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Apologies to our subscribers for the
long silence. Helen Eyles, our librarian for ten years, left us in January and
we have only recently replaced her.
In this issue we look at the new Australian Citizenship act
and changes to the Skilled Migration Programme as well as looking at recent developments concerning
refugees and human rights in honour of World Refugee Day on 20 June 2007. This year’s theme is :
“Voices of young refugees”. Over the past decade, there has been a marked increase in the number of
young refugees coming to Australia, peaking at 75% of the offshore humanitarian programme in 2006.
This year's theme is a call to listen to the refugee young people themselves, their challenges and
their triumphs.
We also look at recent legislative changes and recent caselaw.
Department of Immigration and Citizenship - New Minister
Kevin Andrews was appointed Minister for Immigration and Citizenship on 30 January 2007 to replace Amanda Vanstone,
the Minister for Immigration and Multicultural Affairs. We welcome him to his portfolio and wish Senator Vanstone,
who has retired from Parliament, all the best in her future career as Australian Ambassador to Rome.
General Skilled Migration Programme - changes
Major changes to the GSM will be introduced on 1 September 2007. Changes include:
- Increasing the English language threshold requirements for most GSM visas
- Rewarding GSM visa applicants who have very good English language proficiency
- Greater emphasis on skilled work experience
- Introduction of a new temporary work visa for graduates
- Simplifying the GSM visa structure
- The points test will be adjusted to benefit applicants with advanced Australian
tertiary qualifications, Australian skilled work experience and strong English
language skills. Eleven skilled migration visa categories will be collapsed into
four, the fifteen skilled migration visa subclasses will be collapsed into nine
- Removal of the SSASSL and of the obligation for sponsored applicants to provide an assurance of support
General Skilled Migration - updated Skilled Occupation List
An applicant for the General Skilled Migration programme must nominate an occupation
which matches their work experience and/or qualifications from a list of occupations
determined by the Australian Government. The list is called the Skilled Occupation
List (SOL) which details occupations currently sought after in Australia. The latest
version of SOL was released in April 2007. SOL lists the number of points awarded for
each occupation and the name and address of the Australian organisation approved to assess
a person’s skills and/or qualifications for migration purposes for each occupation.
A more restricted list, the Sydney and Selected Areas Skill Shortages List (SSASSL) was also
updated in April 2007. SSASSL lists skilled occupations in demand in Sydney, Gosford, Newcastle
or Wollongong. These areas are known as “Sydney and Selected areas”. All occupations on the Sydney
and Selected Areas Skill Shortages List are also included on the
Skilled Occupation List.
On 26 April 2007, the Minister for Immigration and Citizenship announced that an English language requirement would
commence from 1 July 2007 for 457 visa holders. Employers will have to ensure that overseas workers they sponsor
will have English language skills equivalent to an average score of 4.5 in an International English Language Testing
System (IELTS) test, or a higher level where required as part of licensing or registration. Applicants will
be required to detail their English language skills and, on a targeted basis, may be required to complete an IELTS
test. The Migration act will be amended to ensure that employers of skilled
temporary overseas workers (457 visas) face tougher penalties if they breach their sponsorship obligations.
The Department of Immigration and Citizenship announced on 8 May 2007 that the planning number
for the Migration Programme will be set at 152,800 places. The Skilled Migration Stream will
increase by 5,000 places to 102,500. It is estimated that some 750 places will be available
under State-Specific and Regional Migration initiatives.
The Family Stream will be maintained at 50,000 places. During 2006-2007 the number of partner
visas in the family scheme was increased by 4,000 places. This level will be maintained in the
2007-2008 migration programme at 50,000 places.
DIAC will also receive an additional funding of $359 million in the 2007/08 Budget to help
meet Australia’s labour force needs.
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"Refugee Council response to 2007-2008 Federal Budget", media release, 9/5/07
Following its latest review of student visa assessment levels, the Department of
Immigration and Citizenship has made changes to the assessment levels in Argentina,
Brazil and Venezuela and many other countries that will make the process easier for
many prospective students to obtain a visa. The only country to be “toughened” is
Bangladesh, which was a response to persistent and endemic abuse by Bangladeshi students.
The majority of subclasses for Bangladesh will now be at level 4. The changes became
effective on 14 May 2007.See updated form 1219i
Australian Education International (AEI) is the Australian Government Department that administers the
Education services for overseas students act 2000 no. 164 (ESOS).
Recent item of interest: National code of practice 2007
The original National Code of Practice for Registration
Authorities and Providers of Education and Training to Overseas Students has been revised.
The revised code comes into effect on 1 July 2007. On that date all CRICOS-registered providers
must comply with the National code of practice 2007.
The Code is a set of national standards that governs the protection of overseas students and delivery
of courses to those students by providers registered on CRICOS (Commonwealth Register of Institutions and
Courses for overseas students). Only CRICOS courses can be offered to international students studying in
Australia on a student visa
It is anticipated that there will be some changes to student visa rules with effect from 1 July 2007.
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High Court of Australia
STCB v Minister for Immigration and Multicultural and Indigenous Affairs, [2006] HCA 61, 14 December 2006
Immigration - Refugees - Application for protection visa - Fear of persecution - Persecution for reason
of membership of particular social group - Family - Fear of persecution because of family involvement
in blood feud - Whether decision-maker required by s 91S of Migration Act 1958 (Cth) to disregard fear
of persecution - Albanian citizens subject to customary law - Whether a "particular social group".
Migration Act 1958 (Cth), s 91S.
Convention relating to the Status of Refugees 1951, Art 1A(2).
VBAO v Minister for Immigration and Multicultural and Indigenous Affairs, [2006] HCA 60, 14 December 2006
Immigration - Refugees - Well-founded fear of persecution - Section 91R(1) of the Migration Act 1958 (Cth) required
that persecution involve "serious harm to the person" - Serious harm defined to include "threat to the person's life or
liberty" - Whether "threat to the person's life or liberty" referred to likelihood of death or deprivation of liberty, or
communication of intention to kill or deprive of liberty - Whether expression of intention to harm sufficient to constitute
"serious harm".
Immigration - Refugees - Application for protection visa - Whether Refugee Review Tribunal made findings of fact
favourable to the appellant so as to call into operation s 91R of the Migration Act 1958 (Cth).
Words and phrases - "threat", "threat to the person's life or liberty", "serious harm".
Full Federal Court
Cheng v Minister for Immigration & multicultural & Indigenous Affairs , [2007] FCAFC 71, 18 May 2007
MIGRATION - student visa – cancellation – absence of education provider certificate of at least satisfactory
academic progress – notice of non-compliance under Education Services for Overseas Students Act 2000 (Cth) –
whether procedural unfairness arising from content of non-compliance notice – whether decision-maker required
to go behind education provider’s refusal to certify satisfactory progress – whether procedural unfairness by
decision-maker – grounds of review and appeal grounds unsustainable – appeal dismissed.
Ma v Minister for Immigration and Citizenship [2007] FCAFC 69, 11 May 2007
IMMIGRATION – Condition 8202 – appeal – student visa subclass 573 cancelled due to breach of Condition 8202 –
where condition amended between decision of delegate and decision of Administrative Appeals Tribunal –
where amendment applied to any visa in force at time of amendment – where delegate considered irrelevant information –
whether decision of delegate a nullity – where visa would have expired before amendment – whether Tribunal should have
considered amended condition – whether visa in force when condition amended.
Held: not necessary to decide effect of delegate’s decision as visa would have expired before amendment in any case –
Tribunal did not need to consider amended condition – appeal dismissed.
SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63, 11 May 2007
MIGRATION – appeal from decision of Federal Magistrate dismissing appellant’s application for
constitutional writs in respect of a decision of the Refugee Review Tribunal – where appellant
applied for protection visa – where application refused by delegate of Minister – where Tribunal
affirmed delegate’s decision – where appellant nominated authorised recipient pursuant to s 441G of
Migration Act 1958 (Cth) – where Tribunal sent letter in purported compliance with ss 425 and 425A of
Migration Act to appellant in person and not to authorised recipient – whether giving of document
to appellant sufficient to discharge Tribunal’s obligations regarding invitation – whether breach of s
441G amounts to jurisdictional error.
Held: s441G creates obligation that Tribunal provide document to authorised recipient – provision of
document to appellant in accordance with a method of service specified in s 441A not sufficient to comply
with obligations in ss 425, 425A and 441G – failure to comply with obligation in s 425A amounts to jurisdictional error – appeal allowed.
Lee v Minister for Immigration and Citizenship [2007] FCAFC 62, 11 May 2007
MIGRATION – appeal from orders of Federal Magistrate dismissing appellant’s application for constitutional writs
and relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of two decisions of
the Migration Review Tribunal – where appellants applied for Temporary Business Entry visas – where application
refused by delegate of Minister – where Tribunal affirmed delegate’s decision – where Federal Magistrate held
that Tribunal committed jurisdictional error but declined to exercise discretion to grant relief sought by appellants –
where respondent by way of notice of contention challenged Federal Magistrates conclusion that Tribunal committed
jurisdictional error – whether Federal Magistrate erred in finding that Tribunal committed jurisdictional error –
whether Federal Magistrate erred in dismissing application in the exercise of discretion.
MIGRATION – business visas – where visa sought by appellants required support of approved business sponsor –
where business sponsor’s application to Minister’s delegate refused – where refusal affirmed by Tribunal – whether
appellants entitled to challenge refusal of business sponsor’s application.
MIGRATION – authorised recipients – where appellants nominated an authorised recipient pursuant to s
379G of the Migration Act 1958 (Cth) – where Tribunal sent letter of invitation in purported compliance with s
359A of Migration Act to appellants in person and not to authorised recipient – whether s 379G of Migration Act
required Tribunal to give invitation to authorised recipient – whether giving of letter to appellants in person
sufficient to discharge Tribunal’s obligations regarding invitation.
ADMINISTRATIVE LAW
– discretionary relief – futility – Federal Magistrate declined to exercise discretion to grant relief on the basis that
in the absence of a business sponsor the appellant’s visa application could not succeed – relevant considerations.
Held:
appellant’s not entitled to challenge business sponsor’s application – s 379G creates obligation that Tribunal provide letter to
authorised recipient – provision of letter to appellants in accordance with a method of service specified in s 379A not sufficient
to comply with obligations in s 359A and s 379G – failure to comply with s 379G amounts to jurisdictional error - futility to be
assessed by reference to time in the future when reconsideration or rehearing takes place – Court cannot be certain application
will be futile on rehearing – Magistrate erred in declining to exercise discretion to grant relief – appeal allowed in relation
to appellants’ application for business visas.
SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64, 9 May 2007
MIGRATION
– procedural fairness – legal professional privilege – hearing before Refugee Review Tribunal
– whether a question asking an applicant for review to divulge the content of conversation with his legal
representative without informing him of his right to claim legal professional privilege was asked in excess
of the tribunal’s jurisdiction – whether the natural justice hearing rule in s 422B(1) of the Migration Act
1958 (Cth) affects legal professional privilege – whether the tribunal was under a duty to warn or inform
the applicant of his right to legal professional privilege – whether the applicant had waived privilege
by answering questions that revealed the substance of privileged communications – legal professional privilege
as a common law immunity – no basis to suggest to tribunal any misuse of communication with legal representative
or other abuse of legal professional privilege by applicant – legal professional privilege as an inviolable
limitation on the tribunal’s inquisitorial powers.
HELD
– appeal allowed – original decision of tribunal quashed because (per Lander J) tribunal failed to inform applicant
of right to claim legal professional privilege and (per Rares J) tribunal asked question beyond power in circumstances
– matter remitted to tribunal to be decided in accordance with law.
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Citizenship
Australian citizenship act 2007, no. 20 was assented to on 15 March 2007. Sections 2A to 54 come into operation on 1 July 2007.
Some of the proposed changes include:
- Residence requirements - Applicants will need to spend four years in Australia before becoming eligible for citizenship,
double the current two years, with at least 12 months as a permanent resident.
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Descent
- The age and limitations for registration of citizenship by descent will be removed.
The only requirements will be that at least one parent was an Australian citizen at the time of the person’s
birth and that, the person is of good character if 18 years or over.
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Adoption
- The new act provides for people to be registered as an Australian citizen if they were adopted overseas by an Australian citizen
parent in accordance with full and permanent Hague Convention Intercountry Adoption arrangements.
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Resumption of citizenship - The only requirement for former Australian citizens who ceased to be citizens in order to retain or
acquire other citizenship will be that they are of good character.
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English proficiency exemption - The exemption age for passing a basic English test has been raised from 50 to 60 years.
The Minister believes that by increasing the minimum time that migrants must wait before they apply for citizenship
they will better understand "Australian values".
Migration Act 1958
During 2007, the Migration act 1958 has been amended by the following acts:
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Migration amendment (employer sanctions) act 2007, no. 7, assented to 19 February 2007, according to the Explanatory Memorandum,
the act introduces new offences for employers, labour suppliers and other persons who allow illegal workers to work.
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Migration amendment (border integrity) act 2007, no. 62, assented to 15 April 2007, according to the Explanatory Memorandum,
the act amends the Migration act to provide that a special purpose visa may cease at a time specified by the Minister where
the Minister has made a declaration under subsection 33(9) of the Migration act that it is undesirable for that special purpose
visa holder to travel to and enter or remain in Australia;
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To enable citizens to have their identity verified by an automated system instead of an officer
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Preserve the current policy intention that the evidence required to be presented by non-citizens as proof of identity may include a
“personal identifier” for the purposes of the Migration Act
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Migration legislation amendment (information & other measures) act 2007, no. 63, assented to 15 April 2007 , according to the Explanatory
Memorandum, the act amends the Migration act to address limitations of certain provisions dealing with identifying information; to broaden
the ability of the Department of Immigration and Citizenship to disclose movement records for the benefit of the person to whom the record
relates; and to amend the definition of “fisheries detention offence”
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The Australian National Audit Office released an audit report on 17 May 2007 “Administration of the health requirement of the Migration act 1958”
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Migrant health risk confusion”, SMH 18 May 2007 comments on the ANAO report, “there was little evidence of a systematic methodology for deciding health risks”
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Migration amendment (maritime crew) act 2007 no. 73, assented to 28 May 2007, the act introduces a new class of temporary visa for foreign sea
crew to bring them into line with visa arrangements for most other visitors to Australia. The Maritime Crew visa will allow security checks to
occur before crew are granted a visa to enter Australia. Applications for the visa will be available from 1 July 2007, with a transition period
until 1 January 2008 when the visa will become mandatory.
Migration regulations 1994, amended in 2007
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Migration amendment regulations 2007( no. 1) Schedules 1 to 4 commenced 23 April 2007, Schedule 5 commences 1 July 2007
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Schedule 1 amendments relating to apprenticeship; Schedule 2 amendments relating to guests of Government and carers;
Schedule 3 amendments relating to Special program visa and Occupational Trainee visas; Schedule 4 amendments relating
to overseas forces; Schedule 5 amendments relating to relevant assessing authorities.
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Migration amendment regulations 2007( no 2) - commenced 13 April 2007
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Applies to sponsorship of an applicant of a temporary visa for which sponsorship is required
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Migration amendment regulations 2007 (no. 3) - commenced 24 May 2007 – amend the Regulations in relation to sponsorship fees payable under regulation 5.38
Pending Legislation
Commonwealth Bills
Following is a summary of pending legislation as at 1 June 2007.
Bills, explanatory memoranda, 2nd reading speeches, status of bills are available at the
Parliament of Australia website.
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Migration amendment (review provisions) bill 2006 [2007] was introduced into the Senate on 7 December 2006.
It seeks to allow the Migration Review Tribunal and the Refugee Review Tribunal to give procedural fairness to
review applicants by allowing the Tribunals to orally give clear particulars of any information that the Tribunal
considers would be the reason for affirming the decision that is under review and invite the applicant to comment
on or respond to the information.
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Migration legislation amendment (access to judicial review of migration decisions) bill 2007 , introduced into the Senate on 28 February 2007, the bill seeks to repeal the Migration legislation amendment act (no. 1) 2001 which would restore fairer access to judicial review of migration decisions.
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Migration legislation amendment (removal of unjust restrictions) bill 2007 introduced into the Senate on 28 February 2007. The bill seeks to repeal the Migration legislation amendment act (no. 6) 2001 to remove unjust restrictions placed on the definition of certain key terms used by the Federal Court and the Refugee Review Tribunal in determining refugee status which resulted in the narrowing of eligibility for protection visas.
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Migration amendment (statutory agency) bill 2007 introduced 24 May 2007 into the House. Inserts Part 7A Statutory agency for purposes of the Public Service Act.
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Migration (sponsorship fees) bill 2007 introduced into the House on 4 June 2007 – to make payable certain fees paid in relation to sponsorship of applicants for temporary visas, and for related purposes.
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Afghanistan
Bangladesh
China
Fiji
Indonesia
Lebanon
Myanmar
Nepal
Pakistan
Philippines
Sri Lanka
"Under the Gaydar" The Bulletin, 21 May 2007. Discusses cases involving applicants who seek refugee status in Australia because of
their homosexuality and their fear of persecution in their own countries (such as Bangladesh and Pakistan).
Our Mr Bitel is quoted extensively in this article.
- "Policy backflip ends limbo for 120 asylum seekers", SMH Weekend edition, 5-6 May 2007.
Australia will now accept 120 Afghani and Iraqi asylum seekers left stranded for more than 5 years in Indonesia by the
Government’s border protection policy
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"Jakarta refuses to take Sri Lankans", by Mark Forbes, 1 March 2007 The Age, Australia’s plan to
send 83 Sri Lankan asylum seekers to Indonesia appears certain to collapse, with Jakarta rejecting
calls that it should allow them to make asylum claims.
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"US/Australia : refugee deal trades in human lives: agreement to swap refugees flouts international law",
Human Rights Watch April 2007
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"Papuan refugees reflect on a year in Australia" ABC 7.30 Report, 19 January 2007
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"Last hope : the need for durable solutions for Bhutanese refugees in Nepal and India" Report issued by Human Rights Watch
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Amnesty International Report 2007.
Amnesty launched its 2007 report on 23 May 2007.
It provides a comprehensive global overview of the state of the world’s human rights.
Covering 153 countries, it documents human rights issues of concern during 2006 and reflects
the organisation’s activities during the year to promote human rights and campaign against human rights abuses.
http://thereport.amnesty.org
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Bangladesh :
Human rights under threat as election tensions intensify, Amnesty International, 9 January 2007
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U.S. State Department.
Country Reports for Human Rights Practices 2006 : China (includes Tibet, Hong Kong and Macau) released 6 March 2007
Congratulations to Julia who married Brad Medors on 12 May 2007
Staff Movements
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Goodbyes: We have recently farewelled two members of staff.
Robert Liu has accepted a position with another Immigration firm.
Helen Eyles, our Librarian and Website Co-Ordinator has left after ten years to work at another law firm.
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New staff: Simon Levett joined us on 4 June 2007
Our professionals make regular trips overseas. We are able to advise applicants for all categories of migration to Australia as well as student visas.
Applicants for most categories must have English language fluency and need to be under 45 years of age, unless sponsored by relatives.
David Bitel visited Bangladesh in May 2007 to consult with clients and will next visit in November 2007. He will also visit England in mid November and the Philippines in mid August.
Interstate - Our staff also regularly travel to Melbourne, Canberra and other capital cities for consultations with prospective visa applicants.
Prospective applicants should contact Immigration Inquiries for an appointment, or ring telephone +61 2 9286 8700 or 1300 850 695 from within Australia. A consultation fee will apply.
Asian Legal Information Institute (http://www.asianlii.org) was launched in Sydney on 8 December 2006.
Developed by Austlii, in co-operation with partner institutions in Asia and other legal institutes,
it is a non-profit and free access website. As much as possible, information will be in English to provide
a common linguistic platform for comparative legal research.
Asianlii holds legal information from all 27 countries and territories in Asia, from Japan to Pakistan,
from Mongolia to Timor Leste. It provides for browsing and searching databases of legislation, case law,
law reform reports and law journals (where available) from each country in the region.
Nigel Dobbie, Senior Counsel, recently presented a paper for the Migration Institute of Australia on unlawful non-citizens.
Nigel also presented a paper on 5 June 2007 entitled "Tools for applying character assessment legislation" at the Immigration law conference, Sydney, 4-5 June 2007, organised by LexisNexis. The session analysed s501 of the Migration act specifically in relation to applications and the “character test”,
overview of changes and implications, and gave practical tips for navigating s 501 cases.
David Bitel presented a paper on overseas adoption and children in immigration law at the NSW Legal Conference on 28 March 2007.
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Refugee Council of Australia – Refugee Week 17-23 June 2007 (theme “Voices of young refugees”)
including World Refugee Day 20 June 2007 – for details of all Refugee Week activities see
Refugee Council Website
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Human Rights & Equal Opportunity Commission events calendar
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United Nations Association of Australia diary dates
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14-19 October 2007 International Bar Association Conference, Singapore. David Bitel will be attending the conference and presenting a paper.
A poem by Edward Yashinsky:
"Fear not your enemies,
For they can only kill you
Fear not your friends
For they can only betray you
Fear only the indifferent
Who permit the killers and betrayers
To walk safely on earth."
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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
or: 1300 850 695 (within Australia)
Fax: +61 2 9283 3323
Email: 
Contact and enquiry
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