In this issue we feature recent developments concerning skilled, business, student and family visas, in particular the announcement of the 2005-06 Non-humanitarian Migration Program. We plan to provide more extensive coverage of issues related to refugees, asylum seekers, and human rights in our next issue, to coincide with World Refugee Day on 20 June.
Skilled migration & business
entry
- 2005-06 Migration (Non-Humanitarian) Program
On 14 April, the Minister for Immigration, Senator Vanstone, announced the 2005-06 Migration (Non-Humanitarian) Program. Highlights include:
- Skill Stream to include up to 20,000 additional places;
- Increase to be targeted towards employer-sponsored migration and state/regional sponsored migration;
- Expanded Migration Occupations in Demand List (MODL) to include additional trades and engineering related occupations, with review of the MODL every six months;
- Working Holiday Makers and Occupational Trainee visa holders will be able to obtain a Skilled Independent Regional (SIR) visa without having to leave Australia; and
- Working Holiday Makers who do a minimum amount of seasonal harvest work in regional Australia will be eligible to apply for another Working Holiday Maker visa.
Additional information:
- "2005-06 Migration (Non-Humanitarian) Program," Immigration Media Release VPS 052/2005, 14 April 2005;
-
Fact Sheets:
- Current Migration Occupations in Demand and Additional Occupations to be Added to the Migration Occupations in Demand List
- Fact Sheet 01: Migration Program - Working with states and regions to meet with skilled migration needs
- Fact Sheet 02: Migration Program - Helping employers
- Fact Sheet 03: Migration Program - Shaping the future
- Fact Sheet 04: Migration Program - Family stream integrity measures
- Fact Sheet 05: Migration Program - Planning levels
- "ACCI welcomes reports of skilled migrant boost," Australian Chamber of Commerce and Industry media release, 3 March 2005;
- "Government puts quick-fix imported labour ahead of Australian skills," Australian Labor Party media statement, 3 March 2005;
- "ACS wants 'nimbler' migration policy," Sydney Morning Herald, 12 April 2005.
- Legislation change - 2 April 2005
The Migration Regulations have been amended effective 2 April 2005. Of particular note to skilled and business visa applicants:
- Sydney and Selected Areas Skilled Shortage List (SSASSL)
Changes affect applicants for Skilled - Australian Sponsored (Migrant) (Class BQ) visa whose sponsor resides in Sydney, Gosford, Newcastle or Wollongong. Among the changes is the new requirement that Class BQ applicants have had recent work experience in an occupation listed on the SSASSL. This essentially closes the loophole which previously existed for sponsors in this area.
For additional information about sponsored skilled migration to Sydney, Gosford, Newcastle or Wollongong, we invite you to contact
David Bitel.
- Employer Nomination Scheme (ENS), Regional Sponsored Migration Scheme (RSMS) and Labour Agreements (LA)
A number of major changes have been made to the Employer Nomination Scheme, including minimum salary levels, minimum work experience and compliance obligations. All applications for the relevant visas must be made in Australia, although the applicant may be offshore at the time of application. Labour market testing is no longer required. Skills assessment is no longer required for positions with base salary of at least $151,000.
For additional information about the employer nomination scheme, we invite you to contact
Etienne Hugo.
- Temporary Business (Long Stay) (Subclass 457) visa and Independent Executive - Further Application Onshore (IEFAO)
Subclass 457 visas may now be granted to applicants whether they are onshore or offshore at time of decision, and irrespective of where they were at time of application. In addition, changes have been made to certain IEFAO provisions, to ensure consistency in the Regulations as they apply to applications from spouses of subclass 457 IEFAO visa holders.
For additional information about Business (Long Stay) and Independent Executive visas, we invite you to contact
Diana Tong.
- Skilled Independent Regional (SIR) update
- New South Wales - The New England and North West region of NSW (Tamworth, Armidale, Moree, Glenn Innes, and Inverell) have joined the SIR program. The region is looking for: dentists, general medical practitioners, pharmacists, chefs/cooks, physiotherapists, podiatrists, electricians, panel beaters, plumbers, boilermakers, mechanics, carpenters and fibrous plasterers.
Additional information at
www.business.nsw.gov.au (follow links to Regional Development - Regional Skilled Migration)
- Victoria - The Victorian government has been working closely with the Department of Immigration on planning initiatives to attract additional skilled migrants to regional Victoria.
Additional information:
- Western Australia - The Western Australian Department of Industry and Resources has issued three new publications of interest:
- Western Australia Skills in Demand List;
- SIR Visa - Application for State Sponsorship, and;
- SIR Visa - Fact Sheet.
These publications are available at
www.doir.wa.gov.au.
- Northern Territory - The Northern Territory Chief Minister has launched the NT's Business and Skilled Migration Strategy,
with the aim of boosting the Territory's skills base.
Additional information:
www.migration.nt.gov.au
Potential applicants for Skilled Independent Regional (SIR) visas are invited to contact
Rania Skaros.
- Retirement visa (subclass 410) to cease
The Subclass 410 Retirement Visa may cease to be available to new applicants from 1 July 2005, according to recent correspondence from the Migration Institute of Australia. Given the uncertainty of future requirements for the proposed replacement for this visa, and possible more favourable treatment under current requirements, people who may meet the current Retirement Visa requirements are encouraged to seek professional advice well before 30 June 2005.
Applicants and potential applicants interested in retiring to Australia are invited to contact
Etienne Hugo.
- Same sex partners denied work rights
Two recent articles in the Sydney Morning Herald highlighted anomalies in the rules for same-sex partners of temporary visa holders. People in this situation are only allowed 12-month visitors' visas, without work rights. However heterosexual de facto and married couples are permitted a four-year residency visa as a family. The problem arises because the term 'member of the family unit' does not include people in interdependent relationships.
Additional reading:
- "Doctors denied visas for gay partners," Sydney Morning Herald, 1 April 2005
-
"Different visa rules for gay couples," Sydney Morning Herald, 11 April 2005 (both articles are available from Fairfax
Newsstore)
Applicants who may be in this situation are invited to contact
David Bitel.
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Students & Working Holiday Makers- Assessment level easier for some Student Visa applicants
Effective 1 April 2005, it is now easier for applicants from certain countries to obtain Student Visas. The English language and financial test for student visa applicants from certain countries has become lower (easier), with a change to some country classifications.
Additional information:
Potential applicants interested in visas to study in Australia are invited to contact
Diana Tong.
- Specification of regional and low population growth areas, for purposes of gaining extra points under General Points Test
The Minister for Immigration, Senator Vanstone, has issued a "Specification of Regional and Low Population Growth
Metropolitan Areas for Purposes of Items 6A1001 and 6A1002 of Schedule 6A to the Migration Regulations 1994." The Specification comprises a list of universities, TAFE colleges and other institutions where applicants may be able to study in order to qualify for 5 extra points under the General Points Test applicable to former student applicants for a permanent visa under the skilled migration program.
The document may be found on the
Federal Register of Legislative Instruments (ComLaw).
- Enhancements to working holiday maker (WHM) program
From November 2005, working holiday makers will be able to apply for a further WHM visa if they have done at least 3 months seasonal harvest work in regional Australia. WHMs and Occupational Trainee visa holders will also be allowed to apply for a Skilled Independent Regional (SIR) visa while still onshore in Australia, which then provides a pathway to permanent residence.
A WHM visa is issued for 12 months. Thus the further visa for eligible applicants would bring the total period for a working holiday visa to 2 years.
Additional information:
- New Zealand working holiday makers
From 1 July 2005, some working holiday makers to New Zealand may be able to work for up to two years. Currently the limit is one year.
Additional information:
- Working Holiday in New Zealand - New Zealand Immigration Service;
- "NZ will allow backpackers to work for two years," Sydney Morning Herald, 2 February 2005
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Family, partners and related visas
- Family stream integrity measures
The 2005-06 Migration (Non-Humanitarian) Program announced on 14 April contains a number of very important changes relevant to family visas, including:
- Two-stage partner visa processing - For applications lodged after 1 April 2006, partners will not become eligible for a permanent visa until two years after their provisional visa was granted, and they must have co-habited for at least one year after the provisional visa was granted;
- Domestic violence claims by holders of spouse or de facto partner visas - New provisions to enhance verification of claims, with the purpose of eliminating non-genuine claims, are planned to come into effect on 1 July 2005;
- Remaining relative - Currently an applicant for a remaining relative visa may have up to three near relatives in countries other than Australia. For new applications from 1 November 2005, only last remaining relatives will be eligible for this visa and the exception will be removed;
- Close ties visas - Under existing provisions a person could be granted permanent residence if they became unlawful before turning age 18, and are now over age 18 and no longer living with the family with whom they entered Australia. This provision will be removed effective 1 July 2005. This will impact adversely on some people and is in our view an unjustified change.
Fact Sheet 04: Migration Program - Family Stream integrity measures.
For additional information about family stream visas, we invite you to contact
David Bitel.
- Definition of "Member of the Family Unit"
The Migration Regulations have been amended to clarify the definition of "member of the family unit" across a broad range of visa subclasses, both permanent and temporary. From 2 April 2005, a relative wishing to be included as a member of a family unit in a visa application must be a relative of the family head or spouse of the family head who:
- has never married or is widowed, divorced or separated,
- is usually resident in the family head's household, and
- is dependent on the family head.
The change removes a previous ambiguity in the Regulations which could have been interpreted to include couples as members of the family unit.
The term dependent is defined to refer to physical and financial dependence for a reasonable period. The term still does not include persons in an interdependent relationship.
Notice of legislative change
- Inquiry into overseas adoptions
The House of Representatives Standing Committee on Family and Human Services is conducting an Inquiry into Adoption of Children from Overseas. Submissions closed 22 April 2005.
Terms of reference, submissions and additional information are available at
www.aph.gov.au/house/committee/fhs/adoption/index.htm
- Sponsored Family Visitor visa
From 2 April 2005, people wishing to sponsor relatives to visit will be able to lodge the visa application here in Australia. Sponsored Family Visitor visas are normally granted for 3 months, but in exceptional circumstances may be granted for six months or longer.
Additional information:
For additional information about Sponsored Family Visitor Visas, we invite you to contact
David Bitel.
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Asylum Seekers, Refugees & Human Rights
Following is a brief summary of recent developments concerning asylum seekers, refugees and human rights. We plan a more extensive feature on these issues in the next edition of our Newsletter, to coincide with World Refugee Day on 20 June.
- Refugees update
- 2005-06 Humanitarian program
On 18 April 2005, the Minister for Immigration, Senator Vanstone, announced the 2005-06 Humanitarian Program. Highlights include:
- 6,000 places for resettlement of refugees referred by the United Nations High Commissioner for Refugees (UNHCR);
- 7,000 places for the Special Humanitarian Program and protection visas in Australia;
- Priority continues to reflect resettlement priorities of UNHCR: Africa, Middle East and South West Asia;
- Program to cost about $500 million, with Australia continuing to rank alongside the USA and Canada in the top three of the world's permanent resettlement countries.
Additional reading:
- Take-up of permanent visas by Temporary Protection Visa holders
The Senate Estimates Committee has received the following information in response to a Question on Notice by Senator Bartlett (Australian Democrats), regarding the take-up rate by TPV holders of other visas since the change in policy last year.
"Only small numbers of applications have been received so far as most TPV holders are awaiting the outcome of their permanent protection visa applications.
As at 25 February 2005, 20 applications for mainstream visas have been lodged (covering 35 people). Eight applications (18 people) have been finalised with 15 permanent visas granted, 1 temporary visa granted and 1 application (covering 2 people) withdrawn as the applicants were granted Permanent Protection visas."
Source: Additional Estimates Hearing 15 February 2005
- Special Humanitarian visas from Africa and Middle East
People wishing to support relatives to come to Australia under the Special Humanitarian Program from Africa and the Middle East may now lodge their applications in Australia. Applications from Africa must now be lodged in Sydney, while applications from the Middle East must be lodged in Melbourne.
"Making visas easier for Africa and the Middle East," Immigration Department media release DPS 010/2005, 8 April 2005
- New Removal Pending Bridging Visa
On 23 March 2005, the Minister for Immigration, Senator Vanstone, announced new measures to manage the cases of long-term detainees. The new Removal Pending Bridging Visa will not be available to detainees with current visa applications, or who are challenging decisions, either through review or through the courts, nor does the new visa apply to failed asylum seekers on Nauru. Holders of the new Bridging Visa will have access to the same range of social security benefits as those offered to holders of the Return Pending Visa introduced last year for certain TPV holders.
According to news reports, at least two detainees who have exhausted all other legal avenues in Australia have their cases pending before the United Nations Committee on Human Rights. A spokesman for Senator Vanstone said that the UN investigations would not be a bar to a detainee otherwise qualifying for the new Bridging Visa.
Refugee advocates have said that the Removal Pending Bridging Visa will be available to only a very small number of long-term detainees.
Additional information:
-
Country reports
Recent country and research reports of interest:
- Bangladesh
- The England and Wales High Court has held that the British government acted unlawfully in placing Bangladesh on a 'white list' of safe countries for failed asylum seeker returns -
Queen on Application of Zakir Husan v Secretary of State for the Home Department,
[2005] EWHC 189 (Admin), 24 February 2005. The case is currently on appeal.
- "Bangladesh: authorities proceed in sedition case against journalist," Committee to Protect Journalists news alert, 22 February 2005
- Homosexuals from Fiji: possible Convention refugees, by Parish Patience Immigration, 19 April 2005
- "Nepal: dealing with a human rights crisis," by International Crisis Group, 24 March 2005
- 2004 Country Reports on Human Rights Practices - US Department of State, released 28 February 2005
- "Razor's Edge: the controversy of female genital mutilation," by UN Office for the
Coordination of Humanitarian Affairs (OCHA), Integrated Regional Information Network (IRIN), 8 March 2005
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Other Immigration News
- New Settlement Grants program
The Minister for Citizenship & Multicultural Affairs, Mr McGauran, has released a discussion paper on a new $30 million settlement grants program for migrants and refugees.
Additional information:
- Compliance update
The Department of Immigration continues its policy of strict enforcement of visa conditions and regular compliance operations. At the same time, the Government ministers Vanstone and McGauran are now refusing to exercise their discretion in many cases where visas might have been granted by the previous minister, Mr Ruddock. This is causing much personal anguish and concerns that this very strict approach is forcing persons who may have genuinely compelling cases to leave Australia.
It is very important that all visa holders comply with their visa conditions, and to seek professional advice if they have any questions about their status.
Additional reading:
- Complementary Protection - The Refugee Council of Australia, Amnesty International and the National Council of Churches of Australia have published a policy paper,
"Complementary Protection: The Way Ahead." The paper considers how the international community responds to people in need of protection who fall outside the refugee definition and compares this to Australian practice. It then points out the deficiencies in current Australian practice and suggests a model that, if implemented, would ensure that Australian practice is fair, transparent, timely, efficient and legally defensible.
The paper is available on the Refugee Council's
current issues webpage.
- Senate Estimates Committee - on 15 February 2005, the Senate Estimates Committee heard that a total of 123 business visas were cancelled in the six month period 1 July 2004 to 31 January 2005 for breach of visa conditions. The majority of cancellations occurred when the employee left the employment of the sponsor. In that same period, DIMIA conducted 919 site visits, and found 17 sponsors to be in breach of their undertakings in relation to sponsorship of subclass 457 visa holders.
- Mrs. Hu - A 104-year-old woman who had overstayed her visitor visa by several years, has been granted a bridging visa. The Immigration Minister, Senator Vanstone, exercised her discretionary powers in this case.
Additional information:
- Illegal workers removed - the Immigration Department's continuing operations both in Sydney and in regional Australia are well documented on the Minister's media releases website: www.minister.immi.gov.au/media_releases
- Removal of children of visa overstayers - there have been reports of the Immigration Department removing children from school following the detention of their parents for breach of visa conditions, and of the general trauma associated with parents who are to be deported having to decide whether to leave children behind who are entitled to remain in Australia.
Additional reading:
Anyone with concerns about their visa or sponsorship status is invited to
contact us.
- Immigration statistics
-
Immigration Snapshot 2003-04, by DIMIA Statistics Section, March 2005
-
New figures on Sydney immigration
The Australian Bureau of Statistics has released figures showing that Sydney's population grew by approximately 650 people per week in the year to June 2004. This is far short of the "1,000 new people a week" figure often given as a justification for the SSASSL and SIR programs, which encourage new migrants to settle away from Sydney.
Additional information:
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Legislation Update
- Commonwealth Bills
Following is a brief summary of new and pending legislation. Parliament next sits beginning 10 May 2005.
Full text of Bills, 2nd reading speeches, explanatory memoranda and bills digests are available in the Parliament of Australia
BillsNet database.
- Migration Litigation Reform Bill 2005
The Migration Litigation Reform Bill 2005 was introduced into Parliament on 10 March 2005. The Bill has been referred to the Senate Legal and Constitutional Legislation Committee, to be reported 11 May 2005. The Bill directs nearly all migration litigation to the Federal Magistrates Court, and makes lawyers and migration advisers personally accountable for bringing cases which have no reasonable prospect of success.
Related:
- Administrative Appeals Tribunal Amendment Bill 2005
The AAT Amendment Bill passed through Parliament with amendments on 16 March 2005, and received Royal Assent on 1 April 2005.
Related:
- National Security Information Legislation Amendment Bill 2005
This Bill extends the operation of the National Security Information (Criminal Proceedings) Act 2004 to include civil proceedings. The Bill pass through the House of Representatives and has been introduced in the Senate, where it was referred to the Senate Legal and Constitutional Legislation Committee, to be reported 11 May 2005.
- Regulations
- Migration Amendment Regulations 2005 (No 1), Select Legislative Instrument 2005 No. 54
These Regulations, which commenced 2 April 2005, are summarised elsewhere in this Newsletter. The changes relate to skilled migration, employer nomination scheme (ENS), regional sponsored migration scheme (RSMS), sponsored family visitor, student visas and technical amendments.
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Recent Caselaw
- High Court
- NAGV and NAGW of 2002 v MIMIA [2005] HCA 6, 2 March 2005
Refugee Review Tribunal found that appellants had genuine fear of persecution if returned to Russia - Tribunal concluded that Israel was a third country where appellants would have effective protection - Construction of the Convention Relating to the Status of Refugees as amended by Protocol Relating to the Status of Refugees - Whether a non-refoulement obligation precludes removal to a safe third country. Words and phrases - "protection obligations", "to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol".
Held, the availability of protection under Israel's Law of Return did not abrogate Australia's obligations to Jewish asylum seekers.
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Staff & website news
- Staff in the news
Solicitor Nicholas McNally was interviewed for two recent articles concerning immigration law:
- "Stuck in the system,"
Time Asia, 21 February 2005, and
- "Tyson faces tough bout to get visa," Sydney Morning Herald, 2 March 2005.
- New additions
We are pleased to announce two new additions to our Parish Patience "family". Congratulations to solicitor Etienne Hugo and Yvette on the birth of their son, Ian, who joins sister Nikka. Congratulations also to migration agent Annette Aitken and Paul on the birth of their son, Connor.
- New on our website
The following pages have been substantially updated on our website:
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Diary Dates
- May 9, 2005: Applications due for summer course at Harvard University: "Advanced Training on International Humanitarian Law," to be held July 18-22, 2005. More information from
www.ihlresearch.org/ihl/seminar
- May 27 - June 3, 2005: National Reconciliation Week. More information from Reconciliation Australia:
www.reconciliationaustralia.org
- May 28, 2005: Anniversary of Amnesty International (founded 1961). More information from
www.amnesty.org
- May 29, 2005: International Day of United Nations Peacekeepers. More information from UN Department of Peacekeeping:
http://www.un.org/Depts/dpko/dpko/index.asp
- June 12, 2005: Philippines Independence Day
- June 13, 2005: Queens Birthday Public Holiday. Our offices will be closed.
- June 20, 2005: World Refugee Day. More information from
www.unhcr.ch
- June 22-26, 2005: American Immigration Lawyers Association annual conference in Salt Lake City, Utah USA. Nigel Dobbie plans to
attend. More information from
www.aila.org
- September 20-30, 2005: International Bar Association annual conference in Prague, Czech Republic. David Bitel plans to attend. More information from
www.ibanet.org
- November 2005: Four-day course, "Mediation @ Melbourne Law," offered jointly by the Faculty of Law and the International Conflict Resolution Centre at the University of Melbourne. The course deals with interest-based mediation and emphasises both theoretical and practical aspects of dispute management. Closing date for applications is 29 October.
More information available from
http://www.psych.unimelb.edu.au/ICRC/teaching/shortcourses.html
- November 10-11, 2005: Joint ILPA/IBA/AILA Business Immigration conference in London, UK. David Bitel plans to attend. More information from
www.ibanet.org, www.aila.org or www.ilpa.org.uk
-
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.
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Reading is to mind what exercise is to the body
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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
Email: 
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SSASSL, SIR,
ENS, MODL,
Retirement visas, same sex partners more >>
Assessment level easier for some applicants, backpackers more >>
Family, close ties, sponsored family visitor, more >>
2005-06 Humanitarian Program, country reports, more >>
Settlement grants, compliance, Ministerial discretion,
Immigration statistics, more >>
Migration Litigation Reform Bill, AAT Bill, more >>
High Court, more >>
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
Email:
Contact and enquiry
form
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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