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Parish Patience Solicitors, Immigration Law Section
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  Counting the Cost

Refugees - the cost of living, or staying alive

The legislation designed by the government to prevent access to the Courts in immigration and refugee cases remains before the Senate for further debate -- see Issue No. 3 for details. Whether it eventually becomes law will depend on whether the government can have it voted on before July, when the Senators elected in October take their seats and give Labor and the Democrats a clear majority (both parties have indicated that they will oppose it). Even now, to pass it the government will need the support of independent Senators Harradine and Colston, which is by no means guaranteed.

The government took up where its predecessor left off in attacking the Federal Court's role of ruling on the legality of administrative decisions, particularly those involving refugees. In a speech to the National Press Club on 18 March 1998, the Minister quoted the following figures:

Over the four years since the establishment of the Refugee Review Tribunal (RRT), 10 008 decisions to refuse refugee status or Protection Visas were taken by my Department and upheld by the RRT. Of these, 979 then appealed to the federal court: 21 were ultimately successful. This whole process cost the Australian taxpayer approximately $20 million.

When he says that "21 were ultimately successful", he means that 21 people were eventually able to establish that they were refugees within the meaning of the Convention on the Status of Refugees of 1951, after their claims had been rejected by the Department of Immigration and the Refugee Review Tribunal. Apparently this cost about $20 million. And apparently, to quote the Minister, this is "just not on".

But what does it really mean for a person to be recognised as a refugee? The substance of the definition contained in the Convention is that a refugee has "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion". The High Court of Australia has made it clear in Chan's case that persecution means depriving a person of their life, liberty or basic human rights, or causing them serious harm of some sort. A refugee claimant has to show that there is a "real chance" such persecution will occur if he or she is sent back.

Interpreting the Minister's figures in this way, it cost about $20 million so that 21 people who faced a real chance of losing their life, liberty or basic human rights, or of suffering some form or serious harm, could get refuge in Australia. Can the Minister really be saying that it is "just not on" to spend a little under a million dollars to save a human life?

What is really "not on" is the danger that this legislation could possibly get through a Senate that has already been voted out of office.

Minister's speech: http://www.minister.immi.gov.au/trans98/spe18-3.htm
Refugee Convention: http://www.unhcr.ch/refworld/legal/instruments/asylum/1951eng.htm
Chan's case: http://www.austlii.edu.au/au/cases/cth/high_ct/169clr379.html

Classification of occupations

In Issue No. 4 we reported on the proposed changes to the skilled migration program to take effect from 1 July. The changes are outlined in the Department's Fact Sheet No. 36. While there may be refinements to the details between now and July, we assume the new provisions will be more or less as described in the Fact Sheet.

(NB: the term "skilled migration" covers several visa categories, but the two we are concerned with here are the Independent and Skilled Australia-Linked (SAL) classes, covering subclasses 105, 106, 126 and 135.)

The key to points-tested skilled migration to Australia, both under the present and future programs, is the "usual occupation" of the applicant. This term is given a precise meaning in the Regulations:

"usual occupation" means an occupation that the applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa.

Identifying the occupation to be assessed is usually the most difficult part of any application. In the great majority of cases, it involves relating the applicant's job description to one of the six-digit occupational codes in the Australian Standard Classification of Occupations (ASCO) Dictionary published by the Australian Bureau of Statistics.

Once the applicant's usual occupation has been identified, points are awarded on the basis of the Australian standards of training and/or work experience needed to engage in that occupation. Under the current scheme, occupations requiring a degree or trade certificate are given the highest points, followed by occupations requiring a diploma or associate-diploma, and so on.

The scheme virtually ignores the level of demand for particular skills in the Australian workforce, with the result that occupations such as musicologist (requiring a degree) or blacksmith (requiring a trade certificate) get higher points than the ever-expanding area of "Associate Professionals", which according to the government's Skilled Vacancy Survey is the strongest growing area of the workforce (53.5% in the year to December 1998). The usual training requirement for such occupations is a diploma. The result is that migrants who assume they will find a job in Australia because they have passed the points test find out to their great cost that there is no work for them here.

The new scheme goes some way towards recognising this problem by contemplating a "Migration Occupations in Demand List", but it still discounts diploma-level occupations by ten points with respect to degree-level occupations while allowing only a five point catch up for high demand. So a computer support technician (requiring a diploma), even if listed on the MODL, will still come in five points behind the musicologist or blacksmith.

One area in which the new scheme does differ substantially from current practice is the way in which occupational assessment is to be carried out. At present an application is lodged with an Australian immigration post overseas and an occupational assessment carried out in due course (usually well over 12 months later) by the post, following which the applicant is advised to seek assessment of his or her occupational skills from a "relevant Australian authority". Under the new scheme, applicants will be required to obtain an assessment from the relevant authority before applying for the visa.

There are obvious advantages in the new approach. Under the current arrangements, applicants have to pay the substantial visa application fee ($1,060.00) before they can have their qualifications assessed. If they fail the assessment, the application fee is not refunded.

It must be said, however, that the new scheme appears to unload significant legal responsibilities onto the "relevant Australian authorities" that those authorities may not really be aware of or prepared to accept. According to the Regulations, the "relevant Australian authority" for assessing a given occupation is:

(a) NOOSR, or any body authorised in writing by NOOSR to assess educational qualifications or work experience on behalf of NOOSR; or

(b) the Department of Workplace Relations and Small Business; or

(c) if the circumstances of a case preclude an authority referred to in paragraph (a) or (b) from making an assessment, the Minister;

(NOOSR is the National Office of Overseas Skills Recognition)

A recent Federal Court case illustrates the problem. In Alkaab v Minister for Immigration the Court held that the method of assessing the professional skills of translators used by the National Accreditation Authority for Translators and Interpreters (NAATI) was unlawful for immigration purposes. Under the present system, since the assessment was part of the visa application process, the Federal Court case was brought by the applicant against the Minister for Immigration. Presumably, under the new scheme, where the immigration authorities do not become involved until after the assessment process is completed, the Court action would have had to be brought against NAATI, which is a non-government professional organisation set up to regulate the translating and interpreting profession in Australia and which probably has little experience and scarce resources for defending Federal Court actions.

It is apparent that a lot more work needs to be done in framing the legislation in this area. We will keep readers informed as new developments are announced.

Fact Sheet No. 36: http://www.immi.gov.au/facts/36changes.htm
Migration Regulations: http://scaleplus.law.gov.au/html/pastereg/1/575/0/PR000010.htm
Skilled Vacancy Survey: http://employment.dewrsb.gov.au/aed/svs/svsdec98/svsdec98.htm
Alkaab v Minister for Immigration: http://www.austlii.edu.au/au/cases/cth/federal_ct/1998/1353.html
NAATI: http://www.naati.com.au/

Hot links

With each edition of Australian Immigration Law Update we will try to find some new or interesting sites that you might enjoy visiting. This month, you might like to try out some of these:

• http://www.nla.gov.au/oz/npapers.html - Listing of Austrlian newspapers on the internet compiled by the Australian National Library
• http://employment.dewrsb.gov.au/aed/skillshort/skillshort.htm - National and State skills shortages lists, compiled by the Department of Employment, Workplace Relations and Small Business
• http://headlines.yahoo.com/FC/World/EMU/ - Yahoo listing of sites dealing with the inauguration of the Euro currency zone

Contact us:

Parish Patience Immigration
Level 1, State Street Centre
338 Pitt Street
SYDNEY NSW 2000
AUSTRALIA 

Tel: +612 9286 8700
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Liability is limited by the Solicitors Scheme under the Professional Standards Act 1994 (NSW)

Previous editions:

• Issue No 1, September 1998
• Issue No 2, October 1998
• Issue No 3, November 1998
• Issue No 4, December 1998

Copyright © Parish Patience Solicitors 1999. All rights reserved.