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  Australian Immigration Law Update No. 56, June 2005

 

In this issue we feature recent developments concerning refugees, asylum seekers, and human rights in honour of World Refugee Day on 20 June. This year's theme is: "It takes courage to be a refugee." We also offer our usual coverage of recent developments in skilled migration and other immigration news.

 

Refugees update

  • 2005-06 Humanitarian program
     
    On 18 April 2005, the Minister for Immigration, Senator Vanstone, announced the 2005-06 Humanitarian Program. Highlights include:
     
    • 6,000 places for resettlement of refugees referred by the United Nations High Commissioner for Refugees (UNHCR);
    • 7,000 places for the Special Humanitarian Program and protection visas in Australia;
    • Priority continues to reflect resettlement priorities of UNHCR: Africa, Middle East and South West Asia;
    • Program to cost about $500 million, with Australia continuing to rank alongside the USA and Canada in the top three of the world's permanent resettlement countries.
       
    Additional reading:
     
  • Asylum claims at lowest level since 1988
     
    In 2004, the number of asylum seekers arriving in industrialised countries fell to its lowest level in 16 years. France (61,600), the USA (52,400) and Britain (40,200) were the top three receiving countries last year. Australia continues to receive only a comparatively small number of applicants, with most asylum seekers in Australia coming from China (774), India (231), Malaysia (185), Indonesia (144) and Iraq (114). At the same time, the United Nations World Food Programme has warned that lack of donor support is threatening food supplies for more than 2 million refugees.
     
    Related:
     
  • Temporary Protection Visa update: East Timor
     
    More than 1,400 East Timorese have now been granted permanent visas to remain in Australia. However a further 50 people were denied the opportunity to remain in Australia, on character and other grounds. On 19 May, the Minister for Immigration, Senator Vanstone, announced that these remaining 50 cases would be reconsidered.
     
    Related:
     
  • Recent Government media releases of interest:
     

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Detention & deportation

  • Private member's Bills
     
    Two private member's Bills are set to be introduced into the House of Representatives by Mr Petro Georgiou MP: Migration Amendment (Act of Compassion) Bill 2005 and Migration Amendment (Mandatory Detention) Bill 2005. The Bills seek to address ongoing concerns about Australia's mandatory detention system, but do not propose abolition of mandatory detention.
     
    Meanwhile, the Immigration Minister, Senator Vanstone, has said she is considering changes to the migration law to permit department officials more flexibility in dealing with visa overstayers and difficult cases such as those of Australians who have been detained. Senator Vanstone made the comments on ABC-TV's "7.30 Report."
     
    Additional information:
     
  • Removal Pending Bridging Visa
     
    On 23 March 2005, the Minister for Immigration, Senator Vanstone, announced new measures to manage the cases of long-term detainees. The new Removal Pending Bridging Visa came into effect on 11 May 2005. It will be available to only a very small number of long-term detainees. Twenty-one people were being considered for the visa as at 13 May 2005.
     
    Additional information:
     
  • Afghanistan repatriation arrangements
     
    Australia and Afghanistan have signed a Memorandum of Understanding aimed at repatriating those Afghans in Nauru and in immigration detention in Australia who have been found not to be refugees. UNHCR has asked that people not be forcibly returned to certain parts of Afghanistan where there is ongoing instability; also that people in vulnerable personal circumstances not be forcibly returned. Thre is a real concern amongst agencies working on the ground that the time is not yet right to enforce returns.
     
    In related news, nine Afghan asylum seekers who had been held in detention in Nauru have been granted visas to come to Australia.
     
    Additional information:
     
  • Christian converts
     
    According to a recent newspaper article, at least thirty failed asylum seekers currently in detention and mostly from Iran, are having their cases reviewed on the basis that they have converted to Christianity while in detention. The move follows lobbying by various church groups, Government backbenchers, and the Family First party.
     
    "Detainees who find Christ may be allowed to stay," Sydney Morning Herald, 21 March 2005, available from Fairfax Newsstore).
     
  • Report under Convention against torture &c
     
    The Attorney-General, Mr Ruddock, has tabled in Parliament Australia's Fourth Report under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, including reasons why Australia's asylum seeker and detention policy is consistent with the Convention.
     
    The report is available on the Attorney-General's Department website.
     
  • Palmer Inquiry
     
    As reported in a previous Newsletter, recently a German-speaking woman was found to have spent 6 months in jail and 4 months in immigration detention, before it was discovered that she is a long-time permanent resident of Australia who is mentally ill. The Minister for Immigration, Senator Vanstone, announced details of an inquiry into the case on 8 February 2005 ("Palmer Inquiry").
     
    Several additional cases of wrongful detention have come to light recently, including that of an Australian citizen wrongly deported to the Philippines. In response to a Parliamentary Question on Notice, the Minister has revealed thirty-three (33) wrongful detentions within a 6-month period. As at 26 May, the number had grown to 201 other possible cases of wrongful detention.
     
    Solicitor Nicholas McNally has been extensively quoted in the press about the case of an Australian citizen known as Howard who was detained for three days, even though the citizen held numerous forms of identification at the time of his detention. This case has been referred to the Palmer Inquiry, and there is also a pending claim for compensation in the NSW Supreme Court.
     
    On 20 May, Senator Vanstone announced that the inquiry's report and findings would be completed within the next four weeks.
     
    Further reading:
      For additional information, we invite you to contact Nicholas McNally.
     

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Country reports & human rights news

  • Recent country and research reports
     
  • Human rights news
     
    • UN reform
       
      The United Nations Secretary-General, Kofi Annan, has released a report proposing major reforms to the UN: "In Larger Freedom: towards development, security and human rights for all." On 27 May 2005, UN Human Rights High Commissioner Louise Arbour released the UNHCHR's response in the form of a report, "Plan of Action: protection and empowerment."
       
      Related:
       
    • Commission on Human Rights concludes 61st session
       
      The United Nations Commission on Human Rights has completed its Sixty-First Session, approving several resolutions aimed at promoting and protecting economic, social and cultural rights, and denouncing all forms of racism.
       
      Additional reading:
      • Commission on Human Rights: www.ohchr.ch;
      • "UN Rights Commission adopts resolutions on cultural rights, racism," UN News Service, 15 April 2005;
      • "UN Human Rights Commission urges action against religious defamation," UN News Service, 13 April 2005;
      • "Annan urges support for reform of UN rights body," UN News Service, 7 April 2005.
         
    • UN Committee on Elimination of Racial Discrimination (CERD)
       
      On 12 March 2005, the Committee on the Elimination of Racial Discrimination concluded its 66th session, publishing its observations on reports resented by the Lao People's Democratic Republic, France, Luxembourg, Australia, Ireland, Bahrain and Azerbaijan.
       
      Regarding Australia, the Committee expressed concerns over the "wide gaps" that still exist between Aboriginal peoples and others, increased prejudice against Arabic and Muslim Australians, and mandatory detention of illegal migrants and asylum seekers. The Committee also noted several positives, including the national strategy on indigenous family violence.
       
      Additional information:
       
    • UN Committee on Elimination of Discrimination against Women (CEDAW)
       
      On 27 January 2005, the Committee on the Elimination Discrimination against Women (CEDAW) reported on eight countries, concluding that they maintained sexist laws and that stereotypes of the inferior woman abounded.
       
      The eight countries examined in CEDAW's 32nd session were: Algeria, Croatia, Gabon, Italy, Laos, Paraguay, Samoa and Turkey. Additional information:
       
    • Australia
      • Australian Bureau of Statistics
         
        The Australian Bureau of Statistics has released a discussion paper on its Census Enhancement Proposal. ABS proposes to combine 2006 Census of Population and Housing information with information from other sources, including immigration registers, births and deaths registers, disease registers and ABS Household Surveys. The Council for Civil Liberties has raised a number of concerns. Deadline for submissions is 10 June 2005.
         
        Discussion paper, media release and frequently asked questions.
         
      • Press Freedom
         
        The Media, Entertainment and Arts Alliance has published a report: "Turning up the heat: the decline of press freedom in Australia 2001-2005." The report lists 18 areas of concern, including rising restrictions on the reporting of immigration issues.
         
      • Social Justice and Native Title reports
         
        On 8 April, the Government tabled in Parliament the Social Justice Report 2004 and the Native Title Report 2004.
         
        Joint media release, vIPS 08/05, 8 April 2005
         
      • Amnesty International Report 2005
         
        "Australia below-par on human rights: Amnesty," ABC News, 26 May 2005 (includes link to Amnesty International Report 2005)
         
      • Building Bridges
         
        The Age newspaper recently reported on the "Building Bridges" project in Melbourne, which is aimed at bringing Jews and Muslims together. ("Bridging the gulf," The Age, 4 March 2005 (available from Fairfax Newsstore))
         

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Skilled migration & business entry

  • Migration Occupation in Demand List (MODL)
     
    An expanded Migration Occupation in Demand List (MODL) became effective on 4 May 2005.
     
    Additional information:
     
    • DIMIA MODL website;
    • DIMIA Information for Employers - including skill matching database, sponsoring skilled people to work in Australia, guide to work rights, and short business visits (updated 22 April 2005);
    • www.LiveInVictoria.vic.gov.au - Victorian government's migration website, offering free advertising of jobs online, and the facility for applicants to apply online for state-sponsored visas;
    • Specification of Migration Occupations in Demand for the Purposes of Regulation 1.03 of the Migration Regulations 1994, Legislative Instrument F2005L01022, available on Comlaw.
       
    Applicants and employers interested in skilled or business migration are invited to contact us.
     
  • Inquiry into skills recognition, upgrading and licensing
     
    On 19 April 2005, the Minister for Immigration, Senator Vanstone, asked the Parliament Joint Committee on Migration to inquire into skills recognition, upgrading and licensing. Deadline for submissions is 24 June 2005.
     
    Terms of reference, information paper and submission brochure
     
  • ACS migration policy
     
    On 29 April 2005, the Australian Computer Society released its Policy Statement on Migration, including an assessment of the impact of skilled migration programs on the ICT labour market. The report has not been without controversy, with a consultant's contribution deleted before final publication.
     
    Additional information:
    • Australian Computer Society (includes links to media release of 29 April 2005 and full report)
    • "Battle breeds ACS study doubts," Australian IT, 29 April 2005 (available from Newstext)
    • "Questions raised over ACS migration policy," ZDNet Australia, 2 May 2005
    • "ACS against the odds," Sydney Morning Herald, 10 May 2005 (available from Fairfax Newsstore)
       
  • VESTASSESS verification services for Chinese higher education
     
    Over the last five years, VETASSESS has become the premier international agent authorised by both the Higher Education Student Information Consultancy and Employment Center (CHSI) and the China Academic Degrees and Graduation Education Development Center (CDGDC) to verify Chinese higher education qualifications.
     
    The Qualifications Assessment Unit of VETASSESS has commenced to implement a new service which is more reliable and efficient compared with traditional methods such as Notarial Certificates or institutional validation, as it not only validates the authenticity but also the national recognition status of the particular qualification.
     
    This means applicants with Chinese tertiary qualifications are now requested to provide CDGDC's and/or CHSI's Credential Reports in lieu of the former notarial certificates and sealed documents from the respective awarding institutions.
     
    Details may be found at www.vetassess.com.au, or we invite Chinese applicants to contact Diana Tong.
     
  • Canada - business visas and skilled migration
     
    We are pleased to advise that Karas & Associates, with whom we have referral arrangements for Canadian immigration and visa enquiries, has launched their new website: www.karas.ca
     
    In related news, an article by Sergio Karas, "Treaties spell out rules for bringing personnel into Canada," was published in Canadian HR Reporter on 14 March 2005.
     
  • USA - new visa opportunities for Australians
     
    On 11 May 2005, the Minister for Trade, Mr Vaile, announced that the United States has created a new visa category specifically for Australian business people and professionals seeking to live and work temporarily in the USA. 10,500 visas will be available under the new E-3 Visa.
     
    Parish Patience Immigration have referral arrangements with a number of American immigration law firms who can assist with enquiries about visas to the USA.
     
    Additional information:
      Applicants interested in visas to the USA are invited to contact Nigel Dobbie.
     

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Students

  • Migration agents can assist you
     
    Recently there has been a lot of newspaper coverage about possible abuses of the student visa system, including an implication that agents are being paid to assist overseas students with poor English language skills to study in Australia. Some news reports have confused the role of education agents - who are not regulated or supervised by a professional body - with that of registered migration agents and lawyers.
     
    At Parish Patience Immigration, our professional staff are all Registered Migration Agents and many are also solicitors, two of whom - David Bitel and Nigel Dobbie - have specialist accreditation from the Law Society of New South Wales. We adhere to the high standards of the Migration Agents Registration Authority and of the New South Wales Law Society.
     
    Additional information:
      We have arrangements with a number of educational institutions in Sydney and around Australia. Potential applicants interested in visas to study in Australia are invited to contact us.
     
  • Checklists for Bangladesh
     
    New checklists for Bangladesh student visa applicants and student spouses have been posted to www.vfs-au.com.bd.
     
    Applicants from Bangladesh are invited to contact David Bitel.
     
  • Statistics
     
    Australian Education International has released statistics showing good growth in overseas student enrolment compared to the same period last year.
     
    "AEI releases April 2005 international student enrolment data," AEI media release, 31 May 2005.

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Other Immigration News

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Legislation Update

At time of writing, Parliament was in session. Following is a summary as at 7 June 2005. Information on pending Bills is updated daily by the Parliament's BillsNet service.

  • Migration Litigation Reform Bill 2005
     
    The Migration Litigation Reform Bill 2005 was introduced into Parliament on 10 March 2005. The Bill directs nearly all migration litigation to the Federal Magistrates Court, and makes lawyers and migration advisers personally accountable for bringing cases which have no reasonable prospect of success. The Bill was referred to the Senate Legal and Constitutional Legislation Committee, which tabled its report on 11 May 2005. The Committee has recommended passage of the Bill, with amendments.
     
    Related:
  • Draft interdependency regulations
     
    The Minister for Revenue and Assistant Treasurer, Mr Brough, has released draft regulations to further define the meaning of "interdependency relationships" in the context of superannuation death benefits. Deadline for comments on the draft regulations in 17 June 2005.
  • Draft taxation ruling: meaning of "charitable institution"
     
    The Australian Taxation Office has published Draft Taxation Ruling TR2005/D6, which sets out the Tax Commissioner's views on the definitions of "charitable institution" and "fund established for public charitable purposes" in the contexts of income tax and fringe benefits tax. Deadline for comments is 24 June 2005.
     
    Additional information:

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Recent Caselaw

  • High Court
     
    • Applicant NABD of 2002 v MIMIA [2005] HCA 29, 26 May 2005
       
      Administrative law - Judicial review - Immigration - Refugees - Appellant, an Iranian, sought a protection visa on the basis that he had converted to Christianity after leaving Iran - Refugee Review Tribunal twice affirmed decision to refuse the appellant a protection visa - Relying on information contained in a country profile, the Tribunal distinguished between Christians in Iran who quietly go about their devotions and those who actively or conspicuously proselytise, and considered that only the latter group would encounter a real chance of persecution - Whether Tribunal asked itself a wrong question by seeking to categorise the way in which the appellant expressed his beliefs - Whether Tribunal addressed whether appellant had a well-founded fear of persecution on the ground of religion - Whether Tribunal had committed jurisdictional error similar to the error identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs. International human rights law - Refugees - Refugees Convention - Ground of religion - Freedom of religion as a basic human right. Appeal dismissed with costs (Kirby & McHugh JJ, dissenting).
       
    • SAAP v MIMIA [2005] HCA 24, 18 May 2005
       
      Immigration - Protection Visa application - Refugee Review Tribunal invited the appellant to appear to give evidence and present arguments - Evidence was later taken from appellant's daughter in absence of the appellant - Tribunal affirmed decision under review by relying on information obtained from the appellant's daughter - Tribunal failed to give the first appellant particulars in writing of information - Tribunal failed to invite the first appellant in writing to comment on information - Whether Tribunal breached s 424A of Migration Act. Appeal allowed with costs (Gleeson CJ & Gummow J dissenting).
       
    • Ruddock & Anor v Taylor (S542/2003), heard 2 March 2005. Judgment reserved.
       
      Tort - wrongful imprisonment - respondent's visa cancelled - respondent detained under s 189(1) Migration Act 1958 ("the Act") - visa later restored by consent order and respondent released - visa again cancelled and applicant arrested - respondent released by order of High Court in Re Patterson; ex parte Taylor (2001) 207 CLR 391 - proceedings commenced for wrongful imprisonment - damages awarded - whether Court of Appeal erred in finding decision of applicants to cancel visa met element of directness of proximate clause for purposes of tort of wrongful imprisonment - whether Court of Appeal erred in finding decision to cancel visa involved intention to detain respondent - whether Court of Appeal erred in finding visa cancellation rendered applicants liable for wrongful imprisonment with respect to subsequent detention of respondent - whether cancellation under s 501 of the Act subsequently found to be beyond power renders applicants personally liable for imprisonment resulting from separate exercise of power of "officer" under s189 of the Act. Appealed from New South Wales Court of Appeal (2003) 58 NSWLR 269.
       
  • Federal Court
     
    • S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549 5 May 2005
       
      TORT - Commonwealth' s duty to provide mental health care services to indefinite detainees in immigration detention - non-delegable duty - scope and content of duty - relevant services provided by contractor and sub-contractors - alleged systemic defects in provision of mental health services - whether Commonwealth in breach of its duty. MIGRATION - immigration detention - special relationship of Commonwealth and detainees - duty of Commonwealth to ensure a level of health care is made available which is reasonably designed to meet detainees' needs. MIGRATION - "immigration detention" - s 5(1) of the Migration Act 1958 - relationship between Commonwealth and detainees - whether detention and holding by and on behalf of the Commonwealth. MIGRATION - "officer" - s 5(1) of the Migration Act 1958 - whether Secretary relevant officer who owes duty of care to detainees - whether s 57 of Public Service Act 1999 (Cth) creates such a relationship. CONTRACT - outsourcing arrangements for provision of health care services - inadequate auditing and monitoring of service providers - Commonwealth's failure to take reasonable care in provision of services. JURISDICTION - federal jurisdiction - injunctive relief sought unsuccessfully against an officer of the Commonwealth - cause of action in negligence against the Commonwealth within associated jurisdiction - Federal Court of Australia Act 1976 s 32.
       
      See also: "Govt guilty of neglect at Baxter: judge," Sydney Morning Herald, 5 May 2005 (available from Fairfax Newsstore).

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Staff & website news

  • Staff news
     
    • Solicitor Nicholas McNally was interviewed for several recent news reports about the case of an Australian citizen who was held in detention for 3 days, despite having several forms of valid identification. The matter has been referred to the Palmer Inquiry.
       
    • Congratulations to Sharon McCabe and husband Paul, who have become Australian citizens. Sharon has been a Migration Agent at Parish Patience Immigration since 1998, originally hailing from New Zealand.
       
  • Seminars & conferences
     
    • On 5 May, David Bitel spoke to a group of health professionals about the health problems of refugees and migrants.
    • On 18 May, David Bitel presented a seminar to the University of Canberra Overseas Student Organisation (UCOSO) on "Immigration Issues Affecting Students," including migration options for overseas students.
    • On 13 June, David Bitel will give a talk to the Australian Forum for Minorities in Bangladesh Inc (Aus-Bangla), and on 19 June, Mr Bitel will give a talk to the Bahai Community in honour of World Refugee Day.
       
  • New on our website
     
    The following pages have been recently updated on our website:
     

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Diary Dates

  • June 12, 2005: Philippines Independence Day
     
  • June 13, 2005: Queens Birthday Public Holiday. Our offices will be closed.
     
  • June 17, 2005: World Refugee Day Breakfast, Sydney. More information from Australia for UNHCR: www.australiaforunhcr.org.au
     
  • June 20, 2005: World Refugee Day. More information from www.unhcr.org.au/WRD2005
     
  • 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
     
  • June 26, 2005: International Day in Support of Victims of Torture. More information from UN High Commissioner for Human Rights www.unhchr.ch
     
  • July 3-10, 2005: NAIDOC (National Aboriginal and Islander Observance Committee) Week. More information from www.naidoc.org.au
     
  • July 7, 2005: Nepal National Day.
     
  • July 13, 2005: Sixtieth anniversary of establishment of Australian Department of Immigration, 1945.
     
  • July 18-22, 2005: Summer course at Harvard University: "Advanced Training on International Humanitarian Law." More information from www.ihlresearch.org/ihl/seminar
     
  • September 20-30, 2005: International Bar Association annual conference in Prague, Czech Republic. David Bitel plans to attend. More information from www.ibanet.org
     
  • September 30, 2005: Last day for nominations for 2005 HREOC Human Rights Medal and Awards. More information from www.humanrights.gov.au/hr_awards
     
  • November 2005: Four-day course, "Mediation @ Melbourne Law," offered jointly by the Faculty of Law and the International Conflict Resolution Centre at the University of Melbourne. The course deals with interest-based mediation and emphasises both theoretical and practical aspects of dispute management. More information available from http://www.psych.unimelb.edu.au/ICRC/teaching/shortcourses.html
     
  • 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.

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Quote of the Month

"The Filipino people welcomed Jewish refugees to the Philippines at a time when the rest of the world slammed its doors to a people seeking safe sanctuary from Nazi tyranny. Surely the Filipino people should be recognized for upholding a high sense of morality and humanity.
 
"Filipinos held a huge indignation rally on November 19, 1938 to denounce the inhumanity of Kristallnacht, the night the Nazis run rampage and destroyed Jewish homes and stores, burned synagogues and threw children off windows. No other country or people seem to have expressed a similar moral outrage at that time."
-- Ambassador Antonio C. Modena, Philippine envoy to Israel,
interviewed in Manila Bulletin Online, 26 March 2005

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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
 
Email:
 
Contact and enquiry form

 
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Migration Agents Registration Numbers 9255523, 9359088, 9370721,
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Copyright © Parish Patience Immigration 2005. All rights reserved.
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UNHCR World Refugee Day

In this issue:

Refugees

2005-05 Humanitarian program, temporary protection visas, more >>

Detention & deportation

Private member's bills, Bridging pending removal, Afghans to be repatriated, Palmer Inquiry, more >>

Human rights & country reports

Australia, Bangladesh, Nepal, UN, more >>

Skilled migration & business entry

New Migration Occupations in Demand List (MODL), Chinese qualifications verification, Canada, USA, more >>

Students

Migration agents, Bangladesh checklists, more >>

Other immigration news

Budget 2005-06, adopting children, parent visas, more >>

Legislation update

Migration Litigation Reform Bill, more >>

Recent case law

High Court, Federal Court, more >>

Staff & website news

Diary dates

Quote of the month

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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
Email:

Contact and enquiry form

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.