without work experience, may be asked to complete and pass a trade test as part of their TRA assessment. The new policy is discretionary and may not be required on all applications. However, it is likely to be required in many cases, especially for applicants who gained their qualifications at a private college rather than TAFE. All costs associated with the trade testing will have to be borne by the applicant.
For additional information about skilled migration and trades recognition, please contact Annette Aitken.
From 9 December 2002, Regulation 1.20GA has been amended to clarify that no nomination fee is required for temporary business (long stay) nominations where the sponsor is a Pre-qualified Business Sponsor. If the sponsor is a Standard Business Sponsor, the nomination fee is still required.
Tasmania has joined the State/Territory Nominated Independents (STNI) visa scheme. The STNI scheme enables states and territories to sponsor independent skilled migration applicants who are willing to settle in states and territories where their skills are in demand. We invite you to contact David Bitel for additional information.
On 18 June 2002, the Minister for Immigration and Multicultural and Indigenous Affairs, Mr Ruddock, asked the Parliament Joint Committee on Migration to review and report on Australia's migration and temporary entry program for skilled labour. Many submissions have been published on the Committee's website. Additional hearings are scheduled in various capital cities during February 2003.
The Senate Employment, Workplace Relations and Education References Committee has commenced an inquiry into Australia's current and future skills needs. The Committee looks forward to consulting a wide range of industry representatives, VET and other training providers, government, union and community representatives.
Information about how to make a submission is found on the Committee's
website
In the past few months, we have come across cases where migration applications in the overseas student categories were assessed as invalid because students who completed only one or two subjects in one semester were considered by DIMIA as not being in full-time study.
We hope this issue is being resolved gradually through our submissions to the assessing officers and in light of a recent court case. Anyone who currently still has this problem unsolved, should contact us immediately.
Students who intend to rely on their Australian qualifications to apply for migration, must check their transcripts carefully to see whether they meet the "one year" and "full-time" requirements. And most importantly, they should discuss this matter with the school to ensure that they are in full time study.
For additional information on student visas, we invite you to contact Diana Tong.
The following changes are effective 1 March 2003:
The condition 8534 'No Further Stay' provisions have been amended to permit the condition to be waived if the applicant is registered as a nurse in Australia or satisfies the requirements for registration as a nurse in Australia, and meets certain English language proficiency requirements.
From 1 March 2003, dependants of Masters and Doctorate students, like other student dependants, may only be granted permission to work once the student has commenced their course.
The International English Language Testing System (IELTS) is the standard English language proficiency test for the student visa program. The Computer-Based Test of English as a Foreign Language (TOEFL) is an acceptable alternative to IELTS in some countries where IELTS is unavailable.
IELTS Australia have advised that IELTS testing facilities are now available in a number of additional countries, therefore effective 1 April TOEFL will no longer be an acceptable alternative to IELTS in certain countries.
Also, effective 1 April the Paper-based TOEFL will be an acceptable alternative to IELTS. The Paper-based TOEFL and Computer-based TOEFL will then be acceptable alternatives to IELTS in certain listed countries.
Finally, a pass mark on the Occupations English Test (OET) in any foreign country will continue to be an acceptable alternative to IELTS. The OET is an English test for overseas-trained health professionals and requires considerable English language proficiency.
Details of the new arrangements and countries affected are found at Student Visas - What's New (DIMIA website).
Parent, retirement & other family visas
As reported in the previous edition of our newsletter, on 12 November the Minister for Immigration, Mr Ruddock, announced that he will be introducing legislation to increase the available number of parent migrant visas. The Migration Legislation Amendment (Contributory Parents Migration Scheme) Bill 2002 was introduced into Parliament on 5 December 2002.
New parent visa arrangements - questions & answers
We invite you to contact Annette Aitken, who will be monitoring the progress of the new parent visa legislation.
We have received advice from the Migration Agents Registration Authority of changes to subclass 410 Retirement visa arrangements:
From 9 December 2002, the Migration Regulations have been amended to allow applicants granted a temporary Partner visa following the Minister exercising his public interest powers, to apply for the corresponding permanent Partner visa.
The Immigration minister, Mr Ruddock, invites interested individuals and organisations to make written submissions about their views and ideas on the 2003-2004 Humanitarian Program. Closing date for submissions is 21 February 2003.
The Foreign Affairs minister, Mr Downer, and the Immigration minister, Mr Ruddock, have issued a joint media release rejecting the report of the United Nations Working Group on Arbitrary Detention's visit to Australia in May and June 2002.
Related: "UN sees families crack in detention," The Australian 16 December 2002.
The Australian Human Rights and Equal Opportunity Commission has posed the question, "Are temporary protection visas racially discriminatory?" Published research, a legal issues paper, opportunity to comment and E-Race Forum bulletin board are found on the HREOC
Erace website.
The New York Times has reported on a new production by Peter Sellars, a re-telling of Euripides' "The Children of Herakles". The play seeks to give individual faces to the story of refugees, and includes nonspeaking roles by actual refugee children. According to the report, the play is Mr Sellars's first full-scale production since being forced out of his position as director of the Adelaide Festival in November 2001.
"Peter Sellars Returns with an Ancient Message," New York Times 14 January 2003
New and amended Regulations are summarised at DIMIA's Notice of Legislation Change. Full text of Regulations and Explanatory Statements is found on the Attorney-General's Scaleplus website. Below is a brief summary of recent changes. As always, we recommend professional advice in the complex and technical arena of immigration law.
These regulations change the requirements for making valid visa applications for certain visa classes (including dependent child, spouse and interdependency), amend the criteria for permanent partner visas, require proof of identity for persons travelling on overseas vessels with Australia, and amend fees imposed on business sponsors. Certain of the regulations commenced on 9 December 2002, with the remainder on 5 January 2003.
The Migration Amendment Regulations 2002 (No 8), SR 2002 No. 323, were gazetted on 14th December 2002. The Regulations operated to excise four islands off the West Australian coast, and were enacted in response to concerns over a certain boat possibly carrying illegal entrants. Subsequently the vessel was found not to be carrying illegal entrants, and as a result these regulations were rescinded by the Migration Amendment Regulations 2002 (No 11), SR 354 of 2002. See also Media Release MPS 211/2002
This is a new Regulation 2.10AA, specifying where applications must be made for certain gazetted visas, with commencement from 20 December 2002. The amendment will allow the Minister to gazette certain countries and certain persons, so that visa applicants outside Australia can lodge applications at a specified DIMIA office in Australia.
Certain of these regulations commenced on 5 January 2003; the remainder will commence on 1 March 2003. Briefly,
The purpose of these Regulations is to amend the Migration Agents Regulations 1998 to implement recommendations made following the 2001 - 2002 Review of Statutory Self-Regulation of the Migration Advice Industry. The Regulations:
All registered migration agents have also received a notice from the Migration Agents Registration Authority, expressing concern that a small number of agents consistently engage in lodging grossly unfounded or vexatious applications on behalf of their clients. Of particular concern are applications where the sole purpose seems to be to 'buy extra time' for the client to remain in Australia, such as:
It must be stressed that migration agents who do or encourage a course of action contrary to the Migration Agents Regulations face being deregistered; they cannot hide behind a client's instructions to do the wrong thing.
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 6th February 2003.
Full text of the Bills, Explanatory Memoranda, 2nd Reading Speeches and Bill Digests may be found in the
Parliament Bills Index.
This Bill is the Government's response to the Review of Statutory Self-Regulation of the Migration Advice Industry. The Government has committed to continuing the statutory self-regulation scheme through the Migration Registration Agents Authority, and will strengthen the Migration Agents' Code of Conduct to allow more scope to sanction agents who act in an unethical manner. Also, migration agents working overseas will be included in the registration scheme.
The Bill has now passed through Parliament. See also Media Release H93/2002
This Migration Legislation Amendment (No 1) Bill 2002 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 sent to the Senate for concurrence, where it was introduced on 5 February 2003.
This Bill provides for a new special benefit activity test, under which certain people on temporary protection, humanitarian or safe haven visas will be required to work for their welfare benefits from 1 January 2003.
The Bill has passed through both Houses with amendments, and is now Act No 147 of 2002.
This Bill was negatived by the Senate on 9 December 2002 (motion for Second Reading lost).
Regarding information gathering by the Department of Immigration and Multicultural and Indigenous Affairs &c. Introduced 12 December 2002; moved Second Reading; debate adjourned.
On 6 February, the Attorney-General, Mr Williams, announced that as a result of Senate opposition to legislation introducing an Administrative Review Tribunal, the Government will not seek to introduce the Administrative Review Tribunal legislation in the current Parliament.
In 2000, the Government introduced the Administrative Review Tribunal Bill, which would have replaced the four administrative tribunals - Administrative Appeals Tribunal, Social Security Appeals Tribunal, Refugee Review Tribunal and Migration Review Tribunal - with a single tribunal. However, Labour and the Democrats blocked the passage of the Bill through the Senate.
In light of this opposition, the Government will undertake reform of the existing tribunals on an individual basis, starting first with reform of the AAT.
Attorney-General's Media Release 6 February 2003
The Visa Office of the Australian Embassy in Manila re-opened for business on 6 January 2003, following a temporary closure due to an earlier terrorist threat.
Details, including telephone numbers for enquiries within the Philippines, are found on the
DIMIA website. Additional information, including travel warning and telephone numbers for enquiries within Australia, is found on the Department of Foreign Affairs website.
From 3 February 2003, Australian visa and citizenship processing for the USA have been centralised at the Australian Embassy in Washington DC. For a limited time Subclass 420 Entertainer visas will continue to be processed in Los Angeles, but this function will be transferred to DIMIA Sydney effective 1 March 2003.
US citizens wishing to go to Australia for less than 3 months for tourism or business may apply for Electronic Travel Authorities (ETAs) on-line or through travel agents. Applicants for other visa classes can lodge their applications via the relevant specialised processing centre located in Australia.
Details, including telephone numbers for enquiries and Internet links, are found in
Visa Services in North America (DIMIA website).
Related: Departmental Press Statement DPS 9/2003.
The Immigration minister, Mr Ruddock, has announced the appointment of Mr John Blount as the new Deputy Principal Member and Mr Bruce MacCarthy and Mr Giles Short as new Senior Members of the Refugee Review Tribunal.
On 16 January 2003, Minister Ruddock became the longest-serving Immigration minister in Australia's history. The Minister for Citizenship and Multicultural Affairs, Mr Hardgrave, congratulated Mr Ruddock on his achievement.
DIMIA Africa's December issue contains information about processing of Special Humanitarian cases in Africa, and statistics on processing times for Provisional Spouse (subclass 309) and Prospective Marriage (subclass 300) visas.
DIMIA's Rockdale office closed effective 20 December 2002, with all functions transferred to the Sydney CBD office in Lee Street.
Australia has signed Social Security Agreements with the Republic of Slovenia and with Germany.
The agreement with Slovenia will help people in Australia who may have worked in Slovenia, to receive a Slovenian pension. The agreement will also enable people to claim an Australian pension by counting periods of insurance in Slovenia towards Australia's residence requirements. Claims may be made through Centrelink.
The agreement with Germany means that, from 1 January 2003, Australian residents may receive an increase in their existing German pension or receive a German pension for the first time. The agreement also allows people to add together periods of time spent in Australia with periods of contributions to German pension schemes, to meet minimum qualifying periods for claiming both Australian and German pensions.
On 11 December 2002, Australia signed the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children. The Protocol has been signed by 112 other countries.
On 10 January 2003, the Sydney Morning Herald reported on a new Fair Go Australia campaign to encourage racial tolerance. The public education campaign, "Getting to Know You", seeks to stamp out racism and discrimination by challenging ethnic and religious stereotypes.
The Fair Go website includes an interactive chat room, formally mediated and open 24 hours per day. Reports of racism and discrimination will be used to establish a central database to be maintained by the University of Technology, Sydney.
Fair Go Australia is chaired by The Rev. Bill Crews, chairman of the Exodus Foundation. It is supported by the NSW, Victorian and Queensland governments, the national Jewish anti-racism organisation B'nai B'rith and the advertising firm Loud. The project was initiated by Alan Gold, executive director of the B'nai B'rith Anti-Defamation Unit.
Parish Patience Immigration Managing Partner David Bitel is a member of the steering committee, representing the NSW Jewish Board of Deputies.
"Prejudices targeted in campaign for fair go," Sydney Morning Herald 10 January 2003
Recent caselaw
Following is a brief outline of recent developments in the High Court of Australia. Full text of decisions and transcripts of High Court hearings are available on Austlii.
This was a challenge to the Government's 'privative clause' legislation ("Tampa legislation"). Parish Patience Immigration act for the Plaintiff. For details please refer to the
Staff news section of this Newsletter.
This was an appeal by a family of asylum seekers who had claimed to be from Afghanistan. However Department of Immigration officers found that the family were in fact from Pakistan and denied their application for temporary protection visas. The High Court found, by a 5-2 majority, that the case was not maked by jurisdictional error, illegality of impropriety, and therefore the family's appeal failed.
The decision has been widely reported in the press in connection with attempted escapes from a detention facility late last year.
As reported in a previous edition of our newsletter, Muin and Lie were both representative actions, with combined class members of more than 7,000 applicants. The High Court found that the applicants Muin and Lie had been denied procedural fairness in that each applicant had been misled as to whether it was necessary to draw the Tribunal's attention to material favourable to his or her application, and that the applicants were further denied procedural fairness in not being advised of general country information submitted to the RRT by the Department of Foreign Affairs. The Court ordered the cases returned to the RRT for further consideration in accordance with the law.
The cases would have to be re-heard individually due to the legislative prohibition on class actions in migration matters.
On 25 November Justice Gaudron of the High Court issued orders giving affected asylum seekers six months to resubmit their applications on an individual basis. As many as 4,000 of the original 7,000 applicants are still in Australia on bridging visas, and will have to apply separately to have their cases heard in the High Court or Federal Court.
Reader contributions of upcoming events may also be submitted to the Parish Patience Australian Immigration Update Newsletter Editor.
"There never was a good war, or a bad peace"
- Benjamin Franklin (1706-1790)
We welcome reader contributions of quotable quotes to the Editor.
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