Staff news
- New on our website
- Refugees page - Refugee Council of Australia media release regarding the new opportunity for Temporary Protection Visa holders to apply for permanent visas. David Bitel is the President of the Refugee Council of Australia.
- Contact Us page - "Information on the
Regulation of Migration Advice Profession" - link to Migration Agents
Registration Authority booklet
- Articles page - two new articles by David Bitel on refugee law
- General Links page - Refugees & Human Rights Sources - added link to UK Home Office Country Reports.
- About Us page - Sharon McCabe's profile has been updated.
- Overseas conferences & consultations
- Nicholas McNally will be attending the International Commission of Jurists Biennial Conference in Berlin on 27-29 August. Nick is the Treasurer of the Australian Section of the ICJ.
Contact Nicholas McNally, Solicitor.
- Nigel Dobbie will be travelling to New York in late September, followed by Mumbai in early October. Nigel will attend the American Immigration Lawyers Association Global Immigration Summit in New York, and he will participate in the panel session, "Comparative Asylum/Refugee Practices" at that conference. He will be available for Australian migration and visa consultations in Mumbai in early October.
Contact Nigel Dobbie, Senior Associate.
- David Bitel will attend the International Bar Association Conference in Auckland from 24-29 October. He will also be available for consultations regarding Australian migration and visas.
Contact David Bitel, Managing Partner.
- Diana Tong will travel to the Philippines in September. She will be available for consultations in Manila regarding Australian migration and visas.
Contact Diana Tong, Partner.
- Staff weddings!
Congratulations and best wishes to Partner Diana Tong on her marriage to Howard Murdoch on 22 May. Most of the Parish Patience Immigration staff were in attendance, and a grand time was had by all. (Link to
photos)
Many of us came together again on 17 July to celebrate the wedding of staff members Jerick Roncal and Marlene Guzon. "Maligayang Bati" Jerick and Marlene!
Skilled migration & business
entry
- Skilled Independent Regional (SIR) visas
A new visa came into effect on 1 July 2004: Class UX, subclass 495 Skilled - Independent Regional (Provisional).
The basic criteria for all applicants for the new visa are:
- Less than 45 years old
- Positive skills assessment in an occupation on the Skilled Occupations List
- Vocational English (IELTS score of at least 5 in each of the tests)
- Attain 110 points on General Skilled Migration points test
- Sponsorship from relevant State or Territory authority
- Form and fee
- Lodge with Adelaide Skilled Processing Centre
The main features of the new visa are:
- "Regional" means most of Australia, other than the major capital cities of Sydney, Melbourne, Perth, Brisbane, Canberra, and certain other regional cities. The governments of South Australia and the Northern Territory are especially promoting the new scheme. Additional criteria apply depending on whether the applicant is onshore or offshore, and each State and Territory will establish its own guidelines for sponsorship, which are still being developed.
- It is a 3-year temporary visa
- No Medicare (no health benefits) to eligible visa holders
- Applicant and all family members must live in a regional area or areas for at least 2 years
- Must show evidence of employment for at least 12 months (full-time) in a regional area
- The work need not be on the Skilled Occupation List, and can include self-employment, so long as the sponsorship criteria are met
If all of the above are met, then the visa holder will be eligible to apply for permanent residence after the two-year period has expired.
Additional information:
Note this programme does not replace the existing regional sponsored skilled visa classes. For additional information about SIR or other regional sponsored visas, we invite you to contact Rania Skaros, Solicitor.
- Subclass 457 undertakings & sanctions
From 1 July 2004, businesses applying to sponsor people under a Temporary Business (Long Stay) visa (subclass 457) must agree to meet new sponsorship undertakings in relation to sponsored employees and their accompanying family members. Sanctions will apply if the sponsor fails to comply with these undertakings.
For additional information we invite you to contact Etienne Hugo, Solicitor.
- Assurance of support
From 1 July 2004 Assurance of Support processing is dealt with by Centrelink, not DIMIA.
For additional information see
DIMIA summary of legislative change (1 July 2004), or we invite you to contact Robert Liu, Solicitor.
- Skills Assessment for Skilled Occupations - Regulation 2.27B
DIMIA's existing policy in relation to Regulation 2.27B provides a list of occupations requiring registration or licensing in Australia. Whilst applicants can still apply for skilled migration if they hold one of these qualifications, it is necessary that they be aware of Regulation 2.27B and the effect of the exercise of this Regulation. The Regulation comes into operation when an applicant nominates a skilled occupation different to the one in which the applicant has recent employment experience.
For further information in relation to Regulation 2.27B, we invite you to contact Sharon McCabe, Migration Agent.
- Vetassess news
A recent Vetassess newsletter indicates that their assessment process remains under 30 days for most applications. However completeness of applications and accompanying documentation remains an issue. Also, some application fees have been reduced effective 1 July 2004.
Vetassess have also instituted an online qualification assessment option. There are special procedures for migration agents to assist applicants with their online assessments. Parish Patience Immigration are well placed to offer assistance to Vetassess applicants.
For additional information about Vetassess vocational and education training assessments, we invite you to contact Annette Aitken, Migration Agent.
- Australia's 'brain gain'
Australia continues to enjoy a substantial 'brain gain' from migration, according to two reports released by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) on 25 June 2004.
The first publication, Skilled Movement in the New Century: Outcomes for Australia by Dr Bob Birrell, shows that Australia attracted more than 36,000 skilled or professional migrants to Australia in 2002-03, an increase from 24,130 in 1998-99.
The second DIMIA publication, Immigration Update 2002-2003, illustrates the growing number of people who are granted a migration visa while they are actually in Australia.
Additional information:
- New Zealand update
Two recent articles from the New Zealand Herald indicate that New Zealand will lift its migrant target to 50,000, and that the proportion of British migrants has increased since the English language requirement was introduced in 2002. India is tipped to become an increasingly significant source of migrants to New Zealand.
Additional information:
-
"Migration patterns 'whitening'," New Zealand Herald, 9 July 2004
For additional information about migration to New Zealand, we invite you to contact David Bitel, Managing Partner.
Students and Working Holiday Makers
- Senate Committee receives information on student visas
The Senate Employment, Workplace Relations and Education Committee held estimates hearings in June 2004. The Committee heard that almost one in five students at certain universities, TAFEs and private colleges have had their visas cancelled.
Students are reminded of the obligation to comply strictly with visa conditions. If you are concerned about your student visa conditions, we urge you to seek professional advice.
Additional information:
- Working Holiday Maker agreement with Taiwan
Australia and Taiwan have entered into a mutual working holiday maker (WHM) arrangement for young people aged between 18 and 30. Working Holiday visa holders are eligible for a stay of up to 12 months with employment rights.
Media Release D73/2004, 15 July 2004
- Working Holiday Maker agreement with Thailand
Minister for Immigration, Senator Amanda Vanstone, has announced a reciprocal Work and Holiday Visa arrangement between Australia and Thailand. 'The Work and Holiday visa will allow university-trained young people from Australia and Thailand to work and holiday in the other country for up to 12 months,' Senator Vanstone said.
Media Release V95/2004, 6 July 2004
For additional information about student visas and working holiday maker visas, we invite you to contact Diana Tong, Partner.
Asylum Seekers and Human Rights
- Temporary Protection Visas - change to government policy
On 13 July 2004, the Minister for Immigration, Senator Vanstone, announced that approximately 9500 temporary protection visa holders would have the opportunity to apply for mainstream migration visas to enable them to remain in Australia permanently, without needing to leave the country to lodge their applications.
Senator Vanstone also announced a new return-pending visa, which would allow people not in need of further protection, 18-months in which to make arrangements to return to their home country or elsewhere, or effectively time to make themselves eligible to apply for permanent or temporary residence under a non-humanitarian visa.
Initial media reports seemed to indicate that permanent protection for most TPV holders would be automatic. This is not the case, with the possible exception of unaccompanied minor children, and also adults in genuine partner relationships with Australians. Further details in David Bitel's media release on behalf of the Refugee Council of Australia.
Detailed regulatory changes will be made in the next few weeks.
Additional information:
- "Announcement welcome but fails to address fundamental problems of TPVs,"
Refugee Council of Australia Media Release, 13 July 2004 (by David Bitel)
- "New measures for Temporary Protection and Temporary Humanitarian Visa holders," DIMIA fact sheet, 13 July 2004
- "New measures for TPV holders," Minister's Press Statement
VPS 99/2004, 13 July 2004
- "Visa opportunities for TPV holders in Regional Australia," Minister's Press Statement
VPS 101/2004, 15 July 2004
- "UN agency hails Australian move paving way for refugees to stay permanently,"
UN News Centre, 14 July 2004
- "A new twist for 'temporary' refugees," Australian Financial Review, 16 July 2004
- "For the average refugee, release is not at hand," Australian Financial Review, 17 July 2004 (includes comment by David Bitel)
- "Refugee change just 'ballot box compassion': [Senator] Brown," Sydney Morning Herald, 13 July 2004
- "Prolonging the agony," The Age, 28 July 2004
- "Visa reprieve for Kosovo refugees," The Age, 7 August 2004
- Mandatory Detention
- High Court decisions
Three decisions were brought down on 6 August 2004 pertaining to indefinite mandatory detention. Case summaries are found in the Recent Caselaw section of this Newsletter.
- Letter from Senator Bartlett
The previous issue of our
Newsletter referred to a Media release from the Immigration Minister in which she characterised detention centre residential housing projects as "family-friendly."
Senator Bartlett has written to us to share his eyewitness account:
"Family Friendly?
In the last newsletter it was written that the government was funding
"family-friendly residential housing projects" in Perth and Sydney.
I have visited the housing project in Baxter and there is nothing
family-friendly about separating fathers from their children. The men
have to remain behind in the main detention centre while their wives and
children get slightly better conditions in the housing project.
These housing projects are mini-detention centres surrounded by fences
with security guards and cameras in all public spaces. The kids can go
to school and have other planned group activities but these are always
while under guard.
The women and kids must return to the main detention centre to have
visits. They do not have interaction with the local community and are
surrounded by fences. The government line is that they are protecting
the privacy of the women and children. I have talked with these women
and they say they want visits and they want the media to have access.
So who is the government protecting? The women, or their own version of
truth that would be shattered once the light of the outside world is
shone on this "family-friendly" lie.
Senator Andrew Bartlett
Leader of the Australian Democrats"
- Only one child of boat arrivals left in detention
The Minister for Immigration, Senator Vanstone, announced that only one child, whose parents were unauthorised boat arrivals, is in a mainland detention centre.
"Unauthorised boat arrivals: one child in a detention centre,"
Media release VPS 96/2004, 6 July 2004
Related:
-
"Minister accuses refugee advocates of working against interest of women and children in immigration detention,"
Media release VPS 98/2004, 9 July 2004
-
"Asylum seekers return to Baxter in protest," The Age, 9 July 2004
- "Villawood detainees fear agenda will split families," Sydney Morning Herald, 10 July 2004
- Reassessment of Afghani nationals
On 23 July 2004, the Minister for Immigration, Senator Amanda Vanstone, said the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) was about to commence reassessing asylum seeker claims by Afghani nationals in Australian mainland immigration detention. 'Interviews with Afghani nationals in Baxter will commence next week. 'Interviews with other affected Afghans in immigration detention will commence the following week.'
"Reassessment of Afghani nationals in mainland immigration detention,"
Media release VPS 103/2004, 23 July 2004
- Pacific Solution update
Almost all of the boat people on Nauru and Manus have been granted asylum. All
of the 'Tampa' asylum seekers have been granted refugee status and resettled to New Zealand, Australia, or elsewhere under the auspices of the UNHCR. Updated information since our last Newsletter:
- Audit Office report
On 24 June 2004, a report by the Australian National Audit Office, "Management of the Processing of Asylum Seekers," was tabled in Parliament. The objective of this performance audit was to assess the extent to which protection visa applications are processed in accordance with relevant laws and policies, and whether DIMIA employs appropriate mechanisms to ensure compliance with those laws and policies.
According to The Australian newspaper, the report was critical of the Department's country information database, and recommended that department officers be alerted to the risks of using information from the internet as a basis for their decisions.
The Immigration Minister, Senator Vanstone, welcomed the report, which found the overall standard of recordkeeping and documentation of decisions is high.
Additional information:
- "Asylum claims managed well: Audit Office," Media release VPS 89/2004, 24 June 2004
- "Management of the Processing of Asylum Seekers," ANAO Report No. 56, 24 June 2004 (follow links to Publications)
- "Internet used for refugee verdicts," The Australian, 26 June 2004
- Humanitarian aid and refugee services
Recent Australian Government media releases of interest:
- "Onshore Lodgement:
Advice for Humanitarian Program Applicants (and Proposers) in Kenya, Egypt, Sudan, Ethiopia, Somalia, Tanzania, Uganda, Burkina Faso, Burundi, Central African Republic, Chad, Democratic Republic Of Congo (formerly Zaire), Djibouti, Eritrea, Niger, Rwanda, Algeria, Libya, Morocco, And Tunisia," - DIMIA Factsheet regarding changed arrangements from 1 September 2004
- "Humanitarian Program largest in eight years," Media release VPS 105/2004, 30 July 2004
- "Refugee and Humanitarian Program - helping those in need," Media release VPS 88/2004, 24 June 2004
- "Australia's proud contribution to world refugees," Media release VPS 86/2004, 21 June 2004
- "Fourth term appointments announced for the Refugee Resettlement Advisory Council," Media release H126/2004, 7 July 2004
- "Refugee products launched at Anglicare Migrant Services," Media release H129/2004, 7 July 2004 [Refugee Resettlement Services information kit]
- "[Minister for Citizenship and Multicultural Affairs] Hardgrave backs humanitarian and resettlement assistance for Sudanese refugees," Media release H141/2004, 22 July 2004
- "Australia boosts assistance to Sudan by $12 million," AUSAID Media release , 27 July 2004
-
United Nations news
- New address for UNHCR Canberra
The Regional Office of the United Nations High Commissioner for Refugees
(UNHCR) in Canberra has moved to new premises as of July 27, 2004.
The new address is as follows:
15 Hunter St
Yarralumla ACT 2600
Australia
New telephone and fax numbers:
Telephone:(02) 6273 2733
Fax: (02) 6273 6822
- UN Convention against Transnational Organised Crime
The UN Convention against Transnational Organised Crime and its Protocol against the Smuggling of Migrants by Land Sea and Air were ratified by Australia on 27 May 2004 and came into force on 25 June 2004. The Convention and the Protocol provide a framework for international co-operation in the fight against organised crime and people smuggling.
"Australia joins UN Convention to strengthen fight against transnational organised crime,"
Joint Media Release by Foreign Affairs Minister and Minister for Justice & Customs, 22 June 2004
- UNHCR Guidelines on International Protection
A new Guideline on International Protection: "Religion-Based Refugee Claims under Article A1(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees," dated 28 April 2004, is available on UNHCR's website at
http://www.unhcr.ch/cgi-bin/texis/vtx/rsd?search=legal&source=REFPOL&subject=guidelines+thematic
The previous 5 Guidelines are also available at that website:
-
No. 1, Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees
-
No. 2, "Membership of a particular social group" within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees
-
No. 3, Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the "Ceased Circumstances" Clauses)
-
No. 4, "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
-
No. 5, Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees and related Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees
- UN organisations website
For a complete list of UN organisations, their websites, and a chart showing how the organisations inter-relate, go to the Official Website Locator for the United Nations System of Organizations:
http://www.unsystem.org/.
Discrimination against Muslims
On 16 June 2004, the Human Rights and Equal Opportunity Commission released a report, "Ismaع - Listen: National Consultations on eliminating prejudice against Arab and Muslim Australians." The Ismaع project included national consultations with Arab and Muslim Australians; an empirical and qualitative research project undertaken by the University of Western Sydney; and an audit of strategies and initiatives that have been undertaken by organisations to counter anti-Arab and anti-Muslim prejudice.
Related:
- "Muslims feel the hands of racism tighten around them," Sydney Morning Herald, 17 June 2004
- "[Minister for Citizenship and Multicultural Affairs] Hardgrave condemns violence against Muslim community," Media release H124/2004, 28 June 2004
- "Minister [for Citizenship and Multicultural Affairs Hardgrave] calls for tough penalties for racially inspired crime," Media release H140/2004, 21 July 2004
Other government news
- Vietnam news
From 1 July 2004 all permanent visa and temporary entry applications
(except repatriated subclasses) for applicants who reside north of Danang
are to be lodged and processed in Hanoi (all permanent and some temporary
entry previously processed in Ho Chi Minh City).
From 1 July 2004 applications for Citizenship and Citizenship by Descent for
residents north of Danang are to be lodged and processed in Hanoi
(previously processed in Ho Chi Minh City).
Enquiries from Australia on all visa matters for persons residing north of
Danang are to be directed to the Visa Office in Hanoi.
There is no change to visa processing arrangements for residents of Danang
and south of Danang.
For additional information about visas for Vietnamese nationals, we invite you to contact Thong Nguyen, Migration Agent.
-
New High Commission in Accra
There are new visa processing arrangements for Ghana, following the opening of a new Australian High Commission in Accra.
For additional information about visas for people from Africa, we invite you to contact Etienne Hugo, Solicitor.
-
Tribunal and Magistrates Court appointments
The Attorney-General, Mr Ruddock, has announced several new appointments to the Administrative Appeals Tribunal, the Federal Magistrates Court, and the Administrative Review Council.
Additional information:
-
"Appointments to Administrative Appeals Tribunal,"
Media Release 082/2004, 27 May 2004;
-
"Appointments to Administrative Appeals Tribunal,"
Media Release 126/2004, 22 July 2004;
- "Appointment of new Chief Federal Magistrate,"
Media Release 109/2004, 24 June 2004;
- "Appointment of Federal Magistrates,"
Media Release 107/2004, 24 June 2004;
- "Appointment of Administrative Review Council Members,"
Media Release 104/2004, 24 June 2004;
- "Time to clear the migration backlog," by Philip Ruddock, Australian Financial Review, 9 July 2004 (available from
Fairfax Newsstore).
The Immigration Minister, Senator Vanstone, has also announced the reappointment of 59 members of the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT). For the first time, all 43 part-time members will be cross-appointed to both tribunals. 23 members were not reappointed, reportedly due to the recent reduction in caseload.
- "Migration tribunal reappointments,"
Media Release VPS 90/2004, 25 June 2004
- "Refugee tribunal members dumped," The Age, 26 June 2004
-
Social Security Agreements with Chile & Croatia
Social Security Agreements came into effect on 1 July 2004 between Australia and Croatia, and Australia and Chile. If you have worked in either of these countries you may be able to obtain a pension benefit through Centrelink.
Additional information about Social Security Agreements for these
and other countries is available at
http://www.facs.gov.au/, and at http://www.centrelink.gov.au/
- Migration statistics
Two new statistical publications may be of interest:
Related:
"India climbs immigrant list," The Age, 29 April 2004;
"18,000 Kiwis a year settle in Australia," New Zealand Herald, 3 May 2004
- Compliance
- Onshore compliance report
On 15 July 2004, the Australian National Audit Office released a report of its performance audit, "Onshore Compliance - Visa Overstayers and Non-Citizens Working Illegally." This audit examined DIMIA's administration of onshore compliance under the Migration Act. In particular, it focused on whether DIMIA had implemented appropriate onshore compliance strategies in regard to people who enter Australia lawfully but whose presence becomes unlawful through the expiry of their visa; or as a result of a breach of visa conditions and cancellation of their visa. In 2002-03, the Department detained some 21,500 overstayers.
Additional information:
- "Tracking of visa overstayers world's best practice," Media release D74/2004, 16 July 2004
- "Onshore Compliance - Visa Overstayers and Non-Citizens working Illegally," ANAO Report No. 2, 15 July 2004 (follow links to Publications - Audit Reports)
- "Immigration blunders let thousands overstay," Sydney Morning Herald, 16 July 2004
- Managing the Border - new publication and biometric technology facility
The Minister for Immigration, Senator Vanstone, has released a new DIMIA publication, "Managing the Border," while opening a new biometrics testing facility in Canberra. The new testing facility is designed to enhance Australia's efforts in border security. The Minister said "Managing the Border" also highlighted the complexity and sheer volume of DIMIA's workload in managing Australia's border.
"Minister Launches DIMIA Publication and Promotes Biometric Technology to Help Manage the Border,"
Media Release VPS 102/2004, 21 July 2004
"
Managing the Border - Immigration Compliance," DIMIA report, June 2004
- DIMIA Compliance operations
The Department of Immigration undertakes regular compliance operations, the results of which
are always publicised, illustrating the importance to visa holders to seek
professional advice in advance of expiry or cancellation, and not to breach conditions in relation to work limitations. Significant
government funds are devoted to the compliance and monitoring sections of
the Department of Immigration. Recent examples:
- "23 illegals located in Sydney,"
Media Release VPS 104/2004, 26 July 2004
- "27 illegal workers located during compliance operations in Sydney,"
Media Release VPS 94/2004, 1 July 2004
- "67 illegal workers located during DIMIA compliance operations in Sydney,"
Media Release VPS 92/2004, 28 June 2004
- "Illegals Located in Adelaide and Renmark,"
Media Release VPS 91/2004, 25 June 2004
- "18 illegal vineyard workers located near Mildura,"
Media Release VPS 85/2004, 17 June 2004
- "Seven illegals located in Swan Hill,"
Media Release D67/2004, 31 May 2004
- "Criminals sent home under MOU with Vietnam,"
Media Release D32/2004, 10 May 2004
- US visa waiver changes
A reminder that changes to the United States visa waiver program will take effect on 26 October 2004. Travellers eligible to use the Visa Waiver Program must hold a machine readable passport from that date, otherwise they must obtain a visa to travel to the United States. Passports affected include those of Australia, New Zealand, United Kingdom and several other countries. Many Australians will be affected by this change, and persons intending to travel to the USA should clarify their status before leaving Australia.
Further information at
http://usembassy-australia.state.gov/consular/visawaiver.html.
Legislation update
- Commonwealth Bills
A number of Bills relevant to immigration law are currently before
Parliament. Most of these Bills have been summarised in previous editions
of our Newsletter. Below is a
summary of their status as at 11 August 2004.
Full text of the Bills, Explanatory Memoranda, 2nd Reading Speeches and
Bill Digests may be found in the Parliament
Bills Index.
- Migration Amendment (Judicial Review) Bill 2004
This Bill reintroduces time limits in migration cases in the federal courts, including the High Court. The Bill was introduced by the Government in response to the High Court's decision in Plaintiff S157 v The Commonwealth, which was a case conducted by Parish Patience Immigration (Nigel Dobbie as instructing solicitor with Learned Counsel Duncan Kerr QC MP and Professor George Williams).
Parish Patience Immigration have published a comprehensive analysis of the Bill on our
articles page.
This Bill passed through the House of Representatives on 25 March 2004. The Bill was then introduced into the Senate, where it was referred to Senate Legal and Constitutional Legislation Committee which tabled its report on 17 June 2004.
Additional information:
- Anti-terrorism Bills
The Anti-terrorism Bill 2004
passed through Parliament with amendments and is now Act No 104 of 2004.
The Anti-terrorism (No 2) and Anti-terrorism (No 3) Bills
were introduced into Parliament in late June. The second and third Bills have now passed through the House of Representatives and were introduced into the Senate on 3 and 4 August, respectively.
- Australian Passports Bill 2004 and Australian Passports (Application Fees) Bill 2004
These Bills were introduced into Parliament on 24 June 2004. They have now passed through the House of Representatives and were introduced into the Senate on 4 August.
Additional information:
"Passport measures help secure Australia," Foreign Affairs Minister's media release 23 June 2004
- National Security Information (Criminal Proceedings) Bill 2004 and National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004
These Bills were introduced in the House of Representatives on 27 May 2004. The Law Council of Australia has warned that the Bill could result in those accused of a Commonwealth offence involving classified information being denied the right to choose their lawyer.
Related:
- "Lawyers Reject 'Unnecessary' Security Clearance Laws," Law Council of Australia
media release, 27 May 2004;
- "Ruddock seeks secret court sessions," The Age, 28 May 2004.
- Marriage Legislation Amendment Bill 2004
The Marriage Legislation Amendment Bill was introduced in the House of Representatives on 27 May 2004. The Bill defines marriage as the union between a man and a woman. The Government has also reiterated that it is "fundamentally opposed" to same sex couples adopting children. At the same time, the Government has announced the extension of tax-free superannuation death benefits to interdependent couples. The Bill passed through the House of Representatives and was introduced into the Senate, where it was referred to the Senate Legal and Constitutional Legislation Committee, whose report is due on 7 October 2004.
Related:
- "Labor must support Bill to put marriage beyond doubt," Attorney-General's
media release, 24 June 2004;
- "Government defends marriage," Attorney-General's
media release, 27 May 2004;
- "Death benefits and interdependent relationships," Assistant Treasurer's media release C46/04 and Attorney-General's media release 80/2004, 27 May 2004;
- "Government says no to marriage and adoption but yes to super death benefits,"
CCH Family Law News, 7 June 2004;
- "Superannuation offer just a sweetener: gay rights group," Sydney Morning Herald, 27 May 2004;
- "Marriage Legislation Amendment Bill 2004" - speech by Nicola Roxon, Shadow Attorney-General, Assisting the Leader on the Status of Women, 16 June 2004
- Administrative Appeals Tribunal Amendment Bill 2004
On 8 June 2004, the Attorney-General, Mr Ruddock, released an exposure draft of the Administrative Appeals Tribunal Amendment Bill 2004. Following a period for public comment, the Bill was introduced into Parliament on 11 August 2004.
Meanwhile, on 9 August 2004, the Shadow Minister for Foreign Affairs and International Security, Mr Rudd, introduced a Private Member's Bill, Administrative Appeals Tribunal Amendment (Review of Decisions) Bill 2004.
Related: "Release of AAT Amendment Bill for public comment," Attorney-General's media release 88/2004, 8 June 2004.
- Draft 'Baseless Claims' legislation
The Attorney-General, Mr Ruddock, has signalled that new laws are needed to tighten the common law definition of unmeritorious claims, because existing court powers to order costs against solicitors personally are too vague.
At the same time, a Senate Estimates Committee has heard that the backlog of migration cases in the Federal Court has all but disappeared. Under new Federal Court rules, applicants must provide clarity on the basis of their arguments or risk dismissal.
Interestingly, and perhaps contradictorily, Mr Ruddock has recently been quoted
as saying that lawyers are ethically obliged to take cases, commenting
on the approach made to prominent Sydney solicitor John Marsden to join Saddam
Hussein's legal team. ("Lawyers ethically obliged to take cases," The
Australian 9 July 2004)
Related:
- "[Existing] Baseless claims law 'too vague," Australian Financial Review, 14 May 2004;
- "New rules clear backlog," Australian Financial Review, 28 May 2004;
- "Lawyers may bear costs of fighting immigration battles," Sydney Morning Herald, 6 May 2004;
- "[Federal Magistrates] Court shoulders heavy load," Australian Financial Review, 14 May 2004.
- Proposed changes to the Australian Citizenship Act
On 7 July 2004, the Minister for Citizenship, Mr Hardgrave announced changes to the Citizenship Act to remove age limits for registration of citizenship by descent and give children of former Australian citizens the opportunity to take up Australian citizenship.
Additional information:
- New Regulations
Full text of Regulations and Explanatory Statements are available at
ScalePlus. See also DIMIA's summaries of legislative change at
http://www.immi.gov.au/legislation/amendments/index.htm
- Migration Agents Amendment Regulations 2004 (No 1) 2004 No 129
- Migration Agents Registration Application Charge Amendment Regulations 2004 (No 1) 2004 No 130
- Migration Amendment Regulations 2004 (No 3) 2004 No 131
- Migration Amendment Regulations 2004 (No 4) 2004 No 191
- Migration Legislation (Fees) Amendment Regulations 2004 (No 1) 2004 No 192
- Passport Amendment Regulations 2004 (No 2) 2004 No 212
- Migration Amendment Regulations 2004 (No 5) 2004 No 223
Recent caselaw
Following is a brief outline of recent developments. Transcripts of High
Court hearings and full text of most decisions are available on Austlii.
High Court
- Mandatory detention decisions
On 6 August 2004, the High Court published three decisions concerning mandatory detention of failed asylum seekers:
- Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38
Immigration - Unlawful non-citizens - Detention pending removal from Australia - No real prospect of removal from Australia in reasonably foreseeable future - Whether detention lawful under
Migration Act 1958 (Cth) - Whether detention is temporally limited by purpose of removal - Whether requirement to remove as soon as reasonably practicable implies time limit on detention.
Whether detention involves an exercise of judicial power of the Commonwealth by the Executive - Whether detention is for a non-punitive purpose.
- Al-Kateb v Godwin [2004] HCA 37
Immigration - Unlawful non-citizens - Detention pending removal from Australia - No real prospect of removal from Australia in reasonably foreseeable future - Whether detention lawful under
Migration Act 1958 (Cth) - Whether requirement to remove as soon as reasonably practicable implies time limit on detention.
Whether provision for indefinite detention without judicial order infringes Chapter III of the Constitution - Whether detention involves an exercise of judicial power of the Commonwealth by the Executive - Whether detention is for a non-punitive purpose.
- Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36
Immigration - Appellant charged with offence of escape by unlawful non-citizen from immigration detention contrary to s 197A of the
Migration Act 1958 (Cth) - Appellant sought issue of witness summonses pursuant to
Magistrates Court Act 1991 (SA) seeking production of documentary material relating to conditions and complaints about conditions at detention centre - Whether material sought by witness summonses could have assisted appellant in his defence - Whether, by reason of conditions at detention centre, it could be said that appellant did not escape from "immigration detention" within the meaning of the offence.
Immigration - Constitutional law (Cth) - Whether detention under harsh or inhumane conditions is authorised by the Migration Act 1958 (Cth) - Whether
Migration Act 1958 (Cth) only authorises detention under conditions that are reasonably capable of being seen as necessary for migration control purposes - Whether detention in harsher conditions would be punitive and therefore could not validly be authorised except as a consequence of the exercise of the judicial power under Ch III of the Constitution - Relevance of Constitutional principles and international law to construction of statutory offence.
In each of the decisions the Court upheld the right of the Department to indefinitely detain failed asylum seekers, even if they are stateless.
Related:
- "Long term stateless to be reviewed," The Age, 10 August 2004
- Shadow Minister for Immigration
Media Statement, 10 August 2004
- Singh v Commonwealth of Australia [2004] HCATrans 5, HCATrans 6 (10 & 11 February 2004)
Immigration
- citizenship - ramifications of birth in Australia - plaintiff was born in Australia on 5 February 1998 to two Indian citizens
- whether plaintiff acquired Australian citizenship by birth in Australia on 5 February 1998 and has retained it since that date. The High Court heard oral argument on 10 & 11 February 2004, and has reserved its decision.
Related:
Federal Court
The following summaries are taken from the July 2004 Refugee Review Tribunal Bulletin, available at
http://www.rrt.gov.au/.
- NAVK v MIMIA [2004] FCAFC 160, Full Federal Court, N2192 of 2003, 17 June 2004
Protection Visa application - where documents provided in confidence - where
Tribunal failed to consider whether it was possible to reconcile the confidence alleged and the
appellant's interests - whether denial of procedural fairness as a result.
Pursuant to s.438 of the Migration Act 1958 (the Act), the Secretary, DIMIA
had given the Tribunal written advice that certain documents should not be disclosed to the appellant or her legal
adviser, as the documents had been provided in confidence to DIMIA, and disclosure may adversely affect
cooperation between Australian and Chinese authorities. The Tribunal declined to release the documents to
the appellant.
The primary judge found no error in the Tribunal's approach.
Held: appeal allowed; Tribunal decision set aside and remitted for reconsideration.
(i) The Tribunal failed to accord the appellant procedural fairness, and failed to comply with s.424A(1) of
the Act. The Tribunal failed to consider whether it was possible to reconcile the claims of the
Secretary for non-disclosure on the one hand, with the claims for procedural fairness on the other,
by, for instance, addressing the question whether such a reconciliation could be achieved by disclosing
the gist of the information in the subject documents.
(ii) The Tribunal appeared to have taken the Secretary's claims of confidentiality at
face value, whereas s.5(1) makes such a claim either dependent upon the Minister's opinion, or upon
proof of a justiciable claim for breach of confidence. None of those questions were addressed by the
Tribunal. Here also, the appellant was not accorded fairness in the application of s.424A(3)(c) of the
Act.
(iii) The question for the Tribunal was whether, for the purposes of s.438(1)(b) of the Act, the document,
or information, was given to the Department "in confidence", and if so, whether it was possible to
describe to the appellant the gist of the material without breaching that confidence. The Tribunal
made no attempt to address that question and as such the appellant was denied natural justice.
(iv) Neither s.424A nor s.438 of the Act exclude the general rules of natural justice. A confidential
document may, in the interests of procedural fairness, be capable of explication (without undermining
the substance of the confidence) to an applicant in the form of describing the gist of the material
without breaching the confidence.
- STPB v MIMIA [2004] FCA 818, Finn J, S15 of 2004, 25 June 2004
Protection Visa application - interpreter used at Tribunal hearing - whether
effective communication - whether interpretation inadequate or incompetent such that
applicant prevented from giving evidence - adverse credibility finding - whether infected by
inadequate interpretation. Held: Tribunal decision set aside and remitted for reconsideration.
- NARU & Anor v MIMIA [2004] FCA 864, Stone J, N705 of 2003, 7 July 2004
Protection Visa application - corroborative documentary evidence supplied -
Tribunal rejected corroborative evidence as fabricated based on findings as to applicant’s
credibility - whether Tribunal failed to give opportunity to respond to conclusions on
corroborative evidence - whether failure constitutes jurisdictional error. Held: Tribunal decision set aside and remitted for reconsideration.
Federal Magistrates Court
The following summaries are taken from the July 2004 Refugee Review Tribunal Bulletin, available at
http://www.rrt.gov.au/.
- WAHN v MIMIA
[2004] FMCA 93, Bryant CFM, WZ192 of 2002, 17 June 2004
Protection Visa application - whether Tribunal denied applicant procedural
fairness in that it gave no reasonable warning it might proceed with the application on the basis
that documents referred to in the decision were forgeries - whether Tribunal failed to invite
applicant to provide additional evidence to establish that documents were genuine - whether
Tribunal failed to accord procedural fairness where it relied on a linguistic report rejected by
previous Tribunal - whether applicant given opportunity to respond - whether jurisdictional
error. Held: Tribunal decision set aside and remitted for reconsideration.
- SZAQO & Anor v MIMIA [2004] FMCA 405, Driver FM, SZ890 of 2003, 23 June 2004
Immigration - Protection Visa application - failure by the Tribunal to send a hearing invitation to
the applicant's authorised recipient at his nominated address for service - invitation sent to
alternative addresses but not received - breach of s.425 of the Migration Act 1958. Held: Tribunal decision set aside and remitted for reconsideration.
New Zealand
Court of Appeal for England and Wales
-
As reported in previous issues of our Newsletter, in Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20 (29 April 2004) the High Court of Australia held that the Family Court lacked jurisdiction to order the release of children from immigration detention. The Government subsequently declared the home where the children are staying and the school they are attending to be places of detention.
The children who were the subjects of that case subsequently obtained leave to appeal to the England and Wales Court of Appeal, against Britain's refusal to grant them asylum after they escaped from detention in 2002 and sought asylum at the British Consulate in Melbourne. Oral arguments in the UK case were heard in July and judgment has been reserved.
Related:
Diary dates
- August 27-29: ICJ Biennial Conference Berlin, Germany. Nick McNally will attend in his capacity as Treasurer of the Australian Section of the ICJ. More information at
www.icj.org
- August 29: Refugee and Migrant Sunday. More information from the National Council of Churches in Australia:
www.ncca.org.au
- September 2004: Diana Tong consultations in Manila, The Philippines. For more information, please contact
Diana Tong
- September 30-October 2: American Immigration Lawyers Association Global Immigration Summit, New York. Nigel Dobbie will attend and participate in the panel session, "Comparative Asylum/Refugee Practices." More information at
www.aila.org
- October 2004: Nigel Dobbie consultations in Mumbai, India. For more information, please contact
Nigel Dobbie
- October 25-29: International Bar Association Conference 2004, Auckland, New Zealand. Managing Partner David Bitel will attend. More
information from http://www.ibanet.org
- October 24-30: Refugee Week. The Refugee Council of Australia (RCOA) has entered into a partnership with the Victorian Multicultural Commission (VMC) that enables the Council to take over as the auspicing body of Refugee Week in Victoria for 2004. More information for Victoria and other States at
RCOA News & Events
- November 16-20: David Bitel consultations in Manila, The Philippines. For more information, please contact
David Bitel
-
Refugee
Council of Australia Coming Events - includes notice of several
Humanitarian Practice training courses
- United
Nations Association of Australia 'Diary Dates'
Reader contributions of upcoming events may also be submitted to the Editor.
Quote of the month
"
A politician thinks about the coming elections,
the statesman about the next generations."
-
Otto von Bismarck
We welcome reader contributions of quotable quotes to the Editor.
Contact us
Parish Patience Immigration
Lawyers
Level 1, State Street Centre
338 Pitt Street
SYDNEY NSW 2000
AUSTRALIA
Tel: +61 2 9286 8700
Fax: +61 2 9283 3323
Web: www.ppilaw.com.au
Registered Migration Agents
9255523, 9359088, 9370721,
9800540, 9802999, 0004435, 0106541, 0322836,
0425543, 0426524
Liability is limited by the Solicitors
Scheme under the Professional
Standards Act 1994 (NSW)
Disclaimer
The contents of this newsletter are
not intended to be legal advice. Parish Patience Immigration accepts no
responsibility for any action taken in reliance on anything contained in
the newsletter. Individuals should seek advice about their own
circumstances only from a registered migration agent.
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