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Under longstanding Trans-Tasman arrangements New Zealand citizens entering Australia have been treated as effective permanent residents, with eligibility for Australian citizenship after two years and citizenship by birth for their children born here. This applied to all New Zealanders who were "Special Category Visa" (SCV) holders, that is any New Zealand citizen who was not excluded from holding an SCV because of health or character concerns.

From 27 February 2001, New Zealanders arriving in Australia will be divided into two classes: permanent and temporary residents. To be eligible for permanent resident status, New Zealand citizens will have to qualify under general immigration law. The remainder will be allowed to enter and remain indefinitely with permission to work, but will not qualify for social security assistance or Australian citizenship no matter how long they stay. Their Australian-born children will also not be Australian citizens unless they continue to reside here until they turn ten (or unless the other parent is an Australian citizen or permanent resident).

New Zealanders in Australia as temporary residents will be able to lodge permanent resident applications in Australia, even in categories which must normally be applied for outside the country.

A new visa category for family members of New Zealand temporary residents, who are not themselves New Zealand citizens, has also been created. Spouses and dependent relatives will have the same status as the New Zealand citizen. This status will allow up to five years absence from Australia and will continue even if the person ceases to be a member of the New Zealander's family unit, providing they do not become a member of another family unit. This means that former spouses and adult children of New Zealand temporary residents will lose their right to remain in Australia if they form a relationship with another person who is not an Australian or New Zealand citizen or a permanent resident.

Not mentioned in the new arrangements are the same-sex partners of New Zealand temporary residents. Since they do not come within the definition of "member of the family unit", they will have no right to enter or remain in Australia with their New Zealand partner if they are not themselves New Zealand citizens or do not qualify for permanent residence in their own right.

The new rules do not apply to New Zealand citizens who:

• were in Australia on 26 February 2001 as SCV holders;
• were outside Australia on 26 February 2001 but had been in Australia as SCV holders for at least one year during the two years before that date; or
• have a certificate issued by Centrelink under the Social Security Act stating that they were resident in Australia on a particular date.
• they have made irreversible decisions to relocate to Australia on or before 26 February 2001 and take up residence within three months of that date, and are certified by Centrelink as residing in Australia.

Media release
Migration Amendment Regulations (No 1) 2001

More reports critical of detention centres

A report commissioned by the Minister for Immigration into procedures for handling complaints of abuse at Australia's immigration detention centres was tabled in Parliament on 27 February. The author of the report was Philip Flood AO.

The report found that, with one exception, reports of abuse had been handled "according to procedure". The exception was a case of alleged child sexual abuse at the Woomera "Immigration Reception and Processing Centre". The author of the report found the other remote centres at Curtin and Port Hedland in Western Australia to be "better managed" than Woomera, and was critical of a lack of awareness of Woomera management and staff of "what can be done by sensitive management to enable detainees to cope with their situation".

The former diplomat did not comment on the government's policy of mandatory detention of asylum seekers, although he did note, incorrectly, that the United Nations Human Rights Committee had concluded that the policy did not breach the International Covenant on Civil and Political Rights. In fact, the Committee held in the case of A v Australia that Australia was in breach of Article 9 paras 1 and 4 and Article 2 para 3 of the Covenant.

A separate report conducted by the Commonwealth Ombudsman was also handed down in February and will be reviewed in the next issue of this newsletter.

Index of reports and media releases on detention centres
A v Australia

News in brief

The government announced in February a 21 per cent increase in the number of visas granted to overseas students during the second half of last year compared to the same period the previous year. A total of 78,490 student visas were granted during the six month period. Main source countries for overseas students included China, USA, Hong Kong, Japan, Thailand, Korea and Brazil.

Hong Kong police arrested 29 people in connection with fraudulent applications for Australian citizenship. A former employee of the Department of Immigration was also reported to be under investigation.

Recent cases

Perera v Minister for Immigration and Multicultural Affairs [2001] FCA 59
Lee J
The Refugee Review Tribunal accepted certain facts claimed by the applicant then made conclusions which the Court said were "internally inconsistent" with that acceptance. The Act requires that the Tribunal's decision "be made, and shown to be made, by a rational process". The Tribunal therefore "failed to carry out the review process required of it by the Act".

Al Mansour v Minister for Immigration and Multicultural Affairs [2001] FCA 58
Lee J
The Refugee Review Tribunal found that the applicant could obtain a new passport and return to Iraq without his application for asylum in Australia being detected by the Iraqi authorities. The Court found that the Tribunal's reasoning on the facts before it was illogical and based on a false premise, and therefore was "vitiated by a fundamental flaw" which led to "the Tribunal depriving itself of jurisdiction to make a determination as to whether it was satisfied as required by the Act".

Inderjit Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 73
Merkel J
The Presiding Member hearing the case in the Refugee Review Tribunal made and signed a decision on 27 March 2000 but it was not made available to the applicant until it was handed down on 14 April 2000. In the meantime the applicant had provided the Tribunal with further relevant information. The Tribunal took the view that it could not change the decision because the Presiding Member was functus officio, that is he had exhausted the statutory power to make the decision. The Court held that he was not function officio until the decision was actually communicated to the applicant.

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Parish Patience Immigration
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SYDNEY NSW 2000
AUSTRALIA 

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