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| Issue No 44 | June 2003 | ||||||
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Senior Associate Nigel Dobbie travelled to New Orleans USA to attend the American Immigration Lawyers Association national conference, held 18-22 June.
Mr Dobbie participated in a panel discussion at the conference, in which he spoke about Australian law regarding employer sponsorship and temporary business visas.
David Bitel consultations in Manila, Melbourne & Canberra
Managing Partner David Bitel will be travelling to Manila in mid-August. He also regularly travels to Melbourne & Canberra to see clients.
Mr Bitel will be available 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.
Applicants wishing to make an appointment should email a resumé with their request for an appointment to Ina Tempra, or ring Ina on tel. +61 2 9286 8700. A consultation fee will apply.
David Bitel will be attending the International Bar Association Conference in San Francisco in September. Mr Bitel is Senior Vice Chairman, Committee 14 (Migration and Nationality), Section on Legal Practice of the International Bar Association and a member of the executive of the IBA.
In related news, Mr Bitel has joined the new Immigration Lawyers' Association of Australasia (ILAA). The ILAA had its founding meeting on 29th May. The ILAA has the backing of several law societies and of the IBA Migration and Nationality Committee.
David Bitel's long-serving Personal Assistant, Mrs Barbara Dixon, has announced her retirement. Many of our clients and colleagues will have become acquainted with Barbara during her nine years with the firm. We all wish Barbara and her husband the very best as they embark on their 'sea change' adventure to their new property on the North Coast of New South Wales.
The 2003 edition of The International Who's Who of Corporate Immigration Lawyers has been published by Who's Who Legal in London. Listing is gained by peer nomination, and David Bitel was one of only five Australian lawyers (and one of only two Sydney lawyers) to be listed.
The directory is also online at WhosWhoLegal.com.
David Bitel spoke about racism at Limmud Oz, held in Sydney over the Queen's Birthday weekend June 8-10. Limmud Oz is a major Jewish adult education weekend, drawing hundreds of attendees and speakers from throughout Australia and overseas.
In his capacity as President of the Refugee Council of Australia, David Bitel gave the opening address at the "Isle of Refuge" art exhibition at the Ivan Dougherty Gallery, UNSW College of Fine Arts. The exhibition runs from 12 June to 19 July, and highlights the plight of asylum seekers in detention centres in Australia and the South Pacific.
Mr Bitel also introduced World Refugee Day on June 20 at the Emanuel School in Randwick, Sydney. Copies of his speeches will shortly be available on the Articles page of our website.
Recent additions to our website:
Skilled migration & business entry
The Minister for Immigration, Mr Ruddock, has announced changes to the general skilled migration category, to take effect 1 July 2003. Corresponding amendments to the Migration Regulations were gazetted in mid-June.
See DIMIA's Skilled Migration Update - includes a summary of the changes, link to the Minister's announcement and a link to a series of questions and answers.
For additional information about the July 1 changes to skilled migration, we invite you to contact Sharon McCabe.
The Migration Legislation Amendment (Sponsorship Measures) Bill 2003 was introduced into Parliament on 4 June 2003.
The Bill formalises Government policy to require the sponsors, as opposed to the Australian taxpayer, to bear all costs in relation to non-citizens who are being sponsored. Although aiming to standardise sponsorship arrangements, the Bill nevertheless recognises different sponsor relationships depending on the type of visa applicant being sponsored. The Bill also seeks to limit merits review where visa applicants have failed to meet sponsorship requirements.
The Bill passed through the House of Representatives on 24 June and was introduced into the Senate on 25 June. The Bill has been referred to the Senate Legal and Constitutional Committee, whose report is due 12 August 2003.
The Queensland Government has published an informative website on business skilled migration to that State.
Links to information for other Australian states are found on the Business Skills page of our website.
In related news, on 24 June DIMIA updated Fact Sheet 26: State & Territory Specific Migration.
The Senate Employment, Workplace Relations and Education References Committee has commenced an inquiry into Australia's current and future skills needs. The Committee looks forward to consulting a wide range of industry representatives, VET and other training providers, government, union and community representatives. The committee is to report by the last sitting day in June 2003 [26 June].
Information about how to make a submission and hearings schedule is found on the Committee's
website
For additional information about trades recognition, we invite you to contact Annette Aitken.
Student & working holiday visas
The Minister for Immigration, Mr Ruddock, has announced changes to the general skilled migration category, to take effect 1 July 2003. The changes particularly affect overseas students applying for permanent visas.
Overseas students who have completed studies in low-growth cities or regional areas will have a better chance of gaining permanent residency. These changes were made by amendments to the Migration Regulations, which were gazetted in mid-June.
See also:
DIMIA's Skilled Migration Update - includes a summary of the planned changes, link to the Minister's announcement and a link to a series of questions and answers.
Transitional Arrangements for Skilled Migration Study, announced by the Minister for Immigration on 14 May.
Article by Sharon McCabe on the Students page of our website.
For additional information about the planned changes to skilled migration, we invite you to contact Sharon McCabe.
As members of the Migration Institute of Australia (MIA), we have received a policy statement from DIMIA regarding the meaning of "1 year of full time study." Applicants who may have an issue with meeting this requirement are invited to contact Diana Tong.
Media Release MPS 29/2003, 13 May 2003 - includes a link to information about new visa classes for sponsored professional development and student guardian visas.
The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) has published an updated Fact Sheet 50: Overseas Students in Australia (revised 11 June 2003).
Included in the Government's May Budget Papers was an announcement that the Working Holiday Maker (WHM) program will be expanded to include additional countries. Also, a new 'Work and Holiday' visa class will be implemented, designed for young people who already have diplomas or degrees, and good English language skills, to stay in Australia for up to 12 months.
Budget Fact Sheet - 'Working Holiday' & 'Work and Holiday' visas, 13 May 2003
According to a recent New Zealand Herald article, the New Zealand government has announced plans for a revised code for the foreign-student industry. The draft code requires schools, tertiary institutions and private academies to keep track of where their students are living and to take greater responsibility for their safety.
"Schools to keep closer eye on foreign pupils", New Zealand Herald, 28 May 2003
For additional information about Student visas, Working Holiday or Work & Holiday visas, we invite you to contact Diana Tong.
As reported in previous issues of our Newsletter, the new Contributory Parent visa category will begin on 27 June 2003 for applicants residing outside Australia, and on 1 July 2003 for applicants residing in Australia.
DIMIA has published an excellent 'Question & Answer' factsheet on the new requirements: New Visa Arrangements for Parent Migration.
The 'Q&A' factsheet answers many common questions, and includes an easy to understand table showing the types of visa available, age requirements, location of applicant when visa is granted, visa application charge, and assurance of support bond requirements.
In addition, DIMIA has begun sending existing applicants letters which include a table of the queue dates, to assist applicants in assessing their current place in the queue. Applicants already in the queue will need to decide whether to stay in the queue, or to withdraw their current applications and apply under the new system. Applicants can only have one parent visa application in the system. We have received advice that those placed in the queue before 1 July 1999 are likely to be granted visas in the next 12 months.
Links:
For additional information about Parent visas, we invite you to contact Annette Aitken or Sharon McCabe.
Asylum seekers and human rights
The Immigration minister, Mr Ruddock, has decided to intervene in 379 cases involving East Timorese asylum seekers. At least another 200 cases are still being considered by him.
'Timor 400 win appeal,' Melbourne Herald Sun, 4 June 2003
Immigration: protection visas, Question without Notice in the House of Representatives, 3 June 2003
Immigration: protection visas, Question without Notice in the House of Representatives, 4 June 2003
In related news, on 26 May the Parliamentary Joint Committee on Migration tabled its report, 'Review of Migration Regulation 4.31B, 2003' (protection visas).
For additional information about asylum seekers, we invite you to contact David Bitel.
Many Temporary Protection Visa holders are now having to apply for their Permanent Protection Visa. For more information on this program and its human consequences, please visit the Refugee Council of Australia website.
The RCOA held a special screening of "Molly and Mobarak," a film about a young Afghan TPV holder and his frendship with an Australian family in Young, New South Wales. Following its success at the Sydney Film Festival, the film was screened for World Refugee Day on June 20. It will soon be given a limited public release. Parish Patience Immigration Managing Partner David Bitel is also the President of the RCOA.
DIMIA has announced a trial of new processing arrangements for applications lodged in Nairobi. The trial involves the Sydney office of DIMIA partly processing certain Special Humanitarian Program applications lodged in Nairobi.
Media release DPS 37/2003, 2 June 2003
In a historic decision made on 19 June 2003, a majority of the Full Family Court found that the welfare jurisdiction of the Family Court extends to children in immigration detention. The Minister for Immigration, Mr Ruddock, has announced that an appeal has been lodged, along with an application for stay of the Family Court's decision pending the outcome of the appeal.
B and B and Minister for Immigration & Multicultural & Indigenous Affairs, [2003] FamCA 451 (summary by the Family Court)
'Minister Ruddock confirms appeal,' Media release MPS 40/2003, 24 June 2003
'Call for immediate release of children from immigration detention,' HREOC media release, 20 June 2003
A recent 'Four Corners' ABC television documentary about the management of the Woomera detention centre has once again brought the issue of mandatory detention to the forefront of media attention, including:
'About Woomera' - transcript of program 19 May 2003, archived forum, update, and response of Australasian Correctional Management;
'Minister dismisses Four Corners allegations,' Media release MPS 35/2003, 21 May 2003;
'Damning allegations levelled at ACM, calls for inquiry rise,' AAP Newsfeed, 19 May 2003
'Woomera nurses to sue ACM for abuse,' The Australian, 21 May 2003 [available from Newstext];
'Democrats investigating legal action against Ruddock,' AAP Newsfeed, 20 May 2003; and
'Australian Federal Police still deciding whether to investigate Woomera allegation,' AAP Newsfeed, 27 May 2003
According to a new study aired on ABC television's 'Lateline', children held in Australia's immigration detention centres have the highest rate of mental illness ever recorded in modern medical literature.
'Children in detention suffer a "living nightmare":study' - transcript of broadcast 12 May 2003
Response to the ChilOut Report - by the Department of Immigration, updated 13 June 2003.
In April 2003, DIMIA released an information paper on issues surrounding immigration policies and detention. The paper was updated on 27 May 2003.
According to the Minister for Immigration, Mr Ruddock, the Government's 'Pacific Solution' and mandatory detention policies will have resulted in a $467 million savings to taxpayers over 4 years.
Media release MPS 30/2003, 13 May 2003
On 28 May 2003, Amnesty International released its Amnesty International Report 2003. The report documents human rights abuses in 151 countries and territories during 2002.
Related:
'Amnesty attacks Aust human rights record,' Canberra Times, 29 May 2003
'Amnesty condemns US and Britain on human rights,' The Guardian (UK), 29 May 2003
'Rights suffer setback, Amnesty charges,' The Globe and Mail (Canada), 29 May 2003
The United States Committee for Refugees has released its World Refugee Survey 2003.
A new report by the Australia Institute has concluded that Australia's 'Pacific Solution' and other hardline policies have resulted in relations with United Nations human rights committees hitting unprecedented lows. The author of the report, Prof Spencer Zifcak, said Government moves away from international human rights law would inevitably encourage human rights abuses in less democratic states. Prof Zifcak is Chairman of the Victorian Branch of the Australian Section of the International Commission of Jurists.
'The New Anti-Internationalism: Australia and the United Nations Human Rights Treaty System' (report summary)
'Expert: Overhaul UN human rights but not Howard's way,' Australia Institute Media Release, 7 May 2003
The Canadian journal Refuge has issued a call for papers on the topic of Interdiction and Refugee Protection. Deadline for submissions is 15 September 2003.
The May 2003 issue of the American Association of Law Libraries' Law Library Journal includes a comprehensive article, 'Gender-Based Persecution as a Basis for Asylum: an annotated bibliography.'
A number of Bills relevant to immigration law are currently before Parliament. Most of these Bills have been summarised in previous editions of our Newsletter. Below is a summary of their status as at 25 June 2003.
Full text of the Bills, Explanatory Memoranda, 2nd Reading Speeches and Bill Digests may be found in the
Parliament Bills Index.
The Migration Legislation Amendment (Sponsorship Measures) Bill 2003 was introduced into Parliament on 4 June 2003. According to the Explanatory Memorandum, the purpose of the Bill is to provide a comprehensive and transparent framework for the regulations to prescribe requirements relating to sponsorship.
The Bill formalises Government policy to require the sponsors, as opposed to the Australian taxpayer, to bear all costs in relation to non-citizens who are being sponsored. Although aiming to standardise sponsorship arrangements, the Bill nevertheless recognises different sponsor relationships depending on the type of visa applicant being sponsored. The Bill also seeks to limit merits review where visa applicants have failed to meet sponsorship requirements.
The Bill passed through the House of Representatives on 24 June and was introduced into the Senate on 25 June. The Bill has been referred to the Senate Legal and Constitutional Committee, whose report is due 12 August 2003.
According to the Explanatory Memorandum, the intention of this Bill is to counter a series of Federal Court decisions where interlocutory release of immigration detainees has been ordered. The Bill expresses the Government's intention that an unlawful non-citizen must be kept in immigration detention until a Court finally determines that either the detention is unlawful or that the applicant is not an unlawful non-citizen.
The Bill was introduced into the House of Representatives on 18 June.
Related:
'Labor not concerned about criminals being released,' Media release MPS 39/2003, 19 June 2003
David Bitel's case summary of MIMIA v Al Masri (Full Federal Court 15 April 2003).
Regarding information gathering by the Department of Immigration and Multicultural and Indigenous Affairs &c. Introduced 12 December 2002; passed by the House of Representatives with amendments on 2 June 2003. Introduced into the Senate 17 June 2003.
Introduced House of Representatives 26th March 2003. Passed by the House of Representatives and introduced into the Senate on 14 May 2003. Rejected by the Senate for a second time on 16 June 2003.
Related:
'Labor rejects border protection,' Media release MPS 37/2003, 17 June 2003
Introduced 27th March 2003; referred to Committee; report tabled 29th May 2003.
The Senate Legal and Constitutional Legislation Committee has rejected the more controversial reform proposals found in the Bill.
On her last day as President of the Human Rights and Equal Opportunity Commission, Professor Alice Tay welcomed the Report, stating, "I am heartened that Senators from both sides of politics have accepted that this Bill raises serious problems for human rights in Australia."
Report on Inquiry into the Provisions of the Australian Human Rights Commission Legislation Bill 2003 - full text of report (104 pages) and submissions
Private Senator's Bill, introduced 27 March 2003 by Senator Brian Greig of the Australian Democrats.
On 8 June 2003, the Prime Minister, Mr Howard, gave a speech to the Liberal Party national convention in which he proposed constitutional reform to do away with the Senate power to block government legislation. The change would entail a referendum to amend the Constitution. He said that the government would issue a discussion paper, and could hold a referendum at the same time as the next federal election. Full text of Regulations and Explanatory Statements are available on the Commonwealth Attorney-General's database, Scaleplus.
July 1 changes affect several visa classes. The changes are summarised at DIMIA's Notice of Legislation Change page, including:
-- Parent visa changes;
See also:
-- Migration Amendment Regulations 2003 (No 2), No. 94 of 2003;
These regulations affect Close Ties visas (subclass 832) - commencing 28 May - and also amend certain fees and visa application charges, to commence 1 July 1003.
The Close Ties provisions were included in response to concerns expressed by the Australian Democrats about the affect of an earlier disallowed regulation (Migration Amendment Regulations 2002 (No 10), No. 348 of 2002) on refugees and others of concern. According to correspondence received from Senator Bartlett's office, the affect of the new regulation is to target those who arrive on a student visa only and will not affect asylum seekers or others of concern.
These regulations commence on 1 July 1003 and pertain to the regulation of Migration Agents and the way in which Continuing Professional Development is administered.
A Notice specifying the visa classes for which English courses and citizenship courses the Minister may arrange to be provided in Australia was published in the Commonwealth Government Gazette GN 15, 16 April 2003. The Notice is reproduced on the DIMIA website Gazettals page.
The Acts Amendment (Equality of Status) Act 2003 (WA) has received assent. The Act, which takes effect on proclamation, amends the legislation relating to de facto relationships in Western Australia. The phrases "de facto partner", "de facto relationship" and "spouse" are not defined in this Act, but will be defined in the Interpretation Act 1984 (WA), when the amendments contained in the Acts Amendment (Lesbian and Gay Law Reform) Act 2001 are proclaimed to commence. It is intended that the Acts Amendment (Equality of Status) Act 2003 and the Acts Amendment (Lesbian and Gay Law Reform Act) 2001 will be proclaimed at the same time.
Source: CCH Australian & New Zealand Equal Opportunity Law & Practice bulletin 11 June 2003.
The Statutes Amendment (Equal Superannuation Entitlements for Same Sex Couples) Act 2003 (SA) received assent on 12 June 2003. The Act amends various South Australian legislation to give effect to a new definition of "putative spouse" and to empower the District Court to make declarations as to the status of same sex relationships.
Source: CCH Superannuation Headlines 16 June 2003.
The Department of Immigration (DIMIA) advises that the Visa Office in the Philippines has moved to new premises as part of the relocation of the Australian Embassy in Manila. For additional details, including contact telephone numbers within Australia and the Philippines, please read the Department's Media Release.
The new financial year commencing 1 July brings with it a number of fee increases by Government departments, including:
For additional information about Immigration fees and charges, please contact Annette Aitken.
Detailed Immigration Portfolio Budget Statements (PBS) are found on the DIMIA website.
DIMIA has published the 2003 edition of "Australian Immigration Guide on Work Rights." The Guide will be useful for both employers and visa holders.
The Minister for Citizenship and Multicultural Affairs, Mr Hardgrave, has launched a new Integrated Settlement Plan for Victoria.
Media Release H65/2003, 21 May 2003
On 6 June, Mr Stewart Foster, DIMIA Director of Public Affairs, published a letter to the editor of the Australian Chinese Daily, correcting an earlier report by that newspaper to the effect that the Government had introduced an "amnesty" for long-term visa overstayers. In fact there is no new visa category, and the very limited circumstances under which a long-term overstayer may remain in Australia have been in place for more than 10 years.
'No amnesty: overstayers must depart,' Letter to the editor of the Australian Chinese Daily 6 June 2003
For additional information about the Close Ties visa or "innocent illegals," we invite you to contact Diana Tong.
On 19 June the Senate established a Select Committee on Ministerial Discretion in Migration Matters, to inquire into discretionary powers available under section 351 and 417 of the Migration Act 1958. The terms of reference are found in Senate Hansard 19 June 2003, p. 11751. Once established, the Committee's website will be available by following the links from the main
Committees homepage (under 'M').
Source: Parliamentary Library email alert 23 June 2003.
On 28 May 2003, the Australian Bureau of Statistics released its annual publication, "Cat. No. 3412.0 Migration, Australia." It contains information on international and internal migration by state and territory, including permanent and long-term movement by state and territory of usual residence, country of birth, occupation and sex. It also provides estimated resident population by age, sex and birthplace.
Excerpts and information on how to purchase the full publication are available from the Australian Bureau of Statistics.
Recent caselaw
Following is a brief outline of recent developments. Full text of decisions from all Courts and transcripts of High Court hearings are available on Austlii.
High Court
This case concerned a Temporary Protection Visa applicant from Sri Lanka. The Refugee Review Tribunal had expressed doubt about the applicant's credibility. The High Court considered issues regarding jurisdictional error, jurisdictional fact, apprehended bias, actual bias, and "Wednesbury reasonableness". The case arose prior to the 'privative clause' amendments to the Migration Act, and therefore the former provisions for judicial review applied. Four of the justices, writing in three separate opinions, found there had been no error and dismissed the appeal. Justice Kirby wrote a dissenting opinion. A detailed case summary will be provided in the next issue of our Newsletter.
Family Court
In a historic decision made on 19 June 2003, a majority of the Full Family Court found that the welfare jurisdiction of the Family Court extends to children in immigration detention. The Minister for Immigration, Mr Ruddock, has announced that an appeal has been lodged, along with an application for stay of the Family Court's decision pending the outcome of the appeal.
Case summary by the Family Court
'Minister Ruddock confirms appeal,' Media release MPS 40/2003, 24 June 2003
'Call for immediate release of children from immigration detention,' HREOC media release, 20 June 2003
Canada - British Columbia Court of Appeal
On 1 May 2003, the B.C. Court of Appeal ruled that the exclusion of same-sex couples from marriage is discriminatory and not justifiable. The common law definition of marriage should therefore be changed to mean "the lawful union of two persons to the exclusion of all others."
The remedies were however suspended until July 12, 2004 "solely to give the federal and provincial governments time to review and revise legislation to accord with the decision."
Reader contributions of upcoming events may also be submitted to the Parish Patience Australian Immigration Update Newsletter Editor.
"One never notices what has been done.
Parish
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