Parish Patience Immigration Home Page

   
   
Australian Immigration Law Update No. 52, October 2004
     
     
     

  • Staff news
    Nigel Dobbie Accredited Specialist
    Conferences & consultations
    Position vacant
    New on our website
     
  • Skilled migration & business entry
    Skilled Occupation List (SOL)
    Migration Occupations in Demand List (MODL)
    Sydney & Selected Areas Skilled Shortage List (SSASSL)
    Complete Application Strategy Checklists
    NSW to recruit overseas nurses
    880/881 visas may be evidenced in Sydney
     
  • Asylum seekers & refugees
    Temporary Protection Visas
    Mandatory Detention
    Humanitarian aid & refugee services
    Country reports
    United Nations news
     
  • Human rights & civil rights
    Domestic relationships update
    Amnesty Secretary visit to Australia
     

  • Other government news
    Coalition Government re-elected
    Assurance of support
    Change of address notification
    Guide to processing times
    Australian Family law system explained
    Guide to Family Assistance payments
    Blitz on restaurant wages
    Crime prevention for small business
    Visa evidencing for India and Nepal
    Visa processing for Indonesia
    Letter to the editor
    Updated Fact Sheets
    Statistics and research
     
  • Legislation update
     
  • Recent case law
     
  • Diary dates
     
  • Quote of the month
     
  • Contact us

 

Staff news

  • Nigel Dobbie accredited as Specialist in Immigration Law

    Congratulations to Senior Associate Nigel Dobbie, who has been accredited by the Law Society of New South Wales as an Accredited Specialist in Immigration Law. Accredited Specialist status is only awarded to those solicitors who have substantial experience in their particular practice area, and who have passed a rigourous examination. Currently there are 22 Immigration Law Accredited Specialists in New South Wales.
     
    Parish Patience Immigration can now offer the services of two Accredited Specialists: Nigel Dobbie and Managing Partner David Bitel. We are also one of the very few firms whose staff includes Migration Agents with more then 10 years' experience in the migration advice industry.
     
    Contact Nigel Dobbie.

  • Conferences & consultations

    • On August 12, Nigel Dobbie spoke at the Immigration Advice and Rights Centre (IARC) on the topic, "Dealing with Onshore Visa Cancellations under Section 116 of the Migration Act." The paper was also presented at a Migration Institute of Australia seminar on 20 September.
       
    • Nigel Dobbie also attended the American Immigration Lawyers Association Global Immigration Summit in New York late last month, where he participated in the panel session, "Comparative Asylum/Refugee Practices."
       
      Contact Nigel Dobbie, Senior Associate.
       
    • On October 8, David Bitel gave a talk on refugee issues to the FAIR Conference on Religion, Race and Rhetoric in Sydney.
       
    • David Bitel has joined the Immigration Lawyers Association of Australasia, and attended its Inaugural AGM in Melbourne on 15 October.
       
    • David Bitel will attend and present a paper to the International Bar Association Conference in Auckland, New Zealand, from 25-29 October. David is Senior Vice Chair of Committee 14 (Migration and Nationality) of the Section on Legal Practice of the International Bar Association and a member of the executive of the IBA. He will also be available for consultations regarding Australian migration and visas.
       
    • David Bitel will also travel to the Philippines in mid-November. He will be available for consultations in Manila regarding Australian migration and visas.
       
      Contact David Bitel, Managing Partner.
       

  • Position vacant

    Parish Patience Immigration are seeking a full-time Receptionist to join our team. The successful applicant will have had substantial experience dealing with the public, and enjoy working in a very busy and multicultural environment. Duties include greeting our clients, answering telephone switchboard and email enquiries, ordering stationery, and controlling mail and courier deliveries. An excellent command of written and spoken English is required, as well as familiarity with computers. An ability to converse in a second language would be an advantage. Applicants are invited to register their interest with Liz Fernandez, Office Manager


     
  • New on our website

    • Articles page - "Dealing with onshore visa cancellations under section 116 of the Migration Act 1958 (Cth) (student and visitor visa cancellations)" - paper presented at Migration Institute of Australia NSW State Conference by Nigel Dobbie
       
    • Articles page - "'Effective Protection' in Australian Law, from 'UNHCR Discussion Paper: The Principle of Effective Protection Elsewhere'" - by David Bitel
       
    • Refugees page - Revised Refugee Council of Australia media release regarding the new arrangements for Temporary Protection Visa holders. David Bitel is the President of the Refugee Council of Australia.
       
    • About Us page - Staff profiles of Nigel Dobbie and Nicholas McNally have been updated.
       


Skilled migration & business entry

  • Skilled Occupation List
     
    From 8 September, the Skilled Occupations List (SOL) has been expanded to include environmental research scientists, foresters, park rangers, soil scientists, agricultural scientists and agricultural advisers.
     
    Additional information:
     

     
    For additional information we invite you to contact Etienne Hugo, Solicitor.
     
     
  • Migration Occupations in Demand List (MODL)
     
    The Migration Occupations in Demand List (MODL), which gives skilled applicants bonus points under points-tested visa categories, has been expanded to again include accountants, along with a number of traditional trade occupations. The following occupations were added effective 8 September 2004:
     
    OccupationASCO Code
    Professional 
    Accountant2211-11
    Trade Persons 
    Automotive Electrician4212-11
    Fitter4112-11
    Furniture Upholsterer4942-11
    Metal Fabricator (Boilermaker)4122-11
    Metal Machinist (First Class)4112-13
    Motor Mechanic4211-11
    Panel Beater4213-11
    Pastry Cook4512-13
    Sheet Metal Worker (First Class)4124-11
    Toolmaker4113-11
    Vehicle Painter4214-11
    Welder (First Class)4122-15

     
    Additional information:
     

    For additional information we invite you to contact Etienne Hugo, Solicitor.
     
  • Sydney and Selected Areas Skilled Shortage List (SSASSL)
     
    From 8 September, anyone applying for a Skilled-Australian Sponsored visa (subclass 138) whose sponsor lives in Sydney, Gosford, Newcastle or Wollongong must nominate a skilled occupation that is on the Sydney and Selected Areas Skilled Shortage List (SSASSL).
     
    Additional information:
     
    Some clients who had VETASSESS applications pending at the time of the change may be affected. For additional information about SSASSL, we invite you to contact Thong Nguyen, Migration Agent.
     
  • Complete Application Strategy Checklists
     
    DIMIA has issued a series of Complete Application Strategy Checklists for the various categories of Skilled Migration applications. Parish Patience Immigration has incorporated these checklists into our client submissions.
     
  • New South Wales to recruit overseas nurses
     
    The NSW Health Minister, Mr Iemma, has announced a new strategy to recruit nurses and midwives to the New South Wales health system: "Overseas recruitment strategy to boost nurse numbers," NSW Minister for Health Media Release, 27 September 2004.
     
    For additional information about visas for health professionals, we invite you to contact Sharon McCabe, Migration Agent.
     
  • Subclass 880/881 may be evidenced in Sydney
     
    We have been advised that DIMIA now will allow Skilled-Independent and Sponsored Overseas Student (subclasses 880 and 881) visas to be endorsed in Sydney and presumably in other capital cities. This will result in savings in time and cost (assuming everything is in order), as applicants would not have to send passports by courier or mail to the Adelaide processing centre.
     
    For additional information about Skilled-Independent Overseas Student visas, we invite you to contact Diana Tong, Partner.
     

Asylum seekers and refugees

  • Temporary Protection Visas - change to government policy
     
    On 13 July 2004, the Minister for Immigration, Senator Vanstone, announced that approximately 9500 temporary protection visa holders would have the opportunity to apply for mainstream migration visas to enable them to remain in Australia permanently, without needing to leave the country to lodge their applications.
     
    Senator Vanstone also announced a new return-pending visa, which would allow people not in need of further protection, eighteen months in which to make arrangements to return to their home country or elsewhere, or effectively time to make themselves eligible to apply for permanent or temporary residence under a non-humanitarian visa.
     
    Initial media reports seemed to indicate that permanent protection for most TPV holders would be automatic. This is not the case. Further details are available in David Bitel's response paper on behalf of the Refugee Council of Australia.
     
    Regulations detailing the changes commenced on 27 August 2004.
     
    Additional information:
     
    • Migration Amendment Regulations 2004 (No. 6) 2004 No. 269, available on Scaleplus
       
    • "RCOA Response to Announced TPV Changes," Refugee Council of Australia (pdf), August 2004 (by David Bitel)
       
    • "Measures for Temporary Protection and Temporary Humanitarian Visa holders," DIMIA fact sheet, updated 27 August 2004
       
    • "New TPV Measures to Commence on 27 August 2004," Minister's Press Statement VPS 122/2004, 24 August 2004
       
    • Fact Sheets - New Fact Sheets 64a, 64b, 64c and 64d, 24 August 2004
       
    • "Devil in the detail of temporary protection visas," Australian Financial Review, 24 September 2004
       
    • "Go bush, get a job or fall in love, visa hopefuls told," Sydney Morning Herald, 25 August 2004
       
    • "Refugees' choice: go bush or get married," The Australian, 25 August 2004
       
    • "Visa rules relaxed for 9500 refugees," Australian Financial Review, 25 August 2004
       

     
  • Mandatory Detention
     
    • High Court decisions
       
      Two decisions were brought down on 7 October 2004 pertaining to indefinite mandatory detention and mandatory detention of children. Case summaries are found in the Recent Case law section of this Newsletter.
       
    • Government media releases

      Recent government news pertaining to mandatory detention:
       

      • "Al-Masri decisions," Minister's Press Statement VPS 126/2004, 31 August 2004
         
      • "Reassessment of Afghani nationals in mainland detention," Minister's Press Statement VPS 125/2004, 31 August 2004
         
      • "Reassessment of Iraqi nationals," Minister's Press Statement VPS 124/2004, 31 August 2004
         
      • "Minister opens new visitor facilities at Villawood Detention Centre," Minister's Press Statement VPS 121/2004, 18 August 2004
         
      • "[Two] Stateless detainees get bridging visas in review," The Age, 1 September 2004
         
      • "Visa rules relaxed for 9500 refugees," Australian Financial Review, 25 August 2004
         

  • Humanitarian aid and refugee services
     
    Recent Australian Government media releases of interest:
     
    • "Onshore Lodgement: Advice for Humanitarian Program Applicants (and Proposers) in Kenya, Egypt, Sudan, Ethiopia, Somalia, Tanzania, Uganda, Burkina Faso, Burundi, Central African Republic, Chad, Democratic Republic Of Congo (formerly Zaire), Djibouti, Eritrea, Niger, Rwanda, Algeria, Libya, Morocco, And Tunisia," - DIMIA Fact sheet regarding changed arrangements from 1 September 2004
       
    • "Improvements to African humanitarian visa processing," DIMIA Media release DPS 083/2004 , 24 August 2004
       
    • "Humanitarian settlement in regional Australia," DIMIA Fact sheet 97, updated 1 September 2004
       
    • "Review of settlement services for migrants and humanitarian entrants," DIMIA Fact sheet 96, updated 1 September 2004
       
    • "Australia to help fly aid workers into Sudan," AUSAID Media release , 25 August 2004

     
  • Country reports
     
    Recent country reports of interest:
     
    • US State Department annual report on International Religious Freedom - Saudi Arabia and Bangladesh have been added to the list of "countries of particular concern."
       
    • Freedom of the Press Survey 2004 - from Freedom House.
       
    • Between a Rock and a Hard Place - Human Rights Watch report on Nepal (104 pages).
       
    • According to a recent news article, the European Union is planning to create a "white list" of 10 nations from which asylum applications will be presumed to be unfounded. The list includes 7 African countries and three from Central and South America. ("EU list cuts off asylum seekers in 10 countries," Sydney Morning Herald, 28 September 2004 [available at the Fairfax Newsstore archive]).
       
    • The Edmund Rice Centre in Sydney has published a report on the fate of asylum seekers who have been deported from Australia, "No Liability - Tragic results from Australia's deportations."  The Minister for Immigration, Senator Vanstone, has said that the report appears to contain unsubstantiated allegations similar to an interim report published last year, although she would consider any new allegations. ("Doubt over deportee claims," Sydney Morning Herald, 30 September 2004 [available at the Fairfax Newsstore archive])

     
  • United Nations news

    Mr Neill Wright has commenced duties as UNHCR Regional Representative in Canberra. We extend to him a welcome to Australia and wish him well in his new position.
     
    Recent United Nations media releases and reports of interest:
     

    • "Asylum debate ignores real problems faced by refugees," UN News Centre, 7 October 2004
       
    • "Refugee protection a necessity, not a policy choice," UN News Centre, 7 October 2004 (UNHCR's Director of International Protection address to the agency's annual Executive Committee meeting)
       
    • "Refugees facing a less friendly environment, UN High Commissioner warns," UN News Centre, 4 October 2004
       
    • "Number of asylum seekers in industrialized countries plunges to 1987 level," UN News Centre, 31 August 2004
       
    • "Trends in refugee status determination 1 January - 30 June 2004," (pdf) UNHCR, 20 September 2004
       
    • "Refugee trends 1 January - 30 June 2004," (pdf) UNHCR, 20 September 2004
       
    • "Australian lawyer [Philip Alston] chosen as UN monitor of extrajudicial and summary executions," UN News Centre, 3 August 2004
       
    • Two new Legal and Protection Policy Papers were released in June 2004:
       
      • "Under what circumstances can a person who has taken an active part in the hostilities of an international or non-international armed conflict become an asylum seeker?" and
         
      • "Maintaining the civilian and humanitarian character of asylum."
         
      The papers are available at the Refworld Legal Information page on the UNHCR website (follow the links to "Refugee Policy and Practice" - "Research, background and discussion papers).

    •  

    Human rights and civil rights
     

    • Domestic relationships update:
       
      • Portugal has become the first country in Europe, and the fourth worldwide, to explicitly ban sexual orientation discrimination by constitutional legislation. The other countries are Ecuador, Fiji and South Africa. This information contributed by Dr Helmut Graupner, 1 August 2004.
         
      • On 2 September 2004, the Delhi High Court dismissed a legal challenge to India's sodomy law. According to the International Gay & Lesbian Human Rights Commission (IGLHRC), the laws are commonly used to harass lesbian, gay, bisexual and transgender persons. ("Indian High Court dismisses sodomy law challenge," IGLHRC, 3 September 2004)
         
      • According to a recent news report, a Civil Unions Bill and a Relationships (Statutory References) Bill are currently under consideration in New Zealand. ("Civil Unions bill impact 'will be a shock'", New Zealand Herald, 26 August 2004, and see New Zealand Herald feature on Civil Unions)
         
      • In the United States, a King County Superior Court judge has ruled that same-sex marriage is legal in Washington State. The decision will be appealed to the State's Supreme Court. "King County judge rules in favor of same-sex marriage," Seattle Times, 4 August 2004 (includes link to decision).
         
      • South Australia has introduced legislation to extend its de facto relationships legislation to same sex couples. Statutes Amendment (Relationships) Bill 2004 (SA), reported in CCH Daily Email Alert 29 September 2004.
         
      • Western Australia has introduced legislation to extend its criminal law to cover racial vilification. Criminal Code Amendment (Racial Vilification) Bill 2004 (WA), reported in CCH Daily Email Alert 1 September 2004.
         

    • Amnesty Secretary General visit to Australia

      On 8 September, Amnesty International Secretary General Irene Khan delivered a lecture at the University of South Australia on the topic, "Security for Whom? Redesigning security, reinforcing human rights."


       

    Other government and immigration news

    • Coalition government re-elected

      On 9 October, the Coalition Government was re-elected with an increased majority. For the first time in many years, it appears that the Government will have a majority in both Houses of Parliament. Potential migrants can expect a continuation of existing policy.
       
      Senator Vanstone has retained her portfolio as Minister for Immigration and Multicultural and Indigenous Affairs. The Hon Peter McGauran MP has become Minister for Citizenship and Multicultural Affairs.
       
      "Fourth Howard Ministry," Prime Minister's Media Release 22 October 2004.

    • Assurance of support

      From 1 July 2004 Assurance of Support processing is dealt with by Centrelink, not DIMIA.
       
      For additional information see DIMIA summary of legislative change (1 July 2004), or we invite you to contact Robert Liu, Solicitor.

    • Importance of notifying change of address
       
      We wish to remind applicants who have matters pending before the Migration Review Tribunal and Refugee Review Tribunal of the importance of notifying both the Department and the relevant Tribunal of any change of residential address. It is also important to have any Bridging Visa evidenced on your passport where possible. A conflicting record between DIMIA and the Tribunal could result in one being detained.
       
      In addition clients should notify us immediately of any change of residential or postal address. An application filed with an incorrect residential address notified is technically invalid.
       
      Clients who have questions about their obligations regarding change of address notification should contact their migration agent.
       
    • Guide to processing times

      Through our membership in the Migration Institute of Australia, we periodically receive a DIMIA Guide to Processing Times. Clients who wish to review this information are invited to contact us.

    • Australian Family Law system explained

      The Government has announced funding for a new program to assist Afghan, Somali, Eritrean, Ethiopian, Sudanese and Iraqi communities understand Australia's family law system.
       
      "Partnership to help migrant communities understand Australia's family law system," Media Release H157/2004, 20 August 2004.

    • Guide to Family Assistance payments
       
      The Minister for Family and Community Services, Senator Patterson, has released a new guidebook to provide families and communities with information about family assistance payments - "The What, Why and How of Family Assistance."
       
    • Blitz on restaurant wages
       
      The NSW Department of Industrial Relations recently inspected more than 500 Sydney restaurants to ensure staff were being paid correct wages and entitlements. More than $130,000 in unpaid wages and entitlements was recovered by staff.
       
      Restaurant employees and employers can check pay rates and entitlements online by using the free service, "Check Your Pay," at http://www.industrialrelations.nsw.gov.au.
       
      Employers or employees (including casuals) who have questions about their entitlements or obligations are invited to contact Nick McNally, Solicitor.
       
    • Crime prevention for small business
       
      The Minister for Justice and Customs, Senator Ellison, has launched a new publication, "Crime Prevention Kit for Small Business." Topics include credit card fraud, shoplifting, and theft from residential building sites.
       
      "Kit helps cut crime risk for small business," Media Release E101/04, 27 July 2004.
       
    • Visa evidencing for India and Nepal

      From 1 June 2004, passports for visa evidencing in India have been collected by TT Services. Applicants are now longer required to travel to New Delhi.
       
      Further information at www.ttsaustraliavisas.com.

    • Visa processing arrangements for Indonesia

      Revised processing arrangements for visa applicants in Jakarta have been published by the Department of Immigration at http://www.immi.gov.au/jakarta/index.htm (includes information about processing times and contact details).

    • Letters to the editor
       
      Recent letters to the Editor from DIMIA Public Affairs:
       
    • Updated Fact Sheets
       
      Recent new and updated Fact Sheets from the Department of Immigration and Multicultural and Indigenous Affairs:
       
      • Fact Sheet 57 - International Event Coordinator Network;
         
      • Fact Sheet 86 - Overstayers and people in breach of visa conditions;
         
      • Fact Sheet 87 - Initiatives to combat illegal work in Australia; and
         
      • Fact Sheet 94 - English language tuition for adult migrants.
         
    • Statistics and research
       
      Two new statistical publications may be of interest:
       

    Legislation update

    • Commonwealth Bills

      A number of Bills relevant to immigration law were before Parliament when the election was called. Those Bills which had not yet passed when Parliament was prorogued will have to be reintroduced if the Government wishes to push them again. Below is a summary of their status as at 31 August 2004. Parliament next sits beginning 16 November 2004.

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

      • Migration Amendment (Judicial Review) Bill 2004
         
        This Bill reintroduces time limits in migration cases in the federal courts, including the High Court. The Bill was introduced by the Government in response to the High Court's decision in Plaintiff S157 v The Commonwealth, which was a case conducted by Parish Patience Immigration (Nigel Dobbie as instructing solicitor with Learned Counsel Duncan Kerr QC MP and Professor George Williams).
         
        Parish Patience Immigration have published a comprehensive analysis of the Bill on our articles page.
         
        This Bill passed through the House of Representatives on 25 March 2004. The Bill was then introduced into the Senate, where it was referred to Senate Legal and Constitutional Legislation Committee which tabled its report on 17 June 2004.
         
        Additional information:
         
      • Anti-terrorism Bills

        The Anti-terrorism Bill 2004 passed through Parliament with amendments and is now Act No 104 of 2004. The Anti-terrorism (No 2) and Anti-terrorism (No 3) Bills have passed through Parliament and are now Acts No. 124 and 125 of 2004. The new Acts include widened powers to seize the passports of people suspected of serious offences or harmful conduct. The Acts also create new offences in relation to falsification of travel documents. The Administrative Decisions (Judicial Review) Act 1977 has also been amended as part of these reforms.
         

      • Australian Passports Bill 2004 and Australian Passports (Application Fees) Bill 2004

        These Bills were introduced into Parliament on 24 June 2004. They have now passed through the House of Representatives and were introduced into the Senate on 4 August.
         
        Additional information:
         
        "Passport measures help secure Australia," Foreign Affairs Minister's media release 23 June 2004
         

      • National Security Information (Criminal Proceedings) Bill 2004 and National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004

        These Bills were introduced in the House of Representatives on 27 May 2004. The Bills were referred to the Senate Legal and Constitutional Legislation Committee, which tabled its report on 30 August 2004.
         
        The Law Council of Australia has warned that the Bills could result in those accused of a Commonwealth offence involving classified information being denied the right to choose their lawyer.
         
        Related:
         

        • "Lawyers Reject 'Unnecessary' Security Clearance Laws," Law Council of Australia media release, 27 May 2004;
           
        • "Ruddock seeks secret court sessions," The Age, 28 May 2004.
           

      • Marriage Amendment Bill 2004

        The Marriage Amendment Bill was introduced in the House of Representatives on 24 June 2004, has passed through Parliament and is now Act No. 126 of 2004. The amendments ensure that same-sex marriages will not be recognised in Australia.
         
        Related: "Government strengthens Marriage Act," Attorney General's media release 151/2004, 13 August 2004.

      • Administrative Appeals Tribunal Amendment Bill 2004

        On 8 June 2004, the Attorney-General, Mr Ruddock, released an exposure draft of the Administrative Appeals Tribunal Amendment Bill 2004. Following a period for public comment, the Bill was introduced into Parliament on 11 August 2004.
         
        Meanwhile, on 9 August 2004, the Shadow Minister for Foreign Affairs and International Security, Mr Rudd, introduced a Private Member's Bill, Administrative Appeals Tribunal Amendment (Review of Decisions) Bill 2004.
         
        Related:
         
        "Release of AAT Amendment Bill for public comment," Attorney-General's media release 88/2004, 8 June 2004;
         
        "A more efficient Administrative Appeals Tribunal," Attorney-General's media release, 11 August 2004.
         

      • Review of the Privacy Act

        The Attorney-General, Mr Ruddock, has announced a review of the private sector provisions of the Privacy Act 1988, with report due by 31 March 2005.
         
        Related: "Review to ensure Australians' privacy is protected," Attorney-General's media release, 13 August 2004 (includes Terms of Reference of the review).
         

      • Proposed changes to the Australian Citizenship Act
         
        On 7 July 2004, the former Minister for Citizenship, Mr Hardgrave, announced changes to the Citizenship Act to remove age limits for registration of citizenship by descent and give children of former Australian citizens the opportunity to take up Australian citizenship.
         
        Additional information:
         
         
    • New Regulations
       
      Full text of Regulations and Explanatory Statements are available at ScalePlus. See also DIMIA's summaries of legislative change at http://www.immi.gov.au/legislation/amendments/index.htm
       
      • Migration Agents Registration Application Charge Amendment Regulations 2004 (No 2) 2004 No 247
         
      • Migration Amendment Regulations 2004 (No 6) 2004 No 269 - new Temporary Protection and Return Pending visa arrangements
         
      • Migration Amendment Regulations 2004 (No 7) 2004 No 270 - concerning biometric technology and border control
         
      • Federal Court Amendment Rules 2004 (No 4) 2004 No 281 - including Short Form bills of costs in migration cases
         
      • Immigration (Education) Amendment Regulations 2004 (No 1) 2004 No 301 - waivers and exemptions for English language tuition fees for certain visa classes
         

    Recent case law

    Following is a brief outline of recent developments. Transcripts of High Court hearings and full text of decisions are available on Austlii.

    High Court

    • Re Woolley; Ex parte Applicants M276/2003 by their next friend GS [2004] HCA 49 (7 October 2004)
       
      The High Court has ruled that children may be held in immigration detention under the Migration Act 1958, even if to do so might break international human rights conventions.
       
       
    • WACB v MIMIA [2004] HCA 50 (7 October 2004)
       
      Refugees - Non-citizen - Illiterate and unaccompanied minor in immigration detention - Application for review by the Federal Court of decision of Refugee Review Tribunal - Whether under s 478(1)(b) of the Migration Act 1958 (Cth) the application for review was lodged within 28 days of the applicant being notified of the decision - Whether applicant "notified of the decision" under s 478(1)(b) by being told of outcome of decision - Whether giving to the applicant the written statement under s 430 is required for notification under s 478(1)(b).
       
      Statutes - Construction - Whether under s 478(1)(b) of the Migration Act 1958 (Cth) the application for review was lodged within 28 days of the applicant being notified of the decision - Whether the Minister's obligations as statutory guardian under s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) are relevant to the construction of s 478(1)(b). Appeal allowed with costs.
       
       
    • Singh v Commonwealth of Australia [2004] HCA 43 (9 September 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.
       
      Australian Constitution - Legislative powers of the Parliament - Power to make laws with respect to naturalization and aliens - Meaning of "aliens" - Plaintiff born in Australia to non-citizen parents - Infant plaintiff not a citizen under the Australian Citizenship Act 1948 (Cth) - Plaintiff's parents citizens of India - Whether plaintiff an alien under s 51(xix) of the Constitution.
       
      Held: plaintiff is an alien within the meaning of s 51(xix) of the Constitution and therefore may be removed from Australia under the Migration Act 1958 (Cth).
       
    • Pending in the High Court
       
      Immigration cases currently pending in the High Court, from the High Court Bulletin:
       
      • Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (S70/2004)
         
        Immigration - refugee status - relevance of being compelled to live discreetly - appellant citizen of Iran - appellant claimed fear of persecution by reason of his recent conversion from Islam to Christianity - Refugee Review Tribunal 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 proselytising was an essential aspect of appellant'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 FCA (FC). Date heard: 7 September 2004. Judgment reserved.
         
      • Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (S112/2004)
         
        Immigration - primary decision-making - natural justice and procedural fairness - appellant is an Indian Tamil who claimed to fear persecution in Tamil Nadu because of his membership of a Muslim League Political Party - Refugee Review Tribunal conducted hearing into appellant's claims of persecution - at the end of hearing, Tribunal advised appellant that it would write to him and would give him a further opportunity to present submissions and information - the Tribunal did not write to appellant as promised prior to rejecting his claims - whether failure of Tribunal to honour its undertaking to appellant to receive further submission amounted to failure to comply with principles of procedural fairness - whether Tribunal's departure from undertaking actually created unfairness. Appealed from FCA (FC). Date heard: 9 September 2004. Judgment reserved.
         
      • NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (S187/2004)
         
        Immigration - refugee status - doctrine of effective protection - appellants were Russian Jewish citizens who lodged applications for refugee status shortly after lawfully arriving in Australia - delegate of respondent refused those applications at first instance - Refugee Review Tribunal found appellants to have a genuine fear that they would be persecuted by virtue of being Jewish if compelled to return to Russia - Tribunal then found that appellants would be treated as Jews by Israel and would be permitted to enter and reside there - although appellants did not have Israeli citizenship or any connections to Israel Tribunal found that doctrine of effective protection required appellants' refugee status applications to be refused - whether an application for refugee status will be granted only where there is no other contracting state which might provide effective protection to refugees - whether decision of Full Federal Court in MIMA v Thiyagarajah (1997) 80 FC 543 was correctly decided. Appealed from FCA (FC). Date heard: 1 September 2004. Judgment reserved.
         
      • SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (A10/2003)
         
        Immigration - procedural fairness - privative clause decisions - appellants were Iranian citizens who entered Australia without authorisation - refugee status claimed by appellants on basis that they would be persecuted in Iran by virtue of being followers of Sabean Mandean faith - applications for refugee status refused by both respondent's delegate and Refugee Review Tribunal - appellants claimed that Tribunal exceeded its jurisdiction by unlawfully taking evidence from appellant's elder daughter and by not fulfilling requirements of Migration Act 1958 (Cth), s 424A - whether Tribunal failed to comply with Migration Act, s 424A - whether a Tribunal decision which failed to comply with s 424A was nevertheless a privative clause decision for purposes of Migration Act, s 474. Appealed from FCA (FC). Date heard: 9-10 August 2004. Judgment reserved.
         
      • Ruhani v Director of Police through the Secretary of Justice as Director of Public Prosecutor (C8/2004)
         
        Immigration - legality of immigration detention - habeas corpus - appellants are Afghan nationals currently held in detention centres by respondent on Island of Nauru - whether Immigration Act 1999 (Nauru), s 9 and Immigration Regulations 2000 (Nauru), regs 8, 13 and 18 empowered Principal Immigration Officer of Nauru to grant a special purpose visa to a person who had not applied or consented to it - whether application for extension of special purposes visas could validly be made by Australian Consulate-General on behalf of asylum seekers. Appealed from Supreme Court of Nauru. Date filed: 2 July 2004. Special leave granted.
         
      • SFLB & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (A128/2003)
         
        Immigration - jurisdictional error - procedural fairness - right to make submissions - applicants are an Afghani married couple who are Sunni Muslims - in 2001, applicants fled Afghanistan in fear of Taliban and they made applications for protection visas upon their arrival in Australia - applicants' protection visa applications were rejected by delegate of respondent - review of that decision undertaken by Refugee Review Tribunal - during hearing RRT member made statements indicating that assertions of persecution in Afghanistan made by applicants would be believed - in its decision, RRT held that it did not accept certain of those claims and that the circumstances had relevantly changed in Afghanistan in any event - whether applicants were misled into believing that their version of events had been accepted and that they were not required to provide additional information or submissions - whether RRT denied applicants procedural fairness in not giving them an opportunity to make additional submissions after it had indicated that it would believe the allegations of persecution which they made. Appealed from FCA. Date heard: 12 August 2004. Special leave granted.
         
      • SHBB v Minister for Immigration and Multicultural and Indigenous Affairs (A257/2003)
         
        Immigration - refugee status - membership of a particular social group - applicant was an Afghan national who was under 18 years of age at time of application for a protection visa - protection claimed by applicant on basis that he feared forcible conscription by Taliban - applicant also claimed to have no knowledge about whereabouts of his parents - whether existence of a particular social group for purposes of Convention on Status of Refugees, Art 1A(2) required Afghan society to perceive or recognise such a group - whether a causal link needed to be demonstrated between definitive characteristic of a particular social group and reason for failure of State protection - whether children separated from their parents in Afghanistan constituted a particular social group for purposes of Refugees Convention - whether that result was compelled by international human rights norms. Appealed from FCA (FC). Date heard: 11 August 2004. Special leave granted.

    Federal Court - Full Court
     

    • MIMIA v NAMW [2004] FCAFC 264 (23 September 2004)

      Protection Visa application - citizens of Bangladesh - whether country information was part of the reason for the decision - whether country information is non-disclosable information - whether failure to disclose country information resulted in a denial of procedural fairness. Words & phrases - "information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member". Minister's appeal dismissed with costs.
       

    • NAXN v MIMIA [2004] FCAFC 221 (4 August 2004)

      Protection Visa application - newspaper articles referred to by applicant in course of Tribunal hearing - articles not provided to Tribunal - whether Tribunal under legal duty to call for articles in such circumstances. Held: no such legal duty. Appeal dismissed with costs.
       

    • NAPU v MIMIA [2004] FCAFC 193 (5 August 2004)

      Protection Visa application - citizen of Bangladesh - appellant outspoken journalist - Refugee Review Tribunal concluded appellant threatened by people wanting to silence him or seek revenge because appellant had written about them - Refugee Review Tribunal concluded appellant not threatened because of membership of particular social group - Refugee Review Tribunal accepted that Bangladeshi media members sometimes victims of violence or harassment from government or powerful individuals - issues raised by material presented to Refugee Review Tribunal not addressed by it - whether various references by appellant to himself as outspoken journalist and material about fate of journalists fairly raised a broad case - whether a particular social group was constituted by outspoken journalists in Bangladesh. Appeal allowed with costs.
       


    Diary dates


       
    • October 25-29, 2004: International Bar Association Conference 2004, Auckland, New Zealand. Managing Partner David Bitel will attend. More information from http://www.ibanet.org
       
    • October 24-30: Refugee Week. The Refugee Council of Australia (RCOA) has entered into a partnership with the Victorian Multicultural Commission (VMC) that enables the Council to take over as the auspicing body of Refugee Week in Victoria for 2004. More information for Victoria and other States at RCOA News & Events
       
    • October 26-30: National SIEV X Memorial Exhibition, Pitt Street Uniting Church, 264 Pitt St, Sydney, 10.00am-4.00pm.
       
    • October 28: "The future of Refugee Protection in Australia": A Part of the Amnesty International Australia TPV Speaker's Tour, in Sydney. More information from http://www.amnesty.org.au/whats_happening/refugees
       
    • November 16: International Day for Tolerance. More information at http://www.unesco.org/tolerance
       
    • November 16-20: David Bitel consultations in Manila, The Philippines. For more information, please contact David Bitel
       
    • December 10: Human Rights Day. More information at http://www.unhchr.ch
       
    • December 18: International Migrants Day. More information at http://www.unhchr.ch
       
    • December 27-28: New South Wales public holidays - our offices will be closed
       
    • January 3, 2005: New South Wales public holiday - our offices will be closed
       
    • 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 Editor.


    Quote of the month

    " To despair makes even less sense than to strive for an unattainable goal."

                                       - Albert Einstein

    We welcome reader contributions of quotable quotes to the Editor.


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