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Australian Immigration Law UpdateNo. 53
December 2004
 
 

This is our final Newsletter for 2004. We would like to take this opportunity to wish our readers of every faith and tradition greetings of the season. Our next issue is scheduled for publication in February.
 
Our offices will close at 4.00pm Friday 24 December and re-open at 8.30am Wednesday 29 December. We will be open usual office hours on Wednesday-Thursday 29 & 30 December 2004.
 
Our offices will also be closed on Friday 31 December and Monday 3 January (New Year public holiday), and again on Wednesday 26 January 2005 (Australia Day).

    
     

  • Staff news
    Reminder to clients
    Conferences & seminars
    New on our Website
     
  • Skilled migration & business entry
    Employer Nomination Scheme (ENS)
    Temporary Investor Retirement Visa
    State & Regional news
    Vetassess news
    SSASOL challenge
    DIMIA updates
    NZ skilled migration changes
     
  • Students
    TRA Pastry Cook course
    College principal convicted
    Overseas student recruitment
     


 

Staff news

  • Reminder to clients

    We wish to remind clients of the importance of advising us of any change in address or telephone details.
     
    The Migration Review Tribunal and Refugee Review Tribunal no longer copy correspondence to applicants where there is an authorised representative (migration agent or lawyer). This means a further delay to you, the client, if you have not advised us of your current address.
     
    All clients, whether or not they have matters pending before a Tribunal, need to keep us up to date with their contact details.
     
    Contact us to update your details, quoting your Parish Patience Immigration file number.
     

  • Seminars & publications

    • In October 2004, David Bitel attended the International Bar Association Conference in Auckland, New Zealand, where he presented two papers ex tempore. Mr Bitel 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.
       
    • On 16 February 2005, Senior Associate Nigel Dobbie will present at a NSW Young Lawyers seminar on the topic, "Visa Cancellations under Section 116 of the Migration Act." The other speaker will be Mr Leonard Karp, Barrister. Solicitor Nicholas McNally will chair the seminar.
       
    • David Bitel has been invited to be listed in the annual The International Who's Who of Corporate Immigration Lawyers. He is one of only six Australian lawyers to be listed for 2005. The directory is published by www.WhosWhoLegal.com.
       

  • New on our website

    • Information about a Pastry Cook course at Maitland (Newcastle) TAFE. This course could potentially lead to a permanent residence visa for qualified applicants
       
    • General Links page has been updated
       
    • Nicholas McNally's profile has been updated..
       

Skilled migration & business entry

  • Projected changes to the Employer Nomination Scheme
     
    Through our membership in the Migration Institute of Australia, we have been made aware that the following changes to the Employer Nomination Scheme will be introduced effective July 2005:
     
    1. The "highly skilled" definition will be redefined by introducing a gazetted list of acceptable occupations - it is suggested that this list will be very similar to the Skilled Occupations List.
       
    2. A minimum salary requirement will be introduced for the ENS, related to the Subclass 457 minimum salary level (although it could be set at a higher level).
       
    3. There will certainly be a higher minimum salary requirement for positions located in Sydney.
       
    4. Labour market testing will no longer be required.
       
    5. Processing for the visa application will be done by the same office where the nomination application is processed.
       
    6. ENS sponsors will be required to indicate a record of compliance with immigration and work place relations law.
       
    7. The ENS lodgement is planned to be available through electronic means in future.
       
    In summary, it seems that changes are planned to the ENS scheme to make it more consistent with the subclass 457 Business (Long Stay) visa regime. A benefit of this is that labour market testing will not be required and that the uncertainty created by "highly skilled" will be solved.
     
    The negative impact of these projected changes:
     
    • Only particular occupations will be suitable for the ENS, whereas at present any occupation is arguably "highly skilled".
       
    • DIMIA may require suitable applicants to undergo skills assessment tests, similar to the skilled migration scheme.
       
    • Some applicants may no longer be eligible, as the minimum salary level will be set too high.

    Until the changes are gazetted, it is impossible to predict their exact effect. We would urge prospective employers to seek professional advice soon in order to take advantage of the existing provisions.
     
    For additional information about the Employer Nomination Scheme, we invite you to contact Etienne Hugo, Solicitor.
     
  • Proposed Retirement Investment visa deferred
     
    DIMIA Canberra has advised that the implementation of the proposed temporary Investor Retirement visa, which had been scheduled to commence on 1 November 2004, has been postponed due to the recent Federal election.
     
    For additional information about Retirement visas, we invite you to contact Etienne Hugo, Solicitor.
     
  • State & Regional Development update
     
    • New South Wales
       
      The November 2004 issue of the New South Wales migration agents newsletter, published by the NSW Department of State and Regional Development, contains a number of items of interest to skilled and business applicants:
       
      • All four New South Wales regions are looking for tradespersons, in particular fitters and turners, boilermakers, welders, sheet metal workers, toolmakers, electricians and motor mechanics.
         
      • There will be some delays in processing times over the Christmas and New Year period.
         
      • The NSW Department of State and Regional Development suggests the following websites for companies and individuals looking for investment and joint venture partners:
         
        • Australian Rural Expo - www.are.net.au (follow link to ARE Projects)
           
        • Australian Technology Showcase - http://ats.business.gov.au - includes information on technology companies looking for investment and joint venture partners
           
          Note: Parish Patience Immigration does not endorse any of the entities or individuals listed on the above websites, which we have provided for information only.
           
        • The NSW sponsored Skilled Independent Regional (SIR) visa website is www.business.nsw.gov.au (follow links to Regional Development - Regional Skilled Migration).
           
    • Victoria
       
      The State of Victoria's website for information about migration and visas to that State has changed. The new address is www.liveinvictoria.vic.gov.au.
       
    • Queensland
       
      The Queensland government has published a template defining the minimum amount of information expected to be supplied as part of a business proposal to accompany applications for visa subclasses 163, 164 and 132. The website is www.migration.qld.gov.au (follow links to 'Business Proposal' - 'Business Proposal Template').
       
    • South Australia
       
      Immigration South Australia has published a fact sheet and list of 'Occupations for State Nomination - SA' covering the period July 2004-June 2005. The website is www.immigration.sa.gov.au.
       
    For additional information about Skilled Independent Regional (SIR) visas, we invite you to contact Rania Skaros, Solicitor.
     
  • Vetassess update
     
    The most recent edition of Vetassess News (November 2004) reports on the success of the new online assessment process. There are now four ways to submit an application to Vetassess.
     
    Vetassess reminds all applicants and agents that all online applications must be followed by the provision of original/certified copies to Vetassess for verification.
     
    Clients with queries about Vetassess procedures are invited to contact Annette Aitken, Migration Agent.
     
  • Sydney and Selected Areas Skilled Shortage List (SSASSL) challenge
     
    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). Parish Patience Immigration and other law firms believe that the gazettal for this new provision is invalid, as it was promulgated while the Government was in care-taker mode. Applicants who may have been affected by the change are encouraged to contact us.
     
    In related news, the NSW Department of State and Regional Development has advised that certain towns in the Hunter region have been inadvertently excluded from the SIR visa. These towns include Scone, Dungog, Gloucester, Cessnock and Maitland. An additional gazettal notice will be required to clarify the areas covered by the SIR visa.
     
    Additional information:
     

     
  • New DIMIA fact sheets and publications
     
    Recent updates of interest from DIMIA:
     
  • Changes to New Zealand skilled migration
     
    From 1 December 2004, the New Zealand points system will change to make it easier for certain skilled workers to obtain visas to that country.
     
    Parish Patience Immigration has two agents in New Zealand who welcome enquiries: Malcolm Pacific and Ryken & Associates.
     
    Related:
     

Students

  • TRA Pastry Cook course
     
    Senior Associate Nigel Dobbie would like readers to be aware of a Pastry Cook course on offer from TAFE NSW in Hamilton, near Newcastle. The course could potentially lead to permanent visas for qualified applicants.
     
    For more information contact Nigel Dobbie.
     
  • College principal convicted
     
    The Australian Securities and Investments Commission (ASIC) has announced that a former director and principal of New South Wales International College Pty Ltd has pleaded guilty to a charge of making a false statement in a document lodged with ASIC. The false statement was in relation to legal proceedings brought by former students of the college, who had paid tuition fees but received nothing in return. The case highlights the need for students to be sure their colleges are registered with CRICOS.
     
    "NSW college principal convicted," ASIC Media Release 04-382, 23 November 2004
     
  • Overseas student recruitment
     
    Recent media reports indicate that there has been a 3% drop in overseas students enrolling in Australian universities last year, following several years of increasing numbers. Although changes planned for April 2005 will make it more difficult for some students to apply for permanent residency, concessions are available for those who are willing to live in smaller states and regional areas.
     
    Parish Patience Immigration have agency arrangements with many Australian universities and colleges, and are pleased to assist overseas applicants.
     
    • "Universities bear brunt of visa squeeze," Sydney Morning Herald, 20 December 2004 (available from Fairfax Digital Newsstore)
       
    • "Slump in overseas students hits recruiter," The Australian, 8 December 2004 (available from News Ltd Newstext)
     

For more information about student visas and permanent visas for students, we invite you to visit our Students webpage, or to contact Diana Tong, Partner.


Asylum seekers and refugees

  • Refugees update
     
    • Recent media releases of interest:
       
      • "Australia accepts Iraqi refugees from Nauru," UNHCR Australia article from Reuters AlertNet, 17 December 2004
         
      • "Iraqis arrive from Nauru," Minister's Press Statement VPS 145/2004, 14 December 2004
         
      • "Decisions handed down on Nauru," Minister's Press Statement VPS 142/2004, 2 December 2004 [re Iraqis]
         
      • "A New home for [African] refugees in time for Christmas," Minister's Press Statement VPS 140/2004, 30 November 2004
         
      • "Rally a reminder of Australia's support for refugees," Minister's Press Statement VPS 136/2004, 16 November 2004
         
      • "Detainees' cases already heard," DIMIA Press Statement DPS 096/2004, 13 December 2004
         
      • "Advocates' misinformation may harm detainees," DIMIA Press Statement DPS 095/2004, 7 December 2004
         
      • "Seven [Afghani] asylum seekers get visas," Sydney Morning Herald, 30 November 2004
         
    • Refugee returns
       
      An SBS News report quotes refugee advocates at Adelaide Centacare who are urging the Federal Government not to coerce asylum seekers with expired Temporary Protection Visas to return to dangerous countries such as Iraq and Afghanistan.
       
      "Gov't under fire over refugee return," SBS World News, 25 October 2004.
       
    • Working group to reform indefinite detention law
       
      The President of the Law Council of Australia, Mr Stephen Southwood QC, and others have formed a working group to seek reform of the mandatory detention laws. The move follows the recent High Court decision which upheld the Government's right to indefinitely detain failed asylum seekers who may be stateless.
       
      "Move to change migration law," Sydney Morning Herald, 29 November 2004.
       
  • Country reports
     
    Recent country reports of interest:
     
    • Refugees and asylum seekers: a guide to key resources and recent developments, by the Parliamentary Library Information and Research Services section. This guide focuses on agencies and materials that monitor recent developments and explore current issues. It aims to enable comparisons to be made between Australian and international refugee and asylum seekers responses and policies.
       
    • Press Council of Australia Annual Report of Complaints Statistics 2003-04 - according to a recent news report, 30 or 40 of this year's complaints arose from a campaign by a group wishing to stamp out the term 'illegal' to describe asylum seekers and refugees. In response, the Press Council issued a guideline urging caution in the use of such terms as 'illegal refugee' and 'illegal asylum seeker' in media reports and headlines. [See: "Rise in complaints to press watchdog," The Australian, 2 December 2004]
       
    • Worldwide Press Freedom Index 2004 - Reporters Without Borders [See: "Australia at 41 in freedom ranking," The Australian, 28 October 2004]
       
    • Privacy and Human Rights Report 2004 - by Privacy International (UK) and the Electronic Privacy Information Center (USA). [See: "Privacy under threat from anti-terror laws," The Australian, 30 November 2004]
       
    • Corruption Perceptions Index 2004 - by Transparency International. Bangladesh scored equal last with Haiti, in a survey of 146 countries. The Bangladesh government Finance Minister has submitted a formal protest.
       
    • TI Global Corruption Barometer 2004 - by Transparency International, published 9 December 2004.
       
    • EU common asylum policy - the European Union heads of government have agreed to create a common asylum policy by 2010.

     
  • United Nations news

    Recent United Nations media releases and reports of interest:
     

    • "Australian government co-sponsors UN resolution on disabilities," Joint News Release by Attorney-General, Minister for Foreign Affairs, and Minister for Family and Community Services, 26 November 2004
       
    • "UNESCO voices alarm at escalating violence against journalists in Philippines," UN News Centre, 6 December 2004
       
    • "UNESCO denounces yet another journalist's murder in Philippines," UN News Centre, 2 December 2004
       
    • "UN rights group calls for official Nepalese action to stop forced disappearances," UN News Centre, 15 December 2004
       
    • "Conflicts in Iraq, Afghanistan present new challenges in protecting civilians, security council told," UN News Centre, 14 December 2004
       
    • "Iranian Kurd refugees in central Iraq face bleak conditions - UN," UN News Centre, 30 November 2004
       
    • "UN voices 'extreme concern' for thousands of Iranian Kurd refugees in Iraq," UN News Centre, 26 November 2004
       
    • "Afghanistan lagging behind in human rights treatment, UN expert finds," UN News Centre, 25 October 2004
       
    • "Global approach to deal with migration issues needed, UN study finds," UN News Centre, 29 November 2004
       
    • "UN committee approves draft resolution calling for end to religious intolerance," UN News Centre, 23 November 2004
       
    • "UN refugee chief hails Latin American efforts to boost refugee protections," UN News Centre, 17 November 2004
       
    • "UN launches fresh approach to try to bolster human rights protections in countries," UN News Centre, 27 October 2004
       
    • "Many countries still appear willing to use torture, warns UN human rights official," UN News Centre, 27 October 2004
       
  • Recent speeches
     
    • The former Chief Justice of the Family Court, Alistair Nicholson, delivered the Concannon Oration at the University of Southern Queensland on 7 October 2004. In his speech, Justice Nicholson advocated a Bill of Rights and in particular a commitment to the rights and protection of children. [See: "Children need Bill of Rights: top jurist," Courier Mail, 8 October 2004, available from Newstext.]
       
    • Justice Kirby of the High Court of Australia has recently given several speeches of interest:
       
      • "Terrorism and the democratic response: a tribute to the European Court of Human Rights" (11 November 2004)
         
      • "Deep lying rights - a constitutional conversation continues" (25 November 2004)
         
      • "Long journey to justice for all" (17 December 2004)  

      Speeches by the Justices of the High Court are available on the Court's website.
       
    • Author Tom Keneally delivered a speech on 15 November to the writers' organisation PEN to mark the International Day of the Imprisoned Writer, in which he spoke against indefinite detention of asylum seekers. According to the Canberra Times, Keneally said, "You can rip off a billion-dollar insurance company and ... not suffer that degree of imprisonment." [See: "Brick by brick, detention walls will fall: author," Canberra Times, 16 November 2004]
       

Other government and immigration news

  • Ministry and Opposition Ministry

    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.
     
    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. Mr McGauran has also been given responsibility for Ministerial interventions under s351 and s417 of the Migration Act.
     
    The Hon Laurie Ferguson MP is the Opposition Minister for Immigration.
     
    Recent media releases from Mr McGauran:
     


     
  • Statistics, research and reports

    Recent reports and media releases of interest:
     

  • Assurance of Support

    Centrelink has experienced an unexpectedly high volume of pre-July 2004 Assurance of Support matters. Centrelink were expecting 500 of these cases, but to date have received approximately 8,600. The Migration Institute of Australia and Centrelink are working on a draft protocol for interactions between migration agents and Centrelink.
     
    For more information about the Assurance of Support requirement, we invite you to contact Thong Nguyen, Migration Agent.

  • Compliance
     
    The Department of Immigration 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, and not to breach conditions in relation to work limitations. Significant government funds are devoted to the compliance and monitoring sections of the Department of Immigration.
     
    Many recent examples of compliance activity are listed on the Department's and Minister's media releases website.
     
    Related:
     
    • "Vanstone fiddles regarding illegal worker crises," Shadow Minister for Immigration Media Release, 9 December 2004
       
  • Bangladesh - change in arrangements
     
    Changes in arrangements for visa application lodgement and fee payment in Bangladesh take effect from 20 December 2004.
     
    Information from DIMIA Dhaka about the changes is available here (pdf).
     
  • News from DIMIA Manila

    From the October 2004 "Vis A Vis" Newsletter from DIMIA Manila:
     

    • Certain visa categories that were scheduled to move to Australian DIMIA offices will now continue to be lodged in Manila until July 2005, namely Sponsored Visitor (subclass 679), Regional Sponsored Migration Scheme (subclass 119), Labour Agreement (subclass 120), and Employer Nomination Scheme (subclass 121).
       
    • Recent changes concerning photograph and signature - anyone unclear about these requirements should consult the Infosheet on DIMIA Manila's website, www.australia.com.ph.
       

  • ATO update

    Two recent items from the Australian Taxation Office may be of interest:
     

    • The Tax Office has sent letters to all income tax exempt charities, advising of entitlements under the new charity endorsement measures applying from 1 July 2005. Organisations may obtain additional information at the ATO Non-Profit Organisations website.
       
    • The Tax Office has issued a new Draft Taxation Ruling - Income Tax: tax deductible gifts - what is a gift (TR2004/D19) (pdf). The ATO invites comments before 4 February 2005.
       
    • The final GST Ruling (GSTR 2004/7) on the meaning of supply "not in Australia" and "outside Australia" has been issued. Full text is available on the ATO Legal Database, www.ato.gov.au (follow links to Rulings & Law - Public Rulings - GST).
       

  • Workplace issues
     
    • "Good Practice, Good Business" Employers' pack
       
      The Human Rights and Equal Opportunity Commission has published a new employers' pack titled "'Good practice, good business' - eliminating discrimination and harassment in your workplace." Additional information, including how to order, is available at www.hreoc.gov.au/media_releases/2004/65_04.htm.
       
    • "Your Workplace Online"
       
      The New South Wales Office of Industrial Relations publishes a monthly newsletter, "Your Workplace Online," containing useful information for both employers and employees. Recent editions have included topics such as, "there is no such thing as a free trial," "public holidays over the festive season," "sample pay slips," and more. "Your Workplace Online" and other information is found at www.industrialrelations.nsw.gov.au/whatsnew/index.html.
       

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 9 December 2004. Parliament next sits beginning 8 February 2005.

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

  • Australian Passports Bills

    The Australian Passports Bill 2004, Australian Passports (Application Fees) Bill 2004 and Australian Passports (Transitional and Consequentials) Bill 2004 were re-introduced into Parliament on 2 December 2004. They passed through the House and been introduced into the Senate, where they have been referred to Main Committee.
     
    Additional information:
     
    "Passport measures help secure Australia," Foreign Affairs Minister's media release 23 June 2004
     

  • National Security Bills

    A number of Bills dealing with National Security are currently before Parliament, including National Security Information (Criminal Proceedings) Bill 2004, National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004, Surveillance Devices Bill 2004, and Telecommunications (Interception) Amendment (Stored Communications) Bill 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:
     

    • "Government getting on with the job of protecting and securing Australia," Attorney-General's media release, 17 November 2004;
       
    • "Government delivers on national security priorities," Attorney-General's media release, 8 December 2004;
       
    • "Government acts to protect national security information in criminal proceedings," Attorney-General's media release, 8 December 2004;
       
    • "Stronger and broader surveillance devices laws boost crime fighting," Attorney-General's media release, 8 December 2004;
       
    • "Updated interception laws assist investigations," Attorney-General's media release, 8 December 2004;
       
    • "Government vetoes defence lawyers: LCA," Lawyers Weekly, 26 November 2004;
       
    • "Security Bills make mockery of justice," Canberra Times, 25 November 2004;
       
    • "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.
       

  • 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.
     
    Following the Federal election, the Bill was re-introduced in the Senate on 17 November, where it has been referred to the Senate Legal and Constitutional Legislation Committee for report by 10 March 2005.
     
    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.
     

  • Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004

    This Bill was introduced in the Senate on 8 December 2004.
     

  • Sex Discrimination Amendment (Teaching Profession) Bill 2004

    This Bill was introduced in the Senate on 17 November 2004. The Bill amends anti-discrimination law to allow scholarships to be given out to men to redress the gender imbalance in the teaching profession.
     
    Related:
     
    "Government moves to address male teacher decline," Attorney-General's media release, 17 November 2004.
     

  • Australian Security Intelligence Organisation Amendment Bill 2004

    This Bill passed through Parliament on 7 December 2004 and awaits Royal Assent.
     

  • Recent Parliamentary Library publications
     
    The Parliamentary Library has produced a number of reports relevant to pending legislation and recent caselaw:
     

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

  • Federal Magistrates Amendment Regulations 2004 (No 2) 2004 No 320

Gazettals

Victoria
 

  • The State of Victoria will refer its power over de facto property to the Commonwealth. The Commonwealth Powers (De Facto Relationships) Act 2004 No 84 (Vic) is available at www.dms.dpc.vic.gov.au.
     
    Similar legislation has already been enacted in New South Wales, Queensland and Northern Territory.

UK

  • The UK Parliament has passed legislation aimed at preventing 'sham marriages' between Britons and migrants.
     
    Related:
     


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

  • Applicant NAFF of 2002 v MIMIA [2004] HCA 62 (8 December 2004)
     
    Immigration - Refugees - Refugee Review Tribunal - Decision - Judicial review - Procedural fairness - Non-compliance with statutory duties - Tribunal concerned by inconsistencies in applicant's evidence at oral hearing - Tribunal said it would give the applicant a chance to respond in writing to its concerns - Whether Tribunal's failure to do so involved a failure to complete the review process - Whether failure involved a breach of the duty to conduct a review under s 414(1) of the Migration Act 1958 (Cth) - Whether failure involved a breach of the duty to hear from the applicant under s 425(1) - Whether reviewable error where absence of evidence from the applicant about effect of failure. Appeal allowed.
     
  • Mazhar Bakhtiyari (13 December 2004)
     
    Baby Mazhar Bakhtiyari has lost his High Court bid to be declared an Australian citizen, which he claimed on the basis that he was born in Australia [in the Baxter Detention Centre]. ("Baby loses court bid," The Advertiser, 14 December 2004 [available from Newstext])
     
    In related news, the Minister for Immigration, Senator Vanstone, has indicated that the Bakhtiyari family will soon be deported to Pakistan. Minister Vanstone has emphasised that the family have been found not to be refugees. (Media Release VPS 147/2004, 18 December 2004.
     
    See also Foreign Minister's Downer's comments in "Bakhtiyaris 'making fools' of Australians," ABC News Online, 20 December 2004.
     
  • Pending in the High Court
     
    Immigration cases currently pending in the High Court, from the High Court Bulletin:
     
    • WAAG v Minister for Immigration and Multicultural and Indigenous Affairs (P4/2003)
       
      Immigration - protection visa - bad faith - applicant claimed to be homosexual - whether conduct of Refugee Review Tribunal exhibited bad faith in conduct of hearing - whether jurisdictional error - whether Tribunal demonstrated lack of bona fides where it tests the veracity of a claim for refugee status by reference to knowledge or attitudes which it expects claimants to possess, even though its understanding of such matters is inaccurate. Appealed from FCA FC. Date heard: 19 November 2004. Special leave granted.
       
    • WAEV v Minister for Immigration and Multicultural and Indigenous Affairs (P53/2003)
       
      Immigration - protection visa - whether Full Federal Court erred in failing to find refusal to accord applicant right to put oral argument at time of hearing before Refugee Review Tribunal did not meet statutory obligation to conduct review in fair, just, economical, informal and quick manner pursuant to s 420 Migration Act 1958 (Cth) in conjunction with mandatory requirement to allow applicant to present arguments to Tribunal pursuant to s 425 - whether Full Federal Court erred in failing to conclude procedure required by Migration Act was not observed having regard to s 476(1)(a) - whether having recognised potential for serious injustice Full Federal Court ought to have set Tribunal decision aside. Appealed from FCA FC. Date heard: 12 November 2004. Special leave granted.
       

Federal Court - Full Court
 

  • MIMIA v George [2004] FCAFC 276 (25 October 2004)

    MIGRATION - cancellation of visa under s 501(2) of the Migration Act 1958 (Cth) - s 501(2) contemplates opportunity to endeavour to persuade the Minister not to exercise his or her discretion to cancel the visa in the event of Minster finding the visa holder does not pass the character test - Minister's mistaken belief that visa holder had been notified amounted to jurisdictional error. PRACTICE AND PROCEDURE - failure to notify visa holder of intention to cancel visa under s 501(2) of the Migration Act 1958 (Cth) - visa holder not accorded procedural fairness because s 510 (2) contemplates the opportunity to be heard prior to cancellation. Appeal by Minister dismissed with costs.
     

Federal Court
 

  • Applicant S214 of 2002 v Attorney-General of Australia [2004] FCA 1635 (13 December 2004)

    ADMINISTRATIVE LAW - judicial review - request for funding under s 69 of the Administrative Appeals Tribunal Act 1975 (Cth) - request refused by delegate of Attorney-General - delegate’s decision made pursuant to departmental guidelines - guidelines treated by delegate as mandatory criteria to be substituted for the statutory test - consequent neglect of relevant consideration - error demonstrated - application allowed - decision set aside - matter referred to Attorney-General for further consideration
     

  • Hamdan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1267 (1 October 2004)

    MIGRATION - unlawful non-citizen released from detention pursuant to a court order - Al-Kateb v Goodwin - telephone number confidentially communicated to legal adviser - desire to avoid detention - whether communication attracts legal professional privilege. LEGAL PROFESSIONAL PRIVILEGE - unlawful non-citizen who is at large communicates telephone number to legal adviser - whether the number is a mere collateral fact not attracting privilege. Held: 1. the applicant is not obliged to comply with the notice of the respondent Minister which was served on her on 13 September 2004; and 2. legal professional privilege attaches to the information sought in that notice.
     

New South Wales - Administrative Decisions Tribunal
 

  • Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 (22 November 2004)

    In this case a radio listener complained about the comments of two prominent Sydney talkback radio hosts in relation to a gay couple who appeared on the reality TV show, 'The Block'. ORDERS: 1. The complaint of homosexual vilification against the respondents Steve Price and Radio 2UE Sydney Pty Ltd is substantiated. 2. The complaint of homosexual vilification against the respondents John Laws and Radio 2UE Sydney Pty Ltd is substantiated. 3. The question of an appropriate remedy is reserved.
     

USA
 

  • Hamdan v Rumsfeld (pdf) (D.D.C. No 04-1519) (8 November 2004)

    In this case a US Federal District Court judge held that prisoners at Guantanamo Bay are entitled to the protections of the Geneva Convention relative to the Treatment of Prisoners of War.
     
    Related:
     

    • "ICJ says US Court decision should halt the trial of David Hicks at Guantanamo Bay," International Commission of Jurists Australian Section media release, 10 November 2004. [Parish Patience Immigration staff members David Bitel and Nicholas McNally are both office-bearers of the ICJ Australian Section.]
       
    • "Years of delay in trial of Hicks," The Advertiser (Adelaide), 2 December 2004 (available from Newstext

UK

  • Regina v Immigration Officer at Prague Airport and another; ex parte European Roma Rights Centre and others [2004] UKHL 55, 9 December 2004

    The House of Lords has ruled that the former UK Government policy of stopping certain people (mostly Roma) from boarding flights to Britain from the Prague airport, was discriminatory.
     
    Related:
     

  • Bakhtiari

    As reported in earlier editions of our Newsletter, two of the Bakhtiari children brought an action in the UK Court of Appeal challenging the denial of their requests for asylum at the British consulate in Melbourne after their escape from the Woomera detention centre in 2002. The Court of Appeal dismissed their appeal on 18 October 2004. ("Children have appeal dismissed," The Guardian (UK), 19 October 2004)

Canada

  • Reference re same-sex marriage [2004] SCC 79, 9 December 2004

    The Supreme Court of Canada has held that the Parliament of Canada may redefine marriage to include same-sex couples, although religious officials could not be forced to perform marriage ceremonies against their beliefs.
     
    Related:
     


Diary dates

  • 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
     
  • December 31: Parish Patience Immigration staff picnic day - our offices will be closed
     
  • January 3, 2005: New South Wales public holiday - our offices will be closed
     
  • January 2005: "Human, Economic and Legal Rights" summer school course at Deakin University. More information at www.deakin.edu.au/summer/index.php
     
  • January 12-18, 2005: "Refugees and the Mission of the Church" - 5-day summer school at Catholic Institute of Sydney. More information at www.cis.catholic.edu.au
     
  • January 26, 2005: Australia Day public holiday - our offices will be closed
     
  • February 16, 2005: NSW Young Lawyers Advanced Immigration seminar. Nigel Dobbie will present a paper on visa cancellations, and Nicholas McNally will chair. More information at www.younglawyers.com.au, or contact Nicholas McNally.
     
  • February 26 - March 8, 2005: David Bitel consultations in Manila. Applicants wishing an appointment need to contact Mr Bitel's secretary, Inna Tempra.
     
  • March 20-24, 2005: LAWASIAdownunder2005, Gold Coast, Queensland. More information at www.lawasiadownunder.com
     
  • March 30 - 2 April 2005: "New world order or world in disorder? Testing the limits of international law," American Society of International Law (ASIL) annual meeting. More information available from www.asil.org.
     
  • June 22-26, 2005: American Immigration Lawyers Association annual conference in Salt Lake City, Utah USA. Nigel Dobbie plans to attend. More information from www.aila.org.
     
  • September 20-30, 2005: International Bar Association annual conference in Prague, Czech Republic. David Bitel plans to attend. More information from www.ibanet.org.
     
  • November 10-11, 2005: Joint ILPA/IBA/AILA Business Immigration conference in London, UK. David Bitel plans to attend. More information from www.ibanet.org, www.aila.org or www.ilpa.org.uk.
     
  • 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

 " Patriotism means to stand by the country. It does not mean to stand by the president or any other public official, save exactly to the degree in which he himself stands by the country. It is patriotic to support him insofar as he efficiently serves the country. It is unpatriotic not to oppose him to the exact extent that by inefficiency or otherwise he fails in his duty to stand by the country. In either event, it is unpatriotic not to tell the truth, whether about the president or anyone else."

-- Attributed to Theodore Roosevelt (1858-1919), 26th President of the United States of America

 

We welcome reader contributions of quotable quotes to the Editor.


Contact us

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

Tel: +61 2 9286 8700
Fax: +61 2 9283 3323
Web: www.ppilaw.com.au

Registered Migration Agents 9255523, 9359088, 9370721,
9800540, 9802999, 0004435, 0106541, 0322836, 0425543, 0426524

Liability is limited by the Solicitors Scheme under the Professional
Standards Act 1994 (NSW)

Member, Migration Institute of Australia Accredited Specialist in Immigration Law

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Disclaimer

The contents of this newsletter are not intended to be legal advice. Parish Patience Immigration accepts no responsibility for any action taken in reliance on anything contained in the newsletter. Individuals should seek advice about their own circumstances only from a registered migration agent.

 

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