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| Issue No 45 | August 2003 | ||||||
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David Bitel consultations interstate and overseas
Managing Partner David Bitel will be travelling to Manila in late August. He will be visiting Dhaka, Bangladesh in early December. He also regularly travels to Melbourne & Canberra, and Auckland, New Zealand to see clients.
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 resumé 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.
Recent additions to our website:
Skilled migration & business entry
As reported in previous issues of our Newsletter, changes to the general skilled migration category took effect on 1 July 2003.
The Immigration Department has updated its General Skilled Migration webpage, including a summary of the changes and link to the General Skilled Booklet.
In related news, the Minister for Immigration, Mr Ruddock, has announced that the number of skilled migrant visas reached an all time high in 2003-2003. (MPS 46/2003, 10 July 2003)
For additional information about the changes to skilled migration, we also invite you to contact Sharon McCabe.
The Immigration Department has published the following resources explaining the July 1 changes to Business Skills visa categories:
And in a Letter to the Editor of The Age newspaper, DIMIA has made clear that the 457 visa operates to "allow businesses to bring skilled overseas workers to Australia to meet their special skill needs. This visa is not for companies to bring people to Australia on the basis of possible work in the future." ("Visa rules are not changing," 31 July 2003)
For additional information about Business Skills visas, we invite you to visit our Business Skills webpage, and to contact Rania Skaros or Etienne Hugo.
Sharon McCabe, a Parish Patience Immigration Migration Agent, recently attended a Migration Institute of Australia seminar where the proposed changes to Temporary Business (Long Stay) subclass 457 visas were explained. Sharon's summary of the proposed changes has been published on the Business Skills page of our website.
The Migration Legislation Amendment (Sponsorship Measures) Bill 2003 was introduced into Parliament on 4 June 2003. According to the Explanatory Memorandum, the purpose of the Bill is to provide a comprehensive and transparent framework for the regulations to prescribe requirements relating to sponsorship.
The Bill formalises Government policy to require the sponsors, as opposed to the Australian taxpayer, to bear all costs in relation to non-citizens who are being sponsored. Although aiming to standardise sponsorship arrangements, the Bill nevertheless recognises different sponsor relationships depending on the type of visa applicant being sponsored. The Bill also seeks to limit merits review where visa applicants have failed to meet sponsorship requirements.
The Bill has passed through the House of Representatives and was introduced into the Senate. It was then referred to the Senate Legal and Constitutional Legislation Committee, with report due 12 August 2003.
As members of the Migration Institute of Australia, we have received information from DIMIA clarifying the meaning of "satisfaction date" in the context of Australian Computer Society skills assessments for General Skills Migration purposes. The information also distinguishes the ACS "satisfaction date" from the TRA "deeming date." The information, which was received in the form of a letter from DIMIA, will be incorporated into the Procedures Advice Manual.
For additional information about trades recognition and ACS skills assessments, we invite you to contact Annette Aitken.
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. The committee is to report by 28 October 2003.
Information about how to make a submission and hearings schedule is found on the Committee's
website
Student & working holiday visas
A new Sponsored Professional Development visa (subclass 470) was introduced on 1 July.
The new visa is intended to allow education and training providers to provide academic and practical training for professionals, managers and government officials from overseas. According to the Immigration Minister, Mr Ruddock, the new visa will benefit the Australian education industry in the growing niche market for specialised training, especially from China in the lead-up to the Beijing Olympics.
See also:
New visa to bring professionals from overseas, MPS 48/2003, 11 July 2003;
For additional information about Professional Development visas, we invite you to contact Diana Tong.
Further to the July 1 changes encouraging permanent visas for students who have studied in regional and low growth metropolitan areas, a number of institutions have been specified in Special Gazette Notice 237, 1 July 2003.
For additional information about Student visas and Working Holiday or Work & Holiday visas, we invite you to contact Diana Tong.
A new Contributory Parent visa category commenced on 27 June 2003 for applicants residing outside Australia; and on 1 July 2003 for applicants residing in Australia.
DIMIA has published an excellent 'Question & Answer' factsheet on the new requirements on its Parent Migration website.
The 'Q&A' factsheet answers many common questions, and includes an easy to understand table showing the types of visa available, age requirements, location of applicant when visa is granted, visa application charge, and assurance of support bond requirements.
In addition, DIMIA has begun sending existing applicants letters which include information to assist applicants in assessing their current place in the queue. Applicants already in the queue will need to decide whether to stay in the queue, or to withdraw their current applications and apply under the new system. Applicants can only have one parent visa application in the system.
Links:
For additional information about Parent visas, we invite you to contact Annette Aitken or Sharon McCabe.
Asylum seekers and human rights
Australian Lawyers for Human Rights have published a plain language guide to Australian refugee law. The Refugee Law Kit is available from the menu at
http://www.alrh.asn.au
The Human Rights and Equal Opportunity Commission Acting Race Discrimination Commissioner, Dr Bill Jonas, has launched an updated version of "Face the Facts", an excellent publication with questions and answers about refugees, migrants and indigenous people. Details and a link to the full publication are available in the Media release of 30 July 2003.
The Government's policy on immigration detention is set out in detail at
http://www.minister.immi.gov.au/borders/detention/index.htm
As reported in the previous issue of our Newsletter, on 19 June, a majority of the Full Family Court found that the welfare jurisdiction of the Family Court extends to children in immigration detention. On 8th July, the Minister's application for a stay of the decision pending his appeal to the High Court was dismissed.
On 5 August, Justice Strickland of the Family Court declined to order the release of the children, finding that insufficient evidence of the children's best interests had been presented.
Related:
Minister for Immigration and Multicultural and Indigenous Affairs and B and B [2003] FamCA 591, Full Family Court, 8 July 2003
"Five siblings to remain in detention pending trial," The Age, 6 August 2003
Ruddock totally lost the plot on children in detention
, media statement by Nicola Roxon, Shadow Minister for Population and Immigration Assisting the Leader on the Status of Women, 26 July 2003
"High Court Appeal just heartless," Australian Democrats Press Release 03/453, 24 June 2003
The Refugee Review Tribunal has issued updated General Practice Directions as at 4 July 2003.
On 23 July 2003, the United Nations High Commissioner for Refugees published "Guidelines on International Protection: 'Internal Flight or Relocation Alternative' within the context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees." (HCR/GIP/03/04) The Guidelines are available on the UNHCR website - follow the links to Research/Evaluation - Legal Information - Guidelines, or utilise the UNHCR website search facility.
Many persons granted Temporary Protection Visas are now facing the difficult task of applying for further protection visas as the term of the initial TPV expires.
Recent information on this contentious issue:
There have been a number of recent court and tribunal decisions considering Jewish asylum seekers and Israel's Law of Return. A review of the decisions is found in the Recent Caselaw section of our Newsletter.
A recent Federal Court decision has called into question the Government's policy of repatriation of Iranians of Sabian Mandaean faith. According to a June 9 article in The Age, Justice Cooper found fault with both the Government's narrow definition of "persecution" and the Tribunal's failure to address a number of specific claims by the applicant family.
Related:
"Infidels in their own land lose faith in foreign justice," Sydney Morning Herald, 29 May 2003 (available at Fairfax Newsstore);
"Government accused of hypocritical deal with Iran," AAP Newsfeed, 26 May 2003;
Media release MPS 13/2003, 12 March 2003; and
"Forced return of Iranian asylum seekers," Refugee Council of Australia media release 12th March 2003. [David Bitel, Managing Partner of Parish Patience Immigration, is also President of the Refugee Council of Australia.]
A boat containing 54 asylum seekers arrived off the coast of Western Australia on 1 July. The passengers were taken on board HMAS Canberra and transported to Christmas Island, an excised offshore place under the Migration Act.
Related:
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 22 July. Parliament next sits beginning 11 August 2003.
Full text of the Bills, Explanatory Memoranda, 2nd Reading Speeches and Bill Digests may be found in the
Parliament Bills Index.
The Migration Legislation Amendment (Sponsorship Measures) Bill 2003 was introduced into Parliament on 4 June 2003. According to the Explanatory Memorandum, the purpose of the Bill is to provide a comprehensive and transparent framework for the regulations to prescribe requirements relating to sponsorship.
The Bill formalises Government policy to require the sponsors, as opposed to the Australian taxpayer, to bear all costs in relation to non-citizens who are being sponsored. Although aiming to standardise sponsorship arrangements, the Bill nevertheless recognises different sponsor relationships depending on the type of visa applicant being sponsored. The Bill also seeks to limit merits review where visa applicants have failed to meet sponsorship requirements.
The Bill has passed through the House of Representatives and was introduced into the Senate. It was then referred to the Senate Legal and Constitutional Legislation Committee, with report due 12 August 2003.
Regarding information gathering by the Department of Immigration and Multicultural and Indigenous Affairs &c. Received Royal Assent on 15 July; now Act No 75 of 2003
According to the Explanatory Memorandum, the intention of this Bill is to counter a series of Federal Court decisions where interlocutory release of immigration detainees has been ordered. The Bill expresses the Government's intention that an unlawful non-citizen must be kept in immigration detention until a Court finally determines that either the detention is unlawful or that the applicant is not an unlawful non-citizen.
The Bill passed through the House of Representatives on 26 June, and awaits introduction into the Senate. The Australian Democrats have announced they will oppose this Bill.
Related:
Australian Democrats Press Release 03/453, 24 June 2003
'Labor not concerned about criminals being released,' Media release MPS 39/2003, 19 June 2003
David Bitel's case summary of MIMIA v Al Masri (Full Federal Court 15 April 2003).
Introduced into the House of Representatives on 26 June 2003.
Introduced 27th March 2003; referred to Senate Legal and Constitutional Legislation Committee; Report tabled 29th May 2003.
The Senate Committee rejected the more controversial reform proposals found in the Bill. The Bill passed through the House of Representatives after midnight on 27 June, and will now proceed to the Senate.
Received Royal Assent 22 July 2003, now Act No. 77 of 2003.
The Legislative Instruments Bill and Legislative Instruments (Transitional Provisions and Consequential Amendments) Bill were introduced into the House of Representatives on 26 June. The Bills are intended to make statutory rules and other legislative instruments more accessible, through the development of a Federal Register of Legislative Instruments. The Bills also aim to introduce a consistent system for registering, tabling, scrutinising and sunsetting legislative instruments.
Related:
"Making law more accessible," Attorney-General News Release 74/03, 26 June 2003
"Legislation to clean up administrative black hole," Australian Financial Review, 11 July 2003 (available at Fairfax Newsstore)
The Age Discrimination Bill and Age Discrimination (Consequential Provisions) Bill were introduced into the House of Representatives on 26 June. According to the Attorney-General's media release, the Bills are a world first in proposing stand alone age discrimination legislation covering access to goods and services and education, as well as employment.
Related:
"Australian leads world with age legislation," Attorney-General News Release 73/03, 26 June 2003
In response to media reports that charities involved in lobbying or speaking out on public policy might lose their tax exempt status, the Treasurer, Mr Costello, has stated that the Charities Bill 2003 Exposure Draft does not represent a change from existing practice.
Additional information:
Treasurer's Press Release, 30 July 2003
Charities Bill 2003 - Exposure Draft, Explanatory Memorandum, Consultation Plan, and related information
"Charities can speak out: Costello," Sydney Morning Herald, 31 July 2003.
The Senate has formed a Select Committee on Ministerial Discretion in Migration Matters. Terms of reference, media release, and information on how to make a submission are found on the Committee's website.
-- The Politics of Constitutional Amendment, by Scott Bennett, Parliamentary Library Politics and Public Administration Group
-- The Double Dissolution Process, by Sudip Sen, Parliamentary Library Law and Bills Digest Group
-- Inquiry into a Republic, by Senate Legal and Constitutional References Committee
The Department of Immigration (DIMIA) advises that from 1 July 2003 all temporary residence visa applications from all states in India and Nepal must be lodged at the Mumbai Visa Office (except for entertainment visa applications which are processed in Sydney). This includes visa subclasses 456 and 457. The New Delhi Visa Office no longer processes temporary residence applications.
DIMIA has also advised that effective 1 July 2003, a Local Clearance Unit has been established at the Sydney Gateway Office on a trial basis. Initially the LCU will assess and process health examination results for applicants for subclass 470 (Professional Development); subclass 420 (Entertainment); and e457 (Electronic Business Long Stay) visas.
A new procedure for Australian visa applicants to obtain police certificates from the USA took effect on 1 July 2003.
http://usembassy-australia.state.gov/consular/policeclear.html.
The Minister for Immigration and Multicultural and Indigenous Affairs, Mr Ruddock, has announced the appointment of 36 new members to the Migration Review Tribunal and the Refugee Review Tribunal. The new members will enable a significant reduction in the number of cases currently pending before both tribunals.
Media Release MPS 42/2003, 26 June 2003
The Minister for Citizenship and Multicultural Affairs, Mr Hardgrave, has launched the National Council of Migrant Resource and Settlement Agencies in Preston, Victoria.
Media Release H85/2003, 11 July 2003 - includes link to Migrant Resource Centres throughout Australia.
The Minister for Citizenship and Multicultural Affairs, Mr Hardgrave, has launched a new publication, 'A Guide to the Role of Police in Australia.'
The Guide has been produced in eight languages, and aims to help newly arrived migrants understand their rights and responsibilities under Australian law.
Media Release H99/2003, 30 July 2003
Guide to the Role of Police in Australia, by the Australasian Police Multicultural Advisory Bureau
The DIMIA Statistics Section has published a range of Community Information Summaries, based upon the 2001 Census of Population and Housing. The Summaries describe overseas-born communities and their descendants who are living in Australia.
Community Information Summaries - updated 8 July 2003
The Movement Alert List is a computer database that stores details about people and travel docuemnts of immigration concern to Australia. DIMIA uses the MAL as a key tool in applying the legislation governing non-citizens who are of character concern.
Factsheet 77: The Movement Alert List was updated on 8 July 2003.
DIMIA has updated Factsheet 86: Overstayers and People in Breach of Visa Conditions as at 21 July 2003.
DIMIA has updated Factsheet 100: Migration Agents Registration Authority as at 3 July 2003.
Recent caselaw
Following is a brief outline of recent developments. Full text of decisions from all Courts and tribunals are available on Austlii.
Federal Court
In this case an applicant in detention was unsuccessful in his claim to be released pending deportation. The Court declined to order the unsuccessful applicant to pay the Minister's costs, quoting as authority Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227 as follows:
"Although an order for costs is made to compensate a successful party for the expenses incurred in responding to an application or proceeding, that principle of compensation should yield in favour of the principle that a person detained by authority of the State should not be deterred by a potential costs order from seeking his or her liberty. There is a public interest in ensuring that persons detained against their will should not have any impediment put in their way which will inhibit them in seeking their liberty. In my view that public interest outweighs the general rule that a successful party is to be compensated for its costs by the unsuccessful party. In particular is this so where the costs are incurred by the State under whose authority the person is detained."
NAGV v MIMIA is an important decision from the Full Bench of the Federal Court, concerning whether a Jewish asylum seeker in Australia may be considered to have adequate protection pursuant to the Israeli Law of Return. The Federal Court recognised that the applicants would suffer persecution if they returned to Russia, however because the father, at least, was Jewish, the Court determined that the family could go to Israel to live.
The decision may be appealed to the High Court. Meanwhile, several other recent decisions of the Federal Court and the Refugee Review Tribunal concerning Jewish asylum seekers are worthy of note:
Federal Court
Refugee Review Tribunal
The Tribunal also found that Russian police and judicial systems were unable or unwilling to provide protection against anti-Semitic attacks. The Tribunal determined that due to the applicant's baptism into a Christian church he had no right to immigrate to Israel under the Law of Return. Therefore the applicant was successful in his claim to be a refugee.
For additional information about this area of the law, we invite you to contact David Bitel.
Family Court
As reported in the previous issue of our Newsletter, on 19 June a majority of the Full Family Court found that the welfare jurisdiction of the Family Court extends to children in immigration detention. On 8th July, the Full Court of the Family Court rejected the Minister's application for a stay of the decision pending his appeal to the High Court.
Additional information about the case is found in the Asylum Seekers & Human Rights section of this Newsletter.
In what on its face appears to be a contradictory decision, a differently constituted Full Court of the Family Court has found that the Migration Act overrode the Family Law Act in the case of a Russian mother facing deportation and consequent separation from her Australian born child. Representatives of the mother have confirmed that they will appeal the decision to the High Court.
Related:
"Not without my baby: Russian mother defies deportation," Sydney Morning Herald, 30 July 2003
Refugee Review Tribunal
In this case the applicant was a citizen of Jordan. She feared persecution as a result of commencing a close relationship with a married man. When her father and brother discovered the relationship, they seriously mistreated her and threatened her with an 'honour killing'. The only 'protection' offered by the police was to take her into custody. The Tribunal was satisfied that the applicant had a well-founded fear of being seriously harmed in a manner which met the test of persecution. Although the Tribunal was not satisfied that the family's motivation was Convention-related, it was satisfied that the protection of the authorities would be withheld because of her membership of a particular social group - women in Jordan.
Administrative Appeals Tribunal
This case concerned a subclass 309 (provisional) spouse visa. The visa was refused on the character grounds of s 501 of the Migration Act. It is one of a series of decisions illustrating the significance of the section 501 character provisions. Applicants cannot assume that merely being married to an Australian will guarantee re-entry into Australia, where character issues have arisen.
For more information on the Migration Act character requirements, we invite you to contact Nigel Dobbie.
Queensland Supreme Court
This case concerned a Bangladeshi national who worked at a meat works in Brisbane for four years. After 2 years, he injured his knee in the course of his employment. He was paid WorkCover weekly benefits. His employer claimed that the worker should not be entitled to compensation or weekly benefits because of visa restrictions which meant that he was working illegally when the injury was sustained.
The Queensland Supreme Court ruled that the workers compensation benefits should remain, and that he was also entitled to sue the employer for compensation. Although pursuant to s 235 of the Migration Act an unlawful non-citizen is prohibited from doing of any work, the Act did not expressly make the employment contract illegal, void or unenforceable. In reaching its decision, the Queensland Supreme Court followed similar legal authority in New South Wales and rejected a contrary South Australian decision.
United States Supreme Court
The United States Supreme Court, by a 7-2 majority, has held that a Texas statute making it a crime for two persons of the same sex to engage in intimate sexual conduct in private, violated the US Constitution. This decision has an implication for claims of homosexual applicants for refugee status.
Reader contributions of upcoming events may also be submitted to the Parish Patience Immigration Update Newsletter Editor.
"During times of universal deceipt,
- George Orwell (1903-1950)
We welcome reader contributions of quotable quotes to the Editor.
Parish
Patience Immigration Tel: +61 2
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