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Parish Patience Solicitors, Immigration Law Section
www.parishpatience.com.au/immigration/

  Genuine refugees to pay for people smugglers

Genuine refugees made to pay for people smuggling

Refugees who come to Australia "illegally" will be discriminated against under new legislation introduced in October. Rather than being given permanent residence and a chance to rebuild their lives away from the persecution they have been subjected to in their home country, they will be made to wait in a legal limbo for three years, and then relive their past ordeals all over again to convince the Australian government that they are "still" refugees.

A refugee is a person who has a "well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion". The term "persecution" is defined by the Courts to mean, at the very least, some form of "serious harm". The Australian government insists that people claiming to be refugees give detailed descriptions of the persecution they have suffered or fear. It is arguable that the extra suffering this causes to the genuine refugee is necessary to ensure that people trying to abuse the international refugee protection system are identified.

International law recognises that genuine refugees may be forced by circumstances to disregard or break laws of an administrative nature, particularly through the use of false documentation and illegal means of transport and entry to other countries. The Australian government, however, has now decided to stand alone by punishing refugees for failing to follow proper channels while attempting to save their lives and those of their families.

Under the new regulations, even after proving that their fear of serious harm is well-founded, refugees who arrived in Australia without appropriate documentation will be given a second-class form of protection visa which will not permit them to return to Australia if they leave the country, and will also prevent them obtaining permanent residence even if they satisfy other standard immigration requirements, such as marriage to an Australian or having professional skills in high demand. After three years of living in uncertainty, they will have to relive the trauma of proving their refugee status all over again in order to have any chance of being allowed to stay permanently in this country.

The prohibition on travelling outside the country, in particular, can only be described as petty and cruel. Refugee families are often split up in the process of escaping from repression, and it is not unusual for close family members to find refuge in different countries. Together with the anxiety of not knowing whether they will eventually be allowed to remain in this country and the need to relive their trauma after three years, the denial of family contact can only be seen as an extra layer of human rights abuse.

Other indignities to be heaped on the victims of human rights abuses in the hope of discouraging them from seeking asylum in the Lucky Country include fingerprinting and "other biometric tests", including DNA testing (which requires as a minimum some form of invasive procedure to obtain physical specimens).

Of course people smuggling is a serious international crime, which must be condemned and prevented where possible. But so is the abuse of the powerless by those who can always justify their actions as "lawful" because, after all, they make the laws.

Media Release - http://www.minister.immi.gov.au/media_releases/media99/r99143.htm
Migration Regulations Amendment No 12 of 1999 - http://frli.law.gov.au/frli/data/199910/html/1999B00246.html - also in RTF format - http://frli.law.gov.au/frli/data/199910/rtf/1999B00246.rtf
UNHCR Handbook on Procedures for Determining Refugee Status - http://www.unhcr.ch/refworld/legal/handbook/handeng/hbtoc.htm

Changes to points test and Skilled Occupations List

A number of changes to the skilled and business migration programs came into effect on 1 November, some of which were foreshadowed in the October edition of this newsletter.

With effect from 1 November, the following occupations have been deleted from the Skilled Occupations List (SOL):

• Health Professionals (Not elsewhere classified) - ASCO 2399-79
• Legal Practitioner - Legal Professionals (Not elsewhere classified) - ASCO 2521-79
• Pilot - Air Transport Professionals (Not elsewhere classified) - ASCO 2541-79
• Seafarer - Sea Transport Professionals (Not elsewhere classified) - ASCO 2542-79
• Medical Technical Officers (Not elsewhere classified) - ASCO 3111-79
• Professionals (Not elsewhere classified) - ASCO 2549-79

The change applies to visa applications lodged on or after 1 November 1999.

A particularly significant change is the introduction of a requirement that applicants relying on a skilled occupation that attracts 50 or 40 points on the SOL must be assessed as having a formal qualification that is equivalent to a degree (50 points) or a diploma or advanced diploma (40 points) in Australia. One immediately obvious fault with the amendment is that it would appear to disqualify a person who holds a degree, however relevant, from applying on the basis of an occupation that scores 40 points. The amendment does not apply to the 60 point category, so work experience may still substitute for formal qualifications in respect of those occupations. The amendment applies only to applications lodged on or after 1 November 1999.

One more change to the points system allows for 10 points to be awarded for applicants who hold a doctorate (PhD) awarded by an Australian educational institution after at least 12 months of full-time study in Australia. Lesser awards continue to attract only 5 points. This amendment applies to all applications lodged on or after 1 July 1999.

Client Information Sheet - http://www.immi.gov.au/clients/cis1199c.htm#skill

New forms and visa classes

Technical changes from 1 November have rearranged the various onshore and offshore visa classes in the family migration category into four groups:

• Partner (comprising legal and de facto marital relationships and same-sex couples);
• Child (including natural children, adopted children and orphan relatives);
• Parent; and
• Other Family (aged dependent relative, remaining relative and carer).

For offshore applicants, the Prospective Spouse (fiancé) class remains separate, although it automatically converts to a Partner application if the couple marry before finalisation.

New forms for each class have been designed for use both onshore and offshore, although the old forms 47 (offshore) and 887 (onshore) can still be used until April 2000.

Client Information Sheet - http://www.immi.gov.au/clients/cis1199a.htm#family
Immigration forms - http://www.parishpatience.com.au/immigration/forms.htm

Student visa changes

A number of minor changes to student visa arrangements are set out in the Department's Client Information Sheet available on its website.

Of most interest is the inclusion of Hong Kong and Taiwan as "gazetted countries", meaning that people who normally live in or have unlimited right of access to either place can apply in Australia for student visas without having to show "exceptional circumstances".

Client Information Sheet - http://www.immi.gov.au/clients/cis1199a.htm#student

Definition changes

Several key immigration terms have been given new definitions by the 1 November amendments:

• "Dependent" is limited to a relationship of financial dependency for the purposes of meeting basic needs of food, clothing and shelter, and the dependent must be more reliant on the one person that on any other person. The state of dependency must have been in existence for a "substantial" period of time. A "dependent child", although the old "daily care and control" requirement is abolished, must either be under 18 or must satisfy the new definition of "dependent", but for the purposes of Child visa applicants (subclass 101) he or she must be under 25 at the time of application, never have been married or engaged, and be a full-time student right up to the time the visa is finalised. The only exceptions to these requirements apply to applicants with disabilities that prevent them from working (although in such cases they are likely to be rejected on health grounds).

• "Carer" is expanded so that the definition now applies in situations where the person needing assistance suffers from "sensory or intellectual impairment", rather than simply physical impairment as before. However, in all cases it is still necessary for an assessment to be carried out by the Australian Health Service in terms of the statutory impairment tables.

• "Remaining relative" is technically amended so that the Minister must be satisfied as to the place of residence of various family members, rather than it being a matter of fact which could later be argued in a Court.

Client Information Sheet - http://www.immi.gov.au/clients/cis1199.htm

Hot links

With 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*:

• http://www.isbister.com/worldtime/ - World time zones from iSBiSTER International Inc
• http://www.pbs.org/wgbh/nova/decoding/ - historical information about cryptography since World War II

*These sites are not in any way endorsed or connected with Parish Patience. The listing of a commercial site does not imply any recommendation or warranty concerning the products or services offered.

Contact us:

Parish Patience Immigration
Level 1, State Street Centre
338 Pitt Street
SYDNEY NSW 2000
AUSTRALIA 

Tel: +612 9286 8700
Fax: +612 9283 3323
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