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  Australian Immigration Law Update No. 58, November 2005

 

A number of important regulatory changes took effect on 1 November 2005. In this issue we cover recent developments concerning student visas, skilled migration, family visas, compliance and other immigration news.
 
Note: Australian Passport Offices will be closed on the public holidays 26-27 December and 2 January. Passport applicants are encouraged to lodge their application forms as soon as possible as delays may be expected.

 

Students

Permanent visas for students

Did you know that there are a number of permanent visa options available for eligible students?
 
Many overseas students will be finishing their courses soon. Parish Patience Immigration is pleased to offer advice to students as to their options for permanent migration or further temporary visas.
 
For those who may be thinking about coming to Australia to study, we have arrangements with a number of educational institutions in Sydney and around Australia.
 
Our offices are in Sydney, and we also travel interstate and to regional areas on a regular basis. Potential applicants are invited to contact us.
 
In addition, our professional staff are happy to present seminars to your school group or student organisation. To arrange a speaker from Parish Patience Immigration, we invite you to contact Rania Skaros.
 

Student visa cancellations

Attention students: If you have received a notice saying that your visa has been cancelled, in certain circumstances you may be able to keep your visa, but usually only if you have professional advice from a solicitor or migration agent.
 
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. One consequence of this victory has been that the Immigration Department has been forced to reverse thousands of cancellations that took place between May 2001 and 16 August 2005.
 
Additional information: For additional information about student visa cancellations, we invite you to contact Nicholas McNally, Senior Associate & Registered Migration Agent (MARN 0532754), or phone (02) 9286 8769 for an appointment. A consultation fee will apply.
 

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.
 
Of particular note for students, the new rules:
 
Provide for a new Trade Skills Training visa allowing young people to undertake apprenticeships in regional areas of Australia. This visa may suit some applicants who previously would have considered a Student visa.
 
Permit combined applications by all family members seeking a Subclass 580 Student Guardian visa
 
Expand the student visa evidentiary requirements relating to English language proficiency for certain 'high immigration risk' applicants, and ensure that previous amendments relating to English language proficiency and course requirements for student visas, apply to applications made on and after 1 July 2005, as originally intended.
 
Ensure that an applicant for a student visa is not affected by changes in the relevant specified courses which may occur after they have made their application
 
Enable holders of certain student visas, and applicants under 18 years of age, to be eligible for the grant of the Subclass 442 (Occupational Trainee) visa in certain specified circumstances, and change the conditions to which the visa will be subject
 
Lower (easier) assessment levels for 15 countries across the various student visa classes
 
Exceptional circumstances may now to be taken into consideration in deciding whether to cancel a student visa for breach of a condition relating to attendance and academic achievement
 
Additional information:

AEI news

Australian Education International (AEI) is the Australian Government department that administers the Education Services for Overseas Students Act (ESOS) and the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). Recent items of interest:
  • "Update on progress with the implementation of the ESOS evaluation recommendations," media release and link to position paper and information sessions, 6 October 2005
  • "Australian IELTS testing centre established in Moscow, Russia," 10 October 2005
  • "Study in Australia showcase, Indonesia, March 2006"
     

Vocational Education and Training Bill 2005 (NSW)

The Vocational Education and Training Bill 2005 (NSW) received assent on 28 November 2005. The Bill repeals the Vocational Education and Training Accreditation Act 1990 (NSW).
 
The new arrangements will provide for the approval by the Vocational Education and Training Accreditation Board of persons to provide courses for overseas students in New South Wales. This approval will form the basis for registration under the Education Services for Overseas Students Act 2000 (Cth).
 
Additional information: Vocational Education and Training Bill 2005 (NSW)

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Skilled migration & business entry

November 2005 Legislation changes

Recent changes to migration law have made it easier for qualified applicants to obtain provisional visas which could lead to eligibility for permanent residence in Australia. Major changes include:
 
Working Holiday Makers and Occupational Trainee visa holders are now permitted to apply onshore - while still in Australia - for a Skilled Independent Regional (SIR) visa, and have this visa granted without leaving Australia
 
Overseas students are now able to apply, on completion of their studies in Australia, for an Occupational Trainee Visa, which could then lead to registration in their chosen profession in Australia
 
Relevant work experience obtained while on certain Bridging Visas may now be counted towards some General Skilled Migration requirements. However, the Bridging Visa holder must have maintained health insurance from the start of the Bridging Visa. Also, work experience during a BVA or BVB will not count toward the Schedule 6A bonus points.
 
Sponsors for the new Trade Skills Training visa may be the employer of the apprentice, or peak industry bodies, or bodies representative of a regional area in Australia
 
Chemical Engineer, Petroleum Engineer, Mining Engineer, and Dental Specialist have all been added to the Migration Occupations in Demand List (MODL)
 
Additional information:
  • DIMIA legislation change summaries, 1 November 2005
  • Migration Amendment Regulations 2005 (No 8), Migration Amendment Regulations 2005 (No 9) and Migration Amendment Regulations 2005 (No 10), all available from ComLaw
  • Skilled Australian Sponsored (Migrant) Visa: residential postcodes, "skilled occupations" and points - effective 1 November 2005
  • "Employers and students to gain from changes to visas," Immigration Minister's media release, 31 October 2005
  • "Government targets migration to skill needs of Australian industry," Joint media release by Minister for Employment and Immigration Minister, 1 November 2005 - includes complete Migration Occupations in Demand List (MODL)
     
    Although our offices are in Sydney, we are able to assist with visas to all States and Territories of Australia. We have contacts with universities and regional bodies throughout Australia. We regularly conduct consultations in Melbourne, Canberra and other cities as required. We assist both applicants and employers wishing to sponsor employees.
     
    We invite you to contact us using our Enquiry Form if you are interested in visas to live or work anywhere in Australia, or in sponsoring an employee.
     

State and regional news

New South Wales to encourage skilled business migration

On 9 November 2005, the Premier of New South Wales, Mr Iemma, announced a major expansion in efforts to attract skilled business migrants to NSW. The State Government plans to join the Independent Skilled Migration program, under which the State Government will sponsor skilled migrants to move to Sydney. The Government is particularly focussed on skilled applicants in the fields of:
  • finance
  • information technology
  • biotechnology
  • pharmaceuticals
  • film and television
The announcement represents a departure from the previous Premier's policy of directing skilled migrants away from Sydney. The NSW Government plans to exhibit at the Bio 2006 biotechnology expo in Chicago USA and at the CeBit 2006 IT expo in Hanover, Germany.
 
Additional information:
  • "NSW to drive skilled migration," Premier's media release, 9 November 2005
  • "Open for business: NSW looks abroad to plug skills gap," Australian Financial Review, 9 November 2005 (available from Fairfax Digital)
  • www.business.nsw.gov.au - NSW Government website for business and regional skilled migration
     

Victoria recruiting migrants

The State of Victoria is actively seeking skilled migrants, along with working holiday makers and international students who might like to stay and work in Victoria after their holiday or study finishes. Additional information:
  • www.LiveInVictoria.vic.gov.au
  • Recent media releases from the Victorian Minister for Employment:
    • "Melbourne hosts migration expo," 13 October 2005
    • "Victoria on global hunt for skilled migrants," 3 October 2005
    • "Melbourne professionals mentor migrants," 3 October 2005
    • "Victoria leading the nation with skilled migration," 17 August 2005
       

South Australia

The South Australian Government is also recruiting skilled migrants. According to a recent news report, South Australia is experiencing shortages in hi-tech IT, accounting, finance, and skilled trades, particularly defence-related trades. Additional information:

Queensland

Queensland is recruiting doctors, nurses, dentists and allied health professionals. A series of information nights will be held in London, England in November and December. Additional information:

Online Chinese qualifications verification

Vetassess now offers an online system to verify Chinese higher education qualifications at www.qualverify.com.
 
Chinese applicants who have queries about skilled migration or business visas to Australia are invited to contact Diana Tong.
 

Skilled migration expos

Reports and inquiries

Recent reports and inquiries relevant to skilled migration and business visas:
  • Inquiry into skills recognition, upgrading and licensing, by the Parliament Joint Standing Committee on Migration
     
    This Inquiry was initiated in April 2005. The Committee has been gathering submissions and holding public hearings. The Departments of Immigration (DIMIA), Foreign Affairs and Trade (DFAT), and Employment and Workplace Relations (DEWR) appeared at a hearing held on 5 September. Further public hearings were held in late November 2005.
     
    Submissions, transcripts of hearings and information about future hearing dates are available at www.aph.gov.au/house/committee/mig/recognition/index.htm
     
  • "To make a Contribution: review of skilled labour migration programs," by the Parliament Joint Standing Committee on Migration - Government response
     
    This report was tabled in March 2004. On 1 December 2005, the Government tabled its response. The Government has agreed to many of the Committee's proposals, but will not remove the existing mandatory age limit of 45 years for skilled migration.
     
    The Report and Government response are available at www.aph.gov.au/house/committee/mig/reports.htm
     
  • "NFF launches labour shortage action plan," National Farmers Federation, 21 September 2005
  • "Migration programs not reducing skills shortages," ABC Rural, 8 November 2005 [recent reports from Flinders University and Monash University]
  • Joint press conference of Australian Prime Minister John Howard and New Zealand Prime Minister Helen Clark, 25 October 2005 [includes discussion of seasonal workers]
     

International

  • Bangladesh - Australia-Bangladesh Business Council
     
    The Australia-Bangladesh Business Council held its Annual General Meeting on 29 October 2005. David Bitel was re-elected to the Executive Committee of the ABBC.
     
    The keynote speaker at the meeting was Ridwaan Jadwat, Acting Director, India and South Asia Section, Department of Foreign Affairs and Trade. Mr Jadwat highlighted the strong people-to-people links between Australia and Bangladesh, with Australia's Bangladesh-born population currently about 15,000. There are also about 5,000 Bangladeshi students in Australia, and growing. Mr Jadwat also gave an overview of current trade statistics. He then addressed four main issues confronting Bangladeshi businesses seeking to export to Australia:
    • Lack of knowledge about the market - Austrade office in Dhaka can assist Bangladeshi traders to participate in Australian trade fairs, such as the Textile Clothing and Footwear show scheduled for Melbourne next June.
    • Australian quarantine rules - The rules are simple and Bangladeshi products can meet these standards.
    • Rules of origin - Bangladeshi exporters can benefit from the very broad definition of local content applicable to least developed countries.
    • Visas - The ABBC's information flow with the High Commission in Dhaka assists the facilitation of visas for genuine business persons. Austrade also assists with the establishment of credentials of visa applicants.
       
    More information: In related news, Mr Douglas Foskett has been appointed as Australia's next High Commissioner to the People's Republic of Bangladesh, commencing in December 2005. (Foreign Affairs Minister's media release, 20 September 2005) Mr Foskett replaces Lorraine Barker, who completes a very successful 3-year term representing Australia in Bangladesh. Ms Barker proved a popular and highly praised representative for Australia.
     
  • New Zealand
     
    Migration to New Zealand has been falling since the NZ Government toughened entry requirements for business investors. Australia, UK and Canada look set to benefit from the changes.
     
    Additional information:
    • "Immigration rule changes are putting off potential investors," Dominion Post, 31 October 2005
    • "NZ migration trend concern: economist," The Age, 24 September 2005 (available from Fairfax Digital)
    • "Rich migrants put off by stricter rules," New Zealand Herald, 1 October 2005
    • "Kiwi teachers fail tough English test for foreign staff," New Zealand Herald, 1 October 2005
       
  • USA
     
    The US has made 10,500 "E-3" visas exclusively available for Australian professionals and business people wanting to live and work in the USA. The new arrangement, a first for the USA, has excited "jealousy" from nationals of other countries. However, the Sydney Morning Herald reports that mutual recognition arrangements for certain professions, including lawyers, accountants and engineers, could take some time to put into place.
     
    In related news, the US has imposed limits on the numbers of business-sponsored visas available to nationals from China, India and the Philippines. The new limits came into effect on 1 October 2005.
     
    Additional information:
    • "Australian first - from today 10,500 E-3 visa places for the US," Trade Minister's media release, 5 September 2005
    • "Hurdles remain to working in US," Sydney Morning Herald, 6 September 2005 (available from Fairfax Digital)
    • "US imposes limits on business-sponsored visas," Miami Herald (Florida USA), 17 September 2005
    • US Department of State Visa Bulletin, October 2005
    • The Sydney Morning Herald reports that the waiting time for a visa interview at the US Consulate in Sydney is now 37 days. The wait mainly affects Sydney residents with foreign (not Australian) passports, those planning to stay in the US for longer than 90 days, and those with criminal convictions. ("Tourists queue for US visas," Sydney Morning Herald, 14 November 2005)
       
      More information from the US Consulate: http://sydney.usconsulate.gov/sydney
       

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Family, retirees, working holiday makers, visitors

November 2005 Legislation changes - family & visitor visas

Changes to family and visitor visa requirements came into effect on 1 November 2005, including:
 
Sponsored Family Visitor visa - The Minister for Immigration now has discretion in certain limited circumstances to approve sponsors who have previously been barred from sponsoring a subclass 679 (Sponsored Family Visitor) visa holder for 5 years.
 
Dependent family members of New Zealand citizens - Dependent family members of New Zealand citizens are now eligible to apply for employer nominated permanent residence in Australia. New Zealand Citizen Family Relationship (Temporary) subclass 461 is now a qualifying visa for Labour Agreement, Employer Nomination Scheme or Regional Sponsored Migration Scheme subclasses of visa.
 
Remaining Relative - It is no longer possible to obtain a Remaining Relative visa if the applicant has any immediate family member outside Australia.
 
Tourists from Peoples Republic of China - Australia has entered into an agreement with the China National Tourism Administration, which extends the Approved Destination Status to tourists from all provinces of China.
 
Additional information: DIMIA legislation change summaries

Retirement visas

The Investor Retirement visa offers a pathway for retired business and professional people with significant assets to live temporarily and invest their money in Australia.
 
On 7 November, the Minister for Immigration, Senator Vanstone, announced that the retirement visa rollover provision would be extended to four years, up from the previous 2-year renewal provision. Additional information:

Working holiday makers

Recent additions and amendments to the Working Holiday Maker program:
 
Working Holiday Makers are now permitted to apply onshore - while still in Australia - for a Skilled Independent Regional (SIR) visa, and have this visa granted without leaving Australia
 
Working Holiday Makers who have done at least 3 months' seasonal harvest work in regional Australia will be able to apply for a further 12 month Working Holiday Maker visa
 
Thailand, Chile and Estonia have been added to the Working Holiday Maker program
 
Additional information:

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Refugees & asylum seekers

Australian Government update

Recent items of interest from the Commonwealth and Victorian governments:

Country reports

Recent country and United Nations reports of interest:

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Detention & compliance

Commonwealth Ombudsman report

In our previous Newsletter, we covered the Palmer Report on the unlawful detention of a mentally ill Australian permanent resident, Cornelia Rau. Another report, examining the unlawful deportation of an Australian citizen, Vivian Alvarez Solon, was completed on 6 October 2005 ("Comrie Report"). Both reports have received broad media coverage and the Government has announced efforts to rectify problems identified by these reports.
 
The Government has requested the Commonwealth Ombudsman to investigate another 200 cases of alleged wrongful detention originally referred to the Palmer Inquiry. As at the time of writing, the Ombudsman, Mr McMillan, was continuing his enquiries and has said that his report on unlawful immigration detention will not be completed before January 2006. A progress report was published on 7 November 2005.
 
Nicholas McNally, a senior associate at Parish Patience Immigration, 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 Ombudsman, 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 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 senior associate Nicholas McNally assisted with the International Commission of Jurists' submission to the Inquiry. Mr McNally is the Treasurer of the ICJ Australian Section.
 
On 25 September, Mr McNally testified on behalf of the ICJ at a public hearing conducted by the Senate Inquiry. David Bitel also gave evidence to the Committee, in his capacity as President of the Refugee Council of Australia.
 
Additional information, including terms of reference and links to submissions and hearings transcripts: www.aph.gov.au/senate/committee/legcon_ctte/Migration/index.htm
 

Compliance

Recent developments regarding passport and immigration compliance:
  • Parramatta compliance - transferred to Lee Street Sydney
     
    The Parramatta compliance counter closed on 18 November. All clients who were reporting to the Parramatta office, should now be reporting to:
     
    Sydney Compliance Counter
    Level 4, 26 Lee Street
    Sydney     (near Central Station)
     
  • Document verification - skilled migration applications
     
    DIMIA has increased the number of documents that it inspects for authenticity. Recently our offices have seen adverse cases from Bangladesh, India, Pakistan, Philippines and Colombia.
     
    It is highly likely that DIMIA will conduct a document check on all documents produced with an application and if any are found to be false in any way, then your application could be refused and in this event there will be no filing fee refund.
     
  • Australia launches ePassports
     
    A new ePassport for Australia was launched on 25 October 2005. The new passport contains important new security features, and will meet new US requirements coming into effect in October 2006. There has been a small increase in the passport application fees, to cover implementation costs.
     
    In related news, the Department of Foreign Affairs and Trade advises that if you have changed your name by marriage and hold a current passport in your maiden name, you are eligible to have a passport issued in your married name free of charge, but only if you submit an application within 12 months of your marriage.
     
    Additional information:
  • Kiwis can join Aussies in airport queues
     
    New Zealand passport holders can now join a new Australian-NZ only lane at Customs and Immigration checkpoints at Sydney, Melbourne, and Brisbane International Airports. ("Border processing improvements for New Zealanders flying to Australia," Minister for Justice and Customs media release, 21 November 2005)
     
  • Time periods to show evidence of lawful status and collection of personal identifiers
     
    The Migration Regulations have been amended to give compliance officers enhanced powers to identify and determine the immigration status of persons known or reasonably suspected to be non-citizens.
     
    In general terms, a person will only have to provide a personal identifier if their identity or immigration status has not been able to be established through traditional identity documents. Only relatively non-intrusive personal identifiers such as photos, signatures and other personal identifiers contained in a passport can be required.
     
    A comprehensive information form explaining a person's rights will be given to all persons who are required to provide a personal identifier. This form will be translated into 21 major languages. A person must be given this information before a personal identifier is collected.
     
    Additional information: Legislation change summary (DIMIA)
     
  • Definition of 'security'
     
    The Migration Regulations have been amended to align the definition of 'security' as used in those Regulations in respect of grant and cancellation of visas, with the definition of 'security' found in the ASIO Act. (Migration Amendment Regulations 2005 (No 10), effective 1 December 2005)
     
  • Specifications of bodies and agencies - identifying information and movement records
     
    Two recent legislative instruments should be noted:
     
    • Specification of prescribed bodies (F2005L02856) - lists 41 government agencies (including, Tax Office, Centrelink, police) to whom DIMIA may disclose identifying information
    • Specification of legislation, agencies & employees (F2005L02563) - lists various agencies who may access movement records for prescribed purposes. The purpose of the instrument is to facilitate the administration of prescribed legislation (including Social Security Act, First Home Owners Grants Acts and others) and minimise fraud on the Commonwealth.

     
    Visa holders are advised not to breach conditions of visas or to work illegally. Likewise, applicants must not provide false documents. 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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Legislation Update

Commonwealth Bills

Major recent changes have been summarised elsewhere in this Newsletter. Following is a summary of pending legislation as at 2 December 2005. Information on pending Bills is updated daily on the Parliament's BillsNet service.
 
  • Migration Litigation Reform Act 2005 (No 137 of 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. Court applicants will also have to provide more information in their applications, in an effort to prevent re-litigation of matters previously decided in previous Court decisions.
     
    The Bill was referred to the Senate Legal and Constitutional Legislation Committee, which tabled its report on 11 May 2005. The Committee recommended passage of the Bill, with amendments.
     
    The Bill passed through Parliament without amendment, and commenced operation on 1 December 2005. The Federal Court Rules and Federal Magistrates Court Rules have been amended accordingly.
     
    • The Justice Minister, Senator Ellison, told Parliament:
       
      "There is an old saying: 'Justice delayed is justice denied.' Justice delayed because of the clogging up of the system with unmeritorious claims is undesirable. We should not have a situation in which people with a claim with merit have to wait for their case to be decided because of unmeritorious claims clogging up the system." (Senate Hansard, 7 November 2005)
       
    • Senator Ludwig of the Opposition expressed concerns that the time limit provisions in the Bill may be unconstitutional, but stated that Labor supports the object of the Bill, which is to improve the efficiency and general operation of the legal process in migration matters. (Senate Hansard, 12 October 2005)
       
    • According to Senator Bartlett of the Australian Democrats:
       
      "The Bill is predicated on perpetuating the myth that the inordinately high level of migration matters in the courts is due to greedy lawyers and 'criminals' trying to rort the system, when all the evidence clearly points to the problem stemming from DIMIA's incompetence at the initial decision making stage." ("Government's slow poisoning of DIMIA has to end," 13 October 2005)
       
    • Senator Nettle of the Australian Greens told Parliament:
       
      "Recent revelations have shown that less oversight of the Department of Immigration's decisions is the last thing that is needed and that therefore this Bill is irresponsible." (Senate Hansard, 7 November 2005)
       
    • See also: Inquiry into the Provisions of the Migration Litigation Reform Bill 2005 (links to Senate Committee report and submissions by the Refugee Council of Australia and others)
       
  • Citizenship Bills
     
    The Australian Citizenship Bill 2005 and Australian Citizenship (Transitionals and Consequentials) Bill 2005 were introduced into Parliament on 9 November 2005. The Bill has been referred to the Senate Legal and Constitutuional Legislation Committee for inquiry and report by 27 February 2006.
     
    The Minister for Citizenship and Multicultural Affairs, Mr Cobb, said the legislation encompasses changes announced in July 2004 and September 2005, including:
     
    • Children of Former Citizens - Eligibility for citizenship will be extended to persons born outside Australian to a parent who ceased to be an Australian citizen under section 17 of the Australian Citizenship Act 1948. The person must be of good character.
    • Residence Requirements - With certain exceptions, an applicant for Australian citizenship will be required to have been present in Australia as a permanent resident for a total of three years in the five years before making the application, including a total of one year in the two years before the application is made.
    • Australian Citizenship by Descent - Age and time limitations for registration of citizenship by descent will be removed. A person applying to become an Australian citizen by descent must show: (a) at least one of their parents was an Australian citizen at the time of the person's birth; and (b) the person is of good character if 18 years or over.
    • Resuming Australian Citizenship - The only requirement for former Australian citizens who ceased to be citizens in order to acquire or retain another citizenship, or to avoid significant hardship or disadvantage, will be that they be of good character.
    • Prohibitions on Approval of Citizenship Applications - New provisions will prohibit the approval of a citizenship applicant who is assessed by the Australian Security Intelligence Organisation as a risk to the security of Australia. Also, approval of a citizenship application will be prohibited where an applicant's identity cannot be verified.
    • Revocation of Australian Citizenship - Applies to cases of serious criminal offences and third party fraud.
       
    Related:
     
  • Migration and Ombudsman Legislation Amendment Bill 2005
     
    The Migration and Ombudsman Legislation Amendment Bill 2005 was introduced in the Senate on 15 September. It has now passed through both chambers of Parliament, and as at 2 December was awaiting Royal Assent.
     
    In his Second Reading Speech The Hon. John Cobb, Minister for Citizenship and Multicultural Affairs, said:
     
    "The amendments, together with those earlier implemented by the Migration Amendment (Detention Arrangements) Act 2005, generally build on reforms to immigration detention arrangements announced by the Prime Minister in June this year and on other arrangements that the government has introduced over recent years. These amendments do not alter the government's approach to immigration or mandatory detention. They show, however, the responsiveness of the government by ensuring that our existing policy is administered with flexibility and fairness, and in a timely manner."
     
    According to the Explanatory Memorandum, the Bill:
    • Introduces a 90 day period during which the Minister is required to decide applications for protection visas, and the Refugee Review Tribunal to decide applications for review of protection visa decisions by the Minister; and requires the Secretary of DIMIA and the Principal Member of the RRT to report to the Minister, on a four monthly cycle, about protection visa applications and review applications that take longer than 90 days to decide;
    • Allows the Ombudsman to use the title "Immigration Ombudsman" when performing functions in relation to immigration and detention; and enables the Ombudsman to contact an immigration detainee where that person has not made a complaint to the Ombudsman; and
    • Makes amendments relating to the disclosure of a person's personal identifiers and other relevant information where it is necessary to either identify or locate a person in connection with the administration of the Migration Act. These amendments are a consequence of the findings of the Rau enquiry.
       
  • Anti-Terrorism (No. 2) Bill 2005
     
    The Anti-Terrorism (No. 2) Bill 2005 was introduced in the House of Representatives on 3 November. It was referred to the Senate Legal and Constitutional Legislation Committee, which tabled its report on 28 November 2005.
     
    Portions of the Bill amend the Migration Act, most notably the addition of "sedition" in the meaning of "serious offence" as a basis for the Government's power to deport non-citizens on security grounds. According to the Explanatory Memorandum, the amendments are aimed at aligning the meaning of "security" as used in provisions for citizenship applications, visa refusals and cancellations on security grounds, with the definition of "security" in the ASIO Act.
     
    On 1 December, the Attorney-General, Mr Ruddock, announced that the Government has settled on amendments to improve and strengthen the Bill. The amendments respond both to recommendations made by the Senate Legal and Constitutional Legislation Committee and also to suggestions raised by other government members. The Government has confirmed it will proceed with the sedition provisions, which will outlaw the urging of force or violence, while removing any doubt about the ability of people to make political comment and criticisms.
     
    Additional information:
    • Senate Legal and Constitutional Legislation Committee, Inquiry into the provisions of the Anti-Terrorism (No.2) Bill 2005.
    • "Government enhances Anti-Terror Bill," Attorney-General's media release, 1 December 2005
    • "New counter-terrorism laws," Transcript of Prime Minister and COAG joint press conference, 27 September 2005
    • "Can Ruddock be trusted with suspicion-based detention?" Australian Labor Party media release, 27 October 2005
    • "It's time for a Bill of Rights," Australian Democrats media release, 9 November 2005
    • "Proposals to further strengthen Australia's counter-terrorism laws 2005," Parliamentary Library E-Brief, continually updated
    • "Terrorism Law chronology," Parliamentary Library Internet Guide, continually updated (includes links to pending Bills and explanatory materials)
    • "Less haste and more scrutiny needed for anti-terrorism legislation," Human Rights and Equal Opportunity Commissioner's media release, 14 October 2005
    • International Commission of Jurists Australian Section - links to media releases and position paper on anti-terrorism laws (Parish Patience Immigration senior associate Nicholas McNally is the Treasurer of ICJ Australian Section)
    • Law Council of Australia - several media releases expressing concern about the Government's proposed anti-terror laws
    • "Lawyers, academics and community groups unite in opposing proposed anti-terror laws," Australian Muslim Civil Rights Advocacy Network (AMCRAN) media release 4 October 2005
    • "Terror laws won't stop detention bungles," The Age, 27 October 2005, and "Stripping citizenship complex, says Ruddock," The Age, 10 November 2005 (available from Fairfax Digital)
       
  • Workplace Relations Amendment (Work Choices) Bill 2005
     
    The Workplace Relations Amendment (Work Choices) Bill 2005 was introduced into Parliament on 2 November. It was referred to a Senate Committee, which tabled its report on 28 November 2005. At time of writing, the legislation was expected to pass quickly through Parliament with some minor amendments.
     
    The Bill has attracted wide media comment, and there have been concerns that lower paid workers and those of non-English speaking backgrounds may be disadvantaged by the new laws. Additional information:

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.
 

UK Immigration, Asylum and Nationality Bill

The Immigration, Asylum and Nationality Bill has been pending in the UK Parliament since 22 June 2005. Amendments to the Bill have been passed in the House of Commons, and the Bill was sent to the House of Lords for further debate on 17 November 2005. Additional information:

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Recent Caselaw

High Court

  • Ruddock v Taylor [2005] HCA 48, 8 September 2005
     
    In this case the High Court held that even though the Respondent's visa cancellation was unlawful, his detention was lawful. Therefore there was no wrongful detention and no basis upon which to award damages.
     
  • Ruhani v Director of Police [No 2] [2005] HCA 43, 31 August 2005
     
    Appeal from the Supreme Court of Nauru - Construction of legislation - Immigration Act 1999 (Nauru) and Immigration Regulations 2000 (Nauru). Immigration - Refugees - Application for habeas corpus. Appeal dismissed.
     

Full Federal Court

  • Morsed v MIMIA [2005] FCAFC 193, 9 September 2005
     
    Student visa - proposed consent orders quashing decision of the Migration Review Tribunal - validity of notice produced under s 20 of the Education Services for Overseas Students Act 2000 - notice misleading [approves Uddin v MIMIA [2005] FMCA 841, the student visa cancellation case brought by Parish Patience Immigration and discussed in the Students section of this Newsletter].
     

Federal Magistrates Court

  • Robel v Minister for Immigration [2005] FMCA 1154, 9 September 2005
     
    Skilled-Australian Linked (Migrant) (Class AJ) visa - "usual occupation" - whether applicant's education, training and work experience meet the definition of a dental hygienist or dental therapist as well as that of a dentist. Held: It is possible for a person to have more than one "usual occupation" where certain duties fall into more than one ASCO code occupation description.
     
    The Minister has appealed the decision to the Federal Court. Nicholas McNally represents the applicant in this case.
     

MRT and RRT

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Staff & website news

Overseas consultations

In the near future several of our professionals will be available for consultations overseas. We are able to give advice to applicants for all categories of migration to Australia and also for student visas. Applicants for most categories must have English language fluency and need to be aged under 35 years, unless sponsored by relatives.
  • New Delhi, India - mid-December 2005: Nigel Dobbie
  • Manila, The Philippines - late December 2005: David Bitel
  • Pretoria, South Africa and Tanzania - late December & early January 2006: Dr Etienne de Villiers Hugo
  • Malaysia - January 2006: Robert Liu
  • Fiji - late January 2006: David Bitel
Prospective applicants should contact Immigration Enquiries for an appointment, or ring tel +61 2 9286 8700. A consultation fee will apply.
 

Submissions & news media

  • On 28 September, Nicholas McNally and David Bitel gave evidence at a public hearing by the Senate Inquiry into the Administration and Operation of the Migration Act. Mr McNally was speaking as Treasurer of the ICJ Australian Section, and Mr Bitel was speaking as the President of the Refugee Council of Australia.
     
  • On 16 September, Nigel Dobbie and Nicholas McNally were interviewed on ABC Radio World Today program about the Uddin student visa cancellation case: "Fed Govt mistakenly cancels 8,000 student visas"
  • Nicholas McNally has been widely quoted elsewhere about the Uddin student visa cancellation case, including interviews with Sing Tao Chinese community newspaper, The Age (Melbourne), and the Royal Melbourne Institute of Technology (RMIT) student newspaper.
     

Seminars & conferences

  • In November 2005, David Bitel presented a paper at the International Bar Association Business Immigration Conference in London. Mr Bitel's paper addressed the topic, "The culture of control: the misuse of detention under Australian immigration law."
     

Website updates

Staff appointments

Congratulations to the following Parish Patience Immigration staff, who have recently received promotions within the firm:
  • Nigel Dobbie is now Special Counsel
  • Etienne Hugo and Nicholas McNally have become Senior Associates
  • Rania Skaros and Robert Liu have been promoted Associates
  • Yulia Gorbunova has joined our administrative staff. Prior to joining Parish Patience Immigration, Yulia obtained a BA in Laws and Jurisprudence from the State University of Tyumen in Russia and was accredited as a lawyer. After arriving in Australia, she completed a Masters in Professional Communications at the University of Western Sydney. Yulia is also accredited by NAATI as an English-Russian Interpreter as well as one-way (English-Russian) translator, which led her to work in both government and the private sector.
Individual staff profiles are found in the About Us section of our website.
 

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Diary Dates

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Quote of the Month

"Laws are spider webs through which the big flies pass and the little ones get caught."
-- Honoré de Balzac, French author (1799-1850)

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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

 
Law Society of NSW, specialist accreditation Member, Migration Institute of Australia

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

Liability is limited by a scheme approved under Professional Standards Legislation

Copyright © Parish Patience Immigration 2005. All rights reserved.
Migration Agents Registration Authority Code of Conduct

In this issue:

Students

Permanent visas for students, visa cancellations, new regulations, more >>

Skilled migration & business entry

Regulations update, NSW to increase skilled business migration, more >>

Visitors, family & retirees

Visitors, working holiday makers, family, retirees, more >>

Refugees & asylum seekers

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

Detention & compliance

Ombudsman's Inquiry, compliance, more >>

Legislation update

Migration Litigation Reform, Citizenship, Anti-Terrorism, more >>

Recent case law

High Court, Federal Court, more >>

Staff & website news

Overseas consultations, staff appointments, more >>

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.