Parish Patience Immigration Home Page
 
Australian Immigration Law Update No 57 August 2005

 

In this issue we feature recent developments concerning student visas. We also offer our usual coverage of recent developments in skilled migration, family visas, compliance and other immigration news.

 

Students

Breaking News - Student visa cancellations

Attention students:
  • Has your education provider sent you a notice of breach under section 20 of the E.S.O.S. Act?
  • Has your education provider told you your visa might be cancelled?
  • Was your application to revoke the cancellation refused?
  • Is your application to revoke the cancellation still pending?
  • Has DIMIA given you notice of intention to cancel your visa?
  • Has your student visa already been cancelled?
  • Have you had a new visa application rejected due to a previous student visa cancellation?
  • Is your case now in the MRT or the courts?
  • Do you want a second opinion?
Parish Patience Immigration recently won an important test case in the courts about the validity of notices under section 20 of the E.S.O.S. Act. This important victory may help many overseas students across Australia who have received such a notice since the year 2000.
 
  "The most important stage of your visa cancellation process is the initial response to the notice. When your whole future is at stake, don't wait until it's too late to get quality legal advice." 
    -- Nick McNally, a senior lawyer at Parish Patience Immigration
 		 
Students who have answered 'yes' to any of the above questions are invited to contact Nick McNally, Senior Lawyer & Registered Migration Agent (MARN 0532754), or phone (02) 9286 8769 for an appointment.
 
Parish Patience Immigration will give a free initial consultation for all section 20 E.S.O.S. Act cases, to determine if your section 20 notice is or was valid. For advice about all other immigration matters, a consultation fee will apply.
 

Student visa cancellations - recent cases

Several recent court decisions illustrate the problems that students may face in various circumstances.
  • Uddin v Minister for Immigration [2005] FMCA 841, 7 June 2005
     
    This decision concerns the automatic cancellation of a student visa following a notice sent to the student by their education provider under section 20 of the Education Services for Overseas Students Act (the ESOS Act).
     
    The Federal Magistrates Court held that the section 20 form (a format settled by the Secretary of the Department of Immigration - DIMIA) was invalid. It was important for the applicant, because his substantive visa application (subclass 497 Graduate - skilled) had been rejected by the Minister due to the incorrect insistence that his prior student visa had been automatically cancelled. The Minister for Immigration was also ordered to pay the applicant's legal costs.
     
    It is a ground breaking case for all students who received a section 20 notice in the old form. DIMIA has now changed the section 20 form apparently in response to this case.
     
    Nicholas McNally, a senior solicitor at Parish Patience Immigration, represented Mr Uddin and argued the case before the Courts.
     
  • Chen v Minister for Immigration [2005] FMCA 1000, 14 July 2005
     
    Cancellation of student visa - review of decision of Migration Review Tribunal - where a letter sent to the applicant did not have the name and address of the applicant at the top of the page - where the letter failed to comply with the form required under section 379A(4)(ii) - whether the Tribunal has discretion to send forms and information to the applicant instead of the authorised recipient - whether these requirements are mandatory requirements. Orders: The decision of the MRT is invalid and of no effect; the application for review to be referred back to the Tribunal to be heard and decided in accordance with law; and the Minister to pay the applicant's costs.
     
    Nigel Dobbie, who is a senior associate at Parish Patience Immigration and an Accredited Specialist in Immigration Law, represented the student in this matter.
     
  • MIMIA v Alam [2005] FCAFC 132, 22 July 2005
     
    Cancellation of student visa - Alleged breach of condition limiting visa holder to a maximum of 20 hours non-course work per week - Meaning of 'week' in this context. Comment concerning conduct of DIMIA officers in relation to interrogation and detention of student - Minister's appeal dismissed; Minister ordered to pay the student's costs of the appeal and the hearing in the Federal Magistrate's Court.
If you have received a notice saying that your visa has been cancelled, in certain circumstances you may be able to keep your visa. It is recommended that you obtain professional advice from a solicitor to ensure you properly know and protect your rights in this complex legal area.
 
For additional information about student visa cancellations, we invite you to contact Nicholas McNally, Nigel Dobbie, or Diana Tong.
 

New Regulations

A number of new Regulations and Specifications have come into force that affect student visas and students wishing to qualify for permanent migration to Australia.
 
Additional information:

Changes planned for 2-year study requirement

The Department of Immigration has advised that from 1 September 2005, students will meet the '2 year study requirement' (for a skilled visa) if they can demonstrate that they have completed the equivalent of 2 years, that is 4 semesters/terms of full-time study in a minimum of 16 months.
 
This policy change recognises that many educational institutions have introduced new academic year arrangements whereby 3 semesters of equal length are offered in a single calendar year, rather than the traditional 2 semesters. DIMIA advise that further information about the 2 year study rule will be available on the Department's website from 1 September 2005, when the new policy is scheduled to take effect.
 

Don't forget your health cover!

According to a recent article in The Australian newspaper, many foreign students fail to renew their health insurance after their first year of study. This is an important reminder that foreign students who fall ill or have an accident are not covered by Medicare - and you must keep up your health insurance policy as a condition to having a valid visa. Medical care in Australia is also very expensive for those without health insurance.
 
("Foreign students lack health cover," The Australian, 29 June 2005, available on News Limited Newstext archive)
 

June 2005 international student enrolment data

Australian Education International has released updated international student enrolment and commencement statistics. ("Growth in international student enrolments continues in 2005," AEI media release, 5 August 2005)
 

New report: Evaluation of the Education Services for Overseas Students (ESOS) Act 2000

A new report, Evaluation of the Education Services for Overseas Students (ESOS) Act 2000, provides an extensive review of the current state of the overseas student education industry in Australia, and among other things, recommends greater regulation of education agents. According to the report's abstract:
 
"The Report's 41 recommendations are a comprehensive assessment of the industry's regulatory framework. The evaluation assesses the effectiveness of the ESOS legislation and the broader regime governing education services for overseas students in Australia in terms of: assured quality, appropriate consumer protection and support for Australia's migration policy. The independent evaluation also assesses the legislative framework's administrative efficiency including financial and regulatory costs."
 

Information for Bangladeshi students

  • The Australian High Commission in Dhaka has advised that from 1 July 2005, the student visa application charge has risen to BDT21,240 (A$420).
  • The Australian High Commission in Dhaka has also advised that slightly more than 50% of applicants were refused in 2004-05. It is very important that student visa applicants submit all documentation requested of them. 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.
     

Philippines checklists

The Australian Embassy in Manila has published an Infosheet and Checklist for students wishing to lodge their visa applications in the Philippines: http://www.philippines.embassy.gov.au/immigration/temporaryvisas/index.html#Students.
 

Seminar - Immigration issues affecting students

Parish Patience Immigration's Managing Partner, David Bitel, recently presented a seminar to the University of Canberra Overseas Student Organisation, on the topic of "Immigration issues affecting students." Our professional staff are available to speak to student groups around Australia.
 
To organise a speaker from Parish Patience Immigration for your college group or organisation, we invite you to contact Helen Eyles.
 

We 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.
 
As lawyers, we adhere to the high standards of both the New South Wales Law Society and the Migration Agents Registration Authority, including the MARA Code of Conduct.
 
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.

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Skilled migration & business entry

July 2005 Legislation changes

A number of changes affecting skilled migration and business visas came into effect in July. Additional information: We invite applicants and employers interested in skilled or business migration to contact David Bitel or Etienne Hugo.
 
Although our offices are in Sydney, we are able to assist with visas to all States and Territories of Australia. For enquiries specific to SIR/regional sponsored visas, we invite you to contact Rania Skaros or Robert Liu.
 

Qualifications assessment

  • TRA - A new version of the Trades Recognition Australia Uniform Assessment Criteria (UAC) came into effect on 1 July 2005. And effective 12 July 2005, Australian qualification holders may gather the required 900 hours of work experience at any time before, during, or after acceptable formal training.
  • Vetassess now offers an online qualification assessment service at www.skillassess.com
  • ACS - The Australian Computer Society advises that where an applicant has obtained credits or exemptions from an overseas degree, ACS will not accept any such applications if the exemptions result in the applicant having done less than 12 units in their course here in Australia. More information: ACS Guidelines
  • NIA - The National Institute of Accountants has updated its Pre-Applications Skills Assessment (PASA) form, which is available at www.nia.com.au
     

Vietnam joins APEC Business Card Travel Program

The Minister for Immigration, Senator Vanstone, and the Minister for Trade, Mr Vaile, have announced that Vietnam will join the APEC Business Card Travel Program in early 2006. The APEC Card substitutes for a visa, and is valid for up to three years for multiple short-term business visits ("Streamlining business travel to Vietnam," joint media release 16 June 2005).
 
In related news, the Minister for Vocational and Technical Education, Mr Hardgrave, has visited Vietnam to meet with his Vietnamese counterparts and reaffirm the strong education and training links between Vietnam and Australia. ("Australian Minister for Vocational and Technical Education visits Vietnam," Minister's media release 8 August 2005).
 
Applicants interested in business visas from Vietnam are invited to contact Thong Nguyen.
 

Reports and inquiries

Recent reports and inquiries relevant to skilled migration and business visas:

Canada - temporary entry for business people

A recent article by Sergio Karas of the Canadian firm Karas & Associates, "Canada offers expanded temporary entry for business people at GATS negotiations," details Canada's current negotiations at the World Trade Organisation (WTO) on the General Agreement on Trade in Services (GATS). Additional information is available at: www.karas.ca.
 
Note: Parish Patience Immigration have referral arrangements with Karas & Associates regarding Canadian migration and visas.
 

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Retirees, parents, & others

New Investor Retirement visa

The Investor Retirement visa, developed in consultation with State and Territory governments, offers a pathway for retired business and professional people with significant assets to live and invest their money in Australia on a long term basis. It replaces the previous investor retirement visa scheme.
 
To be eligible for the new Investor Retirement visa, applicants must:
  • Have State or Territory government sponsorship;
  • Have substantial assets (at least A$1,000,000 if settling in a regional area or A$1,500,000 if settling in a non-regional area);
  • Be at least 55 years of age and there must be no other dependants except a spouse;
  • Have sufficient assets to ensure they can support themselves in Australia (income of at least A$50,000 p.a. if settling in a regional area or A$65,000 p.a. if settling in a non-regional area); and
  • Maintain private health insurance for the duration of their visa.
The initial visa will be valid for a stay period of 4 years, and will allow limited work rights of no more than 20 hours per week. At the end of this initial stay period, applicants will be able to apply for another 4 year visa. The criteria to be met for subsequent applications will be easier than those at the initial stage.
 
According to the Immigration Minister, despite being a temporary visa, there is very little to prevent self-funded retirees from spending the rest of their lives in Australia. Additional information:

Parent visas

We have received advice from the Department of Immigration, indicating that applicants in the queue for subclass 103 (Parent) visas who have queue dates up to and including 21 November 2000 are currently being processed and, subject to meeting any outstanding requirements, will be granted visas this Program Year (July 2005-June 2006).
 
People wishing to sponsor their parents to come to Australia and who have adequate financial means may wish to consider applying for a Contributory Parent visa, which has a much shorter processing time than the subclass 103 Parent visas. Or self-funded retirees may wish to consider the new Investor Retirement visa, described in the previous article above. Additional information:

July 2005 Legislation changes - family visas

Effective 1 July 2005, the Migration Regulations have been amended to affect family visas as follows:
  • Close Ties - the Close Ties visa (subclass 832) now caters only for a very limited number of applicants. Most persons who previously could apply are no longer eligible.
  • Domestic Violence - these amendments relate to applicants seeking to obtain a spouse, prospective spouse, interdependency or certain other visas on the grounds of domestic violence. New integrity measures enable the Immigration Minister to assess evidence of domestic violence that is not supported by a court order or court finding. See DIMIA Fact Sheet 38: Domestic Violence Provision, updated 19 August 2005.
  • Partner visas - the 2-year period now starts from the date of approval of the temporary visa and not the date of application, as was previously the case.
  • Repeal of Prospective Marriage Spouse Visa (subclass 831) - this pertains only to pre-1 November 1996 caseload.
     
    Additional information: DIMIA legislation change summaries
     

New Booklet 8: Special Migration

The Department of Immigration has released a new Booklet 8: Special Migration, covering visa processes for close ties, distinguished talent, and former residents of Australia. DIMIA booklets are available at www.immi.gov.au/allforms/books_migrate.htm.

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Refugees & asylum seekers

Full Federal Court on Temporary Protection Visas

On 27 July 2005, the Full Federal Court handed down an important decision setting out the proper approach in a case of possible cessation of refugee status. The decision affects temporary protection visa (TPV) holders whose visas will soon expire, or who were previously refused by DIMIA or the Refugee Review Tribunal. (QAAH of 2004 v MIMIA [2005] FCAFC 136, 27 July 2005)
 
Applicants who may be affected are invited to contact Nigel Dobbie.
 

2005-06 Humanitarian program update

Recent items of interest from the Australian Government:

Victorian Government assists asylum seekers

  • Victorian Government helps Victoria's asylum seekers
     
    The Government of Victoria has announced $100,000 in emergency relief funding to assist hundreds of asylum seekers who are not eligible for Commonwealth social services. The Victorian Minister for Community Services, Sherryl Garbutt, said:
     
    "Currently, the Howard Government refuses to let asylum seekers access Centrelink benefits, accommodation services, Medicare, education and housing subsidies. Legally these people are unable to work and have no access to income but the Howard Government still expects them to survive."
     
    "Bracks Government helps Victoria's asylum seekers," Victorian Minister for Community Services media release, 21 July 2005
     
  • Victorian refugees to be offered specialist nursing care
     
    Victorian refugees - some of whom are not eligible for Medicare services - will have free access to specialist nurses under a new half-million dollar Bracks Government program unveiled by Health Minister Bronwyn Pike on 12 August 2005. Ms Pike said the $572,500 Refugee Nurse Initiative, part of the Government's A Fairer Victoria program to address social disadvantage in the State, will put specially-trained refugee health nurses in high settlement areas.
     
    "Victoria refugees to get free, specialist nurses," Victorian Minister for Health media release, 12 August 2005
     

Country reports

Recent country and United Nations reports of interest:
  • World Refugee Survey 2005, U.S. Committee for Refugees and Immigrants, 15 June 2005
  • United Nations
  • Afghanistan: "Afghanistan - violence against women remains dramatic - UN expert," UN News Service, 18 July 2005
  • Bangladesh
  • Iran: "Iran executes two gay teenagers," 21 July 2005 (includes links to additional reports)
  • Iraq: "Conservative survey finds, analyzes 25,000 civilian deaths in Iraq," The New Standard, 20 July 2005 (includes link to Iraq Body Count report)
  • Nigeria: "UN expert on extra-judicial killings cites continuing lapses in Nigeria," UN News Service," 8 July 2005
  • Singapore: The Australian Department of Foreign Affairs and Trade has issued a travel advice warning that homosexual acts are illegal in Singapore, and penalties include imprisonment. Additional information: www.smartraveller.gov.au

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Detention & compliance

Migration Amendment (Detention Arrangements) Act 2005

The Migration Amendment (Detention Arrangements) Act 2005 No. 79 was assented to on 29 June 2005. According to the Explanatory Memorandum, the Act aims to provide greater flexibility and transparency in the administration of the detention of persons known or reasonably suspected to be unlawful non-citizens, and to ensure that children are only detained as a last resort.
 
As at 29 July, all families in detention had been moved to 'residence determination arrangements' in the community. The Minister for Immigration, Senator Vanstone, said,
 
"With this new, flexible approach for families, the Government is maintaining its strong stance on border control while being sensitive to the special needs of families in detention."
 
Additional information:

Amendments to Bridging Visa E

The Migration Amendment Regulations 2005 (No 7) commenced on 26 July 2005. The amendments allow certain non-citizens undertaking court proceedings in relation to their citizenship status to be eligible for a Bridging Visa E. Additional information:

Palmer Inquiry report

On 14 July 2005, Senator Vanstone tabled in Parliament the report of the Palmer Inquiry into the unlawful detention of a mentally ill Australian permanent resident, Cornelia Rau. The report also includes preliminary analysis of the unlawful deportation of an Australian citizen, Vivian Alvarez Solon. The Report has received broad media coverage and sparked further efforts both within and outside the Government to ensure that problems with the mandatory detention system are rectified.
 
The Government has requested the Commonwealth Ombudsman to complete the investigations into Ms Solon's case and another 200 cases of alleged wrongful detention originally referred to the Palmer Inquiry.
 
Nicholas McNally, a solicitor with Parish Patience Immigration, has been extensively quoted in the press about the case of an Australian citizen known as Howard who, with his infant son, 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 Ombudsman following the Palmer Inquiry, and there is also a pending claim for compensation in the NSW Supreme Court.
 
Mr McNally advises all migrants and visa holders to carry their passports with them at all times, and to seek professional advice from a solicitor or migration agent as soon as possible if detained.
 
Additional information:

Senate Inquiries

  • Senate Inquiry into the Operation of the Migration Act
     
    On 21 June 2005, the Senate Legal and Constitutional Committee announced an Inquiry into the Administration and Operation of the Migration Act 1958. Parish Patience Immigration solicitor Nicholas McNally assisted with the International Commission of Jurists' submission to the Inquiry. Mr McNally is the Treasurer of the ICJ Australian Section.
     
    Additional information, including terms of reference and links to submissions received: www.aph.gov.au/senate/committee/legcon_ctte/Migration/index.htm
     
  • Foreign Affairs Committee Inquiry
     
    On 16 June 2005, the Senate Foreign Affairs, Defence and Trade Committee announced an Inquiry into Asylum and Protection Visas for Consular Officials and the Deportation, Search and Discovery of Vivian Solon.
     
    Additional information, including terms of reference and links to submissions received: http://www.aph.gov.au/Senate/committee/fadt_ctte/asylum/index.htm
     

Compliance

DIMIA undertakes regular compliance operations, the results of which are often publicised, illustrating the importance to visa holders to seek professional advice in advance of visa expiry or visa cancellation. Significant government funds are devoted to the compliance and monitoring sections of the Department of Immigration. Recent examples:
  • A nineteen-year-old man who has lived in Australia for eight years, was sent to Immigration detention when he produced an expired Fijian passport as identification after he was caught on a Sydney train without a ticket. See: "Train ride to immigration limbo," Sydney Morning Herald, 27 June 2005 (available from Fairfax News Store archive).
  • From July 2003 to June 2004, the Department of Immigration located more than 20,000 people who had overstayed their visas or breached their visa conditions. See for example, "Goulburn Valley operation locates 20," DIMIA media release DPS 016/2005, 12 May 2005.
  • An Australian National Audit Office report, "Legal Services in the Australian Public Service," shows that the Department of Immigration spent $45.9 million on legal advice last financial year.
  • A people smuggler has been sentenced in the Queensland Supreme Court to nine years' jail. See: "People smuggler jailed for 9 years," The Australian, 15 July 2005 (available from New Limited Newstext archive) and "Government welcomes Siev-X people smuggler conviction," Minister for Justice & Customs media release, 8 June 2005.
  • The Australian Passports Act has been strengthened to introduce heavier penalties for passport fraud, and to impose fines and penalties on people who lose their passports. Additional information at www.passports.gov.au
  • "Managing the Border: Immigration Compliance 2003-04" - new DIMIA Compliance Section report and Minister's media release
     
    Visa holders are advised not to breach conditions of visas or to work illegally, because the risk of detection is very high and serious consequences flow from immigration misconduct.
If your visa is about to expire or you have received a notice of cancellation or been put in immigration detention, we may be able to assist if you contact us.

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Other Immigration related news

Changes to Ministry, Shadow Ministry, and senior appointments

On 10 July 2005, the Prime Minister announced that Mr Andrew Metcalfe would replace Mr Bill Farmer AO as Secretary of the Department of Immigration and Multicultural and Indigenous Affairs. Mr Farmer has been appointed as Ambassador to Indonesia.
 
Mr John Cobb, MP for Parkes, has become the Minister for Citizenship and Multicultural Affairs, replacing Mr Peter McGauran.
 
Mr Tony Burke, MP for Watson in Sydney, has become the Shadow Immigration Minister, replacing Mr Laurie Ferguson.
 
Additional information:

DIMIA service quality surveys

On 12 August 2005, the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs, Mr Metcalfe, launched DIMIA's draft Client Service Charter and draft Client Service Strategy for Visa & Citizenship Services.
 
Public comments on DIMIA's service standards are invited before 7 October 2005. Additional information:

Review of social impacts of migration

The Department of Immigration and Multicultural and Indigenous Affairs has called for tenders for a Study into the Social Costs and Benefits of Migration to Australia. The results of the study are intended to assist in identifying strategies for social cohesion and integration of migrants, and will have implications for policies, with particular reference to individual States and Territories.
 
Additional information: Request for tender, 4 July 2005
 

World Migration Report

The International Organisation for Migration (IOM) released its annual World Migration Report on 22 June 2005. According to the accompanying media release, many concerns that surround migration, such as loss of jobs, lower wages, increased welfare costs and the belief that migration is spiralling out of control, are not only exaggerated or unfounded but contrary to the evidence.
 
"Too Many Myths And Not Enough Reality On Migration Issues, Says IOM's World Migration Report 2005," IOM media release, 22 June 2005 (includes link to report).
 

Reduced citizenship fees

On 1 July 2005, the then Minister for Citizenship and Multicultural Affairs, Mr McGauran, announced that more permanent residents are now eligible for a reduced fee of $20 when they lodge their applications for citizenship. Additional information:

Your rights at work (NSW)

The NSW Office of Industrial Relations has published a new guide, "Your Rights at Work" - available in English, Arabic, Chinese, Korean, Spanish, Turkish, and Vietnamese at: www.industrialrelations.nsw.gov.au/rights/employee/rights/yourrights.html.
 

Superannuation choice: multilingual translations

The Australian Securities and Investments Commission has released translated versions of its free guide to superannuation choice.
 
The brochure is available in English, Arabic, Chinese, Korean, Russian, Turkish, and Vietnamese at: http://www.superchoice.gov.au/publications/languages.asp.
 

New Social Security Agreement with Ireland

The governments of Australia and Ireland concluded a new Agreement on Social Security on 9 June 2005. The Agreement, which will come into effect on 1 January 2006, will coordinate the social security schemes of the two countries to give better welfare protection for people who move between Australia and Ireland. Additional information:

Philippines update

  • MOU with Philippines regarding money laundering
     
    A new Memorandum of Understanding (MOU) has been signed between Australia and The Philippines. According to the Minister for Justice and Customs, Senator Ellison,
     
    "The signing of this Memorandum of Understanding will now enable the formal exchange of vital financial intelligence between Australia and The Philippines, strengthening the war on money laundering and terrorism financing in this region."
     
    "Memorandum of Understanding signed with The Philippines to boost efforts in fighting money laundering and terrorist financing", Minister for Justice & Customs media release E087/05, 12 July 2005
     
  • Inaugural Philippines-Australia ministerial meeting
     
    On 12 August 2005, the Philippines and Australia concluded their inaugural Philippines-Australia Ministerial Meeting. The Australian Minister for Foreign Affairs and Minister for Trade met with the Philippines Secretary for Foreign Affairs and Secretary for Trade & Industry. The meeting addressed counter-terrorism issues, trade and investment, and an agreement for a Memorandum of Understanding on Migration Management and Border Control.
     
    "Australia and Philippines conclude inaugural meeting", Joint media release, 12 August 2005
     
  • Philippine conglomerate purchases Australian dairy company
     
    Our readers from the Philippines may be interested to learn that San Miguel Corp has assumed full control of National Foods, which includes major Australian dairy brands such as Pura milk, Big M flavoured milk, Farmers Union and King Island creams and cheeses. San Miguel already owns 50 per cent of Australia's largest fruit juice company, Berri, and 100 per cent of Tasmania brewer J Boag & Son.
     
    See: "MD stays as San Miguel gets full serve of dairy," Australian Financial Review, 9 June 2005 (available from Fairfax News Store archive)
     
  • And for interest: links to Filipino news sites
     
    A correspondent has advised us of these websites which may be of interest:
     
    • globalfilipinos.com - Coalition of Global Filipinos (includes information on Philippines laws and links to Government and news sites)
    • emanila.com - News for the Filipino community in Australia
       

Non-profit news

The Australian Taxation Office Non-Profit News Service has released updated information that may be of interest to our readers involved with charity organisations:

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Legislation Update

Commonwealth Bills

Major recent changes have been summarised elsewhere in this Newsletter. Following is a summary of pending legislation as at 17 August 2005. Information on pending Bills is updated daily on the Parliament's BillsNet service.
  • Acts Interpretation Amendment (Legislative Instruments) Bill 2005
     
    This Bill was introduced in the Senate on 23 June 2005. The main purpose is to insert a new interpretive provision into the Acts Interpretation Act 1901, to explain what is meant by the expression 'legislative instrument'. According to the Bill's Explanatory Memorandum, the amendment will make clear that wherever the term 'legislative instrument' appears in legislation, it has a particular meaning, that is, that instruments that are described in legislation as legislative instruments must be in writing and are legislative instruments for the purposes of the Legislative Instruments Act 2003.
     
  • 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.
     
    Additional information: Inquiry into the Provisions of the Migration Litigation Reform Bill 2005 (links to report and submissions by the Refugee Council of Australia and others)
     
  • Protecting girls from forced marriages overseas
     
    There have been press reports of girls being sent by their families from Australia to arranged marriages overseas. The Minister for Justice and Customs, Senator Ellison, has issued a statement reminding Australians that a child under the age of 18 cannot legally be made to marry against his or her will. Senator Ellison said that the Criminal Code Amendment (Trafficking in Persons Offences) Act 2005, which came into force on 3 August 2005, would cover the situation of a forced arranged marriage, and imposes punishment of up to 25 years imprisonment. Senator Ellison has also asked the Attorney-General's Department to consider whether further offences may be added to the Criminal Code.
     
    Related:

Migration Regulations

Major recent changes have been summarised elsewhere in this Newsletter. Full text of Regulations and gazettals (Specifications) is reproduced on the Attorney-General's ComLaw service.
 
DIMIA publishes brief summaries of changes on its Legislation Change website.
 

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Recent Caselaw

Full Federal Court

  • Cheung v MIMIA [2005] FCAFC 122, 1 July 2005
     
    Business Skills (Residence) (Class BH) visa - husband sole proprietor of business - asset held in wife's name but used to secure banking facilities for husband's business - whether asset is net asset in qualifying business for purposes of Migration Regulations. Held: Appeal allowed; Minister to pay appellant's costs of appeal and proceedings below.
     
  • Aomatsu v MIMIA; MIMIA v Kaur [2005] FCAFC 139, 29 July 2005
     
    Applications for subclass 136 Skilled-Independent Migrant (Class BN) visas - where occupation nominated on application form was a skilled occupation specified in Gazette Notice at the time of application but not at the time of assessment - where skilled occupations specified in Gazette Notice were migration occupations in demand and attracted points - whether occupation nominated on application to be assessed by reference to skilled occupations specified in Gazette Notice at the time of application or at time of assessment. Held: Appeal in Aomatsu allowed; appeal in Kaur dismissed.
     
  • Nystrom v MIMIA [2005] FCAFC 121, 1 July 2005
     
    Review of decision to cancel Transitional (Permanent) Visa on character grounds - where appellant arrived in Australia aged 27 days old - where Minister failed to consider whether appellant held absorbed person visa - where Minister failed to consider effect of cancellation on absorbed person visa. Held by Full Federal Court (by Moore & Gyles JJ, Emmett J dissenting): appeal allowed, declaration made that appellant holds absorbed person visa, Minister to pay costs of appeal.
     
  • VAAD and others v MIMIA [2005] FCAFC 117, 20 June 2005
     
    Appeal from judgment of a Federal Magistrate - dismissal of application seeking judicial review of a decision of the Refugee Review Tribunal refusing applications for protection visas - failure by RRT to consider a document before it - whether RRT failed to afford the appellants procedural fairness - burden of proof in respect of a claim of breach of procedural fairness - whether RRT failed to have regard to relevant material. Held: Not possible to say that error could not have affected the outcome. Appeal allowed; Minister to pay appellants' costs.
     
  • QAAH of 2004 v MIMIA [2005] FCAFC 136, 27 July 2005
     
    This is an important decision setting out the proper approach in a case of possible cessation of refugee status. The decision affects temporary protection visa (TPV) holders whose visas will soon expire, or who were previously refused by DIMIA or the Refugee Review Tribunal.

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Staff news

Submissions & published articles

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Diary Dates

  • August 28, 2005: Refugee & Migrant Sunday. More information from www.ncca.org.au/cws/rdp/refugee_and_migrant_sunday
     
  • September 17, 2005: Australian Citizenship Day. More information from www.citizenship.gov.au
     
  • September 18, 2005: Chinese Moon Festival
     
  • September 21, 2005: International Day of Peace. More information from www.un.org
     
  • September 20-30, 2005: International Bar Association annual conference in Prague, Czech Republic. 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
     
  • October 5 to November 4, 2005: Ramadan
     
  • October 24, 2005: United Nations Day. More information from www.un.org
     
  • October 31, 2005: Thirtieth anniversary of the Racial Discrimination Act. More information from www.hreoc.gov.au/racial_discrimination
     
  • 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/forms/MediationatLaw.pdf
     
  • 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
     
  • November 22, 2005: The Sydney Centre for International and Global Law at the Faculty of Law, University of Sydney will present a conference on international refugee and human rights law: "Moving on - forced migration and human rights," at NSW Parliament House, Sydney. Keynote speaker will be Dr Guy Goodwin-Gill, University of Oxford. Other confirmed speakers include Justice Tony North (Federal Court of Australia), Olivier Delarue (UNHCR), Assoc Prof Arthur Glass (UNSW), Assoc Prof Mary Crock (Sydney), Assoc Prof Susan Kneebone (Monash), Dr Pene Mathew (ANU), Dr Savitri Taylor (La Trobe), Dr JP Fonteyene (ANU), Dr Ben Saul (UNSW), Dr Jane McAdam (Sydney) and Jennifer Burn (UTS). Information will be available from 19 September at www.law.usyd.edu.au/scigl/, or ring (02) 9351 0354.
     
  • 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

"..[T]he Migration Act is a heaven with many mansions. It has a very, very complicated set of interlocking provisions."
-- Mr Bill Farmer AO, then Secretary,
Department of Immigration & Multicultural & Indigenous Affairs,
to Senate Legal & Constitutional Legislation Committee
Estimates Hearing, 25 May 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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In this issue:

Students

Automatic visa cancellations invalidated, new regulations, 2-year study changes, Bangladesh & Philippines checklists, more >>

Skilled migration & business entry

Regulations update, qualifications assessment, migration program news, more >>

Family, retirees & others

Parents, retirees, family, more >>

Refugees & asylum seekers

Refugees, temporary protection visas, country reports, more >>

Detention & compliance

Detention changes, Palmer Inquiry, compliance, more >>

Other immigration news

Changes to ministry and shadow ministry, your rights at work, Philippines update, more >>

Legislation update

Recent case law

Staff 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.