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Registered Migration
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Parish Patience
Solicitors, Immigration Law Section
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| Issue No 10 | June 1999 | ||
More bureaucracy, less flexibility |
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June changes - new rules on character give bureaucrats more power, make the Administrative Appeals Tribunal irrelevantFrom 1 June 1999 inflexible new rules on refusal or cancellation of visas on character grounds come into effect. Any person who has ever been sentenced to a term of imprisonment of 12 months or more, for whatever reason, in whatever country, is deemed to fail the character test. In fact, the Minister need only "reasonably suspect" that the applicant fails the character test in order to refuse a visa or cancel one already in force. Other grounds for failing the character test include having an association (undefined) with a person or group whom the Minister "reasonably suspects" of involvement in criminal conduct, or a significant risk that the person would engage in the criminal conduct in Australia, or harass or stalk someone, vilify a segment of the community, incite discord or generally "represent a danger" to the community. Similar provisions have always existed in the law, of course, and there is obvious justification for a power to refuse entry to, or remove, undesirable individuals. Indeed, there is no evidence that the existing powers have been in any way inadequate to deal with such situations. The new amendments have all the hallmarks of political grandstanding rather than reasoned legislative reform to solve a genuine problem. Not content with flexing its muscles, however, the government has deemed it necessary to make sure that political considerations will have the final say over all issues of justice or civil rights. A person whose visa is refused or cancelled has previously been able to appeal the decision to the Administrative Appeals Tribunal (AAT), a body set up in the 1970s to provide an avenue of independent merits review of government decisions affecting individuals. The Tribunal's record in such cases could hardly be described as radical. The amended legislation continues to allow for an appeal to the AAT but gives the Minister the absolute power, either before during or after an appeal, to simply ignore the AAT's decision and refuse or cancel the visa anyway. If the Minister so chooses, he is not bound to give the individual concerned the benefit of "natural justice", that is a right to be heard in his or her own defence. Information about the person supplied by government agencies (including some foreign agencies) and stamped "confidential" must not be made available to the person, either by the Department or the Tribunal, or even a Court of law. Further provisions of the new legislation that betray the government's intention to remove any real scrutiny or review of its decisions include a time limit of 9 days (irrespective of holiday periods) within which a person can lodge an appeal to the Tribunal, and the astonishing requirement that the Tribunal make a decision within 12 weeks or else the applicant loses. Even if an applicant gets his or her case into the Tribunal in time, and the Tribunal has time to hear it, the new rules contain traps that no applicant unable to afford competent legal assistance is likely to get around, such as a requirement that no oral evidence can be given to the Tribunal unless it was contained in a written statement filed two days before the hearing (a requirement that is only imposed on the applicant, not on the Minister). Article 13 of the International Covenant on Civil and Political Rights, to which Australia is a signatory, reads as follows:
There can be no doubt that the amendments taking effect from 1 June do not come up to the standard required by Australia's international obligations under the Covenant.
New Migration Review Tribunal opens, changes to Refugee Review TribunalThis month sees the demise of the old two-tier review system for immigration decisions and its replacement with a modified version of the old Immigration Review Tribunal, renamed the Migration Review Tribunal (MRT). Details of the differences between the old and new Tribunals were given in the March edition of Australian Immigration Law Update. The Refugee Review Tribunal will continue to function as before, although certain procedural changes will probably speed up its operation by allowing for the Principal Member to shift cases around amongst the other members. Whether there will be a trade off between efficiency and proper consideration of all aspects of a case remains to be seen. New time limits will also be imposed on responding to requests for information, and again only time will tell whether the effect is positive or negative.
Further details of July changesRegulations governing the new skilled migration categories coming into effect on 1 July have been gazetted. Five new visa subclasses are created:
The last four are similar to existing subclasses 126, 135, 105 and 106 respectively, applying the new points test contained in Schedule 6A. Details of the new test have been previously publicised in a Department Fact Sheet. Important changes from the existing system include:
The new subclass 134 allows some applicants who do not pass the points test to lodge an application for a small fee and then be placed on a Skill Matching List to await nomination from a State or Territory government agency. The full fee is payable only if the nomination is received within two years. Application fees (except for subclass 134) have been increased from $1,060 to $1,075. Other increases also apply (see details on our website after 1 July).
Hot linksWith each edition of Australian Immigration Law Update we will try to find some new or interesting sites that you might enjoy visiting. This month, you might like to try out some of these:
Contact us:Parish
Patience Immigration Tel: +612
9286 8700 Liability is limited by the Solicitors Scheme under the Professional Standards Act 1994 (NSW) Previous editions:
LEST WE FORGET Beijing, 4 June 1989 Copyright © Parish Patience Solicitors
1999. All rights reserved. |
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