Staff News

• Parish Patience Immigration website redesign

On 18th March we were pleased to launch our redesigned website: www.ppilaw.com.au. The excellent content remains, what has changed is a more modern look and consistent navigation across the website. We hope you will enjoy the new website, and we welcome your feedback.

• Welcome Nicholas McNally

  We are pleased to announce that solicitor Nicholas McNally has joined Parish Patience Immigration. Nicholas is a solicitor and advocate with extensive experience in litigation and appeal cases. His areas of practice include employment law and industrial relations, commercial litigation including contract disputes, administrative law including claims against State and Federal government agencies, family and personal law, human rights, and immigration litigation.

  Nicholas' clients have included individuals and their families, trade unions, major international and domestic corporations, their brokers, and global insurers and underwriters. Nicholas is a well-respected litigator with an excellent reputation for a balanced, ethical and commercially sensible approach to litigation.

  Nicholas is the Treasurer and acting Assistant Secretary-General of the International Commission of Jurists (Australian Section). He has extensive experience with human rights issues, having acted as a UN-accredited observer and gathered evidence of war crimes and crimes against humanity in various conflict zones in Asia. He sits on the Executive Council of New South Wales Young Lawyers, having previously served as its Secretary and Chair of its Human Rights Committee. Nicholas is also a member of a working party set up to advise the Attorney-General of New South Wales on regulatory reform of the legal profession.

  Before he joined Parish Patience Immigration, Nicholas was a Senior Associate for several years at a Sydney commercial law firm and at a large international law firm. Nicholas was admitted to practice as a solicitor of the Supreme Court of New South Wales in 1998 and is a member of the Law Society of New South Wales.

  Contact Nicholas McNally

• Farewell Veronika Hurbis & welcome back Rania Skaros

  In March we will be farewelling solicitor Veronika Hurbis, who is returning to Europe to live. We will also be welcoming back solicitor Rania Skaros, who will be returning part-time from her maternity leave.

• Interstate and Overseas Consultations

  Managing Partner David Bitel will be travelling to the Philippines in April and again in June. He will be travelling to Dhaka, Bangladesh, in mid-May. Mr Bitel also regularly travels to Melbourne and to New Zealand, and his next visits are scheduled for April.

  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, unless sponsored by relatives.

  Applicants wishing to make an appointment should email a résumé with their request for an appointment to Mr Bitel's secretary, Ina Tempra, or ring Ina on tel. +61 2 9286 8700. A consultation fee will apply.

• Privative clause articles

  Following on from the High Court's decision in Plaintiff S157 v Commonwealth of Australia, two recent journal articles of note are:

  • Kerr D, "Deflating the Hickman myth: judicial review after Plaintiff S157 v The Commonwealth," AIAL Forum No 37 (2003); and
     
  • Seymour M, "Privative Clauses in administrative law: recent developments," Australian Law Journal vol 77 p 757, November 2003

  Parish Patience Immigration Senior Associate Nigel Dobbie and Duncan Kerr MP represented Plaintiff S157 before the High Court.

• Email problems

  It has come to our attention that some emails may not have been received due to the recent round of email viruses, worms and trojans affecting many computers worldwide. If you have not received expected correspondence from us, we encourage you to follow up by telephone, fax or letter.

  Contact Parish Patience Immigration

Skilled migration & business entry

• Revised Migration Occupations in Demand List (MODL)

  A new Migration Occupations in Demand List (MODL) was notified in Gazette S481 of 17 December 2003. 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
  
   
• Alternative English language proficiency tests

  By Gazette notice published in Gazette S442 of 28 November 2003, the Minister has specified tests which may be an alternative to the IELTS test. The Notice also specifies in which countries the various tests may be taken by an applicant, and the minimum test scores.

• Minimum salary level for workers on temporary business visas

  For position nominations lodged on or after 11 February, the new minimum salary level for most temporary business occupations is $37,720 per year.

  "New salary level for skilled migrants," Media Release VPS 031/2004, 11 February 2004.

• Labour hire firms and 457 visas

  There have been media reports that DIMIA is no longer permitting recruitment agents to place Temporary Business (Long Stay) visa holders in labour hire contracts. DIMIA has issued a clarification on its Frequently Asked Questions webpage

• New initiatives for regional migration

  The Minister for Immigration, Senator Vanstone, has announced new initiatives to encourage skilled migrants to regional areas.

  From 1 July, qualified applicants will be able to obtain a 3-year temporary residence visa if they commit to living and working in regional Australia. After 2 years they will be eligible to apply for permanent residence. The precise regulatory criteria have not yet been published.

  Media Release VPS 019/2004, 12 January 2004.

For additional information about Skilled migration and business visas, we invite you to contact David Bitel.

Students

• December 1 Regulations

  Amendments to the Migration Regulations pertaining to Student Visas took effect on 1 December 2003. The changes relate to financial capacity, English language and evidentiary requirements, and are intended to provide more flexibility for applicants seeking to satisfy the criteria for a student visa.
   

  • "Legislation Change - 1 December 2003." - DIMIA summary of the changes
     
  • "Gazettal Notices - 2003" - accompanying government gazette notices
     
  • Migration Amendment Regulations 2003 (No. 9) 2003 No. 296 - full text of the Regulations.

For additional information about Student visas, we invite you to contact Diana Tong.

Retirement & visitor visas

• Changes to Retirement visas

  Amendments to the Migration Regulations pertaining to subclass 410 Retirement visas took effect on 1 January 2004. The changes relate to the required financial threshold for first-time retirement visa applicants.

  Related:

  • Legislation Change - 1 January 2004 (DIMIA summary);
  • Retirement in Australia (DIMIA information); and
  • Migration Amendment Regulations 2003 (No. 11) 2003 No. 363 (full text on Scaleplus).

  In addition, the Immigration Minister, Senator Vanstone, has announced major changes to encourage retirement visa holders to settle in regional Australia. These changes are planned to take effect in November. (Media Release VPS 019/2004, 12 January 2004.)

• Visitors from the Philippines

  In a recent 'Vis a Vis' newsletter, DIMIA Manila has advised that the lead up to Holy Week is one of the busiest periods for visitor visa applications. Filipinos intending to visit Australia over Easter are strongly encouraged to lodge their applications as soon as possible.

  Additional information about Australian visas and the Philippines is available from the Australian Embassy website: www.australia.com.ph.

For additional information about Retirement and Visitor visas, we invite you to contact Etienne Hugo.

Asylum seekers and human rights

• 2004-05 Humanitarian Program discussion paper

  On 19 January, the Minister for Immigration, Senator Vanstone, released a Discussion Paper relating to the 2004-05 Humanitarian Program.

  See also:

  "Recommendations on the size and composition of the Refugee and special humanitarian program," by the Refugee Council of Australia. (Parish Patience Immigration Managing Partner David Bitel also serves as the President of the RCOA.)

• Migration Zone

  The Government is considering amending legislation that would shrink the migration zone of mainland Australia from the low water mark to the high water mark. According to recent news reports, this could amount to a considerable distance in much of the Northern Territory.

  • "Asylum zone to shrink," The Age, 21 February 2004
     
  • "Labor to oppose shrinking zone," The Age, 23 February 2004
     
  • The Parliamentary Library Law and Bills Digest Group has published a Research Note, "Excisions from the Migration Zone - Policy and Practice," Research Note no 42, 2003-04, 1 March 2004
  
   
• Temporary Protection Visas
   
  Recent news articles of note:
   
  • "Deportation of Iranians to go ahead," The Age, 3 January 2004
     
  • "Special visa created just for well-off from Iran," Sydney Morning Herald, 10 January 2004
     
  • Australian Labor Party Policies on people smuggling and temporary protection visas, ALP Media Release, 23 January 2004
     
  • "Refugees win visas as policy softens," The Age, 16 February 2004
     
  • "Vanstone breaks with Iran policy," The Age, 17 February 2004 (includes comment by Margaret Piper of the Refugee Council of Australia)
     
  • "[Federal Government] Adviser slams visa policy," The Age, 15 February 2004
     
  • "National MP calls for refugee amnesty," The Age, 6 February 2004
     
  • "Abattoir happy with asylum seekers decision," ABC News Online, 16 February 2004
     
  Full text of most of the above articles is available at Fairfax Newsstore.
   
• Mandatory detention
   
  Issues surrounding mandatory detention continue to receive wide media coverage, both within Australia and overseas. Recent developments of note:
   
  • Family reunited on compassionate grounds

    In November the Immigration Minister, Senator Vanstone, exercised her discretion to grant visas to an Iranian asylum seeker who had been held in the Baxter Detention Centre and to his two children. The children had been living alone in Indonesia after their mother was killed in the Bali bombings in 2002.

    • "Bali children reunited with father," The Age, 29 November 2003
       
    • "Labor welcomes Sammaki decision," AAP Newsfeed, 6 November 2003
       
  • Daily Telegraph Ignores Facts on Villawood Immigration Detention Centre

    DIMIA media release DPS 80/2003, 6 December 2003.

  • "Govt's refugees 'spin' working Democrats say"

    ABC Online 1 February 2004.

  • Nauru offshore detention centre

    On 19 December 2003, UNHCR spokesperson Ron Redmond held a press briefing to express concern at the situation at the detention camp on Nauru. "Nauru: hunger strike symptomatic of refugee despair," UNHCR News 19 December 2003.

    And last month a UNHCR spokesperson said that some Afghan asylum seekers on Nauru will likely have their application approved by the United Nations because of the deteriorating situation in Afghanistan. ("Nauru: UN says detained asylum seekers may get refugee status," UNHCR News 11 February 2004.)

    In late February many of the remaining Tampa asylum seekers received a positive determination from the UNHCR. ("Tampa Afghans given reprieve," The Age, 25 February 2004.)

    Related:

    • "Deal keeps Nauru for asylum seekers," The Age, 6 March 2004;
       
    • "Protests on Nauru," Ministerial Press Statement VPS 014/2003, 17 December 2003.
       
  • Manus Island offshore detention centre
     
    • "We need camp as deterrent: Vanstone," The Age 12 February 2004
       
    • "PNG to end Manus Island detention deal," ABC online, 20 February 2004
       
    • "Refugees feature: Australia's sledgehammer approach to asylum seekers," Amnesty International News 24 February 2004
       
    • "No man's land," The Age 26 February 2004
  
   
• Report on Immigrants' Democratic Rights

  The Australian National University has published a report, "How Well Does Australian Democracy Serve Immigrant Australians," which canvassed the rights of Australian immigrants in the context of policy, politics and access to public services.

  "Immigrants' democratic rights vulnerable," ANU Media Release 30 November 2003

  The full report is available at http://democratic.audit.anu.edu.au/
   

• ECRI Reports

  On 27 January, the European Commission against Racism and Intolerance released five reports on racism, xenophobia, anti-Semitism and intolerance, concluding its third round monitoring cycle of Belgium, Bulgaria, Norway, Slovakia and Switzerland.

  The full reports are available at http://www.coe.int/T/E/human_rights/Ecri
   

• US State Department reports

  On 18 December, the US State Department released its International Religious Freedom Report for 2003. The full report is available at http://www.state.gov/g/drl/rls/irf/2003/c10265.htm

  The 2003 "Country Reports on Human Rights Practices" was released on 25 February 2004. The report is available at http://www.state.gov/g/drl/rls/hrrpt/2003/index.htm
   

• UK report on role of interpreters

  A new study by Dr Moira Inghilleri of London's Goldsmiths College has highlighted the potential impacts of interpreters on 'just outcomes' in asylum cases. Sometimes too much reliance is placed on translators for 'political and cultural information.'

  "Refugees 'failed by translators'," BBC News 23 February 2004

  "Asylum applications: why the role of interpreters is confusing and unfair," ESRC press release 20 February 2004
   

• New from the United Nations

  Recent United Nations reports of interest (unless otherwise indicated, all of the following stories are available from the UN News Centre):

  • Australian diplomat to chair UN Commission on Human Rights

    On 19 January 2004, the United Nations Commission on Human Rights named Ambassador Michael Smith of Australia to chair the body's 60th session, which will run from 15 March to 23 April 2004.

  • Australia signs Convention Against Corruption

    The Minister for Justice and Customs, Senator Ellison, has signed the United Nations Convention Against Corruption.

    Minister for Justice & Customs press release 12 December 2003.

    The full text of the Convention is available at the Australian Treaties Library.

  • RefInt database of international instruments

    The UNHCR database of international instruments, "RefInt," has been launched on the UNHCR website. The database is found on Refworld's "Legal Information" page on the UNHCR website: http://www.unhcr.ch/research/legal.htm (select either universal or regional instruments from the pull-down menus).

  • Deteriorating situation in Nepal

    Three United Nations human rights experts have expressed deep concern at the "deteriorating situation" in Nepal, including the indiscriminate attacks against civilians by both the Nepalese Government and the Communist Party of Nepal.
     
    Joint Statement, 9 March 2004

  • Asylum seeker statistics

    On 24 February, UNHCR released a report on 2003 asylum seeker statistics:
     

    • "Asylum levels and trends: Europe and non-European Industrialized Countries, 2003: A comparative overview of asylum applications submitted in 44 European and 6 non-European countries in 2003 and before," UNHCR, 24 February 2004
       
    • "Asylum seeker numbers fall to lowest level in six years," UN News Centre, 24 February 2004
       
    • "Russians become biggest group of asylum seekers," UN News Centre, 2 December 2003
       
  • Other UN news
     
    • "Canadian Louise Arbour confirmed as High Commissioner for Human Rights," 25 February 2004
       
    • "UN Secretary General Annan calls for action to combat rising Islamaphobia and anti-Semitism," 13 January 2004
       
    • "UN refugee agency hails 2003 as 'good year in bad world' despite growing risks," 31 December 2003
       
    • "Security legislation can perpetuate emergencies - Human Rights envoy," 13 November 2003
       
    • "UN, international experts condemn curbs on freedom of expression," 18 December 2003
       
    • "World must protect migrants' rights, learn to manage movements better, Annan says," 18 December 2003
       
    • "UN refugee agency criticizes draft European Union asylum legislation," 24 November 2003
       
    • "Enlarged European Union could pose problems for asylum seekers - UN official," 22 January 2004
       
    • "Annan tells European Parliament that better migration policies will benefit all," 30 January 2004
       
    • "Facing 'enormous demands,' UN refugee agency launches $1 billion appeal," 5 December 2003
       
• Bangladesh activists and South Korea

  The Asian Human Rights Commission has launched an urgent appeal program to highlight the problems of forced deportation of migrant workers from South Korea. Two Bangladeshi trade union activists were forcibly deported on 30 December 2003. They now face prosecution by the Bangladesh government at the request of South Korean authorities.

  Additional information is available from the Asian Human Rights Commission website: http://www.ahrchk.net.

Legislation update

• Proposed Legislation for Autumn Term 2004

  The Department of Prime Minister & Cabinet has released a list of proposed legislation for Autumn Term 2004.The complete list is available at http://www.dpmc.gov.au/docs/parlinfo.cfm#parlsit.

  Of particular note:

  • Migration Legislation Amendment 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
    - prohibit the making of a statement in a visa application that is false or misleading
    - clarify a person’s ability to nominate an authorised recipient under section 494D
    - allow authorised officers to disclose International Movement Records to an individual to whom the record relates or to his/her duly appointed agent
     
  • Migration Legislation Amendment (Employer Sanctions) Bill
     
    - impose a scheme of sanctions on employers who recruit illegal workers
     
  • Criminal Code Amendment (Trafficking in Persons Offences) Bill
     
    - amend the Criminal Code to create further offences covering trafficking in persons
     
  • National Security Information (Criminal Proceedings) Bill
     
    - put in place measures to safeguard classified information that is tendered as evidence in the course of a criminal proceeding
     
• 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 12 March 2004. Parliament next sits beginning 22 March 2004.

  Full text of the Bills, Explanatory Memoranda, 2nd Reading Speeches and Bill Digests may be found in the Parliament Bills Index.

  • Migration Amendment (Duration of Detention) Bill 2004

    This Bill was introduced on 19 February 2004 and passed through the House of Representatives. The Bill amends the Migration Act 1958 to further clarify that an unlawful non-citizen must be kept in immigration detention unless a court finally determines that the detention is unlawful or that the detainee is not an unlawful non-citizen.
     
    The Bill was introduced into the Senate on 4th March and negatived on 8 March 2004.

  • Migration Legislation Amendment (Identification and Authentication) Act 2004 No 2

    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 House agreed to the Senate's amendments on 11 February 2004, and the Act received Royal Assent on 27 February. Portions of the Act have commenced upon Assent, with the remainder on the earlier of proclamation or 28 August 2004.

  • 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, where they were referred to the Senate Legal and Constitutional Legislation Committee. The Committee tabled its Report on 25 November 2003.

    Related:

    "Closer watch on migration agents," Sydney Morning Herald, 10 March 2004

    "Would-be migration agents fail new skills test," Sydney Morning Herald, 31 January 2004.

  • Migration Legislation Amendment (Children and Families) Bill 2003

    Private Member's Bill introduced 1 December 2003.

  • Racial and Religious Hatred Bill 2003 and Racial and Religious Hatred Bill 2003 [No 2]

    Private Member's Bill and Private Senator's Bill introduced 1 December 2003.

  • Sexuality and Gender Identity Discrimination Bill 2003

    Private Senator's Bill introduced 25 November 2003.

    "Democrats Bill will end Sexuality Discrimination," Media Release, 25 November 2003

  • Legislative Instruments Bills 2003

    The Legislative Instruments Act 2003 (No 139 of 2003) and Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 (No 140 of 2003) passed through Parliament in early December. Legislative instruments include regulations, ordinances, determinations and other written instruments. One of the key reforms of the new legislation will be the establishment of an electronic Federal Register of Legislative Instruments. The legislation is expected to commence in 2005, to allow time for development of IT systems and other preparations.

    Related:

    • "Building better access to delegated legislation on the way," Attorney-General News Release R044/2003, 9 December 2003;
       
    • "Legislative Instruments Bill 2003 (Cth): What is it all about?" Australian Law Librarian, vol 11, issue 4, December 2003;
       
    • "Legislation to clean up administrative black hole," Australian Financial Review, 11 July 2003
       
  • Age Discrimination Bill 2003
     
    The Age Discrimination Bill 2003 and Age Discrimination (Consequential Provisions) Bill 2003 passed the House of Representatives on 26 November and were introduced into the Senate on 1 December 2003.
     
    
  • Australian Law Reform Commission Discussion Paper on courts and national security information

    On 5 February, the Australian Law Reform Commission released a Discussion Paper for public comment, Protecting Classified and Security Sensitive Information (DP 67).

    Included in the Commission's discussion paper is the possibility of new laws that would allow certain immigration hearings to be held partly in secret.

    • "Courts need new laws to protect national security information," ALRC Media Release 5 February 2004;
       
    • Inquiry - Classified and Security Sensitive Information;
       
    • "Secrecy bid in courts under fire," The Age, 6 February 2004.
    
     
  • Review of Passports Act

    On 17 February, the Foreign Minister, Mr Downer, announced a review of the Passports Act 1938. Comments and submissions are invited until 15 March.

    • "Boost to passport security," Media Release FA 24, 17 February 2004;
       
    • Background paper & schedule of public consultations.
    
     
  • Family Court will remain secular

    The Attorney-General, Mr Ruddock, has said that the Government will not pursue a Family Law Council recommendation to allow the Family Court to withhold civil divorce proceedings pending the outcome of a religious divorce. In an article in The Australian newspaper, Mr Ruddock said that allowing the Family Court to pressure one partner for a religious divorce would threaten the nation's no-fault divorce system. However Muslim and Orthodox Jewish commentators stated that the decision could leave spouses with little power to obtain a proper divorce which would enable them to remarry under religious law.

    "Divorce will stay secular: Ruddock," The Australian, 19 January 2004 (full text available at the News Ltd Newstext archive)
     
• New regulations
   
  • Migration Amendment Regulations (No 1) 2004, SR 21 of 2004

    These regulations commenced on 1 March and concern Temporary Medical Practitioner visas (subclass 422) - onshore application and visa label-free travel; Sponsored Business Visitor visas (subclass 459); and Foreign Government Agency visa (subclass 415).
     
    Notice of Legislative Change - 1 March 2004

  • Migration Amendment Regulations (No 9) 2003, SR 296 of 2003

    These regulations commenced on 1 December and pertain to student visas.

  • Migration Amendment Regulations (No 10) 2003, SR 362 of 2003

    These regulations commenced on 1 January and were made in furtherance of the Government's efforts against people-trafficking.

  • Migration Amendment Regulations (No 11) 2003, SR 363 of 2003

    These regulations commenced on 1 January and pertain to retirement visas.

• State Legislation
   
  • ACT Bill of Rights

    The Australian Capital Territory has become the first Australian jurisdiction to enact a Bill of Rights.

    • "Human rights at the heart of a just society: a Bill of Rights for the ACT," Chief Minister's Media Release 3 March 2004
       
    • Full text of the Human Rights Bill 2003 (ACT) - now Act No 5 of 2004, notified 10 March 2004.
       
  • Parentage Act 2004 No 1 (ACT) and Sexuality Discrimination Legislation Amendment Act 2004 No 2 (ACT)
     
    These Acts from the Australian Capital Territory (ACT) will grant legal recognition of parenting relationships for the children of same sex couples. Both Acts were notified on 18th February, to be fully operational on 19 August 2004 or upon earlier proclamation.
     
    • "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 Legislation is available at http://www.legislation.act.gov.au/
       
  • Relationships Act 2003 No 44 (Tas)

    The Relationships Act (Tasmania) received Royal Assent in September 2003 and commenced on 1 January 2004. The Act is intended to recognise a wide range of non-marital relationships.

    Tasmanian legislation is found at http://www.thelaw.tas.gov.au/

  • Law Reform (Gender, Sexuality and Defacto Relationships) Act 2004 No 1 (NT)

    This Act is intended to reform Northern Territory law to remove illegal distinctions based on a person's gender, sexuality or de facto relationship with another person. The Act received Royal Assent on 7 January 2004.

    Northern Territory legislation is found at http://www.nt.gov.au/dcm/cabinet/register.shtml

Other government news

• Australian Government national security measures since 11 September 2001

  On 19 February, Attorney-General Ruddock issued a 7-page statement outlining the national security measures taken by the Australian government since 11 September 2001. The document is arranged under the headings of legislation, national approach, coordination, intelligence, law enforcement, border protection, international, and defence.

  Statement by the Attorney-General, 19 February 2004.
   
  "Be alert for terrorism, bosses told," The Age, 26 February 2004.

• New Australian visa application arrangements for India

  As at 1 March, applicants for tourist or business visas from India will be able to lodge their applications at several new centres. Details of the visa application and collection centres can be found at http://www.ausgovindia.com/.

  Media Release DPS 015/2004, 20 February 2004.

• Reminder for New Zealanders

  DIMIA have issued a media release reminding New Zealanders that certain New Zealand citizens who did not apply for a Certificate of Residence before 26th February 2004, will need to acquire a permanent residence visa before they can apply for Australian citizenship or sponsor family members for permanent residence in Australia.

  Media Release DPS 014/2004, 18 February 2004.

• Update on regional migration

  The Minister for Citizenship, Mr Hardgrave, and the Immigration Minister, Senator Vanstone, have issued statements highlighting the effects of migration on Australian population statistics, and in particular regional migration.

  In related news, Access Economics has released a report which concluded that each migrant is worth at least $250,000 to the Australian economy. Refugees are worth at least $111,000 to State and Federal budgets.

  • "More migrants moving to Tasmania," Media Release H200/2003, 17 December 2003.
     
  • "Skilled migrants help bolster SA Economy," Media Release VPS 013/2003, 17 December 2003.
     
  • "Migrants help Australia reach 20 million," Media Release H185/2003, 4 December 2003.
     
  • "A hard-working $250,000 says migrants pay their way," Sydney Morning Herald, 6 December 2003.
     
  • The October 2003 report, "The Importance of Age in Migrants' Fiscal Impact," is found at http://www.accesseconomics.com.au/ (follow links to Project Consulting - Key Public Reports).
     
• Immigration dob-in line

  A new free telephone hotline has been launched to encourage members of the public to "dob-in" (report) illegal workers and visa overstayers.

  • "Immigration dob-in line launched," Media Release VPS 038/2004, 19 February 2004
     
  • "Immigration cheat hotline launched," Sydney Morning Herald, 19 February 2004
     
  In addition, 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:
   
  • "Immigration raids catch 126 illegals in Sydney," Media Release VPS 011/2003, 14 December 2003
     
  • "Immigration targets all industries," Media Release DPS 003/2004, 15 January 2004
     
  • "Six women detained in Canberra," Media Release DPS 013/2004, 16 February 2004
     
  • "Six illegals detained in Sydney," Media Release DPS 009/2004, 2 February 2004
     
  • "Twenty-one illegals located in Sydney," Media Release DPS 011/2004, 8 February 2004
     
  People are advised not to breach conditions of visas or to work illegally, because the risk of detection is now very high and serious consequences flow from immigration misconduct.
   

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

• High Court annual report

  The High Court's 2002-03 Annual Report was tabled on 22 January 2004. Migration matters made up 82 per cent of High Court matters filed last year, compared with 41 per cent in the previous year.

  • High Court Annual Report
     
  • "High Court workload needs addressing," Attorney-General's Media Release 007/2004, 22 January 2004
     
  • "Asylum cases jump 600 per cent," The Age, 23 January 2004
     
  • "Asylum seeker fee waiver review," The Australian, 23 January 2004
     
• Pending detention cases

  As at time of writing, several cases pertaining to mandatory detention of asylum seekers are pending in the High Court, including:

  • Re Woolley & Anor Ex parte: Applicants M276/2003 by their next friend GS , (M276/2003)

    Immigration - children - detention upon immigration - applicants are Afghani citizens who are children aged 15, 13, 11 and 8 - each applicant entered Australia with their parents - applicants and other members of their family were detained upon entering Australia - whether detention of children authorised by Migration Act 1958 (Cth), ss 189 or 196 - whether, if so authorised, ss 189 or 196 are invalid exercises of Commonwealth power - whether there are viable alternatives to detention if invalid.

    The Human Rights and Equal Opportunity Commission was granted leave to intervene in this case. Arguments were heard 3 February 2004; the Court has reserved its decision.

    Media Release, 3 February 2004 (includes link to HREOC's submissions)

  
   
• Shaw v MIMA, [2003] HCA 72, 9 December 2003

  This case involved 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 was 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.

  The High Court held that all British settlers who arrived in Australia after 1949 are 'aliens' unless they have become Australian citizens. Therefore any non-citizen British migrants who arrived in Australia after 1949 may now be deported if, for example, convicted of a serious crime.

  Related:

  • "Australian citizenship invitation renewed," Media Release H198/2003, 16 December 2003
     
  • "High Court ruling stresses importance of citizenship," Australian Labor Party Media Release, 12 December 2003
     
  • "Deporting British Settlers," Parliamentary Library Research Note, 10 February 2004
     
• Appellant S395/2002 v MIMIA; Appellant S [2003] HCA 71, 9 December 2003

  This was an asylum claim in which the particular social group was identified as homosexual men in Bangladesh. The issue before the High Court was whether there had been an error of law by the Refugee Review Tribunal in finding that there was no real chance of persecution because the appellants conducted themselves discreetly and would continue to do so. A majority of the High Court found that the RRT had erred and remitted the matter for re-determination.

• Singh v Commonwealth of Australia [2004] HCATrans 5, HCATrans 6 (10 & 11 February 2004)
   
  Immigration - citizenship - ramifications of birth in Australia - plaintiff was born in Australia on 5 February 1998 to two Indian citizens - whether plaintiff acquired Australian citizenship by birth in Australia on 5 February 1998 and has retained it since that date. The High Court heard oral argument on 10 & 11 February 2004, and has reserved its decision.
   
  Related:
   
  • "Asylum seekers' child challenges citizenship law," The Age, 11 February 2004
     
  • "We are Australian: The Constitution and Deportation of Australian-born Children," Parliamentary Library Research Paper, 24 November 2003 (56 pages)
  
   
• MIMIA v SGLB (A256/2003)

  Scope of judicial review - nature of "no evidence" ground in judicial review - issue of competency where respondent found to suffer psychiatric condition - respondent an Iranian national who applied for a protection visa - RRT found respondent highly likely to be suffering from Post Traumatic Stress Disorder but went on to dismiss his application in any event. Federal Court found that there was no evidence that respondent suffered from PTSD and that RRT had incorrectly assessed his evidence on the basis that he did - Federal Court also found that, having found that respondent suffered from PTSD, it was incumbent on RRT to ensure that he could continue to participate in proceedings - whether finding of "no evidence" of PTSD constituted a reviewable error pursuant to Judiciary Act 1903 (Cth), s 39B. Whether RRT was obliged to make further inquiries in relation to possibility that respondent suffered PTSD - whether Migration Act 1958 (Cth) implied a competence requirement precluding a person suffering PTSD from taking part in proceedings - whether RRT fell into jurisdictional error of a type identified in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.
   
  Appealed from Federal Court. Date heard: 12 February 2004. Judgment reserved.

• High Court special leave applications

  Pending High Court special leave applications are summarised in the High Court Bulletin.

  • MIMIA v Scargill, MIMIA v Lobo [2004] HCATrans 21 (13 February 2004)

    This was a special leave application brought by MIMIA against an adverse judgment of the Full Federal Court concerning the application of the Migration Act privative clause in the context of a Business Skills (Residence) visa grant criterion. The High Court reiterated its holding in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, and refused the Minister's Application for Special Leave to Appeal.

    Parish Patience Immigration Senior Associate Nigel Dobbie represented the Lobo family.

  • Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (S323/2002)

    Immigration - refugee status - relevance of being compelled to live discreetly - applicant citizen of Iran - applicant claimed fear of persecution by reason of his recent conversion from Islam to Christianity - Refugee Review Tribunal (“RRT”) found that Iranian converts to Christianity who went about their devotions quietly and maintained a low profile were generally not disturbed - no consideration given to issue of whether proselytizing was an essential aspect of applicant’s new found faith - whether reasoning of RRT was reconcilable with decision of High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71.
     
    Appealed from Full Court of the Federal Court. Date heard: 17 February 2004. Special leave granted subject to filing of suitable Notice of Appeal.

House of Lords

• Al-Ameri v Royal Borough of Kensington and Chelsea [2004] UKHL 4 (5 February 2004)

  The House of Lords has held that destitute asylum seekers may not be compelled to accept accommodation away from London.
   
  "Law lords allow refugees to live where they choose," The Guardian, 6 February 2004.

For additional information about Court appeals, we invite you to contact David Bitel or Nigel Dobbie.

Diary dates

• March 21: Harmony Day. More information from www.immi.gov.au/harmony/
   
• March 27-29: Migration Institute of Australia National Conference, Adelaide, South Australia. Annette Aitken from Parish Patience Immigration will attend. More information from www.mia.org.au/natconf2004.htm
   
• April 12-16: David Bitel consultations in the Philippines. Applicants wishing to make an appointment should email a résumé with their request for an appointment to Mr Bitel's secretary, Ina Tempra, or ring Ina on tel. +61 2 9286 8700. A consultation fee will apply.
   
• May 16-23: David Bitel consultations in Bangladesh. Applicants wishing to make an appointment should email a résumé with their request for an appointment to Mr Bitel's secretary, Ina Tempra, or ring Ina on tel. +61 2 9286 8700. A consultation fee will apply.
   
• June 9-13: American Immigration Lawyers Association Annual Conference, Philadelphia USA. Senior Associate Nigel Dobbie will participate as a Panellist - Global Immigration Issues Track. More information from http://www.aila.org
   
• June 23-July 3: David Bitel consultations in the Philippines. Applicants wishing to make an appointment should email a résumé with their request for an appointment to Mr Bitel's secretary, Ina Tempra, or ring Ina on tel. +61 2 9286 8700. A consultation fee will apply.
   
• August 27-29: ICJ Biennial Conference Berlin, Germany. David Bitel will attend. More information at www.icj.org
   
• October 24-29: International Bar Association Conference 2004, Auckland, New Zealand. Managing Partner David Bitel will attend. More information from http://www.ibanet.org
   
• 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

" Even a hunter cannot kill a bird which flies to him for refuge."

                                   - Samurai maxim

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
Send us a message

Registered Migration Agents 9255523, 9359088, 9370721,
9800540, 9802999, 0004435, 0106541, 0322805, 0322836

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