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| Issue No 38 | June/July 2002 | ||||||
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The Migration Amendment Regulations 2002 (No 2) Statutory Rules 2002 No. 86 make a number of changes impacting skilled migration. The Regulations and Explanatory Statement are available from the Attorney-General's database, Scaleplus.
Brief summaries of the changes may be found at the DIMIA website -
Notice of Legislative Change. The changes include provisions dealing with:
See also:
Amendments Affecting Skilled Entry Visas
From 1 July there are now three processing centres worldwide for new offshore Business Skills applications (subclasses 127 to 131 inclusive):
Overseas posts with Business Skills cases on hand as at 30 June 2002 will continue to process those existing cases through to finalisation. Source: Letter from DIMIA Business Branch to Migration Institute of Australia 17 June 2002.
The Minister for Immigration and Multicultural and Indigenous Affairs, Mr Ruddock, has said that skilled and business migration to Australia's regions is a priority for the Government. His comments follow the tabling in Parliament of the Government's response to the Joint Standing Committee on Migration's report, 'New Faces, New Places - Review of State-specific Migration Mechanisms.'
Media Release MPS 51/2002 (includes summary of recommendations).
On 18 June 2002, the Minister for Immigration Multicultural and Indigenous Affairs, Mr Ruddock, asked the Parliament Joint Committee on Migration to review and report on Australia's migration and temporary entry program for skilled labour.
Terms of Reference, including contact details for the Committee Secretariat.
The New Zealand General Skills Category pass mark increased from 25 points to 28 points, from 18 June 2002. The change will not affect applicants who applied on or before 18 June 2002. Also, the points awarded to applicants who have job offers relevant to their qualifications has increased from 5 to 8 points. The General Skills Category passmark will be reviewed monthly, with the next review due 1 August 2002.
A reminder that ALL skilled migration applicants must successfully complete the IELTS (English language test) requirement. We invite readers interested in skilled migration to Australia to submit our online questionnaire, or to contact us.
Regulation 1.20D(2)(d) has been amended to require an applicant for approval as a business sponsor to be actively operating a business in Australia, as well as being lawfully engaged in business. The new requirement prevents the sponsorship approval of businesses that operate only on paper. Further, the amendment allows decision-makers to take into account information about the business itself or any of the principals of the business, to ensure there is no adverse business record or history of breach of sponsorship provisions or other laws.
From 1 July 2002, the wording of condition 8107 has been strengthened to ensure that a visa holder to whom the condition applies undertakes employment or activities that are consistent with the visa and the basis upon which it was granted. Changed provisions also apply when the visa holder wishes to change employer or employment.
For additional information on business migration, please contact Etienne Hugo.
From 1 July 2002, student visa holders may apply for a Subclass 457 - Temporary Business (Long Stay) visa, without the need to have successfully completed an Australian diploma or higher level qualification.
From 1 July 2002, the Minister may waive condition 8534 ("no further stay") in certain specific circumstances.
By Gazette notice dated 9 May 2002 and published 16 May 2002, the Minister has specified three courses of study, being courses not conducted in English, as courses in relation to which the visa applicant need not give evidence of English language proficiency:
Source: Butterworths Australian Immigration Law Service, Bulletin 199, May 2002.
The Minister for Immigration and Multicultural and Indigenous Affairs, Mr Ruddock, has released statistics on student visa grants for the previous year. The number of visas granted overseas to students coming to study in Australia totalled 75,594 in the year to 31 March, an increase of 16 per cent compared with the same period in the previous year.
Media Release MPS 48/2002 (includes breakdown for major source countries and types of degrees).
For additional information on student visas, please contact Diana Tong.
Cyprus has joined the Working Holiday Maker (WHM) program, with effect from 1 July 2002. Australia now has 14 reciprocal WHM arrangements, including the United Kingdom, Canada, Republic of Ireland, Japan, Malta, Finland, the Netherlands, Republic of Korea, Germany, Sweden, Denmark, Norway, and the Hong Kong Special Administrative Region of the People's Republic of China.
From 1 July 2002, the Migration Regulations have been amended to permit working holiday visa holders multiple travel during the 12 months of their stay, and to permit a second working holiday visa for those people who were granted a working holiday visa between 1 July 2000 and 30 June 2002 to provide the balance of the full 12 months multiple travel facility.
DIMIA summary of legislative change - multiple travel facility
From 1 July 2002 there is no longer a combined working holiday visa application option for a spouse to apply on the same application form and pay a single visa application charge. Each applicant will need to apply individually, be required to meet the primary criteria, and pay the visa application charge.
DIMIA summary of legislative change - removal of combined WHM application
Visitors, spouse & family stream
The Australian Embassy at Manila has issued the following update effective 1 July 2002:
From 1 July 2002, the Migration Regulations have been amended to replace the requirement for an applicant to be nominated in relation to onshore applications for Family Stream visa subclasses with the requirement that the applicant instead be sponsored. This will align the onshore Family Stream visas with the equivalent offshore visas. These include partner, child and parent visas.
DIMIA summary of legislative change - family stream sponsorship
A recent case in the New Zealand High Court dealt with the issue of whether an Australian citizen, seeking to sponsor a spouse to migrate to New Zealand, needs to first reside in New Zealand before becoming eligible to sponsor the spouse. The New Zealand Immigration Service had interpreted the meaning of F2.1.10 of their Policy, to be that the Australian passport holder must first reside in New Zealand before he or she may sponsor a residence application for a spouse. An appeal to the Residence Appeal Authority was unsuccessful, however a further appeal to the High Court has been successful.
The Australian citizen therefore does not need to have resided in New Zealand or to move to New Zealand ahead of the spouse in order to lodge an application to sponsor the spouse. Additional information is available from Ryken & Associates in Auckland, or contact Annette Aitken of Parish Patience Immigration.
The first refugees to be granted 3-year temporary protection visas (TPV) have now reached the stage where they can be considered for the grant of another protection visa. The first visas granted in 1999 will expire in November 2002. The Minister for Immigration and Multicultural and Indigenous Affairs, Mr Ruddock, said,"Those TPV holders who have not already done so need to make a decision in the next months - to apply for another protection visa, or to leave Australia at the end of their visas."
Fact Sheet 68: Temporary Protection Visa Holders Applying for Further Protection
The Human Rights and Equal Opportunity Commission has received more than 200 submissions for its National Inquiry into Children in Immigration Detention. A number of submissions are now posted on HREOC's website, including that of The International Commission of Jurists, Australian Section. Parish Patience Immigration Managing Partner David Bitel is the Secretary General of the ICJ Australian Section. Mr Bitel gave further testimony to the Inquiry on 15 July.
Related: "Ruddock on Offensive over UN Group's Credibility", Media release MPS 46/2002
On 20 June 2002, the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 was introduced into the House of Representatives. The Bill's purpose is to give effect to the Government's intention to widen the area of "excised offshore places" to include the Coral Sea Islands Territory and certain islands that form part of the Northern Territory, Western Australia and Queensland.
On 25 June 2002, the Senate referred to Bill for Inquiry by the Senate Legal and Constitutional Commitee.
Link to the Inquiry
Full text of the Bills, Explanatory Memoranda, 2nd Reading Speeches and Bill Digests may be found in the
Parliament Bills Index.
"Ruddock Admits Government has Failed on Illegal Immigrants - a Fact the Auditor General Already Knew," Shadow Minister's Media Statement, 17 June 2002.
"Australia Releases Protocol for Ships Assisting People in Distress at Sea," Minister for Transport & Regional Affairs Media Release, 20 June 2002.
Five new fulltime and three new parttime members of the Refugee Review Tribunal have been appointed for 2-year terms commencing on 1 July 2002.
On 21 June 2002, the Attorney-General, Mr Williams, issued a statement regarding the death of Dr Peter Nygh. Dr Nygh enjoyed a distinguished career in Australia and in the international legal community. He served as a Family Court judge, chairman of the Family Law Council, member of the Australian Law Reform Commission, and principal member of the Refugee Review Tribunal. Dr Nygh was also well known as an authority on private international law.
The Minister for Immigration and Multicultural and Indigenous Affairs, Mr Ruddock, urged Australians to use United Nations World Refugee Day (June 20) "to think of those refugees who languish in appalling conditions in refugee camps around the world and who still remain at risk."
As reported in our April Newsletter, the Migration Legislation Amendment (Procedural Fairness) Bill 2002 and the Migration Legislation Amendment (No 1) Bill 2002 were introduced into Parliament in March 2002.
The first Bill received Royal Assent on 3 July 2002, commencing operation on 4 July 2002. The Migration Legislation Amendment (Procedural Fairness) Act 2002 No. 60 amends the Migration Act to specifically state that the provisions of the Act constitute a code with respect to the procedural requirements under the Act and that the common law requirements of the natural justice hearing rule do not apply to decisions in relation to visa applications made under the Act. The Bill reinforces the removal of judicial review grounds enacted in September 2001 with the introduction of the privative clause.
The second Bill contains some significant technical amendments to the Act, including introducing strict liability provisions for some offences, and removing the "loophole" whereby the section 48 bar on repeat applications was available to persons granted a Bridging Visa B who re-entered Australia.
Both Bills were referred to the Senate Legal and Constitutional Committee for enquiry and report. The final reports were tabled on 5 June 2002.
Useful links:
New laws to strengthen the regulation of migration agents were passed on 20 June 2002, and received Royal Assent on 26 June 2002. The Migration Legislation Amendment (Migration Agents) Act 2002 No. 35 expands the power of the Migration Agents Registration Authority to investigate complaints against former migration agents who de-register themselves to escape sanctions; streamlines arrangements for continuity of registration for migration agents while their applications for re-registration are assessed; and bans agents from returning to the industry for five years for serious breaches of the Code of Conduct.
See also: "Measures in Place to Better Protect Clients of Migration Agents", Media release H 55/2002
According to a recent article in the Sunday Telegraph, only 150 of Australia's 2500 migration agents have been in the industry longer than eight years. Only one-third of migration agents have legal qualifications. "Laws to target migrant agents: fraudulent operators face ban," Sunday Telegraph, 9 June 2002, p. 28.
Full text of Regulations and Explanatory Statements are available from the Commonwealth Attorney-General's website, Scaleplus.
This Bill was introduced into the New South Wales Legislative Council on 18 June 2002. The Bill proposes emandments to several pieces of NSW legislation which refer to spouses, to provide that those references include persons in a de facto relationship within the meaning of the Property (Relationships) Act 1984 No. 147 (NSW). A de facto relationship can be a same sex relationship.
Full text of the Bill and Explanatory Memorandum are available from the New South Wales Parliament website.
Australia has agreed to ratify the International Criminal Court. Following are some useful links:
New visa processing arrangements are in place for Islamabad, Mumbai and New Delhi with effect from 3 June 2002. Further details are available on the Department of Immigration and Multicultural and Indigenous Affairs website.
Trade Minister Mark Vaile and Immigration Minister Philip Ruddock have announced that Indonesia has joined the APEC Business Travel Card Scheme. The scheme provides approved business people from participating countries with streamlined travel within the Asia-Pacific Region. The other participating countries are Australia, Brunei, Chile, China, Hong Kong, Peru, South Korea, Malaysia, New Zealand, the Philippines, Thailand and Chinese Taipei.
Joint media release 31 May 2002
From 1 July 2002, Passports Australia has introduced a Priority Processing Fee of $60 for the urgent issue of Australian passports. Priority processing is only available to travellers who intend to travel within 3 weeks of lodging an application or those applicants who can satisfy the interviewer that they have a genuine need for a priority issue.
On 15 May 2002, the Parliament Joint Standing Committee on Foreign Affairs, Defence and Trade resolved to commence an annual program of public hearings on Australia's activities at the United Nations. The first annual review public hearing was held on 2 July 2002.
Link to the Committee's website
A new Document Examination Service opened by Immigration Minister Ruddock will be able to examine and provide authenticity on a range of documents submitted to DIMIA, such as passports, visas, birth certificates and documents needing verification of handwriting and signatures.
The Minister for Citizenship and Multicultural Affairs, Mr Hardgrave, has reminded community groups of funding available under the Living in Harmony initiative and urged them to apply for a grant.
A new social security agreement with New Zealand came into effect on 1 July 2002, affecting both Australians living in New Zealand and New Zealanders in Australia on special category visas.
A summary of the new provisions has been published by specialist tax law publisher CCH Australia Ltd.
On 3 June 2002, the Full Bench of the Federal Court began hearing five test cases in Melbourne over whether the recent privative clause amendments to the Migration Act are valid. As as the time of writing, the decisions had not yet been handed down. We will continue to monitor developments in this area.
The Refugee Review Tribunal issues a regular bulletin digesting a cross-section of its recent decisions, found at http://www.rrt.gov.au/. RRT decisions are reproduced in full on AustLII.
The High Court of New Zealand has issued an important new decision on detention of asylum seekers, Refugee Council of New Zealand Inc & D v Attorney-General, 31 May and 27 June 2002. Additional information may be available from Ryken & Associates.
David Bitel, Managing Partner of Parish Patience Immigration, will be presenting a seminar on the topic: Recent Developments in Refugee Law, at the NSW State Legal Conference to be held Monday 26th August. Details may be found at http://www.nswstatelegal.com.au/
An interesting list of upcoming events is found in the "Diary Dates"
section of the United Nations Association of Australia's UNity newsletter.
Reader contributions of upcoming events may also be submitted to the Parish Patience Immigration Update Newsletter Editor.
In the previous issue of the Newsletter, we commenced a new section of quotable quotes. We welcome reader contributions to the Editor.
Quote of the month: "Bad laws are the worst sort of tyranny."
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