|
|
||||||
| Issue No 46 | October 2003 | ||||||
|
|||||||
|
Effective 7 October, Senator Amanda Vanstone has become Minister for Immigration and Multicultural and Indigenous Affairs. Former Immigration Minister Ruddock has become Attorney-General. The Minister for Citizenship and Multicultural Affairs, Mr Hardgrave, retains this portfolio and has also been appointed Minister Assisting the Prime Minister.
We welcome Senator Vanstone to her new portfolio. We also extend best wishes to Mr Ruddock, who was Australia's longest serving Immigration Minister.
David Bitel paid tribute to Mr Ruddock in a recent Daily Telegraph article. Mr Bitel said that although Mr Ruddock had presided over some very contentious policy issues, he also maintained a strong commitment generally to the issues of refugees.
We are pleased to welcome Miss Veronika Hurbis, who recently joined Parish Patience Immigration as a solicitor and migration agent. Previously Veronika has worked as a junior solicitor for Rodney Shields & Co, in Sydney, and she has spent the last two years working and travelling throughout Europe. Veronika is admitted as a solicitor in New South Wales. She is also a Registered Migration Agent (no. 0322805), assisting with all types of visa enquiries. Veronika is fluent in English and Czech and she has some understanding of other Slavic languages.
Contact Veronika Hurbis
We are pleased to offer:
For additional information, we invite you to contact David Bitel.
Diana Tong consultations in the Philippines
Parish Patience Immigration Partner Diana Tong will be travelling to Manila and Baguio from 22-26 October to meet clients. Ms Tong will also be available to meet potential applicants for all categories of temporary visas - including student visas - and migration to Australia, and to give advice on complicated immigration issues. For skilled migration, applicants must have English language fluency and must be under 35 years of age at the time of lodging visa application (under 45 years old if sponsored by relatives in Australia).
Applicants wishing to see Diana should email a resumé with their request for an appointment to Diana Tong, or ring Diana's secretary, Josephine Fam, on tel. +61 2 9286 8700. A consultation fee will apply.
David Bitel consultations in the UK and Bangladesh
Managing Partner David Bitel will be travelling to London in November and to Dhaka in early December.
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.
Mr Bitel will also present two papers at the London conference of the International Bar Association Migration and Nationality Committee, to be held 20-21 November.
As one of Australia's largest specialist immigration law firms, we have been following with interest the Senate Committee enquiry into Ministerial Discretion and its attendant media coverage. DIMIA has provided statistics to the Committee showing that Parish Patience Immigration ranks third on the list of legal firms who most frequently make submissions seeking exercise of the Minister's discretion.
David Bitel's submission to the Senate enquiry into ministerial discretion has been published on the Committee's website. Mr Bitel is also scheduled to speak at the Committee hearings scheduled for late October.
Recent additions to our website:
Skilled migration & business entry
The Migration Legislation Amendment (Sponsorship Measures) Bill 2003 passed through Parliament on 15 September.
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 new measures will start with the long stay business visa and the professional development visa.
'Bill ensures continued program integrity,' Media Release MPS 065/2003, 15 September 2003.
For additional information about sponsorship, we invite you to contact Annette Aitken.
On 24th September, a revised Specification of Skilled Occupations and Relevant Assessing Authorities was gazetted. This replaces the previous Gazette Notice of 26 March 2002.
Related: "Tech-skilled migration drops," Australian IT, 29 July 2003.
In recent months, we have had an increase in enquiries from overseas students about their visa compliance issues. Interestingly, many of them have indicated disputes between students and education providers. Students claim that colleges and universities did not maintain proper attendance records, did not provide adequate advice on the subjects in which they were enrolled, or simply did not provide correct advice to them.
Other problem issues include incorrect academic records and refusal to refund tuition fees. Student visas are often cancelled as a result of the disputes, although sometimes, visas may be reinstated after the Migration Review Tribunal sets aside the cancellation decisions. It often costs a huge amount of money and stress to the effected student.
The lesson we learnt here is that, being an overseas student, you have to be responsible for yourself. That means, you must maintain good records of your own class attendance. In case there is a dispute, you need to be able to say which date you were absent from class. You also need to keep a detailed diary about your dealings with the education provider, for example, recording dates and name of the person you spoke to and the advice you obtained from that person and what documents you gave to that person.
If absent from school for sickness, make sure you obtain a medical certificate and give it to the school as soon as you return to class. If any doubts exist about your attendance, ask the education provider immediately, do not wait until graduation to obtain a 75% attendance. It is also important to put any disputes and concerns in writing to the education provider and keep a copy for yourself, so that your own claims are properly documented. The best time to ask about whether you have met the course requirements and attendance rate is before making payment for tuition for the next semester, so you will know whether you have an immigration problem before you commit yourself to the next semester.
Finally, if you receive a Section 20 Notice to cancel your visa, you ought to obtain professional advice, preferably before visiting the Immigration Department, to get some advice on mandatory visa cancellation and revocation of cancellation mentioned in the Section 20 Notice. Most importantly, you must have a comprehensive understanding of where you stand in such a situation.
Remember, ignorance is rarely a defence once you have the problem.
The Government has announced changes to the student visa program, effective 1 November 2003. Of particular note are the changes to financial requirements for applicants from higher risk countries, and changes to English language proficiency requirements.
Links:
Summary by Department of Immigration: 'Outcomes of Review of the 2001 Student Visa Reforms,' updated 22 September 2003;
DIMIA has published an updated fact sheet aiming to assist overseas students and education providers in understanding their obligations in relations to overseas exchange programs.
Overseas Students on Exchange Programs in a Third Country, updated 27 August 2003
Effective 1 September 2003, citizens of the People's Republic of China who are in New Zealand and wish to apply for an Australian visa must lodge their applications with the Offshore Processing Centre in Adelaide. The Australian Consulate General in Auckland no longer accepts student visa applications from PRC citizens.
Arrangements for Citizens of the People's Republic of China in New Zealand, updated 28 August 2003
For additional information about Student visas, we invite you to contact Diana Tong.
Visitors & Working Holiday Makers
The Foreign Minister, Mr Downer, and the Acting Minister for Immigration, Mr Hardgrave, have issued a joint media release announcing that Italy will join the Working Holiday Maker visa program effective 1 January 2004.
Other countries with whom Australia has reciprocal agreements are Canada, the Republic of Ireland, Japan, Malta, the Netherlands, the Republic of Korea, the UK, Germany, Sweden, Norway, Denmark, Finland, the Hong Kong Special Administrative Region of the People's Republic of China, Cyprus and Belgium. The agreement with Belgium is expected to come into effect later this year, once the ratification process has been finalised.
Working Holiday Arrangement with Italy Benefits Australians, Media Release H135/2003, 2 October 2003.
And according to a report in the Sydney Morning Herald, France and Taiwan are also set to join the Working Holiday Maker visa program. "Backpacker numbers set for boost," 27 August 2003.
The Immigration Minister, Mr Ruddock, has announced the 2002-03 visitor visa outcomes, stating that more than 98 per cent of visitor visa applications were approved. At the same time, non-return rates dropped to 1.59 per cent.
The number of visitors applying for protection visas has also dropped, to 3,607 in 2002-03, as compared with 5,192 applications in 2001-02.
Media Release MPS 54/2003, 27 August 2003.
Medicare has issued a brochure, "Health Care for Visitors to Australia." Copies are available at Medicare offices and at http://www.hic.gov.au/. It is important to note that reciprocal health agreements vary from country to country, and that many visitors to Australia are NOT covered by Medicare. In general, visitors to Australia are advised to take out travel insurance before arriving. Visitors on student visas have separate requirements to take out health insurance cover.
For additional information about Working Holiday Maker visas and Visitor visas, we invite you to contact Annette Aitken.
Asylum seekers and human rights
DIMIA has signed a 4-year contract with Group 4 Falck Global Solutions Pty Ltd for the management of immigration detention facilities around Australia.
Links:-
In related news, the Melbourne Catholic Commission for Justice, Development and Peace has released a report demonstrating that alternatives to mandatory detention would be more cost effective than the current system.
As reported in issues 44 and 45 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. On 25 August, the Full Court of the Family Court found that the evidence overwhelmingly supported the conclusion that release from detention - even if only temporary pending the High Court appeal - was in the children's best interests.
The High Court heard arguments on 30 September and 1 October, and has reserved its decision.
Related:
-- "Govt to appeal detention ruling," Sydney Morning Herald, 26 Aug 2003
In at least two recent matters, Justice Chisholm of the Family Court has dismissed interim applications to release families from Immigration detention, on the basis that he lacked jurisdiction to do so. However, Justice Chisholm noted that the Minister for Immigration does have this power, and asked him "to give careful and compassionate consideration to the urgent needs of the family."
On 14 August 2003, the High Court refused the Minister's application for special leave to appeal the Full Federal Court decision of Al Masri. Therefore the Full Federal Court's decision that indefinite mandatory detention is unlawful stands.
The Human Rights and Equal Opportunity Commission has finalised a Draft Report following its National Inquiry into Children in Immigration Detention. On 19 September, the Inquiry heard oral submissions from Australasian Correctional Management. It is anticipated that the Final Report will be tabled in Parliament early in 2004.
National Inquiry into Children in Immigration Detention - media releases, transcripts of hearings, and submissions
The United Nations Human Rights Committee has again upheld a complaint that Australia’s policy of mandatory detention of asylum seekers is in breach of international human rights law.
Effective 28 August 2003, the Migration Regulations were amended to broaden the coverage of Temporary Protection Visa arrangements to include all asylum seekers arriving in Australia. On 9 October, the Senate disallowed the new Regulations. Further reading:-
The Minister for Immigration, Mr Ruddock, has announced that the Government's 'Pacific Strategy' is almost 80 per cent finalised, with 21 refugees having been transferred to Brisbane from Nauru, and a further 49 people are to be offered resettlement in Australia.
Related:
"Ruddock says refugee policy has saved many lives," AAP Newsfeed, 26 August 2003;
"Tampa refugees head for Australia," The Age, 2 September 2003;
"Tampa refugees in Australia," Sydney Morning Herald, 3 September 2003;
"Tampa 2 years on: Restoring justice to asylum seeker policy," by Mary Crock, Green Left Weekly, 27 August 2003; and
"New Zealand's Tampa refugees to be reunited with families," ABC News Online 4 October 2003.
Recent United Nations reports of interest:
"Committee on the Rights of the Child reviews Second Periodic Report of Bangladesh" - UNHCHR Press release 30 September 2003
"Acting Human Rights Commissioner Welcomes Investigations into Reported Violations in Nepal" - UNHCHR Press release 25 September 2003
"Anti-terrorism used as excuse to clamp down on religion - UN report" - UN News Centre media release 29 September 2003
The International Commission of Jurists (ICJ) Legal Resource Center comprises a searchable database of ICJ press releases, reports, legal documents and key external legal materials. The following are of particular interest:
Parish Patience Immigration Managing Partner David Bitel has for many years been Secretary-General to the Australian Section of the ICJ.
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 14 October 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 passed through Parliament on 15 September. Further details in the Skilled & Business section of this Newsletter.
This Bill was introduced on 26 June 2003, passed through Parliament on 10 September and is now Act No 89 of 2003.
This Bill was introduced on 26 June 2003. The Bill seeks to provide a legislative framework for the collection of personal identifiers from non-citizens. Personal identifiers could include fingerprints, photographs, weight and height measurements, audio or video recordings, signatures, iris scans, and other personal identifiers as prescribed in the Migration Regulations.
The Bill was referred to the Senate Legal and Constitutional Legislation Committee, which tabled its report on 18 September. The Bill has now passed through Parliament and awaits Royal Assent.
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.
This Bill has passed through Parliament with amendments, and is now Act No 90 of 2003.
Related:
David Bitel's case summary of MIMIA v Al Masri (Full Federal Court 15 April 2003).
According to the Second Reading Speech, this Bill implements key recommendations of the 2001-2002 Review of Statutory Self-Regulation of the Migration Advice Industry.
The Bill was passed by the House of Representatives on 8 October. It then went to the Senate, which referred the Bill to the Senate Legal and Consitutional Legislation Committee for report by 25 November 2003.
Related:
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 was introduced into the Senate on 11 August.
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.
The Bills have passed through the House and were introduced into the Senate on 9 September.
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
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.
The Bill was referred to the Senate Legal and Constitutional Legislation Committee, which tabled its report on 18 September.
Related:
"Australia leads world with age legislation," Attorney-General News Release 73/03, 26 June 2003
This Bill has generated controversy due to the surprise introduction in the Senate of amendments designed to recognise a same-sex partner as a dependent within the law of superannuation. On 8 October, the House of Representatives disagreed to the Senate amendment.
Related:
"Coalition heat melts Democrats on same sex super," Sydney Morning Herald 4 October 2003
"Same sex super: how we value love," Sydney Morning Herald 2 October 2003
This is a Private Members Bill introduced by Tanya Plibersek MP on 18 August 2003, in response to discriminatory comments made by the Prime Minister in relation to same sex marriages.
On 8 October, the Prime Minister, Mr Howard, released a Discussion Paper on options for diminishing the power of the Senate to block Government legislation.
"Constitutional Change" - Prime Minister's media release and link to discussion paper, 8 October 2003
The Queensland government will refer its power in relation to property issues for de facto relationship breakdowns. A Bill was introduced on 9 September 2003, to enable the Family Court to take jurisdiction over de facto property disputes, which are currently a State matter. A similar Bill passed through the New South Wales Parliament on 15 October and is awaiting assent. It is anticipated that other states will follow.
Full text of the Queensland Bill is available at http://www.legislation.qld.gov.au/Bills.htm
Full text of the New South Wales Bill is available at http://www.parliament.nsw.gov.au/
Tasmania has replaced its De Facto Relationships Act 1999 with a new Relationships Act. The Act addresses four categories of relationships: significant relationships; caring relationships; personal relationships;, and family relationships. The Act also creates a mechanism for registering a deed of relationship.
Full text of the Act is available at www.thelaw.tas.gov.au
DIMIA have added a handy currency converter to their information regarding visa application fees.
Through our membership in the Migration Institute of Australia, we have received a factsheet from DIMIA Melbourne on Health Checks for people applying for Permanent Residence in Australia.
For information on the Health Requirement in Australian immigration law, we invite you to contact Sharon McCabe.
New documentation requirements for the obtaining of an Australian Passport have come into effect. The new measures are designed to protect the integrity of the passport issuing system.
For additional information, please visit www.passports.gov.au.
The Minister for Immigration, Mr Ruddock, has sought the cooperation of community leaders to help reduce the number of people overstaying and breaching their visa conditions.
Media Release MPS 55/2003, 27 August 2003
According to a report in the Sunday Telegraph, the Federal Government plans a "campaign of mild harassment" to encourage the 557,000 New Zealand and British citizens residing in Australia who have yet to take out Australian citizenship. This group will be denied Australian consular access overseas and will be charged more often to renew their visas.
And in related news from Centrelink, New Zealand citizens who came to reside in Australia between 27 February 2001 and 25 May 2001 must apply for a certificate of residence from Centrelink before 25 February 2004. The certificate will be required if at any stage in future the NZ citizen might wish to take out Australian citizenship or sponsor family members for permanent residence in Australia.
Through our membership in the UK Immigration Law Practitioners' Association (ILPA), we have become aware of changes to UK immigration law and passports.
New requirements come into effect on 13 November 2003 for people wishing to travel to the UK from Australia, New Zealand, USA, Canada, Japan, Singapore, Malaysia, South Africa, South Korea and Hong Kong.
Parish Patience Immigration maintains agency relationships with specialist immigration law firms in the UK and New Zealand, as well as many other countries.
For additional information, we invite you to contact David Bitel.
The Australian Labor Party has released a discussion paper on migration policy, "Immigration and the Regions: taking Australia seriously." The discussion paper looks at ways in which migrants can be encouraged to settle in regional areas away from the major cities.
"Smarter settlement of new migrants can benefit all" - Shadow Minister's media statement 4 October 2003 (includes link to discussion paper)
"Labor plan to disperse migrants," Sydney Morning Herald, 4 October 2003
In related news, DIMIA has updated
Fact sheet 21: Managing the Migration Program (updated 17 September 2003).
New Social Security Agreements for Chile, Croatia and Slovenia are expected to come into effect on 1 January 2004. Under the agreements, people who have worked in Australia and any of these countries will have their pensions recognised in both countries.
Information about these and the many other countries with which Australia has reciprocal agreements is available from the Department of Family and Community Services.
The Minister for Revenue and Assistant Treasurer, Senator Coonan, has announced changes to the taxation of superannuation transfers into Australia. The Government will consult with the superannuation industry prior to finalising the necessary legislative amendments.
"Government announces tax changes for overseas super," Media Release C092/03, 30 September 2003.
Recent caselaw
Following is a brief outline of recent developments. Full text of decisions from all Courts and tribunals is available on Austlii.
High Court
Pending High Court special leave applications are summarised in the High Court Bulletin. Recent bulletins include the following matters of note:
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 – Case Stated.
Related: "Girl challenges citizenship law," Sydney Morning Herald 1 September 2003.
Application for refugee status – identification of “particular social group” – applicant an Afghani national who claimed to have left Afghanistan because Taliban had attempted to recruit him for military service – whether identification of a particular social group required evidence that young, able-bodied men were perceived as such a particular social group in Afghani society – whether, if such evidence was required, RRT should have found that Afghani society perceived young, able-bodied men as comprising a particular social group. Special leave granted.
Immigration detention – relevance of conditions of detention to validity of detention – applicants raised defence that conditions at Woomera were so harsh that their detention there was not valid and that they therefore could not be convicted of escape from “immigration detention”. Special leave granted.
Immigration – application for refugee status where persecution claimed to arise from conduct of non-State actors – respondents are Ukrainian nationals who claim to have well-founded fear of persecution because one of them is a Jehovah’s Witness – whether RRT erred by not addressing possibility of future harm to respondents – whether RRT erred by not determining whether the Ukrainian State was able, in a practical sense, to protect respondents from harm – whether RRT erred in considering that harm perpetrated by non-State actors was not persecution in circumstances where Ukrainian State was not encouraging or tolerating such harm and was willing and able to take action to protect respondents. Special leave granted.
Immigration – scope of judicial review – nature of “no evidence” ground in judicial review – issue of competency where Refugee Review Tribunal found respondent highly likely to be suffering from Post Traumatic Stress Disorder (“PTSD”) but went on to dismiss his application in any event – whether Migration Act 1958 (Cth) implied a competence requirement precluding a person suffering PTSD from taking part in proceedings – whether RRT fell into jurisdictional error of a type identified in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.
Special leave granted.
Immigration – scope of grounds for judicial review – whether privative clause’s exclusion of denial of natural justice from grounds of judicial review was inconsistent with Constitution, s 75(v).
Special leave granted. Appeal allowed instanter. Remitted to the Refugee Review Tribunal for determination.
Scope of grounds for judicial review – Full Federal Court characterised RRT’s error as factual only and protected by privative clause in any event – whether, following decision of High Court in Plaintiff S157/2002 v Commonwealth, decision of RRT disclosed reviewable error.
Special leave granted. Appeal allowed instanter. Remitted to the Full Court of the Federal Court of Australia for determination.
Safe third country – appellant is a citizen of Iraq who resided in Syria for 14 years prior to arriving in Australia – appellant claimed to have a well-founded fear of persecution pursuant to Article 1A(2) of the Convention on the Status of Refugees if compelled to return to Iraq – whether the concept of “effective protection” requires a third country to have accepted an obligation to receive a putative appellant for refugee status – whether Australia’s protection obligations will be satisfied if there is a “practical likelihood” that a putative appellant for refugee status will be given effective protection in a third country.
Referred to Full Court.
Federal Court
This was a privative clause decision involving a Business Skills (Residence) visa applicant and her family from India. The Full Federal Court ruled that the Department's misapplication of visa grant criteria constituted jurisdictional error, thus entitling the applicants to relief by the Courts.
Senior Associate Nigel Dobbie acted for the visa applicants in this case.
Canada
"Refugee claimed she'd be persecuted for obesity," National Post (Canada), 21 August 2003
For additional information about Court appeals, we invite you to contact David Bitel or Nigel Dobbie.
Reader contributions of upcoming events may also be submitted to the Parish Patience Australian Immigration Update Newsletter Editor.
"The ultimate measure of a man is not
- Martin Luther King Jr
We welcome reader contributions of quotable quotes to the Editor.
Parish
Patience Immigration Tel: +61 2
9286 8700 Registered
Migration Agents 9255523, 9359088, 9370721, Liability is
limited by the Solicitors Scheme under the Professional
Enquire now - using our Questionnaire
Subscribe - to receive notice of future Newsletters
Previous editions of Australian Immigration Law Update
|
|||||||
