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Staff News
- Senate Select Committee on Ministerial Discretion in Migration
Matters
As one of Australia's largest specialist immigration law firms, we have
been following with interest the Senate Committee enquiry into Ministerial
Discretion and its attendant media coverage. DIMIA has provided statistics
to the Committee showing that Parish Patience Immigration ranks third on
the list of legal firms who most frequently make submissions seeking
exercise of the Minister's discretion.
Managing Partner David Bitel addressed the Committee on 21st October. A
transcript is available on the Committee's website.
Mr Bitel's evidence was also referred to in a newspaper article,
"Rejected asylum seeker killed" (Sydney Morning Herald,
22 October 2003).
Mr Bitel's written
submission has also been published.
- David Bitel re-appointed to NSW Administrative Decisions Tribunal
David Bitel has been re-appointed as a part time non-presidential
judicial member of the Administrative Decisions Tribunal of New South
Wales. His term will now expire in October 2006.
- Congratulations to Thong Nguyen, Migration Agent
Congratulations to Thong Nguyen, who has qualified as a Migration
Agent. Thong joined Parish Patience Immigration in 2002 as an
administrative assistant. Mr Nguyen was a school teacher for 12 years in
Vietnam before migrating to Australia in 2000. Thong is fluent in both
English and Vietnamese, and he is a NAATI
accredited Vietnamese translator. Registered Migration Agent 0322836.
Contact Thong Nguyen
- Rania Skaros on extended leave
Solicitor Rania Skaros will be away on maternity leave for the next few
months. We congratulate Rania and her husband on this new addition to
their family. Clients will be well looked after by our other professional
staff in Rania's absence.
- IBA London
David Bitel presented two papers at the London conference of the International
Bar Association Migration and Nationality Committee, held on 20 &
21 November:
While in London, Mr Bitel also presented a talk to the Immigration
Law Practitioners' Association (ILPA) on the topic, "Australian
Refugee Processing: public funding and judicial review issues."
- Consultations in the Philippines
Managing Partner David Bitel will be travelling to the Philippines in
late February and early March.
Mr Bitel will be available to give advice to applicants for all
categories of migration to Australia and also for student visas.
Applicants for most categories must have English language fluency and 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, Ramona
Rizkallah, or ring Ramona on tel. +61 2 9286 8700. A consultation fee
will apply.
Skilled migration & business
entry
- Revised Migration Occupations in Demand List (MODL)
On 13 November, the Employment and Workplace Minister, Mr Andrews, and
the Immigration Minister, Ms Vanstone, released a new Migration
Occupations in Demand List (MODL). The ICT component has been completely
removed. The list now comprises:
- Professionals:
Registered Nurses,
Registered Midwives,
Registered Mental Health Nurses,
Hospital Pharmacists,
Retail Pharmacists,
Occupational Therapists,
Physiotherapists,
Medical Diagnostic Radiographer,
Radiation Therapist,
Sonographer
- Associate Professionals:
Chefs (excluding Commis Chef)
- Tradespersons:
Refrigeration and Airconditioning Mechanics,
Hairdressers
"Government revises jobs in demand for migrants," Media
Release KA15/03, 13 November 2003.
- Revised Skilled Occupation List (SOL)
A revised Skilled Occupation List (SOL) took effect from 1 November.
For more information about the Skilled Occupation List, we invite you
to visit the Skilled Migration page
of our website, or to contact Nigel
Dobbie.
- Guidelines for NSW Government State Sponsorships
The New South Wales Department of State and Regional Development has
published its Guidelines for NSW Government State Sponsorships, with
effect from 20 October 2003.
The Guidelines are available at http://www.smallbiz.nsw.gov.au/.
A link to the Guidelines has also been added to our Business
Skills webpage. The webpage also contains links to Regional and State
Sponsorship information for other States and Territories.
For additional information about sponsorship, we invite you to contact Annette
Aitken.
- Simplified lodgement of subclass 457 visa applications
A number of changes to the processing of Temporary Business (Long Stay)
applications took effect on 1 November, including sponsorships,
nominations and visa applications. The changes were communicated to NSW
Business Centre clients of DIMIA.
- NSW Check Your Pay
The NSW Department of Industrial Relations has introduced a new
website, "Check
Your Pay." The website allows people employed in New South Wales
to calculate minimum pay rates under certain awards, check their pay
against hours worked, and assists in determining allowances, penalties and
loadings for a specific pay period. Awards covered include those for
Clerical & Administrative Employees, Hairdressers, Restaurant
Employees and Shop Employees.
Students & Working Holiday
Makers
- Specification of Assessment Levels
A new "Specification of assessment levels for passports issued by
foreign countries in relation to subclasses of student visa for the
purposes of regulation 1.41" was notified in Government Gazette GN 43
of 29 October 2003. The notice came into effect on and from 17 October
2003, and replaces the previous notice of 16 October 2002.
DIMIA
Migration Gazettals webpage
- December 1 Regulations
Amendments to the Migration Regulations pertaining to Student Visas
were notified in the Commonwealth of Australia Gazette on 27
November, and take effect on 1 December 2003. (Migration Amendment
Regulations 2003 (No. 9) 2003 No. 296)
Full text of the regulations can be found on the Attorney-General's
legislation database, Scaleplus.
- Department of Education Annual Report shows Overseas Students at
record high
A recent newspaper article offered a summary of the Department of
Education's 2002-2003 Annual Report. The Report details the top 10 source
countries for foreign students and other interesting statistics. The
Department concludes that education and training of overseas students was
worth more than $5 billion to the Australian economy last year, making
this sector one of Australia's top export industries.
Students are reminded that strict compliance with visa conditions is
essential to avoid cancellation of the visa.
- "Overseas student bonanza tops $5bn," Sydney Morning
Herald, 28 October 2003
- Department of Education 2002-03
Annual Report
- Changes to health care for foreign students in New Zealand
According to a recent report in the New Zealand Herald, foreign
students and visitors will no longer be eligible for free or subsidised
healthcare. The changes do not affect those who were eligible before 30th
October. This news is a timely reminder that all students and visitors
should have adequate health insurance in place.
"Free
healthcare cancelled for foreign students," New Zealand Herald,
25 September 2003.
- Useful student resources from DIMIA Manila
Following on from her recent visit to the Philippines, Parish Patience
Immigration Partner Diana Tong would like to share these websites which
were published in DIMIA Manila's October 2003 "Vis a Vis"
Newsletter:
Useful Student Information Resources:
- France joins Working Holiday Maker program
On 24 November, Australia and France signed a Working Holiday Maker
agreement. France is the seventeenth country to join the WHM scheme, which
permits people aged between 18 and 30 to apply for a working holiday visa
for up to 12 months.
"Australia and France sign a Working Holiday Maker
Arrangement," Media
Release VPS 009/2003, 24 November 2003
For additional information about Student, Visitor or Working Holiday
Maker visas, we invite you to contact Diana
Tong.
Asylum seekers and human rights
- Mandatory detention
- Statement by Joint Standing Committee sub-committee
On 13 October, Bruce Baird MP tabled in Parliament a report by the
Human Rights Sub-committee of the Joint Standing Committee on Foreign
Affairs, Defence and Trade. The report is an update to the
sub-committee's 2001 Report on Visits to Immigration Detention
Centres.
Links:-
- Human Rights Commissioner calls for release of all children and
their families from immigration detention
The Human Rights Commissioner, Dr Ozdowski, has welcomed the
government's decision to release from immigration detention and grant
permanent residency to an Iranian asylum seeker whose children's mother
was killed in the Bali bombing. Dr Ozdowski has called for a similar
compassionate response to be shown by releasing all children and their
families in detention into the Australian community.
HREOC
Media Release, 7 November 2003.
- Mental illness up in asylum centres
The Human Rights Commissioner, Dr Ozdowski, says mental illness and
trauma is increasing in Australia's immigration detention centres. Dr
Ozdowski made his remarks in a speech to a national conference on
cultural diversity and health care held in Sydney in late October.
"Mental
illness up in asylum centres," SBS TV World News Report, 29
October 2003.
- Judge criticises Australian human rights record
On 16 October, Justice Vincent of the Victorian Court of Appeal
delivered the 14th Sir Leo Cussen Memorial Lecture, "Human Rights and
the Criminal Law." Justice Vincent spoke to current trends in
criminal justice and government policy regarding human rights, concluding
in relation to the 'Pacific Solution':
"Whilst, as it has been
proudly claimed, the system may well have been successful in discouraging
such people from attempting to come here, we, as a nation, have paid a
high price in terms of our self-respect and our integrity of our position
with regard to the recognition and enforcement of human rights."
Human
rights and the criminal law: 14th Sir Leo Cussen Memorial Lecture
(pdf), by The Honourable Justice Vincent, 16 October 2003
- Temporary Protection Visas
- RRT expecting 3,800 applications
The deputy principal of the Refugee Review Tribunal, John Blount, has
told the Senate inquiry into ministerial discretion that the RRT is
expecting up to 200 new applications per month during the next year, as
Temporary Protection Visas expire. Currently the RRT is receiving about
20 applications each week.
"Refugee tribunal set to be swamped," Sydney Morning
Herald, 4 November 2003
- Most asylum seekers do get visas
DIMIA's annual report has revealed that 90% of asylum seekers who
arrived in Australia by boat between 1999 and 2002 have received
temporary protection visas.
- Department of Immigration and Multicultural and Indigenous Affairs Annual
Report 2002-03, tabled 28 October 2003;
- "Refugee truth out of bag: Vanstone," The Australian,
30 October 2003;
- "Almost all asylum seekers get visas," Sydney Morning
Herald, 28 October 2003;
- "90 per cent of refugees get visas," News.com.au,
29 October 2003.
- Excision of Melville Island
In response to a boat arrival at Melville Island on 4th November, the
Government retrospectively excised Melville and thousands of other islands
from Australia's migration zone. The boat contained 14 asylum seekers
claiming to be Turkish Kurds and four Indonesian crew. It was put back to
sea by the Australian Navy and at time of writing all aboard were back in
Indonesia.
The chain of events has created a storm of protest, including open
criticism from the UNHCR. The Regulations were disallowed by the Senate on
24 November.
Related:
- Migration
Amendment Regulations 2003 (No 8), No 283 of 2003 (disallowed 24
November);
- "Minasa Bone returns to Indonesia," Media
Release VPS 006/2003, 9 November 2003 (Joint Media Release of
Immigration Minister Vanstone and Foreign Affairs Minister Downer);
- "Refugee Council decries - this is not the Australian way",
Refugee Council of Australia Media
Release 14 November 2003 [Parish Patience Immigration Managing
Partner David Bitel is also the President of the RCOA];
- "Refugee Council laments disproportionate excision policy,"
Refugee Council of Australia Media
Release 6 November 2003;
- "UN refugee agency says Australia has shirked its international
obligations," UN
News Service, 11 November 2003;
- "UNHCR criticises Australia for turning boat people away," UNHCR
News, 11 November 2003;
- "Treatment of Kurds a new low: UN," The Age, 12
November 2003;
- New from the United Nations
Recent United Nations reports of interest:
- Australia presents report on rights of the child
Former Attorney General Daryl Williams presented Australia's latest
report on the Convention on the Rights of the Child in Geneva on
30 September.
Attorney General's Media
Release 115/03, 1 October 2003
- Australia at forefront of UN human rights reform
Australian Government representatives met with UN officials in Geneva
in late September. Australia will continue to work towards reforms in
processing communications and reports in the UN human rights system.
Australia's election as Vice-Chair of the Commission on Human Rights has
enabled Australia to continue to play a leading role in this process.
Joint media
release by The Hon Daryl Williams MP & The Hon Philip Ruddock
MP, 1 October 2003
- Governor-General on UN reform
The Governor-General of Australia, Major General Michael Jeffrey, has
echoed the Government's calls for reform of the United Nations Security
Council, in an address to the Royal United Services Institute of
Australia. The Governor-General is patron of the United Nations
Association of Australia.
Address
by the Governor General on the occasion of a Royal United Services
Institute of Australia Triennial International Seminar Dinner,
Canberra, 9 October 2003
- UNIFEM web portal
The United Nations Development Fund for Women (UNIFEM), has launched
a new web portal on Women, Peace and Security. The introduction to this
new website states:
"This portal provides
background information and timely updates on the impact of armed
conflict on women and women's role in peace-building. It will
systematically gather information and analysis both to inform
decision-makers and to provoke greater response to women's experience of
war and peace making. It is one of UNIFEM's contributions to the
implementation of Security Council resolution 1325 on Women, Peace and
Security, passed unanimously in October of 2000. This groundbreaking
resolution explicitly noted the 'need to consolidate data on the impact
of armed conflict on women and girls.'"
UNIFEM web portal: http://www.womenwarpeace.org/h_index.htm
- UN rights experts deeply concerned by secret detentions in Nepal
Three United Nations human rights experts have sent 31 urgent appeals
in the last two months to the Nepalese Government relating to the
alleged detention of 56 people, including journalists, in unknown
locations. There have been reports that both the Nepalese Government and
the Communist Party of Nepal (CPN) have committed human rights abuses.
"UN rights
experts deeply concerned by secret detentions in Nepal" - UN
News Centre media release, 12 November 2003
- UN Treaty on rights of migrant workers
The United Nations international treaty on the rights of migrant
workers and their families came into force on 1 July 2003. The 1990
International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families became international law after 20
countries ratified the treaty. Australia has yet to ratify this treaty.
In a statement on 21 November, United Nations Secretary-General Kofi
Annan called for receiver countries to ratify the Treaty, noting that so
far only sender countries have done so.
"UN Treaty on
the rights of migrant workers enters into force" - UN News
Centre media release 1 July 2003
"Migration
benefits sender and receiver countries, Annan says" - UN News
Centre media release 21 November 2003
- Extended term for UN High Commissioner for Refugees
The UN General Assembly has extended the term of the High
Commissioner for Refugees, Mr Ruud Lubbers, for two more years. Mr
Lubbers' term will now expire on 31 December 2005.
"General
Assembly extends term of UN High Commisioner for Refugees" - UN
News Centre media release 6 October 2003
- Twenty Sudanese refugees become Australian citizens
Twenty Sudanese refugees became Australian citizens in a Brisbane
ceremony as part of Refugee Week activities attended by the Minister for
Citizenship and Multicultural Affairs, Mr Hardgrave. Approximately 20 per
cent of the Australian Government's Humanitarian program entrants came
from Sudan.
Media
Release H150/2003, 31 October 2003.
- Changes to Humanitarian Visa processing in the Middle East
DIMIA has announced that it will be consolidating its humanitarian
processing operations in the Middle East region. From 1 October 2003 the
Beirut and Dubai posts no longer process new humanitarian applications.
Changes
to Humanitarian Visa processing in the Middle East - information for
communities in Australia, updated 10 November 2003.
- Amnesty assessment of human rights situation in China
On 28 October 2003, Amnesty International released a 20-page report: China:
Continuing abuses under a new leadership - summary of human rights
concerns.
The report is available on Amnesty's EU website: http://www.amnesty-eu.org/
(follow link to Documents page)
Legislation update
- Commonwealth Bills
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 3 December 2003.
Full text of the Bills, Explanatory Memoranda, 2nd Reading Speeches and
Bill Digests may be found in the Parliament
Bills Index.
- Migration Legislation Amendment (Sponsorship Measures) Bill 2003
The Migration Legislation Amendment (Sponsorship Measures) Bill
2003 received Royal Assent on 14 October and is now Act No 99 of
2003.
- Migration Legislation Amendment (Identification and
Authentication) Bill 2003
This Bill was introduced on 26 June 2003. The Bill seeks to provide a
legislative framework for the collection of personal identifiers from
non-citizens. Personal identifiers could include fingerprints,
photographs, weight and height measurements, audio or video recordings,
signatures, iris scans, and other personal identifiers as prescribed in
the Migration Regulations.
The Bill was referred to the Senate Legal and Constitutional
Legislation Committee, which tabled its report on 18 September. The Bill
was introduced into the Senate on 7 October.
- Migration Legislation Amendment (Migration Agents Integrity
Measures) Bill 2003 and Migration Agents Registration Application
Charge Amendment Bill 2003
These Bills are intended to implement key recommendations of the
2001-2002 Review of Statutory Self-Regulation of the Migration Advice
Industry.
The Bills were passed by the House of Representatives on 8 October.
The Bills then went to the Senate, which referred them to the Senate
Legal and Consitutional Legislation Committee for report by 25 November
2003.
Related:
- "Unscrupulous
migration agents to be removed," Media release H131/2003, 17
September 2003;
- Senate Legal and Constitutional Legislation Committee Report
tabled 25 November 2003.
- "Senate hears of migration misdeeds," Sydney Morning
Herald, 23 October 2003;
- According to a recent article in the Australian Financial Review,
both the Immigration Lawyers Association of Australasia and the Law
Council of Australia have expressed concern about the legislation as
it fails to raise standards for ethics and entry level qualifications
for migration agents. ("Migration moves flawed", Australian
Financial Review, 31 October 2003);
- DIMIA has added an information
page for clients, migration agents and education agents to its
website.
- Australian Human Rights Commission Legislation Bill 2003
Introduced 27th March 2003; referred to Senate Legal and
Constitutional Legislation Committee; Report
tabled 29th May 2003.
The Senate Committee rejected the more controversial reform proposals
found in the Bill. The Bill passed through the House of Representatives
after midnight on 27 June, and was introduced into the Senate on 11
August.
- Legislative Instruments Bill 2003
The Legislative Instruments Bill and Legislative
Instruments (Transitional Provisions and Consequential Amendments) Bill
were introduced into the House of Representatives on 26 June. The Bills
are intended to make statutory rules and other legislative instruments
more accessible, through the development of a Federal Register of
Legislative Instruments. The Bills also aim to introduce a consistent
system for registering, tabling, scrutinising and sunsetting legislative
instruments.
The Bills have passed through the House and were introduced into the
Senate on 9 September. On 2 December, the Senate passed the legislation
with amendments; on 3 December, the House of Representatives agreed to
some but not all of the amendments.
Related:
- "Making law more accessible," Attorney-General
News Release 74/03, 26 June 2003;
- "Legislative Instruments Bill 2003 (Cth): What is it all
about?" Australian
Law Librarian, vol 11, issue 4, December 2003 (forthcoming
issue);
- "Legislation to clean up administrative black hole," Australian
Financial Review, 11 July 2003
- Age Discrimination Bill 2003
The Age Discrimination Bill and Age Discrimination
(Consequential Provisions) Bill were introduced into the House of
Representatives on 26 June. According to the Attorney-General's media
release, the Bills are a world first in proposing stand alone age
discrimination legislation covering access to goods and services and
education, as well as employment.
The Bill was referred to the Senate Legal and Constitutional
Legislation Committee, which tabled its report on 18 September. The Bill
passed the House of Representatives with amendments on 26 November, and
was introduced into the Senate on 1 December.
"Australia leads world with age legislation," Attorney-General
News Release 73/03, 26 June 2003
- Superannuation (Surcharge Rate Reduction) Amendment Bill 2003
This Bill has generated controversy due to the surprise introduction
in the Senate of amendments designed to recognise a same-sex partner as
a dependent within the law of superannuation. On 7 October, the House of
Representatives disagreed to the Senate amendments. After further debate
on 27 October, the Senate did not insist on the amendments. The Bill
received Royal Assent on 12 November and is now Act No. 112 of 2003.
Related:
- "Tax bonus on super, but new law bypasses gays," Sydney
Morning Herald 28 October 2003
- "Coalition heat melts Democrats on same sex super," Sydney
Morning Herald 4 October 2003
- "Same sex super: how we value love," Sydney Morning
Herald, 2 October 2003
- Sex Discrimination Amendment (Pregnancy and Work) Bill 2003
This Bill was assented to on 15 October and is now Act No 103 of
2003.
- Capital Gains Tax changes to benefit charities
The Assistant Treasurer, Senator Coonan, has announced changes to the
tax law which are intended to benefit investors, small businesses and
charities.
Assistant
Treasurer's Media Release, 16 October 2003.
- Constitutional change: have your say
The Minister for Citizenship, Mr Hardgrave, has invited Australians
to express their views on the best way to resolve deadlocks between the
House of Representatives and the Senate. The deadline for submissions is
31 December 2003.
Media
Release H168/2003, 19 November 2003 (includes link to discussion
paper).
- State Legislation
- Commonwealth Powers (De Facto Relationships) Bills 2003
The Western Australian government will refer its power in relation to
property issues for de facto relationship breakdowns. A Bill was
introduced on 22 October 2003, to enable the Family Court to take
jurisdiction over de facto property disputes, which are currently a
State matter. Similar legislation has already been introduced in New
South Wales and Queensland, and it is anticipated that other States will
follow.
- Parentage Bill 2003 (ACT) and Sexuality Discrimination
Legislation Amendment Bill 2003 (ACT)
Legislation has been introduced into the Australian Capital Territory
(ACT) Legislative Assembly which would grant legal recognition of
parenting relationships for the children of same sex couples.
- "Government takes further steps to remove discrimination
against gay, lesbian and bisexual Canberrans," Chief
Minister's Media Release, 20 November 2003
- Full text of ACT Bills is available at http://www.act.gov.au/
(follow links to Government - Bills & Legislation)
Other government news
- Migration litigation review
The Attorney General, Mr Ruddock, has anounced a review of migration
litigation, expressing concern about the delays in resolution of migration
cases and the very low success rate of applicants (which is disputed by
advocates). Prior to becoming Attorney General, Mr Ruddock was Australia's
longest serving Immigration Minister.
The review potentially represents a further attempt to exclude
effective judicial review of immigration decisions following the High
Court's decision in Plaintiff S157. Parish Patience Immigration
were instructing solicitors in that case.
Related:
- "Migration litigation review to improve access to justice,"
Media release
R011/2003, 27 October 2003;
- "Migration case review due", Sydney Morning Herald,
27 October 2003;
- "Refugees' court access restricted," The Age, 27
October 2003 (indicates the Review is in response to the High Court's
decision in Plaintiff S157.);
- "Ruddock to tighten visa case reviews," The Australian,
27 October 2003;
- "Probe into legal services ordered," Australian
Financial Review, 5 November 2003 (review of cost and quality of
legal services provided to the government by private law firms);
- "Ruddock says legal bill is asylum seekers' fault," Australian
Financial Review, 31 October 2003.
- Changes to DIMIA Forms and Booklets
A number of Immigration Forms and Booklets have been updated to reflect
changes to regulations which took effect on 1 November 2003. Use of out of
date forms may render an application invalid.
Changes
to Forms, Booklets, 1 November 2003
- Partner Processing in Vietnam
The November issue of the DIMIA Bangkok Region Newsletter contains the
following information about Partner Visa processing in Vietnam.
The DIMIA Partner Team, in Ho Chi Minh City (HCMC), processes and
decides all applications for Spouse, Prospective Spouse and Interdependent
visas from Vietnam. The average processing time in HCMC for Partner visas
is 26 weeks, compared to an average 60-75 weeks in the past.
The Partner Visa Application Checklist at www.ausinvn.com
will assist applicants who are strongly encouraged to provide all of the
required documentation at the time of lodgement.
The Partner Team aims to acknowledge all Partner visa applications in
writing within seven working days of lodgement. The acknowledgement letter
also gives the applicant the opportunity to undertake medical examinations
at that point and complete the Assurance of Support documentation.
The Australian Embassy in Hanoi and the Australian Consulate General in
Ho Chi Minh City have a joint website, www.ausinvn.com,
which provides information about visas and citizenship in both Vietnamese
and English.
- Important changes to citizenship for children
The Minister for Citizenship and Multicultural Affairs, Mr Hardgrave,
has announced changes to enable children under 18 who were born after a
parent lost Australian citizenship to claim Australian citizenship.
Media
Release H139/2003, 14 October 2003.
- Policy regarding child born in Australia to parent holding temporary
visa
There is a new policy in relation to situations where a child is born
in Australia and one or both parents hold a temporary visa.
For additional information about visas for children and other family
members, we invite you to contact Sharon
McCabe.
- More funding helps migrants improve English skills
The Minister for Citizenship and Multicultural Affairs, Mr Hardgrave,
has announced a $1.8 million increase in Government funding to migrant
English language programs.
Media
Release H156/2003, 7 November 2003
- 2004 Funding round for settlement services
The Minister for Citizenship and Multicultural Affairs, Mr Hardgrave,
has invited applications for funding grants under the Community Settlement
Services Scheme. Applications close on 5 December 2003.
Media
Release H157/2003, 7 November 2003 (includes link to the Community
Services Settlement Scheme)
- Minister launches multicultural mental health assistance program
The Minister for Citizenship and Multicultural Affairs, Mr Hardgrave,
has launched a new program, Multicultural Mental Health Australia.
Media
Release H144/2003, 27 October 2003
- New report reveals identity fraud as billion-dollar threat
The Minister for Justice and Customs, Mr Ellison, has launched a new
report, "Identity Fraud in Australia."
Mr Ellison said that the Report will support a series of Commonwealth
Government initiatives to combat fraudulent acts against government,
business, and individuals; including those which can underpin terrorism,
people smuggling and illegal immigration.
Media
Release E162/2003, 12 November 2003
- DIMIA sets the record straight
The Department of Immigration has issued a media release to correct
several recent media reports regarding 'visa scams' etc.
Media
Release DPS 74/2003, 22 October 2003
- Australian Government announces major package to combat people
trafficking
The Minister for Foreign Affairs, Mr Downer, and other Government
ministers have issued a joint statement announcing a major package to
combat people trafficking. The package, titled "A Commonwealth Action
Plan to Eradicate Trafficking in Persons," will include Government
funding of $20 million over four years.
Joint
Media Release, 13 October 2003
- Recent compliance operations
DIMIA undertakes regular compliance operations, the results of which
are always publicised, illustrating the importance to visa holders to seek
professional advice in advance of expiry or cancellation. Significant
government funds are devoted to the compliance and monitoring sections of
the Department of Immigration.
Recent examples:
- "Three detained in joint agency roadblock," Media
Release DPS 70/2003, 8 October 2003
- "Sweeping operations locate twenty-two in Canberra and regional
New South Wales," Media
Release DPS 73/2003, 21 October 2003
- "Twenty one people detained in multiple Sydney operations,"
Media
Release DPS 75/2003, 22 October 2003
- "Twenty six people detained in dawn operation in Victoria,"
Media
Release DPS 76/2003, 23 October 2003
- "Fifteen detained from North Sydney construction sites," Media
Release DPS 78/2003, 13 November 2003
- Access to Government Publications
Following on from the Government's announcement in the May budget that
it would be closing the Government Bookshop network, alternative
arrangements for access to government publications have now been put in
place.
A new Publications Register is available at http://www.publications.gov.au/.
Hard copy of legislation and other government publications is available
through Standards Australia offices in capital cities, at State Libraries
through the Library Deposit Scheme, and by mail order from Canprint.
Recent caselaw
Following is a brief outline of recent developments. Transcripts of High
Court hearings and full text of most decisions are available on Austlii.
High Court
- Pending detention cases
As at time of writing, several cases pertaining to mandatory detention
of asylum seekers are pending in the High Court, including:
- MIMIA v B and Anor, (A246/2003), Heard 30 Sept-1 Oct 2003
This case concerns the welfare jurisdiction of the Family Court of
Australia to make orders in relation to detention and removal of
children. Heard 30 September & 1 October 2003; judgment reserved.
- MIMIA v Al Khafaji; SHDB v Godwin & Ors, (A246/2003 and
A242/2003), Heard 12-13 November 2003
In these cases the Government is appealing against two lower court
decisions where failed asylum seekers were ordered freed when it was
shown that they had no prospect of being returned to their home
countries. The Government contends that the applicants may be held in
detention indefinitely. On 15 August, the High Court ordered the cases
removed from the Full Federal Court. The High Court heard arguments on
12-13 November 2003; judgment reserved.
The Human Rights and Equal Opportunity Commission has been granted
permission to intervene. Media
Release, 13 November 2003 (includes link to HREOC's submissions)
Related:
"Detention until death 'possible'," The Age, 13
November 2003
- Behrooz v The Secretary of the Department of Immigration and
Multicultural and Indigenous Affairs (A367/2002), Heard 12-13
November 2003
The applicants argued that their detention at Woomera, under such
harsh conditions, was not valid and therefore they could not be
convicted of escaping from immigration detention. A judge of the Supreme
Court of South Australia held that such a defence was unknown to law
((2003) 172 FLR 9). The High Court granted special leave to appeal on 15
August, and heard arguments on 12-13 November 2003; judgment reserved.
The Human Rights and Equal Opportunity Commission has been granted
permission to intervene. Media
Release, 13 November 2003 (includes link to HREOC's submissions)
- Re Woolley & Anor Ex parte: Applicants M276/2003 by their
next friend GS, (M276/2003), Heard 17 November 2003
This case concerns whether the detention of children is authorised by
the Migration Act, and if it is so authorised, whether the
detention of children is an invalid exercise of the Commonwealth's
power. Heard 17 November 2003; referred to Full Court.
- Applicant S v MIMA, (P52/2003), Heard 22-23 October 2003
This case involves the definition of "particular social
group" under the Refugees Convention. The applicant is from
Afghanistan, and claimed to have left that country because the Taliban had
attempted to recruit him for military service. The issues are whether
identification of a particular social group requires evidence that young,
able-bodied men were perceived as a particular social group in Afghani
society; and whether, if such evidence is required, the Refugee Tribunal
in this case should have found that Afghani society perceived young,
able-bodied men as comprising a particular social group.
This case is an appeal from the Full Federal Court decision in [2002]
FCAFC 244 (21 August 2002). Heard 22-23 October 2003; judgment reserved.
- MIMIA v Respondents S152/2003, (S152/2003), Heard 29
September 2003
The issue in this case is whether conduct of non-State actors can
constitute 'persecution' within the meaning of the Refugees Convention.
The respondents are a married couple from the Ukraine, and they allege a
well-founded fear of persecution because one of them is a Jehovah's
Witness.
This case is an appeal from the Full Federal Court decision in [2002]
FCAFC 145 (23 May 2002), which held that the Refugee Review Tribunal had
erred in not remitting the case for grant of protection visas to the
respondents. Heard 29 September 2003; judgment reserved.
- Shaw v MIMA, (B99/2002), Heard 17 June 2003
This case involves the character provisions of the Migration Act.
The applicant had a substantial criminal record, and his visa was
cancelled under s 501(2) on the basis that he did not pass the character
test. The issue before the High Court is whether s 501(2) of the Migration
Act was within the legislative power of the Parliament to the extent
that it authorised MIMIA to cancel the applicant's visa. Heard 17 June
2003; judgment reserved.
- Purvis v New South Wales (Department of Education and Training),
[2003] HCA 62, 11 November 2003
This case involved an award by the Human Rights and Equal Opportunity
Commission (HREOC) of compensation to a disabled child in relation to his
suspension and exclusion from a mainstream high school. A majority of the
Full Bench of the High Court dismissed the appeal from the Full Federal
Court, which means that the NSW Department of Education is not liable to
pay the compensation. Justices McHugh and Kirby dissented.
- High Court special leave applications
Pending High Court special leave applications are summarised in the High
Court Bulletin. Recent bulletins include the following matters as
noted by our summer law clerk, Xiella Devine:
- MIMIA v SGLB (A186/2003)
In this case the Refugee Review Tribunal (RRT) found that the
respondent was highly likely to be suffering from Post Traumatic Stress
Disorder (PTSD), but went on to dismiss his application in any event.
The Federal Court found that there was no evidence of PTSD, but also
held that once the RRT had found the respondent did suffer from PTSD, it
was incumbent on the RRT to ensure that the respondent was competent to
continue to participate in the proceedings. The issues before the High
Court include whether the finding of "no evidence" of PTSD
constitutes reviewable error under the Judiciary Act s 39B;
whether the Migration Act implies a competence requirement; and
whether the RRT fell into jurisdictional error of a type identified in Plaintiff
S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.
- V872/00A v MIMA (M114/2002); V854/00A v MIMA
(M116/2002)
Whether the concept of "effective protection" under the
Refugees Convention requires a third country to have accepted an
obligation to receive a putative appellant for refugee status. The
question is whether Australia's protection obligations will be satisfied
if there is a "practical likelihood" that a putative appellant
for refugee status will be given effective protection in a third
country. Referred to Full Court.
- WACB v MIMIA (P98/2002)
In this case the applicant was a minor. He was informed of the
adverse RRT decision by an officer of the respondent (MIMIA)
communicating through an interpreter. The issue is whether the Migration
Act s 478(1)(b) requirement that an applicant be notified of an RRT
decision includes a requirement that a minor applicant receive
notification in a manner comprehensible to him. Additional issue whether
the respondent's guardianship of the applicant was relevant to question
of notification. Special leave granted.
- WAFE v MIMIA (P91/2002)
Question whether s478(1) of the Migration Act precluded
Federal Court from deeming that time limit had been complied with. In
this case, the detained applicant's application for review had been
submitted to Australian Corrections Management, whose officers failed to
lodge the application within the 28 day requisite period. Special leave
granted.
- Re MIMA; Ex parte WADT of 2003; WADT v MIMA (P51/2002)
In this case the applicant, who is a citizen of Iran, is claiming a
fear of persecution within the Refugees Convention by reason of his
homosexuality and by reason of being HIV positive. Heard 23 October
2003; referred to Full Court.
Federal Court
- Hassen v MIMIA, [2003] FCA 1036, 23 September 2003
Illustrates the point that a pending Minister's appeal is not good
enough reason for delay in filing in courts. That is, applicants for
review must appeal to courts quickly.
- Applicant A26 of 2002 v MIMIA, [2003] FCA 1050, 2 October
2003
This case concerns discontinuance of proceedings without instructions.
- Applicant VEAZ of 2002 v MIMIA, [2003] FCA 1033, 2 October
2003
In this case the Federal Court reviewed the position of conscientous
objectors who might be refugees.
- Phung v MIMIA, [2003] FCA 821, 8 August 2003
In this case the applicant for judicial review had his visa cancelled
on character grounds. Prior to the hearing, the applicant died and his de
facto wife applied to be substituted as the applicant. The Court held that
the right to a visa is a purely personal right which abates on the death
of the applicant. Therefore the wife's application to be substituted as
the applicant for judicial review was struck out.
Family Court
New South Wales Supreme Court
New South Wales Supreme Court decisions are found at http://lawlink.nsw.gov.au/
and on Austlii.
- Badraie v DIMIA & Australasian Correctional Services
This is a new law suit that has been filed by the parents of an
eight-year-old child who was allegedly traumatised by his treatment in
immigration detention. It is believed to be the first case seeking damages
on behalf of a child traumatised by his experience in immigration
detention. We will endeavour to report subsequent developments in a future
edition of our Newsletter.
Related:
- "Traumatised child suing for mistreatment in detention
centres," The Australian, 27 October 2003 (available from
News Ltd Newstext
archive)
- "Detention of Iranian boy described as child abuse," Sydney
Morning Herald, 27 October 2003 (available from Fairfax
News Store)
- Ruddock & Ors v Taylor, [2003] NSWCA 262, 18 September
2003
In this case the NSW Court of Appeal upheld an award of $116,000
compensation to a man whose visa was unlawfully cancelled, following which
he was unlawfully imprisoned for 316 days pending deportation.
Related:
"Ruddock lit visa fuse, court rules," Sydney Morning
Herald, 19 September 2003 (available from Fairfax
News Store)
- Application of MJR and MJR - Child KBH, [2003] NSWSC 937,
Bryson J, 20 October 2003
This case arose under the Adoption Act (NSW). The adoptive
parents of a Korean-born boy wished to change his first name to that of a
Catholic saint. Justice Bryson allowed the name change in this case, but
highlighted the proscriptions in the new Adoption Act which came into
effect this year. In New South Wales a court is now prohibited from
approving a name change for a child more than one-year-old, or a
non-citizen, unless special reasons related to the best interests of the
child are established.
According to a report in the Sydney Morning Herald, the decision
is significant for children adopted in New South Wales from Korea,
Thailand, Ethiopia, Taiwan and India, as these countries have not signed
the Hague Convention on overseas adoption. Therefore for these children,
the adoption and any name change is finalised in Australian courts. For
children from signatory countries, the adoption and any name change are
finalised in the child's country of origin. The NSW provisions regarding
name change are unique in Australia.
"Adopt, but don't turn Ming into a Kylie," Sydney Morning
Herald, 23 October 2003 (available from Fairfax
News Store)
- Matter of 'Carl', [2003] NSWSC 756, 24 July 2003
In this case the NSW Supreme Court held that the Education Act
(NSW) provisions requiring applicants for admission to state selective
schools to be residents, does not amount to unlawful discrimination.
New Zealand
- Even illegal workers entitled to minimum wage
According to a recent report in the New Zealand Herald, the NZ
Employment Tribunal has ordered a restaurant to pay penalties, wage
arrears and interest totalling $NZ35,000 to the Labour Department in
relation to a cook who had received no payment for 12 months in which he
worked without a permit.
The Tribunal held that the Labour Department had to enforce minimum
employment codes for the protection of other workers at risk of
exploitation. The breaches of the Immigration Law were a separate matter
for the Immigration Service. ("Illegal
worker cooked for year without pay," New Zealand Herald,
15 October 2003)
And in related news, in early November, New South Wales Office of
Industrial Relations inspectors ran a compliance campaign covering more
than 500 restaurants and cafes across the Sydney CBD. The aim of the
campaign was to ensure that employers understand their rights and
obligations. This was the largest campaign ever conducted by OIR
inspectors. (Source: NSW Office of Industrial Relations Your Workplace
Online newsletter December 2003)
United States
- Gay lawyers challenge US asylum ruling
Lambda Legal Defence and the Lesbian and Gay Immigration Task Force in
the USA have filed a friend of the court brief in the US Board of
Immigration Appeals, in support of a homosexual asylum seeker from Mexico.
The applicant was denied asylum by the primary judge, who found that
the applicant could avoid persecution in Mexico by living discreetly.
"Gay
lawyers challenge US asylum ruling," Gay.com News, 14 October
2003.
A similar case is currently pending before the High Court of Australia,
concerning asylum seekers from Bangladesh. (Appellant S395/2002 v MIMA;
Appellant S396/2002 v MIMA, heard 8 April 2003; judgment reserved)
For additional information about Court appeals, we invite you to contact David
Bitel or Nigel Dobbie.
Diary dates
- December 1: World AIDS Day. More information from www.unaids.org
- December 4: Castan Centre for Human Rights Law Conference
"Human Rights 2003: the year in review," Melbourne. More
information from http://www.law.monash.edu.au/castancentre
- December 10: Human Rights Day
- December 31: Deadline for submission of community views on the
Prime Minister's proposals for Constitutional change (reform of the
Senate). More information at Media
Release H168/2003, 19 November 2003.
- February 20-23, 2004: Joint Study Institute, Sydney - Australian
Law Librarians Group, New Zealand Law Librarians Group, American
Association of Law Librarians, British & Irish Association of Law
Librarians, Canadian Association of Law Librarians. Several sessions will
deal with the subject of human rights in Australia and New Zealand. David
Bitel will speak on Immigration Law. More information from http://www.allg.asn.au/jsi/
- Late Feb - early March: David Bitel consultations in the
Philippines. Applicants wishing to make an appointment should email a
resumé with their request for an appointment to Mr Bitel's secretary, Ramona
Rizkallah, or ring Ramona on tel. +61 2 9286 8700. A consultation fee
will apply.
- Refugee
Council of Australia Coming Events - includes notice of several
Humanitarian Practice training courses.
- United
Nations Association of Australia 'Diary Dates'
Reader contributions of upcoming events may also be submitted to the Parish
Patience Immigration Update Newsletter Editor.
Quote of the month
"Maybe
Ethics is a science that has
disappeared from the whole world.
It does not matter,
we will have to invent it again."
-
Jorge Luis Borges
We welcome reader contributions of quotable quotes to the
Editor.
Contact us
Parish Patience Immigration
Lawyers
Level 1, State Street Centre
338 Pitt Street
SYDNEY NSW 2000
AUSTRALIA
Tel: +61 2 9286 8700
Fax: +61 2 9283 3323
Web: www.ppilaw.com.au
Registered Migration Agents 9255523,
9359088, 9370721,
9800540, 9802999, 0004435, 0106541, 0322805, 0322836
Liability is limited by the Solicitors
Scheme under the Professional
Standards Act 1994 (NSW)
Disclaimer
The contents of this newsletter are
not intended to be legal advice. Parish Patience Immigration accepts no
responsibility for any action taken in reliance on anything contained in
the newsletter. Individuals should seek advice about their own
circumstances only from a registered migration agent.
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