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

Issue No 3

• Permanent and Temporary Visas 
• Students and Visitors 
• Employment and Family Sponsorship 
• Appeals 
• Cancellations 
• Citizenship 

Previous issues

• September 1998
• October 1998

Removing access to the Courts

As the second Howard government takes office one of the pieces of legislation on its agenda for getting through the Parliament bears the nondescript title "Migration Legislation (Amendment) Bill 1997 (No. 5)" (full text available in .pdf format). It is in fact one of the more sinister pieces of legislation ever to be brought into the Federal Parliament.

A detailed analysis of the Bill can be found in an article by Michael Jones on the Parish Patience website.

The government's aim is to prevent people from challenging immigration decisions in the Courts. It is a fundamental principle of any free society that the government is bound by the law just as everyone else is. The role of a free and independent Court system is to ensure that government agencies and agents do not exercise their power arbitrarily or at the whim of their political masters. Often governments find this to be an unwelcome intrusion on the way they want to use their power. They would prefer to have seemingly reasonable and civilised laws on the books, and then simply ignore them whenever it suited them.

The proposed amendments follow earlier changes which severely limit the availability of judicial review in immigration matters compared with all other areas of government decision making. For instance, amendments in place since 1994 actually protect immigration authorities from challenge on the grounds that their decisions were in bad faith, so unreasonable that no reasonable person could have made such a decision, or based on irrelevant considerations while ignoring relevant considerations.

In order to justify its actions, the government has carried on a fairly consistent propaganda campaign aimed at creating the impression that challenges to its decisions in the Courts are a waste of public money and nothing short of a scam by unscrupulous individuals to prolong their stay in this country. A recent example of this propaganda is a "Fact Sheet" issued by the Department which describes a scenario of massively expanding costs flowing from appeals to the Federal Court. A close examination of the figures, however, reveals the significant point that in more than 25% of cases resolved in the last financial year the Minister either admitted, or the Court ruled, that the decision in question involved an error of law. Rather than addressing the problem by improving decision making procedures, the government's response is to try to prevent any independent scrutiny. In those circumstances, one can only expect that the quality of decision making will get worse rather than better.

In calculating the cost of litigation, the Department also overlooks the fact that all applicants, unless they are in detention, must pay Court fees of nearly $1,600.00, which is more than enough to weed out frivolous or vexatious applicants. Finally, however, as the Court itself has been heard to say in desperation, many of the unrepresented litigants who bring unfounded applications might not have done so if they had had access to publicly funded legal advice. Paradoxically, by cutting legal aid to immigration matters the government is shifting a higher cost onto the taxpayer in wasted time and paper work.

We will attempt to keep readers informed of developments concerning the Bill on our website and in future editions of Australian Immigration Law Update.

Changes to student visas

From 1 December amendments to the Regulations will make it easier for people in Australia on visitor visas to switch over to student visa status. At present, it is necessary to show "exceptional circumstances" to be allowed to switch to a student visa without leaving the country.

However, the relaxed change of status provisions will only apply to students from "gazetted" countries. At present, these are:

Other changes will mean that students will generally not be able to change courses within the first 12 months of arrival, work rights will not be given until after the student commences study, and some institutions will be given as special status as "pre-qualified institutions" making it easier for students (again, only from gazetted countries) to get visas to study there.

Further details are available from the Department's website.

Changes to skilled migration categories next year

The Minister has foreshadowed changes to the independent and "skilled - Australia linked" points tests to take effect from 1 July next year.

Some sort of "minimum threshold criteria" are to be established for skilled occupations. So far, few details are available of exactly what this means.

Extra points will be available for people with work experience in Australia, with over $100,000 in assets to invest in government bonds, or with fluency in a language of one of our major trading partners.

All applicants under the "skilled - Australia linked" category will require an Assurance of Support from an Australian resident and payment of a bond.

Other changes will affect the points given to sponsors and some move to give preference to occupations in demand.

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://headlines.yahoo.com/Full_Coverage/World/Malaysia - Yahoo listing of sources on the political crisis in Malaysia
• http://www.immigration.govt.nz/about/ - major changes to New Zealand immigration requirements
• http://terraserver.microsoft.com - satellite photos of the earth's surface

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
Email

Copyright © Parish Patience Solicitors 1998. All rights reserved. 
Updated 15 November 1998