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| Issue No 39 | August/September 2002 | ||||||
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Parish Patience Immigration, Lawyers, are acting for the plaintiff in a High Court challenge to the Government's recent 'privative clause' legislation, Plaintiff S157 of 2002 v The Commonwealth of Australia. The Constitutional arguments raised have wide ramifications beyond the context of asylum seekers, possibly to all administrative decision-making. The case has received wide press coverage, including the Sydney Morning Herald, Australian Financial Review, ABC Radio National, Agence France Presse and the Wall Street Journal. The High Court has reserved its decision, and we anticipate receiving the Court's judgment later this year or early in the New Year.
We are also accepting instructions from other clients who have been refused by the Refugee Review Tribunal or the Migration Review Tribunal since the introduction of the privative clause legislation, where the original claims had merit and even if other judicial review applications had been unsuccessful due to the privative clause. For more information please contact David Bitel or Nigel Dobbie.
Parish Patience Immigration Media Release
Managing Partner David Bitel and Solicitor Etienne Hugo will be travelling to South Africa in October for the International Bar Association Conference in Durban. On Wednesday 23 October, Mr Bitel will be chairing the session: 'Does the 1951 UN Convention on Refugees meet the demands of the 21st Century?' Dr Hugo will speak on Australian aspects of 'The effect of 11 September 2001 on international immigration policies.'
Mr Bitel is Vice Chair of Committee 14 (Migration and Nationality) of the Section on Legal Practice of the International Bar Association and a member of the IBA Executive.
In addition to their speaking engagements, both Mr Bitel and Dr Hugo will be available in South Africa to give advice to applicants for all categories of migration to Australia. Most applicants must have English language fluency and need to be aged under 35 years. In addition, most applicants other than student visa applicants must have recognised trade or professional qualifications in an occupation listed on the Skilled Occupation List.
Etienne Hugo holds a Doctorate of Laws (LLD) degree from the University of Pretoria, South Africa. He is registered as an Advocate of the High Court of South Africa and was an assistant lecturer at the University of Pretoria. Etienne is admitted as a Solicitor in New South Wales and is also registered as a Migration Agent by the Migration Agents Registration Authority.
Applicants wishing to make an appointment with Mr Bitel or Dr Hugo should email a resumé with their request for an appointment to Etienne Hugo, or ring Etienne on tel. +61 2 9286 8700. A consultation fee will apply.
Managing Partner David Bitel will be travelling to Bangladesh in early November. Mr Bitel will be available to give advice to applicants for all categories of migration to Australia. Most applicants must have English language fluency and need to be aged under 35 years. In addition, most applicants other than student visa applicants must have recognised trade or professional qualifications in an occupation listed on the Skilled Occupation List.
Applicants wishing to make an appointment should email a resumé with their request for an appointment to Mr Bitel's secretary, Barbara Dixon, or ring Barbara on tel. +61 2 9286 8700. A consultation fee will apply.
Parish Patience Immigration is pleased that Mr Thong Nguyen has joined the firm as Administrative Assistant to Rania Skaros and Annette Aitken. Mr Nguyen was a school teacher for 12 years in Vietnam before migrating to Australia two years ago. Thong is fluent in both English and Vietnamese, and he is a NAATI accredited Vietnamese translator.
On 19 September, David Bitel was a presenter at a Migration Institute of Australia seminar on the topic of the Character requirement in migration law. A copy of his paper will shortly be available on our website.
On 12 October, David Bitel will be presented with the 2002 Austcare Refugee Week Paul Cullen Award. The Paul Cullen Award recognises the sacrifice of organisations and individuals who have taken an active part in the work of assisting refugees.
Link to
Austcare.
David Bitel was honoured to be nominated for the 2002 Australian Council for Overseas Aid Human Rights Award. Our congratulations to recipient Sister Patricia Pak Poy of the Human Rights Council of Australia and Landmines Network. Additional information about ACFOA and the work of Sister Pak Poy may be found on the ACFOA website. Skilled migration & business entry
The Government has announced a reduction in the number of ICT specialisations listed on the Migration Occupations in Demand List (MODL). There are now five computer professional specialisations on the list. For the complete list of ICT and other occupations in demand, click here.
Media Release MPS 088/2002, 27 September 2002.
The Australian Computer Society has announced changes in the way IT qualifications are assessed, effective 1 October 2002. The changes primarily affect offshore applications. All applications lodged with ACS on or after 1 October (unless applying onshore as a Recent Graduate) will need at least four years relevant professional experience.
Regarding onshore applications, when relying on the completion of Australian qualifications only, the ACS skills assessment letter will (from 1 October) be valid for only 6 months from the date of completion of studies where employment experience is required, NOT 12 months from the date of skills assessment as it is with the other categories.
Applicants who apply to ACS before 1 October 2002 will be assessed under the old criteria.
The new assessment requirements are complex and professional advice is highly recommended. We invite you to contact Annette Aitken for additional information.
The passmark for New Zealand General Skills Residence applications has risen to 29, effective 9 September 2002. The points allocated for a relevant job offer remain at 8.
Parish Patience Immigration have several staff members able to assist with New Zealand migration queries, and we accept migration instructions in consultation with immigration experts in New Zealand. For additional information please contact Rania Skaros.
The Australian Taxation Office website offers several items of interest to small business:
New provisions enabling temporary residents to access their superannuation entitlements on departure will boost Australia's attractiveness as a destination for foreign executives, according to Deloitte Touche Tohmatsu. Deloitte says the new superannuation provisions, which came into effect on July 1, will be welcomed by foreign expatriates and the companies that employ them.
Deloitte Touche Tohmatsu press release, 23 August 2002
According to a Sun Herald article of 28 July 2002, the NSW State Government has agreed to pay public school fees of overseas nurses recruited to work in New South Wales. The NSW Government charges an education levy of $4,500 per child for children of people who enter on long-stay temporary business visas. The news article quotes a spokeswoman for Health Minister Craig Knowles, who said the public school fees for children of overseas nurses would be paid as part of an overall package designed to attract nurses from other countries.
For additional information on NSW Health's Overseas Recruitment 2002, click here.
The National Institute of Accountants has been appointed as an assessing authority for ASCO occupations Accountant, Accountant - Corporate Treasurer, Accountant - External Auditor, and Finance Manager.
Migration Institute of Australia members have received information on discussions taking place about possible future changes to Australia's business skills migration program. As always in this ever-changing area of the law, it is important to seek professional advice when lodging an application.
Changes to the Migration Regulations, due to commence 1 November 2002, affect certain student visas. Changes will include IELTS test exemptions for IPRS holders,
family members from whom students may receive financial support,
no further stay conditions,
becoming a student while in Australia requirements,
changes to custody requirements for students under the age of 18 years, and other technical changes.
Summary of 1 November 2002 Changes to the Student Visa Regulations On 2 August, the Department of Immigration released a discussion paper, "Review of the 2001 Student Visa Reforms." Also on 2 August, the Department released for comment a document titled "New Assessment Levels from 1 November 2002." The document is currently being circulated for comment and further consultation.
Both papers are available on the Immigration Department's webpage, The Department has also recently published "Financial information leaflets for Assessment Levels 3 and 4", available on the same webpage.
In a letter to "The Age" newspaper, Stewart Foster (Director of Public Affairs, Department of Immigration and Multicultural and Indigenous Affairs) gave an overview of the current situation for students from Latin America. Mr Foster stated that risk assessments for particular countries are regularly reviewed and adjusted. He forecast that risk levels for a number of Latin American countries may be reduced from 1 November 2002.
For additional information on student visas, please contact Diana Tong.
Visitors & Working Holiday Makers Australia is one of only two western countries to be designated as an approved destination for tourists from China.
Additional information may be found in the Department of Immigration's Fact Sheet 58, and we invite you to contact Diana Tong.
The Department of Immigration has released a Discussion Paper about future options for indicators to determine the Risk Factor List. Submissions are due 27 September 2002.
A new program assisting Australians to help family members applying to visit from overseas has been launched by the Minister for Immigration, Mr Ruddock. The Family Visitor Network provides information and advice via DIMIA's general telephone enquiries line to families wishing to support the visit to Australia of their relatives.
Media Release MPS 080/2002, 28 August 2002.
The Australian Taxation Office has stated that a large number of tax returns have been lodged for backpackers on working holidays incorrectly claiming to be residents. The ATO has released a series of examples to help clarify the residency status of backpackers for taxation purposes.
Examples of residents and non-residents - Working holiday visa/ backpackers
The Australian Taxation Office has issued a Taxpayer Alert, warning foreign nationals working in Australia to beware of schemes offering tax-free salary paid as a so-called 'living away from home allowance.' The arrangements are being promoted to working holiday makers.
HREOC media release
Additional hearings, including evidence from the Department of Immigration and Multicultural Affairs, and Australasian Correctional Management, were scheduled for 9-12 September.
Recently the Minister for Immigration and Multicultural and Indigenous Affairs, Mr Ruddock, has responded to a number of Questions Without Notice in the House of Representatives. He continues to defend the Government's border protection policies and to emphasise the over-use of legal proceedings by asylum seekers in order to obtain bridging visas. The Minister has also claimed that bridging visa holders take jobs away from Australians.
Transcripts of the Minister's answers to these Questions Without Notice are available on the Parliament of Australia website (follow the links to Hansard - House of Representatives - 19, 21, 22, 27 August and 24 September 2002); or
Link to the Minister's Media Centre.
Following on from the Government's announcement in March that decision making on East Timorese cases would resume, the first group of 168 decisions was handed down on 25 September. None from this group received approval. Processing continues on a case-by-case basis for the remaining 1,500 applicants from East Timor.
It is anticipated that there will be a campaign mounted by those concerned for the welfare of these applicants, calling on the Government to introduce a special humanitarian regularisation program for the East Timorese, given the extended period they have lived here and the close family and other connections many have developed here.
Media release MPS 87/2002, 25 September 2002.
"Refugees leave Manus for Australia,"
"Asylum Review Decisions on Nauru and Manus,"
The Minister for Immigration, Mr Ruddock, urged Australians to use Refugee Sunday [25 August 2002] to welcome refugees and acknowledge the contribution refugees have made to Australia.
The Minister for Revenue and Assistant Treasurer, Senator Coonan, has announced that gifts to the value of $2 or more, made to the fund Australia for UNHCR after 27 June 2002 and before 28 June 2007, will be tax deductible.
Assistant Treasurer's Media release C89/02
The Migration Amendment Regulations 2002 (No 5), Statuory Rules 2002 No 213, were made on 5 September 2002. These Regulations cover several visa classes - including students, business long stay, skilled, and family residence applications. For the most part the changes commence on 1 November 2002. Some of the changes will be retrospective, however according to the Explanatory Statement none will be disadvantageous. As always, professional advice is recommended.
Migration Amendment Regulations 2002 (No 5), SR 2002 No 213
On 25 June 2002, the Senate referred the Bill for Inquiry by the Senate Legal and Constitutional Commitee. The extended reporting date for this inquiry is now 21 October 2002.
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.
"Excision Laws Information Kit Launched," "12 Months On - Australia Balances Control with Compassion,"
The Department of Prime Minister and Cabinet has released a list of legislation proposed for introduction and passage in the Spring sittings of Parliament. The following summaries are taken from the DPMC List of Proposed Legislation.
- create an Administrative Review Tribunal; and
- provide for necessary transitional provisions and consequential amendments to other legislation as a result of the creation of an Administrative Review Tribunal.
- provide a comprehensive regime governing the making, registration, publication, tabling and sunsetting of delegated legislation; and
- amend and repeal numerous other Acts to deal with consequential matters arising from the Legislative Instruments Bill.
- implement the government's response to the recommendations of the Joint Standing Committee on Migration's report on the Deportation of Non-Citizen Criminals;
- authorise the disclosure of personal information to foreign governments to combat people smuggling and illegal arrivals;
- strengthen identification powers to more effectively combat identity fraud;
- prohibit the making of a statement in a visa application that is false or misleading;
- ensure that a person convicted of an offence under old subsection 83G also becomes an unlawful non-citizen within the meaning of section 243;
- clarify a person's ability to nominate an authorised recipient under section 494D; and
- allow authorised officers to disclose International Movement Records to an individual to whom the record relates or to his or her duly appointed agent.
- improve the Migration Review Tribunal and the Refugee Review Tribunal review procedures; and
- streamline the decision-making processes of each Tribunal.
- ensure that confidential information disclosed to the Department of Immigration and Multicultural and Indigenous Affairs under section 503A of the Migration Act 1958 (the Act) is protected from disclosure;
- ensure the information gathering power in section 18 of the Act extends to lawful non-citizens who may be working in breach of their visa conditions; and
- amend section 16(4)(hd) of the Income Tax Assessment Act 1936 so that it includes people who are lawfully in Australia but working in breach of their visa conditions.
Department of Prime Minister and Cabinet List of Proposed Legislation
In our July newsletter, we reported on a recent New Zealand decision which considered the issue whether an Australian citizen could sponsor a spouse to migrate to New Zealand, without the sponsor first having resided in New Zealand. New legislation will now take effect on 7 October 2002, closing the perceived 'loophole', and requiring that the Australian citizen sponsor first be "established" in New Zealand.
As reported in our previous Newsletter, Australia has ratified the International Criminal Court treaty. The first session of the new tribunal began on 3 September. To date the treaty (Rome Statute) has been ratified by 78 States and signed by 179.
The Minister for Foreign Affairs, Mr Downer, has announced changes to the treaty-making process in Australia in order to provide greater transparency and public accessibility. The timeframe for parliamentary consultation with interest groups is to be extended for certain types of treaties. Also, more official information will be available on treaties and the treaty-making process from the Department of Foreign Affairs and Trade website.
Media Release FA 114/2002, 20 August 2002
Effective 23 September 2002, the Sydney Office of Passports Australia has moved to:
Level 7, Gateway House
From 2 September 2002, applications (including sponsorship and nomination applications) for Sport (subclass 421), Educational (Temporary) Occupational Trainee (subclass 442), and New Zealand Citizen Family Sponsorship (subclass 461) visas are being processed at the Business Centre at the Parramatta Office:
Jessie Street Centre Source: Migration Institute of Australia News Bulletin 30 August 2002
The Visa Office at Mumbai, which closed on 3 June 2002, re-opened with its full range of visa services on 23 July 2002.
The Visa Office at New Delhi, which provided a limited service from 4 June 2002, also returned to full services on 23 July 2002.
The Visa Office at Islamabad recommenced accepting new applications in all visa subclasses on 20 August 2002. Applications to Islamabad are accepted by mail only.
The Department of Immigration and Multicultural and Indigenous Affairs has announced that immigration operations at the Australian Embassy in Dublin are to be closed effective 1 October 2002. New technology and centralised processing have reduced the need for most Irish residents to attend the Australian visa services office in Dublin. Any residual visa work from Ireland will be undertaken by the Australian High Commission in London.
The Minister for Immigration, Mr Ruddock, has announced the appointment of Mr John Lynch as Registrar of both the Migration Review Tribunal and the Refugee Review Tribunal for a period of 3 years from 23 September 2002.
Statistics for the 2001-2002 Migration Program have been posted on the DIMIA website.
Minister's speech
DIMIA has updated Fact Sheet 9: Litigation Involving Migration Decisions, including yearly statistics from 1993-2002, financial information and trends.
As members of the Migration Institute of Australia, we have received minutes of a MIA/DIMIA Liaison Meeting held on 23 August 2002. The meeting has reinforced that fact that change is constant in migration law, with changes being foreshadowed for several visa classes.
Also noted were problems with US Police clearances. There are delays due to the elements of a character check in the US. DIMIA must directly undertake both State and Federal clearances, even if the applicant provides this information.
The Minister for Citizenship and Multicultural Affairs, Mr Hardgrave, has launched an information kit to help people better understand their rights and obligations when dealing with the migration advice industry.
The Department of Immigration has launched an investigation into a person who has allegedly been posing as a departmental employee in the Sunraysia area. The person allegedly provided false and misleading information about opportunities for illegal workers to change their work status.
Two recent news items may be of interest to charities and related organisations:
Recent caselaw
Recently there have been several significant decisions considering the affect of the 'privative clause' legislation, and the extent to which this legislation curtails judicial review of administrative and Tribunal decisions. Space constraints prohibit a lengthy analysis in this issue of the Newsletter, and the cases have been well summarised in Butterworths' Immigration Review, CCH Australian High Court & Federal Court Practice and elsewhere.
Following is a brief outline of recent developments. Full text of decisions and transcripts of High Court hearings are available on Austlii.
This is the case in which Parish Patience Immigration are acting for the Plaintiff in a High Court challenge to the Constitutionality of the Government's recent 'privative clause' amendments to the Migration Act. Details in our Newsletter's Staff News section.
Muin and Lie were both representative actions, with combined class members of more than 7,000 applicants. The High Court found that the applicants Muin and Lie had been denied procedural fairness in that each applicant had been misled as to whether it was necessary to draw the Tribunal's attention to material favourable to his or her application, and that the applicants were further denied procedural fairness in not being advised of general country information submitted to the RRT by the Department of Foreign Affairs. The Court ordered the cases returned to the RRT for further consideration in accordance with the law.
The ramifications of this decision have yet to be determined. The High Court's decision revealed serious flaws in the refugee status determination system in Australia. The Refugee Council of Australia issued a media release calling for a Judicial Inquiry into the operation of the Refugee Review Tribunal. Parish Patience Immigration managing partner David Bitel is the President of the Refugee Council of Australia.
In this case the High Court considered former s 476(4) of the Migration Act. The issues centered around whether the Refugee Review Tribunal had 'based the decision' on 'particular facts which did not exist' within the meaning of former s 476(4)(b) of the Migration Act. The decision is a highly technical discussion of the principles of judicial review of administrative decisions. It highlights the importance of intending applicants obtaining professional legal assistance before initiating judicial review proceedings. Applicants need to be aware that if they lose, the Court will order them to pay costs.
This was a special leave application before Justice Gummow of the High Court. The applicant alleged he had been denied natural justice because the Department of Immigration had not informed the applicant that refusal of his parent visa application on character grounds would result in automatic cancellation of his bridging visa and automatic detention. The applicant also alleged he had been denied the opportunity to put evidence before the Minister of the hardship that detention would cause the applicant and his family, and of the impact of detention on his ability to prepare for the special leave application.
Justice Gummow dismissed the application, ruling that no question of procedural fairness arises under s 501F(3) of the Migration Act, that is, the only possible outcome under the Act would be the cancellation of the bridging visa and the Minister has no opportunity to decide otherwise under the Act.
This was a family law case on the issue of 'relocation', that is, when may a divorced parent take a child to live overseas over the objection of the parent who would remain behind in Australia? Mr and Mrs U were both born in overseas. The Family Court awarded Mrs U custody of the couple's 8-year-old child, with visiting rights for Mr U. Mrs U wished to take the child to live in the couple's home country, as she had no family and few friends in Australia. The High Court ruled against the proposal, finding that the child must remain in Australia so that she could continue to see her father.
These were five appeals heard together before the Full Court of the Federal Court. Each of the appeals raised issues of the extent to which the 'privative clause' amendments to the Migration Act restricted judicial review of migration matters. The first two appeals concerned protection visas; the third appeal concerned a family visa application; the fourth appeal concerned a cancelled permanent spouse visa; and the fifth appeal concerned a cancelled temporary business visa.
Each of the five judges of the Full Bench delivered a separate opinion. All of the Judges agreed that the Constitutional challenges to the privative clause failed. Therefore the appeals proceeded on the issues of statutory construction.
Only one of the five appeals succeeded - that of the appellant whose permanent spouse visa had been cancelled while he was outside Australia. A majority of the Judges concluded that the privative clause does not operate to expand the power of the Minister's delegate so that he or she can cancel a visa when satisfied on a basis that is incorrect in law, that the visa was granted in contravention of the Migration Act.
The remaining four appeals were dismissed with costs - two unanimously and two by majority. Essentially the decision gave effect to the Government's expressed intention in introducing the restrictive law.
This case concerned review of the Minister's exercise of his personal power to refuse to grant a visa. The main issue had been dealt with earlier this year in Lam v MIMA [2002] FCA 175. The Full Court in Madafferi also discussed the retrospectivity of the relevant legislation (s 501A(1) of the Migration Act).
In this case, an application for review of a decision of the Refugee Review Tribunal was made out of time, through no fault of the applicant. At issue was whether the s 478(1)(b) restriction on Federal Court's ability to extend time for appeal amounted to racial discrimination against persons for whom English was not a first or literate language or who were in detention. The Full Court held that the applicant's inability to comply with the time limits was due to individual circumstances and not race, colour or national or ethnic origin as proscribed by the Racial Discrimination Act.
This was an appeal by an asylum seeker from Pakistan, claiming fear of persecution due to Christian religious faith. The Refugee Review Tribunal upheld the Department's refusal of a protection visa. There followed a complex course of litigation in the Federal Court, High Court, partial remittal to the Federal Court and then appeal to the Full Court of the Federal Court. The Full Court dismissed the applicant's appeal, deciding to follow the majority opinion in Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 59, [2001] FCA 565, which held that
s 476(2)(b) of the Migration Act precludes an applicant for judicial review of a decision of the Refugee Review Tribunal from relying on jurisdictional unreasonableness as a ground of appeal.
This case involved the Minister's cancellation of a visa. The issue was whether, in the absence of a specific power under relevant legislation to stay the operation of a decision, the Federal Court has the power to stay an administrative decision that has already been fully implemented. The Court accepted the Minister's argument that upon the cancellation of the visa, the applicant became an unlawful noncitizen and therefore was required to be detained under the Migration Act. To the extent the decision to cancel the visa had taken effect, it was beyond stay.
Costs were ordered against a migration agent personally, in a case which the Court described as 'hopeless'. Although the applicant represented himself, the migration agent (through his company) had filed the application for review in the Federal Court on behalf of the applicant. The migration agent had received advice from a barrister that the appeal had no chance of succeeding. The Court ruled that the migration agent, although not a lawyer, had acted contrary to the Legal Profession Act 1987 (NSW), which gives the Court power to award costs against a lawyer who abuses the court's process. Mr Justice Madwick stated:
"A migration agent performing, for reward, a legal practitioner's work in defiance of a legal proscription cannot be in any better position, as to liability for a costs order, than a lawyer."
20-25 October 2002: International Bar Association Conference, Durban. Papers to be presented by David Bitel and Etienne Hugo.
Additional information about the International Bar Association Conference and client consultations is found in our Newsletter's Staff News section.
Reader contributions of upcoming events may also be submitted to the Parish Patience Immigration Update Newsletter Editor.
"For Zeus made it right for fishes and beasts and birds who fly
We welcome reader contributions of quotable quotes to the Editor.
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Patience Immigration Tel: +612
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