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Introducing Michela Veneziano
We are pleased to welcome Ms Michela Veneziano as our full time Receptionist. Michela is fluent in both Italian and English, having immigrated from Italy approximately 3.5 years ago. Michela attended university in Milan, studying fine arts and art history. She also teaches Italian in her 'spare time'.
As reported in our previous newsletter, Parish Patience Immigration, Lawyers, acted for the Plaintiff in a successful High Court challenge to the Government's recent 'privative clause' legislation, Plaintiff S157 of 2002 v The Commonwealth of Australia.
Following on from the High Court's decision, several hundred migration cases were transferred from the High Court ot the Federal Court. Most of these may then be handed on to the Federal Magistrates Service.
In related news, Mr Nigel Dobbie, a Senior Associate at Parish Patience Immigration, joined a panel of speakers at a seminar held on 20 February, "The Implications of the High Court Decisions on the Validity of the Privative Clause in Migration Matters." The seminar was jointly sponsored by the University of Sydney and the Migration Institute of Australia.
Additional information about the decision and links to press coverage are found elsewhere on our website. We also invite you to contact Nigel Dobbie.
Managing Partner David Bitel will be travelling to Bangladesh in late May & early June. He also regularly travels to New Zealand, Melbourne & Canberra to see clients.
Mr Bitel will be available to give advice to applicants for all categories of migration to Australia and also for student visas. Applicants must have English language fluency and for most categories need to be aged under 35 years.
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.
The November 2002 issue of the Law Society Journal (NSW Law Society) included a feature, "From "Fiddler on the Roof" to 'father' of the Bangladeshi community: Paul Cullen humanitarian award goes to solicitor David Bitel". The Journal has kindly granted us permission to reproduce the article, which is found on the Articles page of our website. Skilled migration & business entry
As reported in the last issue of our Newsletter, major changes to Business Skills visas came into effect on 1 March 2003.
Ms Rania Skaros & Dr Etienne Hugo, both Solicitors with Parish Patience Immigration, explain the changes in the Business Visas section of our website.
For additional information about Business Skills visas, we invite you to contact Rania Skaros or Etienne Hugo.
Links:
Parish Patience Immigration Business Visas Information
Migration Amendment Regulations 2002 (No 10), SR 348 of 2002
Business Skills Migration (DIMIA)
"Regional Boost for Business Migration," Media Release MPS 10/2003, 26 February 2003
The Minister for Immigration & Multicultural & Indigenous Affairs, Mr Ruddock, has issued a revised "Specification of Migration Occupations in Demand for the Purposes of Regulation 1.03", dated 7 March 2003 and published in Commonwealth of Australia Gazette No GN 10 of 12 March 2003.
Only four ICT specialisations remain on the list. A number of health professions are on the list, while accountants have been removed. Chefs, Refrigeration & Air Conditioning Mechanics, and Hairdressers remain on the list.
From 1 March 2003, applicants for a Temporary Business (Long Stay) visa must show evidence at the time of visa application that their sponsor is an approved business sponsor, or has lodged an application for approval as a business sponsor. In addition, the sponsor at the time the decision is made must be the same sponsor as at the time of application.
In the January/February 2003 issue of "Management Today", the Australian Institute of Management presents an interesting case study, "The Migrant Experience: Challenges of setting up business in a new environment." The case study includes proposed solutions by management experts.
On 18 June 2002, the Minister for Immigration and 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. Many submissions have been published on the Committee's website. Additional hearings were held in February 2003.
The Senate Employment, Workplace Relations and Education References Committee has commenced an inquiry into Australia's current and future skills needs. The Committee looks forward to consulting a wide range of industry representatives, VET and other training providers, government, union and community representatives. The committee is to report by the last sitting day in June 2003.
Information about how to make a submission and hearings schedule is found on the Committee's
website
For additional information about skilled migration and trades recognition, please contact Annette Aitken.
The International English Language Testing System (IELTS) is the standard English language proficiency test for the student visa program. The Computer-Based Test of English as a Foreign Language (TOEFL) is an acceptable alternative to IELTS in some countries where IELTS is unavailable.
IELTS Australia have advised that IELTS testing facilities are now available in a number of additional countries, therefore effective 1 April TOEFL will no longer be an acceptable alternative to IELTS in certain countries.
Also, effective 1 April the Paper-based TOEFL will be an acceptable alternative to IELTS. The Paper-based TOEFL and Computer-based TOEFL will then be acceptable alternatives to IELTS in certain listed countries.
Finally, a pass mark on the Occupations English Test (OET) in any foreign country will continue to be an acceptable alternative to IELTS. The OET is an English test for overseas-trained health professionals and requires considerable English language proficiency.
Details of the new arrangements and countries affected are found at Student Visas - What's New (DIMIA website).
The arrangements for student visa applicants who are PRC passport holders have been amended for applications lodged from 3 February 2003.
DIMIA's Fact Sheet 50: Overseas Students in Australia was updated on 7 March 2003.
For additional information on Student visas, we invite you to contact Diana Tong.
Parent, retirement & other family visas
As reported in previous issues of our Newsletter, on 12 November the Minister for Immigration, Mr Ruddock, announced that he would be introducing legislation to increase the available number of Parent migrant visas. The Migration Legislation Amendment (Contributory Parents Migration Scheme) Bill 2002 has now passed through Parliament and has become Act No 5 of 2003.
The new Contributory Parent visa category will begin on 27 June 2003 for applicants residing outside Australia; and on 1 July 2003 for applicants residing in Australia.
DIMIA has published an excellent 'Question & Answer' factsheet on the new requirements: New Visa Arrangements for Parent Migration.
The factsheet answers many common questions, and includes an easy to understand table showing the types of visa available, age requirements, location of applicant when visa is granted, visa application charge, and assurance of support bond requirements.
See also:
"More Parents to be Reunited with Family in Australia," Media Release MPS 12/2003, 5 March 2003.
Migration Legislation Amendment (Contributory Parents Migration Scheme) Act 2003 - full text of Act No 5 of 2003.
Migration Legislation Amendment (Contributory Parents Migration Scheme) Bill 2002 - Bill, Explanatory Memoranda, 2nd Reading Speeches.
For additional information about Parent visas, we invite you to contact Annette Aitken.
On 12 March, the Immigration minister, Mr Ruddock, announced that the Woomera Immigration Reception and Processing Centre is to be closed next month. Detainees currently in the Woomera centre will be transferred to the Baxter, South Australia, facility.
There have been several news articles portraying the plight of approximately 1,600 East Timorese asylum seekers who have been in Australia for more than 10 years - and some of whom were born here - whom the Government has said must return to East Timor if their refugee applications are refused (which is happening to almost everyone), unless the Minister allows them to stay following a case by case consideration.
On 12 March, the Melbourne Herald Sun reported that the Government of Victoria would grant legal aid funding to East Timorese fighting to stay in Australia. The funds will go to a program run by the Refugee and Immigration Legal Centre.
The Sydney Morning Herald has reported that the Howard Government is facing dissent within its own party over its stance on the East Timorese asylum seekers. "Backbench upset over decision to deport Timorese," Sydney Morning Herald, 6 March 2003.
The Catholic Weekly has also been covering efforts by that Church on behalf of the East Timorese. See "Archbishop's plea for asylum seekers," and "Why East Timor refugees should be allowed to stay," both published 2 March 2003.
And the Refugee Council of Australia has welcomed the announcement by the Labor Party that it will move an amendment to the Migration Legislation Amendment (No. 1) Bill in the Senate. If adopted, the amendment would enable the Government to grant permanent residence to the approximately 1650 East Timorese asylum seekers currently living in Australia. RCOA Media Release, 5 March 2003. [Parish Patience Immigration Managing Partner David Bitel is also the President of the Refugee Council of Australia.]
On 18 March, the Parliamentary Library published a 25-page Current Issues Brief, "East Timorese Asylum Seekers: Legal Issues and Policy Implications Ten Years On."
The United Nations High Commissioner for Refugees, Mr Ruud Lubbers, has warned that the world's preoccupation with Iraq could take much-needed attention away from Afghanistan. More than 2 million people have returned to Afghanistan since late 2001, primarily from Pakistan. Another 1.2 million are expected to go back this year from neighbouring countries.
UN News Centre, media release 25 February 2003.
A number of Bills relevant to immigration law are currently before Parliament. Most of these Bills have been summarised in previous editions of our Newsletter. Below is a summary of their status as at 26 March 2003.
Full text of the Bills, Explanatory Memoranda, 2nd Reading Speeches and Bill Digests may be found in the
Parliament Bills Index.
This Bill was the first step in the Government's response to the Review of Statutory Self-Regulation of the Migration Advice Industry. The Government has committed to continuing the statutory self-regulation scheme through the Migration Registration Agents Authority, and will strengthen the Migration Agents' Code of Conduct to allow more scope to sanction agents who act in an unethical manner. Also, migration agents working overseas will be included in the registration scheme. See Media Release H93/2002.
The Bill passed through Parliament and is now Act No 3 of 2003. However the Act as passed did not implement many of the Review's recommended changes, but rather continues the existing system pending further legislative amendments.
In related news, there have been amendments to the Migration Agents Code of Conduct commencing 1 March 2003. These changes were outlined in the February issue of our Newsletter. A 4-page booklet, "Information on the Regulation of the Migration Advice Profession," must be given to every client before a migration agent may start working for the client. The booklet is also available on the Migration Agents Registration Authority website.
Related:
"Strengthening Regulation of the Migration Advice Industry," Media Release H22/2003, by Minister Hardgrave, 7 March 2003.
"Still No Timetable for Promised Changes to Migration Advice Industry," ALP Media Release, 10 March 2003.
Fact Sheet 100: Migration Agents Registration Authority (DIMIA).
This Bill contains some significant technical amendments to the Migration 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.
This Bill, along with the Migration Legislation Amendment (Procedural Fairness) Bill 2002, was referred to the Senate Legal and Constitutional Committee for enquiry and report. The final report was tabled on 5 June 2002.
The Migration Legislation Amendment (No 1) Bill 2002 was amended in the House of Representatives. The Bill was read a third time on 12 December 2002 and sent to the Senate for concurrence; it was introduced in the Senate on 5 February 2003.
Regarding information gathering by the Department of Immigration and Multicultural and Indigenous Affairs &c. Introduced 12 December 2002; moved Second Reading; debate adjourned.
The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) has established telephone inquiry lines and a dedicated website to help clients affected by the closure of Australian visa offices in the Middle East. Details to be found at:
The Minister for Foreign Affairs, Mr Downer, has recently issued three media releases of interest:
In related news, on 26 February a group of Australia's foremost international law experts issued a joint statement detailing the reasons why a war against Iraq by the so-called 'Coalition of the Willing' is illegal as a fundamental violation of international law:
Australia and Iran have signed a Memorandum of Understanding on Consular Matters, addressing a number of matters to encourage the legal movement of people between the two countries.
The MOU is intended to promote the voluntary repatriation of Iranians currently in Australian Immigration detention.
The MOU also establishes a Work and Holiday Visa (WHV) scheme between the two countries.
Controversially, the MOU also paves the way for the involuntary return of failed asylum seekers from Iran.
Links:
Media release MPS 13/2003, 12 March 2003.
"Forced return of Iranian asylum seekers," Refugee Council of Australia media release 12th March 2003. [David Bitel, Managing Partner of Parish Patience Immigration, is also President of the Refugee Council of Australia.]
"Ruddock 'bluff' to force Iranians out," The Age (Melbourne), 18 March 2003, available at Newsstore.
The Immigration Minister, Mr Ruddock has endorsed the latest OECD Economic Survey of Australia, which found that Australia's migration policy has been successful in delivering economic benefits.
Media Release MPS 11/2003, 4 March 2003
Treasurer's Press Release, 3 March 2003
OECD website - follow links to Economic Survey of Australia 2003
Ministerial consultation on next year's intake program are ongoing. Announcements about next year's program size and content will be made in the next few months.
The Australian Securities and Investments Commission (ASIC) has released Chinese and Vietnamese translations of its popular free guide to superannuation. English, Chinese and Vietnamese versions of 'Your Guide to Super' may be downloaded from ASIC's
FIDO website, or ring the ASIC infoline on tel. 1300 300 630, or contact your local community association.
Recent caselaw
Following is a brief outline of recent developments. Full text of decisions from all Courts and transcripts of High Court hearings are available on Austlii.
High Court
This appeal concerned a claim for protection by a Chinese national claiming persecution on the basis of his Christian faith. The applicant had succeeded in the Federal Court on his claim that the Refugee Review Tribunal had erred in law. The High Court considered whether the Federal Court has the power to remit the matter to a Tribunal constituted of the same member who made the earlier decsion. The High Court also considered the meaning of the phrase 'necessary to do justice' found in former s 481 of the Migration Act.
This appeal concerned the character test under s 501 of the Migration Act. In this case, the Immigration Department officer informed the applicant that he would seek information from a third party, but then did not do so. The applicant's visa was cancelled and he became liable to deportation. The High Court considered whether the applicant had been denied procedural fairness, and the meaning of the phrase "legitimate expectation" in the context of the Migration Act as it stood at the relevant time.
As reported in a previous edition of our newsletter, 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 cases would have to be re-heard individually due to the legislative prohibition on class actions in migration matters.
On 25 November 2002, Justice Gaudron of the High Court issued orders giving affected asylum seekers six months to resubmit their applications on an individual basis. As many as 4,000 of the original 7,000 applicants are still in Australia on bridging visas, and will have to apply separately to have their cases heard in the High Court or Federal Court.
On 14 February, the Australian Financial Review reported that the Muin and Lie representative actions are due to come before the High Court in May, at which time it will be possible to ascertain more precisely the number of people involved.
High Court transcript 25 November 2002
"Migration Deluge on Lower Courts," Australian Financial Review 14 February 2003, available at Newsstore.
The December 2002 issue of LexisNexis Butterworths' Immigration Review includes an interesting article about a case concerning a gay couple from Bangladesh who are seeking asylum in Australia. The proceedings revolve around whether a couple who could exercise 'discretion', as in, live discreetly, are prohibited from claiming persecution within the Refugee Convention. The Full Federal Court in [2002] FCAFC 20 dismissed the applicants' appeals and upheld the Refugee Review Tribunal's reasoning that Bangladeshi men can have homosexual affairs or relationships, provided they are discreet. The Immigration Review article summarises the proceedings thus far, and notes the conflicting interpretations of Australian and Canadian courts.
The High Court has granted special leave to appeal, and we will be following developments in future issues of the Newsletter.
Related: "Refugee Law – Membership of a Particular Social Group – The Issue of Sexual Orientation Persecution," a paper presented at the 2001 International Bar Association Conference by David Bitel.
Full Federal Court
In this case, delivered before the High Court's decision in Plaintiff S157, an asylum seeker was able to establish jurisdictional error and remittal to the Refugee Review Tribunal for re-determination of his application. The issues included the failure to refer to political claims in the initial interview, an independent claim of political authorship, and the ignoring of evidence concerning a corroborative witness.
This case concerned the legal position of a child in Federal Court proceedings. Under the Federal Court Rules, a child in whose name legal proceedings are commenced may have a 'tutor' or 'next friend' appointed to represent the child's interests. If appointed, the tutor must act through a solicitor. If the tutor is not appointed, and the Court ultimately decides in the child's favour, then the child may have the benefit of that decision. However, if the 'tutor' procedure is not followed, and the Court rules adversely to the child, then the child is not prevented from litigating the same questions again in a new proceeding.
In the case of SBAH, a two-year old child was seeking a protection visa. The notice of appeal was filed by the child's mother on behalf of the child, but without following the Federal Court Rules 'tutor' procedure. The Court dismissed the appeal, but held that the child would not be barred from relitigating via a motion to set aside or vary the order. The decision is important for all Federal Court proceedings involving children, not just protection visas.
Federal Court
This is a recent decision analysing the 'safe third country' doctrine often used to reject applications for protection under the Refugee convention. See also the Full Federal Court's decision of V872/00A v MIMA, (2002) 190 ALR 268; [2002] FCAFC 185.
This case dealt with a Distinguished Talent visa that was refused by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) for a boxer from Nigeria. The Migration Review Tribunal (MRT) also refused the applicant’s case as no further evidence with regard to his ‘exceptional achievements’ was submitted within the allotted timeframe.
The applicant and his nominator were represented by different migration agents. The MRT forwarded its final notice requesting further evidence to the applicant’s last known residential address and to the nominator’s agent. This agent advised the MRT that the nominator has withdrawn its sponsorship, which action erroneously led the MRT to believe that she was also acting for the applicant.
At the Federal Court it was argued that there had been a miscarriage of justice, as the applicant did not receive any correspondence from the Tribunal (whilst in the interim becoming the Australian welterweight boxing champion). The Court found that the MRT acted within the law relating to giving notice, in making their decision without further evidence from the applicant.
It was secondly argued that there was a lack of procedural fairness. The Court found that there was no obligation on the Tribunal to provide the applicant with a particular means of communicating with his migration agent. The applicant’s agent apparently did communicate with the Tribunal before the decision was made and he therefore had opportunities to access the MRT with additional information.
The third ground of review was that the MRT had erred in fact in concluding that the applicant did not have a record of outstanding achievement as a boxer at the time of his application. The Court disagreed with this proposition and declared that the Tribunal made a factual judgment in light of the material before it at the time. It was not for the Court to substitute its judgment on a matter of fact. Simply put, there was no jurisdictional error.
In relying on the NAAV decision, the Court stated that s 474 had the effect that failure to comply with a procedural prescription imposed by an act or at common law, would not amount to a jurisdictional error. The application was dismissed.
This case summary provided by Etienne Hugo.
This case provides a good summary of the caselaw regarding the use of interpreters and the effect of allegedly faulty interpreting during Tribunal hearings.
In this case, the Federal Court reviewed a Migration Review Tribunal decision denying a partner visa where one of the spouses was suffering from schizophrenia. The Court criticised the Tribunal's conduct of its hearing on several grounds, including its attitude to the situation where one spouse is suffering from a mental illness. Justice Finkelstein stated (at para 14):
'According to the tribunal, a couple cannot be "in a married relationship" (as defined) if one of them is suffering from an illness which impairs that person's ability to fully comprehend the nature of mutual commitment and a genuine continuing relationship. A construction of reg 1.15A which produces this result is absurd and I would not adopt it unless required to do so by binding authority. I have not been able to find any such authority. I think the true position is this. In deciding whether two parties are in a married relationship (as defined), the decision-maker is required to have regard to the particular circumstances of the relationship (reg 1.15A(3)). Accordingly, the married relationship must be examined bearing in mind that one or other of the parties may be suffering from a physical or mental disability. Their relationship must be judged in the light of that disability, as must their shared mutual commitment. In that regard the mutuality that is required need not be co-extensive. For example, if a married person must care for his or her spouse because the spouse suffers from, say, dementia and, because of the nature of that disease, the care cannot be reciprocated, it does not follow that there is an absence of relevant "mutual commitment". '
This case provides an interesting perspective on recent statements by the Government about immigration review applicants employing the legal process to delay deportation and prolong their stay in Australia.
Applicant NAKY was unrepresented and was not in immigration detention. He lost his case in the Refugee Review Tribunal and in the Federal Magistrates Court, and then appealed to the Federal Court. In declining to set an early hearing date, Justice Lindgren made the following comments (at paras 6-9):
'6 In these circumstances, in the interests of expedition, my routine practice in allocating hearing dates has been to try to find the earliest couple hours available, if necessary between other cases, and even outside ordinary sitting hours.
Family Court
The Full Court of the Family Court has rejected the Attorney-General's appeal in the case of "Kevin and Jennifer," concerning whether a marriage between a post-operative transsexual man and a woman is valid under the Marriage Act. Justice Chisholm of the Family Court had earlier upheld the marriage, as reported in the November 2001 issue of our Newsletter. The Full Court agreed with Justice Chisholm and rejected the Attorney-General's argument that a person's sex is necessarily determined at birth. The decision is considered to be significant in terms of the law relating to transsexuals, and may be relevant in the context of interdependency visas.
This is an important case regarding the interaction of the Family Law Act and the Migration Act. At issue is whether the Family Court can restrain officers of the Immigration Department from removing a mother from Australia under provisions of the Migration Act 1958. Under the Migration Act the mother is to be removed "as soon as reasonably practicable". The Family Court considered whether her removal is "reasonably practicable" where her 9 month old baby is in Australia having contact with the mother in a detention centre; and whether the "paramount consideration" principle is relevant to this question, either as a result of s 65E of the Family Law Act 1975 (Cth) or of the Convention on the Rights of the Child.
Update: According to the Melbourne Herald Sun, the Full Bench of the Family Court has reserved its decision on the mother's appeal until February 2003. "Reprieve for deport mum," Herald Sun (Melbourne) 18 December 2002. As of time of writing, the Full Court's decision has not been published.
Industrial Relations Commission
On 11 February 2003, CCH Australia Limited reported on the case of three South African chefs who had come to Australia on employer sponsorship visas to work in a restaurant. The three men claimed that the restaurant owed them $100,000 each for wages dating back to 1998. The chefs ran parallel actions in the Chief Magistrates Court and the Industrial Relations Commission. The matter was subsequently settled for an undisclosed amount. The case is a timely reminder to both employer sponsors and visa holders to keep proper records of wages paid and received, and of employers' obligations to comply with industrial laws.
March 30: David Bitel will be speaking at the 2nd International Interfaith Dialogue Conference, to be held at the Carlton Hotel in Parramatta. The conference theme is "Abraham: a symbol of hope for Jews, Christians and Muslims." Mr Bitel will be speaking in his capacity as a member of the Social Justice Committee of the Jewish Board of Deputies.
Reader contributions of upcoming events may also be submitted to the Parish Patience Australian Immigration Update Newsletter Editor.
"The means by which we live have outdistanced the ends for which we live.
- Martin Luther King, Jr.
We welcome reader contributions of quotable quotes to the Editor.
Parish
Patience Immigration Tel: +612
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