Immigration News

Lamenting the demise of the Form 1040

Thu, 07 Feb 2013 06:44:00 GMT

Louisa McKimm

Solicitor, Immigration Advice & Rights Centre

It is a long held view by migration agents that obtaining the required evidence for a non-judicial claim of family violence can be an extremely difficult task.

There has always been a sense of inner joy for me, as strange as it may seem, when I take on a case involving judicial rather than non-judicial evidence of family violence. My joy has always been linked to the fact, as an obsessively perfectionist lawyer, I could never quite get the perfect form 1040 (essentially a statutory declaration) from a “competent person” to support a non-judicial claim of family violence. Although, there have been some sparkling exceptions to this rule.

Changes to the Migration Regulations 1994 (Cth) (“the Regulations”), which came into force on 24 November 2012, mean that we shall be frustrated no more by the dastardly form 1040! I can hear you now, rubbing your hands with glee.

No more will you have to send the form 1040 back to the individual in question to ask them to fill out the correct section of the form!

No more will you have to remind the competent person that the answer to each question asked of them cannot be consolidated into one question box!

Victory is ours!

Then again dear reader, I ask you, what are we left with, if we don’t have the form 1040? Well I’ll tell you:

1. As you may know, under the regulations, family violence is an exception to the standard criteria for a range of permanent visas, which include most notably the Temporary and Permanent Partner visas (subclasses 820/801 and 309/100).

2. The visa applicant can prove that family violence occurred through either judicial or non-judicial evidence.^{^[1]} Judicial evidence must be accepted by the Department of Immigration and Citizenship (DIAC), and cannot be referred on for independent examination by an expert.[^2] Whereas, in contrast, DIAC is not bound to accept non-judicial evidence and it can be referred for independent examination.^[3]

3. Previously, a non-judicial claim of family violence could be made using a joint undertaking by the perpetrator and victim where the allegation of violence is before a court; or a statutory declaration by the victim together with two statutory declarations by competent persons in different professions; or a statutory declaration by the victim, together with a statutory declaration by a competent person and a police record of assault.^[4]

4. As of 24 November 2012, regulation 1.24(b) of the Regulations, specifies that a statutory declaration from the applicant and, pursuant to instrument IMMI 12/116, two items of evidence from a list found in Schedule 1 (to the instrument) and no more than one of each type of evidence may be presented to the department. The legislative instrument amending the Regulations can be found here, together with the Schedule 1 list of acceptable evidence.

Okay, now that’s done dear reader, I can hear you all screaming “but tell us what it all means in real life!” Here are some key points to remember about the changes:

1. The form 1040 should no longer be used where the list of acceptable evidence calls for a statutory declaration. A standard Commonwealth statutory declaration will suffice.

2. Where the evidence is from a women’s refuge, there is no longer a need for a statutory declaration. A letter or assessment report on the organisation’s letterhead will suffice, as long as it details that the alleged victim has made a claim of family violence, the alleged perpetrator’s name, whether the alleged victim was subject to family violence in the opinion of the refuge, and details of any evidence used to form that opinion.

3. Evidence can now be obtained from a school counsellor, or school principal acting in their professional capacity. A statutory declaration, or a letter on the school’s letterhead will suffice if it details that they have made, or know of, observations which support the family violence claim, the alleged perpetrator’s name, and details of the aforementioned observations.

4. The changes do not apply to alleged victims of family violence who raised their claim with DIAC prior to 24 November 2012.

5. The applicant still provides his or her own statutory declaration, but now on a form 1410.

It is impossible not to see the benefit of these changes, as they will improve the access of the most vulnerable of applicants to permanent migration through expanding the list of acceptable evidence to include common sense options like the school counsellor, or principal.

Yet, after all my complaining and sense of inner joy, I suspect that I will miss my old friend the form 1040. The form, despite it’s misuse by some, directed the competent person to key issues that the decision maker had to be satisfied of in order to find that family violence has occurred within the relationship. It is a concern that without a standardized form, issued by DIAC, the professional may fail to turn their mind to exactly what is required of them under the Regulations.

Readers I suspect I may have confused you here, so let me clarify. I am not suggesting that we return to the previous legislative regime on acceptable evidence that would support a non-judicial claim of family violence. Rather, I am suggesting that those providing evidence should be given some guidance as to what they should address in their letter, report or statutory declaration. It is unfair to expect professionals, providing evidence, to be familiar with the statutory and policy requirements for proving family violence in the area of migration.

Alas, dear readers, we have come to the end of this article. I don’t want you to be concerned; we will all learn to live without the form 1040. However, we won’t live without overdue changes to the Prospective Marriage visa (subclass 300). Currently, holders of this visa, who have not married their Australian sponsor, cannot access the Family Violence provisions. It is a real concern that visa holders may remain in an abusive relationship rather than face the perceived shame of returning home unmarried, and in some cases, pregnant. However, this is a discussion for another time and another Immigration News.

Endnotes:

1. Migration Regulations 1994 (Cth) Reg 1.23

2. Migration Regulations 1994 (Cth) Reg 1.23(2)-(7); PAM3 - Migration Regulations - Divisions > Div 1.5 - Special Provisions Relating To Family Violence > Non-Judicially Determined Family Violence - Referral For Expert Opinion

3. Ibid

4. Migration Regulations 1994 (Cth) Reg 1.23(8) – (9)

A return to the horrors of Howard

Thu, 07 Feb 2013 06:39:00 GMT

Senator Sarah Hanson-Young

Senator for South Australia, The Australian Greens

This is an edited extract from Senator Hanson-Young’s speech on the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012, dated 16 August 2012. As those arriving by boat after the enactment of this legislation begin arriving in the Australian community, and the effects of the legislation can now start being measured, it is important to revisit the criticisms of this legislation in an effort to advocate for those seeking asylum in Australia.

The recent changes to the Migration Act do nothing to protect vulnerable men, women and children seeking asylum on our shores. The policy trashes Australia's obligations under international law and our obligations under the Refugee Convention. Since the legislation was announced international organisations have come out condemning the policy and distanced themselves from involvement. Our obligations under the Refugee Convention are not optional and we must treat people with dignity, respect, care and compassion when they arrive on our shores desperate for protection and safety.

We have a debate in this country about the pull and push factors surrounding asylum seekers. The push factors are the persecutions, the brutality and the torture that the individual refugees have to flee.

The pull factor is that Australia is a signatory to the Refugee Convention which, when we signed in 1954 under the Menzies government, we proudly stood by and said that it was because we understood compassion was important. That is the pull factor - that Australians live proudly in a fair country where we look after one another, where the vulnerable have a safety net, and protection is provided to those who need it.

The deterrence is the awful decision that refugees make to flee their homelands in the first place and take that dangerous journey. The deterrent is having to make the decision to leave or not, and whether you take your family with you, where you go, who will accept you and what is the best avenue for safety. Having to make that decision to leave your home, your family, your community is the deterrent.

Unfortunately we have got ourselves into an awful state of affairs where both sides of politics have locked themselves into a delusion that if we can deter refugees from seeking protection that somehow that relieves us of our obligations to help others. When there are no durable solutions for refugees and when there is no avenue for safety, refugees will continue to flee and they will continue to run until they feel safe. Pakistan, where many of the Afghan refugees have been hiding in fear of the Taliban, is pushing those refugees back. They are no longer safe in Pakistan and they move on to the next place. They move to Malaysia, they move to Europe, they move to Indonesia.

Our whole policy is designed to force people onto boats. Many people do not have the option to come to Australia by plane because we do not offer them visas to get here. If you are from Afghanistan, Iraq, Iran or from Syria, the government believes that you are at high risk of applying for asylum and you will not be given a visa to fly into this country. The government does not want to talk about that because they would prefer to have the tussle with the opposition about deterring people who need our help. That is what this whole debate is about. We do not want these refugees here. John Howard said that he wanted the right to decide who came into this country and the means by which they came. This legislation says that the government will decide, and if you are a refugee coming by boat you will not be allowed into this country. This is John Howard's legislation, make no mistakes about it.

The Greens believe that we need to be looking at what worked in the Fraser government years. We need to be looking at how we managed the needs of those desperate people seeking protection with a humanitarian perspective. We assessed people's claims effectively where they were with a commitment to take those who genuinely needed our help. We did not wait for them to board a dangerous leaky boat only then to be shunted off out of sight out of mind because the reality was we never wanted them here in the first place. We had true leadership that said Australia is a signatory to the Refugee Convention and we will abide by our obligations. We worked with our regional neighbours to assess people's claims and keep them safe while the application process was undertaken, and then welcomed them into our community. We asked other countries to take them too. They went to Canada and the United States, and many, many of them came to Australia. We took tens of thousands of Vietnamese refugees because it was the right thing to do and we can do it again.

We can be doing things now to save people's lives by assessing people's claims where they are. We know they are in Malaysia and we know they are in Indonesia. Australia must commit to processing their claims where they are and then bring them safely to Australia.

It is evident that this debate has become riddled with this issue of saving lives at sea. If we were saving lives at sea we would be bringing these people safely to our shores. We would be giving them an opportunity to apply for protection safely in the places where they are waiting, scared, frightened, helpless and desperate. And yet that is not what the legislation is about.

This is going back to the horrors that we know happened in Nauru and Manus Island. It is not by staring into the tea leaves at the bottom of the cup that we know these things will happen, it is because they have happened before.

Longer tourist visas for parents of Australians

Thu, 07 Feb 2013 06:10:00 GMT

The Migration Regulations 1994 were amended in November 2012 to create a new condition 8558 applicable to the Subclass 676 (Tourist) visa, which prevents a 676 visa holder from staying in Australia for more than 12 months in an 18 month period. The amendments also allowed the imposition of condition 8501, requiring the visa holder to maintain health insurance.

These amendments were made in accordance with DIAC’s new policy of allowing longer tourist visas for parents of Australian permanent residents or citizens, but were designed to prevent parents from becoming effectively resident in Australia on a tourist visa.

The longer tourist visas now available to parents are in recognition of the long time applicants must wait in the parent visa queue.

Departmental policy now states that where an applicant for a tourist visa is in the parent visa queue, “officers are encouraged to consider granting offshore applicants… five year validity, 12 month stay, multiple entry visas so they can come and visit their family for longer periods on regular occasions.”

Case officers are also able to grant three year validity, 12 month stay, multiple entry tourist visas to offshore parents who have a “history of compliant travel to Australia” but have not yet or do not intend to apply for parent visas, or where a parent visa has been applied for but the application has not yet been queued. Where an applicant does not have such a history (because they have not travelled to Australia before, rather than a history of non-compliance) they may be still be able to obtain an 18 month validity, 12 month stay visa.

While this new policy represents a favourable option for parents of Australians to visit family, agents and applicants need to be aware that Departmental policy states that conditions 8558, 8501 and 8503 will be placed on such tourist visas.

Condition 8503 will prevent parents from making any further application in Australia (such as a parent visa application if they are yet to), unless they are able to have this condition waived.

Applicants must still meet health and character requirements, have sufficient funds to support themselves in Australia and meet the “genuine visitor” requirement. Officers are advised in PAM3 to consider the applicant’s obvious intention to migrate permanently to Australia on a parent visa as a “longer term intention” and to “focus on the applicant’s short term intentions when assessing the “genuineness”” of a tourist visa application.

Agents and applicants should also note that longer tourist visas are not available to parents already inside Australia or those who have already spent 12 months in Australia in the last 18 months.

Longer tourist visas are also not available to those who have applied for a permanent visa with a much shorter processing time, such as a child or partner visa.

Visit the DIAC website here for further information.

Submission to the Senate inquiry into ASIO security assessments

Thu, 07 Feb 2013 06:08:00 GMT

IARC recently made a submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the Migration and Security Legislation Amendment (Review of Security Assessments) Bill 2012 (‘the Bill’).

The Bill seeks to amend the:

Administrative Appeals Tribunal Act 1975 (AAT Act) to enable non citizens eligible for a protection visa to seek a merits review of their security assessment in the Administrative Appeals Tribunal (AAT);
AAT Act to create the position of Special Advocate to provide support for these reviews;
Australian Security Intelligence Organisation Act 1979 to require the Director-General of the Australian Security Intelligence Organisation (ASIO) to review adverse or qualified security assessments of protection visa persons every six months or on referral from the Department of Immigration and Citizenship; and
Migration Act 1958 to require the minister to review a decision to refuse or cancel a protection visa when an adverse security assessment is revoked by an ASIO review or an AAT merits review.

While the Bill is an important step toward providing asylum seekers who are the subject of an adverse security assessment (ASA) with rights to review, the Bill does not adequately balance the procedural fairness interests of the applicant with the national security interests of Government.

IARC’s submission focussed on the position of Special Advocate, which, under the proposed Bill, will play a significant role in representing an affected person in AAT proceedings where there is a public interest or national security reason to withhold part or all of the security assessment. According to procedures set out in the Bill, the Special Advocate will have one month to take instructions on the facts prior to receiving a copy of the classified security assessment. The Special Advocate may be present to access and hear all evidence and submissions, but cannot communicate any classified details back to the affected person. Unlike a lawyer, the Special Advocate will appear on behalf of the affected person but not necessarily on their instruction.

In its submission, IARC proposed that the Bill be altered to better counter the criticisms of Special Advocate procedures currently in place in overseas jurisdictions, particularly the United Kingdom. Specifically, IARC expressed support for a system where the lawyer of an adversely assessed individual could be granted security clearance to view all classified material, as opposed to a system of special advocate engagement. IARC believe this ‘security-cleared lawyer’ arrangement would:

be consistent with security clearance procedures already in place for legal representatives of civil and criminal defendants;
better uphold the lawyer/client relationship;
give applicants a greater sense of control and transparency in what can be a long and stressful process;
benefit the applicant’s mental health while they continue to wait in detention during the appeal process; and
enhance procedural fairness, as a security-cleared lawyer with intimate knowledge of the applicant’s circumstances is the most appropriate person to investigate and challenge unfavourable evidence, and make exculpatory submissions.

A copy of IARC’s submission can be downloaded here.

Details of private/community sponsorship of refugees pilot program announced

Thu, 07 Feb 2013 06:00:00 GMT

The former Minister for Immigration, the Hon. Chris Bowen has announced details of a private/community sponsorship program that will enable community groups and individuals to sponsor people in humanitarian need to come to Australia.

In mid 2012 DIAC released a paper on the proposed scheme and called for submissions from the Australian community into how such a scheme might work. Initially, the scheme was proposed as a way to increase Australia’s humanitarian program without impacting the Budget and increasing costs to the Australian taxpayer. It was also framed as a way for the community to be involved in resettling refugees. However, the program announced by the Minister on 15 December 2012 appears to fail on both of these original objectives and has been heavily criticised by community organisations and the Refugee Council of Australia (“RCOA”).

Community or individual sponsors will be required to provide a two-stage visa application fee estimated at between $20,000 and $30,000 as well as providing humanitarian support for up to twelve months. There will be up to 500 places available for privately sponsored refugees, included within the recently expanded humanitarian program of 20,000.

Criticism of the program largely arises from the high price of the visa application fee, as most refugee or community groups have an extremely limited financial capacity and could only afford to sponsor a small number of people. Chief Executive Paul Power of RCOA stated that the charge is four to five times higher than his organisation had envisioned and he believes this will result in most community groups being excluded from the program. Additional costs, including housing and other resettlement support, are also not provided by the government, which will likely limit the program to only the most established refugee communities in Australia. For this reason the Chief Executive of AMES, Cath Scarth, warns the program will likely become a ‘two-tier system’.

The proposed program is also being criticized as designed primarily as a Government cost cutting measure through offloading a government responsibility onto community groups. The 500 people arriving in Australia under this program are supported solely by the private sponsorship and do not receive resettlement support from the Australian Government. However, they are still included in the Government’s refugee quota as increased to 20,000 last year. RCOA and other groups have expressed their disappointment that the program doesn’t facilitate an expansion of Australia’s humanitarian program and removes some of the incentive for community groups to be involved.

Applicants will still be required, as with other applicants for humanitarian visas, to meet health, character and security requirements. The scheme is expected to come into effect later this year.

RCOA’s response to the Minister’s announcement can be accessed here.

Modern slavery in Australia

Wed, 06 Feb 2013 13:00:00 GMT

Jenny Stanger

The Salvation Army

In Australia, human traffickers and slaveholders are using people against their will for their own profit. Sometimes people are hidden behind closed doors; sometimes they are hidden in plain sight. Victims of human trafficking/slavery may be the person who picks the apples on your table, attaches the rain gutters to your house, cares for your neighbour’s children, cleans your car, makes the clothes you wear or serves your food. Victims of trafficking may come to your service seeking support and assistance after escaping forced labour, a slave-like or forced marriage.

Worldwide, human trafficking and slavery crimes are grossly under-reported. In Australia, efforts to uncover human trafficking and slavery have focused on Asian sex workers with little awareness raised in other sectors.

Australia has a comprehensive response to trafficking and slavery crimes as well as support for victims. However, people who experience trafficking and slavery do not usually self-identify. They tell a story. Therefore, as a community member and a frontline professional it is critical that you can recognise the signs of these abuses, make appropriate referrals and provide support.

“I didn’t know I was trafficked. There are others in the community like me. They are hoping someone will see their situation and give help.”

--Salvation Army Safe House client

Know the indicators

Exploitation is a key indicator of slavery or human trafficking. However, exploitation on its own is not solely determinative of human trafficking/slavery. It depends on how that exploitation was achieved. Most people experiencing a human trafficking/slavery situation are being exploited and can articulate a loss of freedom or inability to change their situation. Sometimes this is achieved through physical violence, threats, restraint, and/or control. In other instances, a loss of freedom is achieved through more subtle means of psychological control.

Traffickers/slaveholders may use their caste, class, or dominant position to manipulate their victims. This, combined with the trafficked/enslaved person’s vulnerabilities, lack of rights awareness and dependence on their trafficker can create a prison without walls around them.

When asked why they don’t try to escape from their situation, people in slavery simply say: “I didn’t know where I could get help”, “I didn’t know who I could trust.”

It’s important to be alert to a broad range of circumstances that may indicate slavery or human trafficking such as when people are:

· forced to work through violence or threats

· not paid or paid very little

· deceived about the type of work and/or conditions

· exposed to dangerous conditions with little or no time off

· assaulted, psychologically abused, sexually abused

· threatened with deportation or arrest

· illegally indebted to their slaveholder (e.g. they have to work off an unreasonable debt)

· unable to hold their identity or travel documents

· unable to move around freely or their movements are controlled/monitored

· afraid for themselves, their families or others

· isolated, degraded and humiliated

· in a marriage due to force, deception or threats.

Know who is affected

Men, women, young people, children and families may experience slavery conditions in a range of industries and situations such as:

· Construction trades

· Domestic or nanny work

· Farm work/agriculture

· Factory work/manufacturing

· Cleaning services

· Health care/care giving

· Slave-like or forced marriage

· Restaurants/food services

· Retail – green grocer, bakery, car wash, beauty therapy services

· Sex work/sex services.

In all of these situations, women are particularly vulnerable to sexual assault and other forms of violence.

Slave-like marriage involves family violence plus some other form of exploitation of the woman’s labour, sexual servitude in the marriage and/or an obvious deception on the part of the sponsoring partner about the nature of the relationship. Women in slave-like marriages can often articulate concepts of slavery, servitude and sexual slavery in relation to the way they have been treated by their spouse and/or other family members and friends.

Forced marriage/attempted forced marriage occur when one party does not consent to the marriage because of force, deception or other forms of coercion. This can include situations where the marriage took place to gain entry into Australia for the purpose of exploiting the person who was forced to marry and someone fleeing forced marriage that took place outside of Australia.

Know how to respond

If someone’s life and safety is in imminent danger:

1. Dial 000 and report your information to police.

2. After you do this, call 131 AFP and give the same information to the Australian Federal Police Human Trafficking Team so they can follow up and make sure local police are considering slavery/human trafficking as part of their assessment.

3. Contact The Salvation Army’s Specialist Anti-trafficking Services.

For confidential advice and assistance contact Australia’s only refuge for women/young women who have experienced human trafficking, slavery and/or slavery-like practices. The service is a project of The Salvation Army and offers varying levels of support. Contact The Salvation Army Safe House on (02) 9211 5794 or visit www.justiceunit.com.au.

If you have information about someone who may be experiencing human trafficking or slavery it is important they have as much control as possible over how to leave their situation in a way that is safe and gives them choices. The Salvation Army Safe House and Salvos Legal can help you to assess your information and next steps in cases where there is no imminent danger.

It is recommended that victims receive legal advice as soon as possible so they can make informed decisions about their future. Salvos Legal can offer comprehensive legal advice in areas such as migration, criminal, civil, family law etc. Contact Salvos Legal on (02) 9213 3910 or visit www.salvoslegal.com.au.

Safe House categories of assistance

Residential support

· There are NO limits on length of stay in the service

· Clients can access support regardless of visa status or income

· Women with children can be accommodated

· Clients are NOT required to engage with law enforcement/ government to access support

· Case management is comprehensive, holistic and culturally appropriate

· Service approach is trauma-informed and within a human rights framework

· Staff are committed to collaborative service delivery!

Outreach support

· Non-residential case management support to men, women and young people living in the community

· Complementary case management support can be provided to other agencies across Australia and can include housing referrals, material assistance, cash assistance, medical, mental health, legal, education, training and job support, court support, recreational outings etc.

Prevention support

Case management to persons at risk of trafficking, slavery or slavery-like practices. Eligibility is assessed on a case by case basis when a person is presenting with some indicators or trafficking/slavery and there are contributing factors that increase their vulnerability. Staff can work with clients to identify interventions that will improve their ability to remain free from exploitation. This can include prospective migrants located outside of Australia in need of safe migration information and assistance.

International support/advice and assistance

The Salvation Army works in over 120 countries. Assistance may be provided to families in home countries. This could include material support, migration advice/assistance, and safe accommodation. Please contact staff to discuss needs.

Australian government response

The Australian government has a comprehensive response to human trafficking, slavery and slavery-like practices. These are serious crimes and there is a support program available to victims including access to temporary visas and case management by the Australian Red Cross. This support is contingent upon the AFP Human Trafficking Team determining whether or not the person is a victim of trafficking or slavery. Victims may be asked to provide information about what happened to them to the Australian Federal Police (AFP) who will investigate their situation and possibly refer it for prosecution.

Information about the Australian Government’s response framework can be found at:

Ø Australian Federal Police

Ø Commonwealth Attorney General’s Department

Ø Support for Victims of People Trafficking Program

Further information and resources are also available from:

Ø Anti-Slavery Australia: www.antislavery.org.au

Ø Australian Catholic Religious Against Trafficking in Humans: www.acrath.org.au

Ø Project Respect: www.projectrespect.org.au

Ø Scarlet Alliance: www.scarletalliance.org.au

Ø Josephite Counter-trafficking Project: www.sosj.org.au

1 July 2012 ENS Changes – whither discretion?

Tue, 24 Jul 2012 14:00:00 GMT

Nicholas Tebbey

Senior Associate, Snedden Hall & Gallop

One of the major changes to the ENS/RSMS visa system that takes place on 1 July is the removal of “exceptional circumstances” as a way of overcoming age, English ability and/or the lack of formal qualifications.

As most readers will be aware, the current system allows an applicant some leniency in these areas if he or she can establish “exceptional circumstances”. For many years, this has proven a successful way of overcoming what can otherwise be very rigid criteria.

For example, the former age limit of 45 is widely accepted (at least by the migration profession) as failing to take into account that many Australian employers need employees with skills and wisdom that can sometimes only come with age. Without the ability to argue exceptional circumstances, an age limit of 45 years appears to send a message that workers aged over 45 are not a valuable part of the Australian economy, or, at least, do not add enough to the Australian economy to balance their perceived “needs” and therefore result in a net-negative outcome for Australia.

English language skills and formal qualifications are also currently viewed less strictly if the employer and employee can demonstrate that the position is exceptional – perhaps a result of the employee’s other skills (considerable work experience, for example) or ability to communicate with the employer (and importantly, understand OH&S requirements) despite not meeting certain IELTS benchmarks.

The government is a firm believer in the benefit of the ENS and RSMS visas. It says so itself at almost every opportunity, spruiking the benefits of migrants having jobs before they migrate. The economics would appear to indicate that a migrant with a job, and with the support network that comes with that, is more likely to use their skills and become a contributing member of society. The Department of Immigration and Citizenship (DIAC) says the program is “well-suited to addressing short-to-medium term demand for specific skills…” (http://www.immi.gov.au/skilled/skilled-workers/_pdf/perm-sponsored-reforms.pdf).

For this reason the ENS/RSMS migration program receives top priority. And so it should. But why, then, are we now facing significant changes?

In August 2011, the government commenced a review of the system, releasing a discussion paper (http://www.immi.gov.au/media/publications/discussion-papers/_pdf/discussion-ens.pdf) and calling for public submissions on the “operation and effectiveness” of the system.

Subsequently, DIAC has developed a series of recommendations for changes, and they, in turn, are now being implemented.

Some of the changes include:

- Removing the distinction between onshore and offshore visas and shrinking the number of visa subclasses from 6 to 2 (though note that of course there are some different criteria depending on whether the applicant is onshore or offshore);

- Creating three streams of visa application within each of the two subclasses (ie, 6 streams total), to deal with (a) Direct Entry, (b) Temporary Transition, and (c) Labour Agreements;

- Raising the upper age limit to 50 years;

- Introducing a consolidated skilled occupation list; and

- Changing some of the skill and English language requirements.

Details of the changes are available on the DIAC website at http://www.immi.gov.au/skilled/skilled-workers/_pdf/perm-sponsored-reforms.pdf and I do not propose to discuss them in too much detail.

Of interest is the decision by DIAC to remove the opportunity for an applicant to claim exceptional circumstances for age, English language ability and/or skill, and replace this with some exemptions. DIAC says these exemptions are “clear and objective” but, while that may be true, they are sadly much more limited than the previous exceptional circumstances regime.

After 1 July, for any client aged over 50, or who does not pass the English requirement, instead of being able to argue the specific exceptional circumstances that apply to a client’s case, agents will need to see if their client meets one of a few very specific exemptions:

- For age:

o Nominated occupations specifically identified by the Minister as being “specialised” (at this stage, indications are that this will include Ministers of Religion, researchers or scientists employed by CSIRO or ANSTO, and academics employed by universities; or

o An applicant who has worked in Australia for at least 4 years on a Subclass 457 and has been paid a salary above the Fair Work Australia high income threshold (currently AUD 118,000.00)

- For English language skills:

o Nominated occupations specifically identified by the Minister (at this stage, indications are that this will include Ministers of Religion);

o Citizens of the UK, USA, New Zealand, Canada or Republic of Ireland;

o Anyone who has passed an OET test result of “B”; or

o Anyone applying as a 457 holder of at least two years who has completed at least 5 years training at a secondary or higher level where all of the tuition was delivered in English.

- For skills exemptions:

o Nominated in an occupation where formal training is uncommon (eg Ministers of Religion)

o Paid at executive-level salaries;

o Scientific and technical experts employed by universities, CSIRO or ANSTO; or

o Academics employed by universities.

(see http://www.immi.gov.au/skilled/skilled-workers/_pdf/perm-sponsored-reforms.pdf)

It may seem like a lot of exemptions, and they all seem perfectly reasonable, but what is missing is the ability to exercise discretion where a case is sufficiently out-of-the-ordinary to make it “exceptional”. Many of the writer’s previous clients who have benefited from the “exceptional circumstances” test would never fit under one of these exemptions. These clients now work, pay taxes, shop, pay rates, etc – ie, they contribute.

Sadly, post 1 July, this will no longer be possible.

The Migration Act is, for the most part, strict and unyielding. For most agents, it is only too apparent that square pegs do not, indeed, fit into round holes.

It is not actually surprising that the “exceptional circumstances” test has disappeared. This is just the latest in a long series of reforms that have changed the Migration Act from an open, discretionary system in the 1970s and 1980s (not without its own problems, I freely admit) to a formal, structured system of visa classes and subclasses.

Many readers may recall our previous Minister for Immigration, Senator Evans, expressing his discomfort at exercising the ministerial intervention powers under the Act (ie, s351, s417, etc) (see http://www.theage.com.au/news/opinion/the-buck-stops-with-the-immigration-minister/2008/03/02/1204402269514.html), but we can only hope that they, and the discretionary nature of most visa cancellation powers, do not go the way of “exceptional circumstances”. They are essential to ensure the visa system does not become irrelevant and unworkable.

Perhaps there have been problems with discretion, and the “exceptional circumstances” test, in the past – but surely those issues were in its application. Policy, procedure and proper training can be used to ensure that such discretion is not abused. It is the writer’s opinion that without it, many applicants will be excluded and it will be Australia, not just the applicant, who misses out.

Resident Return visas and ‘substantial ties to Australia’

Tue, 24 Jul 2012 14:00:00 GMT

By Jenny Murphy

Senior Registered Migration Agent, Southern Cross Alliance

On 15 February 2012, significant changes to the policy regarding Resident Return Visas (RRV) (Subclass 155) were introduced.

All permanent visa holders have the right to remain in Australia indefinitely but if they decide to travel outside Australia, they must ensure they have the authority to return to Australia.

Permanent residency visas are granted with a 5 year multiple travel facility from date of grant. Once this 5 year multiple travel facility expires, a permanent resident who decides to travel outside Australia, would need to apply and meet the requirements to be granted a Resident Return Visa (RRV) to enable them to return to Australia.

Previously and under the current regulations and policy, if an applicant has spent 2 years physically in Australia in the 5 years before applying, he/she will be granted a 5 year RRV. This authority allows the visa holder to return to Australia for the 5 year period.

Previously, the regulations also allowed an applicant to demonstrate substantial ties to Australia in order to be granted an RRV for a period of 5 years. Substantial ties could be claimed under business, cultural, personal or employment. An applicant only needed to meet one of these categories. This considered personal circumstances and allowed applicants, who genuinely had substantial ties to Australia with the intention to make Australia their permanent home, to maintain permanent residency status.

Under the current policy if an applicant can demonstrate substantial personal, cultural, business or employment ties that are of benefit to Australia (but have not spent 2 years physically in Australia), he/she can only be granted a Resident Return Visa with a one year travel facility. An applicant is still only required to demonstrate ties under one of the four categories. The previous policy provided more flexibility for Case Officers to give consideration to the individual facts of a case in determining if an applicant could demonstrate substantial ties. It would be expected the more stringent policy will also bring further scrutiny in assessing substantial ties.

Some examples of substantial ties under the current policy include:

Business Ties

1. Business Ownership - An applicant needs to have substantial ownership interests in a business and be involved at a senior level in the day to day operations and management of the business.

Cultural Ties

1. A person involved in the Arts at a professional level (for example, an actor in a theatre company, an opera singer in an Australian company, a musician in a band or orchestra or a published author).

2. A sports person who is a member of Australian sporting associations.

Employment Ties

1. An applicant who is currently employed in Australia, or who has accepted a formal offer of employment in Australia, has an employment tie with Australia.

Personal ties

1. Long term residence in Australia prior to the last five years, particularly, if the applicant has spent their formative years in Australia, or studied or been employed in Australia.

2. Ownership of a home and/or other personal assets in Australia.

3. The applicant has close family members who reside in Australia and are Australian permanent residents or Australian citizens.

Applicants who are not able to meet the residency requirement of 2 years physical residence in Australia, and are yet to establish substantial ties with Australia, may be eligible for a 3 month RRV (Subclass 157 visa). The applicant is required to have compelling and compassionate reasons to depart Australia. Some examples of compassionate and compelling reasons may include the severe illness or death of a family member or custody proceedings.

Whilst one side of the argument is that the policy still allows applicants to be granted a 1 year RRV, and thus maintain their residency status in Australia, it raises several questions about understanding the current global movement of people and disadvantaging permanent residents whom have substantial ties which bring benefit to Australia, and in several instances a significant economic benefit to Australia.

However, given the intention of the skilled migration program to better target the skills needed in the economy, it can be understood why the Government wants to ensure skilled migrants move to Australia and establish Australia as their permanent residence. Skilled migrants have been identified as having the necessary attributes required by Australia to assist in relieving the pressures of the skills shortage.

However, it is questionable if the best way to achieve this was to introduce a “one size fits all” policy that no longer gives regard to individual circumstances, in determining whether their substantial ties to Australia warrant the grant of a further 5 year RRV.

The “slippery slope” argument hijacked the debate

Tue, 24 Jul 2012 14:00:00 GMT

By Chris Yuen

Principal Solicitor, Refugee Advice & Casework Service

(Former Principal Solicitor at IARC)

Under the migration law, unequal treatment for de facto partners continue to have an adverse impact on them, whether they are of the same gender or not, despite the fact that changes were made to the definitions of de facto relationship on 1 July 2009. Unless people are allowed to marry regardless of their respective gender, this unequal treatment will continue to disadvantage those who, while legally allowed to be in a de facto relationship, are not allowed to marry each other even if they wish to.

On 3rd May 2012 the Senate invited various groups to give evidence and present their arguments in relation to the enquiries into the proposed amendments to the Marriage Act allowing same sex marriage. One of the concerns that two particular Senators raised was whether the rights based or equity and equality based argument in support of the amendment Bill would lead to the same argument being pursued by those who are in a polygamous relationship.[1]

The former High Court Justice Mr Michael Kirby responded to this line of questioning from a pragmatic perspective that, Australia should deal with the long overdue reform first and take one step at a time. He also suggested that there was no evidence showing that this “slippery slope” argument is warranted for lack of evidence in other countries.

A community group called Australian Marriage Equality appeared before the Senate and responded from the perspective that sexual orientation is an immutable characteristic of a person akin to other bases upon which the universality of basic human rights depend.

The Law Council of Australia responded by resorting to the terms of reference of the current inquiry as well as insisting on its stance that marriage is about 2 people.

If the proponents have been seen as if they were faltering in responding to the relevant questions put by Senator Humphries and Senator Cash, it might well be because they did not understand what the Senators did not understand.

With due respect, the premise that a rights based argument for same sex marriage would legitimize minority groups to argue for the same right to enter into a married relationship between more than 2 people is misguided at best.

On a practical level, this “slippery slope” argument was premised on an assumption that a polygamous relationship is entered into by all parties. Quite apart from the possibility that one of the parties in a prior marriage might have tacitly agreed to (often simply not opposed to) the spouse’s subsequent polygamous marriage, commitments of this kind are unlikely to be ones that involve all parties. Under the current reform proposal, the basis of the rights argument is founded upon two committed adults’ quest to have the same right to enter into a marriage to the exclusion of all others, regardless of their respective gender. Therefore arguments for people in polyamorous (as opposed to polygamous) need not be dealt with in the current debate.

From an Australian legal perspective, an analogy made with polygamous or polyamorous relationship is as sound as suggesting equal rights for uncontrolled marijuana use or some other otherwise unlawful acts. Whatever justification one may promote in decriminalizing polygamy or uncontrolled use of marijuana, they belong to distinctly separate debates and until they become lawful pursuits in Australia such analogy is totally out of place. This is to contrast with the lawful formation of a domestic relationship between two consenting adults. In fact, the recognition of this domestic relationship between two consenting adults under the law is not absolute as it does not allow relationships of an incestuous kind (For example, under s5CB(2)(d) of the Migration Act, a relationship is incapable of being a de facto relationship if the partners are related by family as defined in s5CB(4). This preclusion ensures consistency with the implicit requirements of s5F of the Act for a married (de jure) relationship. (The implicit provisions in s5F of the Act regarding prohibited relationships apply by cross-reference to relevant provisions of the Marriage Act.)[2]

Importantly, the current law reform proposal is about giving equal rights to two people to have the option of marrying each other regardless of their respective gender. I will refer to as Gender whether natural, assigned, reassigned, adopted or perceived. It would seem apparent that the current reform proposals are not about promoting same sex marriage or the value of marriage but rather it gives two committed consenting adults the right to enter into a legal institution which they would otherwise be denied simply because of their respective Gender.

While discrimination against Gender has not been specifically enshrined in the International Covenant on Civil and Political Rights (ICCPR) it has been widely accepted that Article 2(1) and 26 of the ICCPR were to be interpreted to apply to people of all sexual orientation, sex and/or gender.[3]

The practical effect of allowing same sex marriage is incidental to this rights based argument. The emphasis in relation to sexuality or sexual orientation as the rights based argument because of a person's immutable sexuality or sexual orientation may have been overstated. The rights based argument is not that much about what sexuality or sexual orientation the respective couples are. It is about the right to choose, if a couple so wishes, to enter into a marriage regardless of their Gender. A domestic relationship may have its sexual undertone but it need not necessarily be so. Australian law has long recognized a committed exclusive relationship between two consenting adults which does not necessarily have the sexual component.[4] By extension, the same right should be afforded to two asexual people who wish to enter into a marriage regardless of their respective Gender.

The short version of the right, equity and equality based argument for the amendment bills is to allow two people to marry regardless of their Gender. A better version should be something like this: Allowing two consenting adults regardless of their respective Gender, whose domestic partnership will or has been legally recognised, the option to choose to enter into a married relationship and be subject themselves to the legal confines of a married relationship and to enjoy the protection and privilege a married relationship entails. Only if the right based argument be understood in a way discussed above, all the seemingly comparable analogy in arguing for polygamous or polyamorous relationships, incestuous relationship, beastiality, pedophilia will all but evaporate.

If one dispenses with the arguments based on an outdated definitional issue of what a marriage meant and the arguments based on religious fundamentalism, the public should have a better opportunity to see what the real issues are.

[1] For the full transcript see:

http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=COMMITTEES;id=committees%2Fcommsen%2F457a861a-2648-4841-ba2b-0caf90331e3a%2F0000;query=Id%3A%22committees%2Fcommsen%2F457a861a-2648-4841-ba2b-0caf90331e3a%2F0000%22

[2] See policy guidelines published by the Department of Immigration and Citizenship in relation to Migration Act 1958 and its related regulations.

[3] See Australian Human Rights Commission’s 2011 Consultation Report on “Protection from discrimination on the basis of sexual orientation and sex and/or gender identity in Australia”: http://www.humanrights.gov.au/human_rights/lgbti/lgbticonsult/report/index.html. Note also how the terminologies such as “sex”, “sexual orientation”, “gender”, “trans” and “intersex” are being explained in this Report.

[4] See the obsolete "interdependent visa" for partners under the Migration Act and in particular the Migration Review Tribunal decision in Sadovyy, Oleh [2001] MRTA 5725 (30 November 2001): http://www.austlii.edu.au/au/cases/cth/MRTA/2001/5725.html

Reflections of a former Principal Solicitor

Tue, 24 Jul 2012 14:00:00 GMT

By George Masri

Deputy Ombudsman, Commonwealth Ombudsman

Immigration law and policy is a complex, highly regulated and reviewed area of government administration which impacts significantly on people’s lives. It is a topic which receives much media and political coverage; too often in a polarised and not so accurate way. Most people seem to hold strong views about immigration - whether those views go to the composition of the migration program, the extent to which our boarders are being protected, the treatment of asylum seekers and detainees or whether migrants or temporary entrants are meeting Australia’s skill shortage or taking jobs away from Australians. Whilst clarity about the migration program and rules is often overlooked when the immigration debate takes place in a broader arena, clear immigration information is essential and sought after by applicants and their Australian sponsors, whether they are overseas or here temporarily wishing to remain longer or permanently.

This description not only captures key features of the immigration debate and administration today but also describes what things were like thirty years ago when the Interagency Migration Group (IMG), which later became the Immigration Advice and Rights Centre (IARC), was established. It is against this backdrop that key themes of providing accurate information and advice, educating community workers about the immigration program and campaigning for immigration law and policy reforms are as relevant back then as it is today. The founders of IMG, which involved the Macquarie Legal Centre and Marrickville Legal Centre as well as other community workers, lawyers and other interested individuals, saw the need for greater coordination and awareness of immigration policy, information and reform. IARC’s continued publication of the Immigration News and the Immigration Kit reinforce this broader commitment.

The 100^th edition of Immigration News provides an opportunity to reflect on some of the early IARC (and IMG) days, some of the earlier editions of the publication and the enduring success and value of IARC as a leading community based organisation in this important area of administration. These reflections are predominately based on my time as a volunteer with IMG and later as IARC’s principal solicitor from 1988 until 1991. In reflecting on the past it is important to acknowledge the commitment and foresight of key IMG founders especially Betty Hounslow (Marrickville Legal Centre) and Steve Mark (Macquarie Legal Centre) as well as Anthea Lowe who was one of the early and active IMG members and importantly also worked on the early versions of Immigration News and the Immigration Kit.

Reflections on the foundation years

Back in 1982 I was in my fourth year of an Arts Law degree at Macquarie University. I had also been volunteering for a number of years at Macquarie Legal Centre - eg answering telephone calls, undertaking a range of administrative tasks and taking notes during advice sessions for the public. Whilst this experience enabled me to be part of a large group of volunteer students and workers who assisted with the running of the centre it also gave me an insight into the importance of ensuring that legal advice, information and services are accessible to the more disadvantaged in the community. However in 1982 with this connection to Macquarie Legal Centre I then joined the IMG as a volunteer soon after its formation. This gave me an opportunity to do more and be involved in and witness the evolution of something significant – not only improving the provision of advice and representation but also strengthening awareness of immigration law and policy and engaging in reform activity.

Following its establishment in 1982, for a few years the IMG met as a coalition of workers discussing and pursuing a range of immigration policy and legal issues, engaged in various community and government consultations, drafted submissions for reform, developed information publications aimed at demystifying immigration law and policy and making it more accessible to those working in the area. In the early years these activities were not specifically funded and it was not until 1985 that funding enabled the IMG to employ a solicitor to work within an autonomous unit of the Macquarie Legal Centre. Also in 1985 the IMG received limited funding from the Immigration Department to cover the costs of the first edition of the Immigration Kit. Such funding facilitated the setting up of a drop in immigration advice service as well as the provision of greater immigration information and assistance to community workers and individuals.

There were significant challenges in those early days in keeping up with changes in immigration law and policy. Back then immigration policy was not entirely transparent, nor was it readily publicly available, so it was a key focus for IMG and IARC. There was nothing to compare with the level of codification of immigration policy we now have with the Migration Act and Migration Regulations, there was no legal or policy database like LEGENDcom, nor was there anything like the level of material now available on the Immigration Department’s website such as information about visa categories and immigration policy and the visa assessment wizard to assist individuals assess their eligibility for appropriate visas. In the early IARC days the FOI process had to be utilised in order to access relevant immigration policy and changes. This meant that IARC staff would literally have to visit the FOI section of the Immigration Department on a regular (often monthly) basis and photocopy any changes to policy. This was not only a necessary process in ensuring accurate and contemporary information in preparation of the Immigration Kit and each edition of Immigration News but it was also a catalyst for assessing whether there needed to be a broader campaign to address any concerns there may be with implementation of such changes.

Early editions of Immigration News

The first Immigration News was published by IMG in May 1986, it went to four pages and contained handwritten headlines. An insight into the purpose behind the Immigration News can be gleaned from the following which appeared on the front page of that first edition under the handwritten heading of ‘Who we are?’

‘The newsletter is produced by the Interagency Migration Group. We are a Sydney group of community workers, lawyers and others interested in immigration law, policy and reform. We have been meeting monthly for over 3 years – usually on the Thursday in every month, at Cleveland St Community Centre, Surry Hills.

One of our main aims is to set up an immigration resource centre (like the Welfare Rights Centre, but for immigration issues). So far we have two workers Doreen Muirhead a solicitor, funded by the Legal Aid Commission and Anthea Lowe, a community worker, funded for 12 months by the Law Foundation. Doreen does casework, training, funding and policy reform submissions. Anthea has been finalising our Immigration Kit … and will be conducing training sessions and trying to evaluate whether the Kit is useful.

We hope to produce this newsletter regularly – hopefully monthly. It will contain general updates on immigration law and policy and information on what other groups are doing in this area, and anything else of interest. Please contact us if you want to put anything into a future issue – for example, you might like to include information on particular cases you have dealt with, or tactical information, or updates on changes you’ve picked up, or campaign suggestions, or just clarification on particular aspects of immigration law and policy.’

A month later the front page of the second edition of Immigration News pronounced a ‘Bigger and better newsletter!’ - this time it went to six pages and the headlines were no longer handwritten. The second edition also heralded the birth of IARC; it informed the reader that IMG had changed its name to IARC and that Immigration News was being jointly published by IARC and the Immigration Reform Council of NSW. By November 1986 (ie the sixth edition) IARC became and continues to be the sole producer of the newsletter.

1986 was a big year with the first six editions of Immigration News produced in a little over six months. However it soon became evident that the intention of having monthly editions of the newsletter was not going to be sustainable with the limited funding and staffing and significant demand on IARC’s services. In 1987 Immigration News became a bi-monthly newsletter and later evolved into a quarterly publication it is today.

The early editions of Immigration News had the characteristic mix of information about recent and proposed changes in immigration law and policy, reviews, editorials and analysis, information about community advice services and campaigns… and of course cartoons were prominent. Examination of these editions not only provide a window to the approach IARC took with the publication but also a window to the nature of immigration policy and administration at the time which also shaped IARC’s services and approach during the early years of operation. Below are just some of the topics and issues covered in the first year’s editions of Immigration News.

· Changes to immigration law and policy – from the start Immigration News contained clear summary updates of changes to immigration law and policy. By way of example, in the early editions information was provided about changes to the Citizenship Act impacting eligibility and fees, new Independent and Concessional Migration category, changes to the resident return visas, changes to the special benefit entitlements for certain immigration applicants and expansion to the change of status on occupational grounds. Each Immigration News also had a do it yourself update to the Immigration Kit which summarised more specific policy changes.

· Proposed changes and reviews into immigration law and policy - Alerting people to proposed changes and reforms foreshadowed by government was a feature in the early editions. For example there were number of articles over a few editions about proposed and more restrictive changes to the immigration appeals system and entitlements. These articles not only outlined what was being proposed but also included commentary on the likely impact on implementation or potential risks. IARC was part of a broader coalition of organisations that successfully lobbied Cabinet members and other parliamentarians to reject the more restrictive proposals and to advocate for a fairer appeal system. An article, which was published in the 3^rd edition, boasted about some successful lobbying strategies IARC and the other organisations used - ie ‘telegrams, telexes” as well as letters and phone calls that flooded Cabinet ministers. Getting a coordinated campaign to bring about change was a little more challenging in the 1980s than it is now with email and social media.

· Community engagement – articles about various community groups and forums such as the Immigration Reform Council, the Migration Law Group, the Refugee Council of Australia and a refugee women’s forum, which not only informed the reader of their existence and purpose but also encouraged participation in their activities. By way of example in the 2^nd edition of Immigration News there was a short article by Peter Shergold, the then convenor of the Immigration sub-committee of the Ethnic Communities Council (ECC) and yes, the former Secretary of the Department of Prime Minister and Cabinet, calling for interested people to be involved in the work of the ECC’s Immigration sub-committee. He explained in the article that the sub-committee was interested in pursuing matters such as consultations over the immigration intake and developing policy papers on such topics as an emergency family reunion category. In another example an article in the first edition introducing the Migration Law Group, described how the group was discussing problems with areas of the Department’s procedure including ‘getting enough supplies of forms, getting regular information about any changes to policies and procedures.’ It is a reminder how much things have changed. Today we take for granted much more accessible and codified law, policy and procedures for not only the practitioner such as migration agents but also prospective applicants and their sponsors.

· Advice services and training workshops – Each edition of Immigration News contained information about free immigration advice services not only ones which IARC ran in Sydney but also other services provided in other states. It also promoted the immigration training workshops which IARC and other organisations were conducting. Often Immigration News was used as a vehicle to advocate the need for appropriate funding for free advice services. For example in an early edition of Immigration News an article appeared about a new group that had been set up to try to establish a refugee advisory service in NSW – the Refugee Advisory Service was formed to campaign for the funding of a properly funded refugee advisory service in NSW. This ultimately became a successful campaign and in 1988 the Refugee Advice and Casework Service was established following ongoing government funding.

· Mix of information and critique – even when IARC was progressing a broader policy issue or campaign it recognised the need to also inform people of existing law and policy before critiquing particular policy proposals or reviews. For example in a number of the early editions of Immigration News there were several editorials and commentaries about possible consequences of a proposed amnesty in relation to illegal immigrants which was foreshadowed by the government at the time. To supplement this broader commentary and campaign the 3^rd edition of Immigration News contained bland yet informative outline of the search, seizure, arrest, detention and interrogation powers under the Migration Act and there was also an international perspective of amnesties for illegal immigrants in the US and New Zealand in the 9^th edition. These more factual articles were not only a timely reminder of existing laws but were also important in enhancing awareness of the legal and comparative context of a significant immigration policy pronouncement.

· Headlines tell a story - The more things change the more they stay the same. Replicating some of the headlines and topics in the early editions reinforces this point. ‘Huge delays in processing change of status applications in Sydney’, ‘Freedom of Information delays in NSW’, ‘Freedom of Information Change’, ‘Why Australia should increase its refugee intake’, ‘Points test under review’, ‘Problems in Getting Special Benefit’, ‘People who claim refugee status here should be treated better’, ‘Overcrowding at Villawood’, ‘More fees go up’. These headlines (with some minor adjustments) could easily reflect many contemporary issues which I assume are on IARC’s radar today.

Campaigning for immigration law, policy and administration improvements and reforms

IARC’s role in keeping pace with changes and proposed changes to immigration law, policy reforms and administration as well as its commitment to informing people of their implication was demonstrated by its approach to a major review of immigration policy in 1988 by the Committee to Advise on Australia’s Immigration Policies (CAAIP) and the subsequent government response in 1989 which not only included certain policy refinements but significant legislative reforms. The CAAIP review stimulated much debate within the community – whether Australia’s immigration program was the right mix, whether a non-discriminatory migration program was going to receive bipartisan political support and what the changes would mean for those wishing to migrate to Australia. In such an environment it was important to clarify the facts and enable people to be informed of the issues and the implications of suggested reforms.

IARC used the July 1988 edition of Immigration News as a special supplement on the CAAIP review to provide a factual outline of some of their key findings and recommendations and to also provide an analysis and commentary of the implications. That edition of Immigration News was also used as a tool to inform lawyers and community workers of the ways in which they could become involved in various campaigns that were taking place at the time, including involvement in a National Conference on the Future of Immigration and an ongoing National Immigration Forum to input and monitor Australia’s Immigration policy, make submissions to the Immigration Minister, contacting members of parliament and raising awareness of the report and its recommendations. IARC’s active involvement with this broader CAAIP Review and the government’s response included linking with key community groups and engaging with the Minister and key departmental and parliamentary stakeholders. It was a key focus for IARC during 1988 and 1989 and it positioned the centre well to then take an active and leadership role in responding to the legislative changes that were introduced in December 1989.

19 December 1989 is a date that is still firmly entrenched in my memory (as it may also be with immigration lawyers and others working in this area at the time) as a significant day in immigration administration history and in IARC’s history. One could look back at that day as being the introduction of a new immigration legislative package which included substantial amendments to the Migration Act and a new set of Migration Regulations. This was significant because eligibility criteria and other key immigration rules were no longer just in departmental policy guidelines, publicly accessible under FOI, but they were set out and codified in immigration legislation. The intention was for the Migration Regulations to initially codify the existing immigration policies and not any changes in criteria, unless these had been previously announced by the government as part of its reform response to the CAAIP review. The legislative package followed a major CAAIP recommendation for such legislative reforms to be made. This legislative scheme effectively formed the basis of the present immigration legislative and policy framework we have today. The then Immigration Minister heralded the new legislative package as removing the ‘guesswork from decision-making about who could and could not enter and stay in Australia’. Clarity and transparency are good public administration principles and in theory at least this was what was behind these legislative changes.

However what might have been the theory or intention behind these changes did not immediately eventuate and a different reality took place. Uncertainty, trial and error approach, constant legislative changes, unintended consequences and inadequate support and information were more characteristic of the reality we saw at IARC back then. The promise that the Migration Regulations were initially only going to reflect what had been existing policy had not entirely eventuated. Even subtle changes in policy which occurred in the transition to regulations, of which there were many, led to confusion, greater complexity and unintended consequences. Draft versions of the Migration Regulations were provided to some stakeholders, including IARC, only a matter of a few days before they were due to come into force. In reviewing them at the time we identified what we saw as shifts in policy, omissions which were previously covered in policy but were not replicated in the regulations and many seemingly unintended consequences in the transition to legislation. Not only was more work required to get the detail in the legislation right but it was also clear that implementation issues existed – eg inadequate staff training and a lack of clear and comprehensive information to applicants, community workers and migration practitioners. From IARC’s perspective it was evident that the regulations were not ready to be introduced.

Notwithstanding widespread criticism from those who reviewed the draft regulations and calls for a delay in their introduction, the Minister was determined to go ahead with the 19 December implementation date and allow subsequent amendments to the regulations to deal with any issues that might arise. This getting it right process took some time with 15 separate sets of amending regulations introduced in 1990 and 21 sets in 1991 - most of the issues were in many ways dealing with the consequences of the original December 1989 regulations. There is a lesson here… a good policy idea which introduces substantial changes and has such widespread implications (such as codification and transparency of immigration policy into legislation) should be backed up with a well thought through introduction and implementation strategy. It should certainly not be rushed and introduced when it was clear that significant problems and issues with the legislation existed and that its very introduction would lead to greater uncertainty, at least in the short to medium term. Delaying its introduction by a month or two may have made the world of difference.

From 19 December 1989, and for many months beyond, IARC’s telephone advice line was inundated with the public, community workers, lawyers, migration agents and even departmental staff seeking information and clarification about a whole range of immigration policies and laws. Requests for information and training sessions, articles, involvement in various policy and consultative forums also reached an all-time high. During this period IARC as a key and active member of the National Immigration Taskforce (a coalition of community groups set up at the time to respond to the December 1989 changes and which included the Federation of Ethnic Communities Council of Australia, the Refugee Council, the Public Interest Advocacy Centre) played a leading role in advising, informing and advocating for improvements in how the immigration program was being administered. During this period and into the early 1990s, IARC (often in partnership with other groups and utilising forums such as the National Immigration Taskforce) were successful in lobbying for key areas of immigration reform. Many of these reforms are now well established areas in immigration law and policy and include independent merits review of certain decisions, appropriate consideration of spouse applicants subject to domestic violence, enabling gay and lesbians to be sponsored by their Australian partners and greater consumer protection and regulation of migration agents.

IARC and Immigration News today

IARC can be held up as a longstanding and successful community legal centre specialising in immigration law and policy. Its success is in large part due to pursuing an integrated approach to its services and work. Through its extensive advice and casework service, IARC has been well positioned to understand how immigration policy and law is being administered and what it means for people on the ground. In many ways the advice and casework service has been an important tool for understanding and identifying issues and trends. IARC understood the impact immigration rules had on applicants and their sponsors. This was often against the backdrop of much confusion and misinformation within the community about immigration policy – as was especially the case in the earlier period. IARC used this sound understanding of these issues as well as its detailed knowledge of immigration law and policy to make the most of its connection with key community stakeholders and its active engagement with the department, the Minister and the Parliament (members, senators and committees) to pursue improvements and reforms.

Today IARC continues this integrated approach. In addition to the advice and casework service it continues to be active in information and education as well as policy reform and consultation. IARC continues to publish the Immigration Kit, Immigration News and has an extensive range of plain English information sheets regarding immigration processes and visas. IARC continues to conduct general community information sessions for community workers and members of the public. IARC continues to be active in reform work, including membership of a range of community and government policy and consultative forums, making submissions to parliamentary and departmental inquiries and liaison with key departmental and other stakeholders regarding policy concerns.

This integrated approach IARC takes continues to be reflected in the more recent editions of Immigration News. There are the familiar articles that clearly inform the reader about key changes in immigration law and policy, proposed changes and reviews and the impact of recent court decisions on the immigration program. This is mixed with commentary expressing some concerns about aspects of the immigration program or the way it is administered and commentary calling for further reforms. In another familiar and integrated theme to the early years, we even have the principal solicitor contributing not only to the written content but also to visual graphics. This time photography, rather than cartoons, is the artistic median of choice.

Congratulations IARC on reaching the 100^th edition of Immigration News. It is a significant milestone not only for the publication but also for IARC and both are worthy of recognition and reflection. Immigration News remains an important publication and I look forward to IARC producing the next 100 editions...with a bit of luck we may even see the re-emergence of cartoons!

Thank you for the opportunity to reflect, it brought back some fond memories of what we were able to achieve in partnership with others.

Legal access impeded at Villawood Immigration Detention Centre

Tue, 24 Jul 2012 14:00:00 GMT

By Michael Kah, Principal at Kah Lawyers & Donald Chen, Associate at Kah Lawyers

Immigration detention has been a constant and consistently controversial issue in Australia and just as controversial are the rights of persons in immigration detention. The Department of Immigration has generally been co-operative in granting legal representatives access to their clients in immigration detention, however this year has seen a marked change in the department’s attitude regarding access to legal representation for detainees in the high security wing awaiting removal from Australia.

On 1 February this year, a gentleman approached our office and instructed us that his father had been taken into immigration detention at Villawood Immigration Detention Centre (“VIDC”) directly from Sydney airport. The gentleman instructed us to contact VIDC to speak with his father to provide him with legal advice. We attempted to fax VIDC for 45 minutes without success and made several phone calls which rang out or were otherwise engaged. Finally we made contact with VIDC and we were advised by a female officer that the Department of Immigration and Citizenship (”DIAC”) has directed that we were prohibited from physically visiting this person at VIDC and we were also prohibited to have telephone communication or any other form of communication with this person. We responded with a fax requesting that DIAC explain their position, however no response was received and the person returned to Hong Kong the next day without receiving any legal advice.

This has not been an isolated incident. A Migration Alliance member had also experienced a similar incident in January as set out in their newsletter dated 5 March 2012. The Migration Alliance member had tried several times to communicate with the VIDC only to be told to the effect that the person in question was to be denied access to legal representation. DIAC’s official response to the Migration Alliance’s enquiries was that legal representatives may contact persons in detention and that all clients are allowed to contact their legal representative which is clearly not what has happened in our experience or the experience of the Migration Alliance member earlier this year.

The Framework regarding access to legal representation under the Detention Services Manual contained in PAM3 is provided under section 256 of the Migration Act as set out below:

“Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention”.

Chapter 4 of the Detention Services Manual goes further and Point 1 of Chapter 4 states clearly:

1 Purpose

This instruction provides guidance on access to legal advice and representation by persons in immigration detention. Persons in immigration detention have the right to seek professional legal assistance of relevance to their immigration pathway (emphasis added).

Chapter 4 further elaborates that all detainees are to be informed of their entitlement to seek legal advice and informed of their right to receive visits from their legal representatives and their right to contact them by phone and to send and receive correspondence via fax or post.

Persons in detention are also provided with a “Very Important Notice” (‘VIN”) and a “Visa Options Notice.” The VIN sets out information required under s194 of the Act and includes advice that a person in immigration detention is eligible to apply for visas, their rights to request access to lawyers or consular representatives and their options for leaving Australia.

Point 12 of Chapter 4 also covers the methods for contact for Legal representatives whom are generally to be given unrestricted access to their clients in immigration detention through visits or, where available, video conferencing during normal business hours and after hours in emergency cases or by telephone at any time. Only in exceptional circumstances is access to legal representatives and other visitors to be restricted, and access must not be denied for disciplinary or behavioural purposes.

The rights to legal representation and legal review for detainees are not just part of departmental policy but also the wider international legal framework. Australia as a signatory to the International Covenant on Civil and Political Rights also has force on decision making and in particular, Article 9 and 10 of the International Covenant on Civil and Political Rights states that:

“Article 9: Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful”.

“Article 10: All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.

Although Article 9 does not directly address legal representation, it is implied that the rights to proceedings before a court also allows access to legal representation for those proceedings. The question that has to be asked is how could access to legal representation be so restricted in light of all of the above protections both in legislation and policy?

There is no clear answer as to why the VIDC had limited access to detainees due to the lack of transparency of their processes, however there are features in the legislation and policy which may hinder access to legal representation.

The Detention Services Manual states clearly that access to legal representatives and other visitors may be restricted in exceptional circumstances. Exceptional circumstances remains undefined and it is unknown as to the ambit of what is considered to be “exceptional” under policy. It should be noted that although s256 of the Act allows access to legal representation, it does not compel departmental officers to advice detainees of their right to request legal representation.

In the event that your client is detained or detained in Villawood Detention Centre, we suggest that you take the following steps to contact your client:

1. Contact client on personal mobile number (this is not possible for irregular maritime arrivals (“IMA”) as mobile phones are not allowed to be carried by IMAs in detention).

2. Call Villawood Detention Centre on (02) 9780 9220 and request that you speak with the client.

3. If you are unable to access VIDC through the telephone, send a fax to Villawood Detention Centre on (02) 9780 9289 or alternatively on (02) 9780 9118.

4. Attend VIDC directly and request in person at Villawood Detention Centre access to your client.

The extent of DIAC’s attitude to legal representation for access to detainees remains to be seen, however until the detention services manual’s considerations and the protections afforded under international law have been implemented into legislation, there will continue to be some flexibility as to the extent that legal representatives are allowed to access clients in detention.

Migration for Partners and Children: Aspects of planning

Sun, 11 Mar 2012 13:00:00 GMT

By Brian Jones

Registered Migration Agent, Mackenzie Migration Services

Let’s begin by acknowledging that the migration program has many pressures to accommodate. The humanitarian, economic, extended family and other elements are all important; however the family units of Australian citizens – partner and child classes – have suffered by inclusion in the mix.

Partner and child visas will always be with us and are the result of members of the Australian community behaving naturally in establishing relationships and families. The only policy decisions to be made are whether such people should be entitled to enter and whether they meet the assessment criteria.

Partners and children of Australian citizens should be granted entry to Australia in a timely way subject to, and in, the national interest and the migration/residence processes for partners and children should achieve this objective. The current management process does not deliver the best outcome in timeliness.

As a consequence of the processing times accepted in the current regime families are separated longer than is desirable; sometimes expatriate Australians must either leave their families behind or wait with them offshore. Onshore applicants have the (often very significant) inconvenience of temporary residence and bridging visas for longer than is necessary. Lengthy processing times have a very real impact on families in establishing their lives in Australia for the long term. Whatever loss they suffer will go forward with them.

Of course similar arguments may be made for other visa classes. However Parliament has distinguished partners and children and how they should be managed when applying for residence or permanent entry (discussed below).

The following discusses the situation in a little detail and then provides a solution to the perceived problem.

Partners and children and Parliament’s position on capping as set out in the Act

As enacted by the Parliament, Section 85 of the Migration Act 1958 (Cth) (the Act) empowers the Minister to determine the maximum number of visas to be allocated in specified classes. Section 86 provides that once a limit is set out under section 85 it may not be exceeded.

Section 87 limits the application of section 86 so that the number of visas available to spouses, de facto partners and dependent children of Australian Citizens, Australian Permanent residents and those who are “usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law” are not limited in this way. The third group generally comprise New Zealanders residing in Australia. This limitation on the operation of section 86 is acknowledged by the Minister in Direction No. 27 issued under section 499 of the Act.

It is therefore apparent that Parliament’s intention was that partners and children should not be subject to the restriction on the maximum numbers of visas issued in any period. Readers may or may not share this opinion but it is a conclusion that is open for discussion.

Planning levels

An examination of the DIAC website (see http://www.immi.gov.au/migrants/family/questions-answers.htm) reveals the following (emphasis added):

“What is the processing time for partner applications?

The service standards published on the website are a general guide to processing times. Actual processing times will vary due to a variety of factors, such as the nature and complexity of the case and the size and composition of the migration program.

Every year the Australian Government sets the overall migration program as part of the Budget process. For the 2011–12 program year, 45 400 program places have been allocated to the partner visa program, an increase of 3,400 places over the 2010-11 program year. The department processes partner visas in the order they are received and with consideration to the program places announced by the Government.”

The underlined portion of the quote above makes it clear that the Department considers that the setting of the planning level makes the partner program subject to numerical control. This is against the spirit of the Act as passed by the Parliament and should not be accepted on principle.

In 2010-2011 planning levels were set at 42,000 partner visas and 3,300 child visas. The numbers actually granted were 41,994 and 3,300 respectively. The close relationship between the planning level and outcome suggests that visa grant outcomes were managed (not ‘capped’) very closely in accordance with the planning numbers.

The Department, on behalf of the Minister, has planned for a higher number of partner and child visas (45,400 and 3,450 respectively) for the year 2011-2012.

Processing times

The current service standards published by DIAC (see here) include the following:

Partner and Child visas	Onshore	Offshore
Temporary partner	Six to eight months	Five to twelve months
Permanent partner	Six to eight months	Six to eight months
Child	Seven to eight months	Three to 14 months
Comparisons with other visa classes
New Zealand Citizen Family relationship (Temporary)	Two to three months	Two to three months

Why are these service standards a matter of concern?

Service standards set on a twelve-month program are not responsive to demand within that time. It is natural for planners to plan for a twelve-month period (or whatever the plan term is) and resource to that plan. In doing so there is an incentive to plan to expend resources evenly over the planning period. Delay is consequently built in and some applications must simply wait until resources become available.

Any service standard set sends a message about acceptability. Why would the Department publish a service standard of six to eight months unless it was acceptable to the Minister and the senior management? A case officer or program manager is thereby encouraged to view performance within the standard as appropriate. What should be acceptable is that decisions on partner and child visas are made as quickly as practicable. If that requires more resources they should be provided. If that requires consideration of additional cost to the applicant it should be considered.

There is also an administrative cost to longer processing times. Progress enquiries, permission to work applications, and bridging visa applications all increase.

The cost to applicants and their family units of extended processing times can be significant in terms of education, career opportunity and the stress of family separation.

Changing the status of the program

The following recommendations reflect an approach that might resolve this issue:

a. There should be an acknowledgement that it is natural and acceptable that the partner and child visa programs are driven by and should be responsive to demand. This seems an obvious point but there is no other element of Australia’s migration program that is not open for debate as to numbers and purpose. Examples include how many GSM grants are appropriate, what resources to commit to employer nominated classes to give business the opportunities it needs, how many parents can Australia afford to support though their later years, how many humanitarian visas to balance our national willingness and international obligations? All these questions require a policy decision. All that is required for the family units of Australian community members is recognition of the different nature of the program. No genuine spouse or child who meets the genuineness and the public interest criteria should be refused entry.

b. That the partner and child elements of the migration program be removed from the overall migration year planning process. This step would remove the current competition for visa places between the partner and child programs and the broader program and the competition for resources for implementation.

c. That the service standard be set at a standard acceptable for the treatment of the family units of Australian citizens and unrestricted residents. Resources should meet the demand for these visas responsively and in short time frames. In effect, a short processing target should set because it is what people should have rather than what can be fit within the available resources over a twelve-month period. Perhaps review of the application rates and resourcing should occur on a monthly basis.

What would this achieve?

As mentioned earlier, the current management process seeks to balance economic considerations (e.g. skilled migration), costs to the tax-payer (e.g. parents and other family), and international obligations (e.g. the humanitarian stream) with varying priorities to create the migration program and the supporting budgetary elements.

Attempts are made to balance the relative importance of these programs and apply resources appropriately. Taking partners and children out of the mix, and resourcing those programs separately should allow the different nature of this element of Australian migration to be dealt with appropriately.

We might even make them feel welcome!

The New Autonomous Sanctions Regime and its Implications

Mon, 05 Mar 2012 13:00:00 GMT

By Xanthe Emery

Solicitor, Immigration and Rights Centre

The recent introduction of the Autonomous Sanctions Act 2011 and the accompanying Regulations give extensive power to the Minister to declare goods, services, entities and individuals as subject to sanctions. The Act also creates a criminal offence for the breach of ‘sanction laws’. These sanction laws however, are created by the Minister by legislative instrument, potentially raising a separation of powers issue. At the beginning of 2012, the Migration Regulations 1994 were amended to include travel bans declared by the Foreign Minister under the Autonomous Sanctions Regulations as a prescribed ground for cancellation of a visa under section 116 of the Migration Act and in public interest criterion 4003.

Introduction

In 2011 the Federal parliament enacted the Autonomous Sanctions Act 2011 (“the Act”) and the Autonomous Sanctions Regulations 2011 (“the Regulations”). The sanctions regime was reformed for the stated purposes of improving the overall transparency and effectiveness of Australia’s autonomous sanctions measures and to make it easier to act in concert with other like-minded countries. The purpose of improving the transparency of the system is arguably frustrated by the broad definition of a number of legislative terms, the corresponding breadth of application of sanctions, and the lack of publicly available information for those individuals and entities who may have interactions with the regime.

What are ‘autonomous sanctions’?

The name itself provides the uninitiated with little guidance as to the meaning of the term. However, as a tool of foreign policy, the concept of autonomous sanctions is relatively simple. Where a foreign government (‘democratic’ or otherwise) is engaging in conduct that gives rise to a situation of international concern, such as the repression of human rights or democratic freedoms, or the pursuit of regionally or internationally destabilising policies (like WMD proliferation), autonomous sanctions are applied by Australia to pressure such foreign regimes into discontinuing the conduct. They are designed to be punitive but do not involve the use of armed force. Autonomous sanctions can include financial sanctions, travel bans, restrictions on trade or investment with a sanctioned country, embargoes on the supply of military or strategic goods, suspension of non-humanitarian development assistance, and suspension of government-to-government links.

Originally, sanctions applied by Australia (and many other countries) merely reflected the sanctions authorised by the United Nations Security Council (“UNSC”), which Australia is obliged to enforce under Article 25 of the Charter of the United Nations. The Charter of the United Nations Act 1945 was enacted in order to make UNSC resolutions into law in Australia, by creating regulations under the Act that implemented specific sanctions. Under section 8 of this Act, the regulations creating sanctions expire once the resolution of the UNSC ceases to be binding on Australia. In the new autonomous sanctions scheme, no such “sunset clause” exists, and sanctions can be independent of or supplementary to UNSC sanctions.

In the Explanatory Memorandum before the introduction of the bill, the government declared that the purpose of autonomous sanctions was to achieve the following three objectives:

1. To limit the adverse consequences of a situation of international concern;

2. To seek to influence those responsible for giving rise to the situation of concern to modify their behaviour or to remove the concern; and

3. To penalise those responsible.

Prior to the introduction of the Act and Regulations, autonomous sanctions were achieved through other pieces of legislation that were not necessarily designed to support autonomous sanctions and therefore limited their scope and application. The government stated the reason for the enactment was to “achieve more effectively the objectives underlying imposing autonomous sanctions”. Like much legislation, the Act is a framework under which specific regulations are made, with new regulations intended to contain measures reflecting the current situation of international concern. The Act allows the government flexibility in imposing autonomous sanctions and less dependence on their status as UNSC sanctions.

Amendments to the Migration Regulations

Section 10(1)(a) of the Autonomous Sanctions Act 2011 provides that the regulations may proscribe persons or entities. Regulation 6 then provides for the designation of persons or entities by the Foreign Minister for the purpose of preventing them from travelling to, entering or remaining in Australia. The Minister may also declare a person if the Minister is satisfied they are contributing to the proliferation of weapons of mass destruction. Regulation 19 provides the Minister with a discretion to waive a travel ban in relation to a declared individual on the basis that it is in the national interest to do so or on humanitarian grounds. Presently, the Regulations designate persons from Burma, DPRK, the former Federal Republic of Yugoslavia, Fiji, Iran, Libya, Syria and Zimbabwe.

The Migration Regulations 1994 were amended in February 2012 to complement the enactment of the autonomous sanctions scheme: Regulation 2.43 was amended to include an additional ground for cancellation of a visa, being that the visa holder has been declared by the Foreign Minister under the Autonomous Sanctions Regulations for the purpose of preventing them from travelling to, entering or remaining in Australia and the Foreign Minster has not waived the declaration in relation to that person; public interest criterion 4003 was amended to include the same.

Perceived issues with the new sanctions scheme

The government received a number of submissions in response to the draft Regulations. These submissions canvassed a range of potential flaws in the legislative scheme but concerns about the creation of criminal offences, the powers delegated to the Minister, and the potential scope of the Regulations were prominent.

Creation of criminal offences and the powers of the Executive

Section 16 of the Act creates the offence of ‘contravening a sanction law’ (discussed in more detail below) and prescribes a punishment of imprisonment of not more than ten years and/or a hefty fine for individuals. Bodies corporate can also commit the offence (which is a strict liability offence for bodies corporate), however, they are afforded the defences of “reasonable precaution” and “due diligence”, which are not also available to individuals despite the harsh penalties for failing to comply. It is not made clear whether employees of a body corporate acting in the course of their employment would be entitled to rely on the defences. Section 6 of the Act empowers the Foreign Minister to create the ‘sanction laws’ that must not be contravened. Part 3 of the Regulations contain the existing sanction laws. What appears problematic is that the current legislative framework delegates the making of sanction laws to the Executive arm of government, giving the Minister significant power in the creation of criminal offences, without necessitating that sanction laws be approved by Parliament. This is arguably a breach of the separation of powers. Unlike under the Charter of the United Nations Act 1945, the powers of the Executive are not simply by way of implementation of Australia’s obligations under the Charter of the United Nations. This issue was addressed extensively by the Queensland Law Society in its submissions, who suggested that “the creation of ‘sanction laws’ should properly be the function of the legislature”, rather than the Minister.

Additionally, (as discussed above) the Minister is empowered in Regulation 6 to designate or declare individuals who shall be subject to sanctions, such as travel bans. There is no requirement for parliamentary approval of such designations. Although an individual can apply to the Minister to have the designation revoked or waived, there does not appear to be a right to review of the decision of the Minister to designate a person in the first place. The courts have said that a decision that a person’s presence in Australia is contrary to Australia’s foreign policy interests is a political decision and is therefore not reviewable. Given the outcome in Aye v Minister for Immigration and Citizenship [2010] FCAFC 69 (discussed below), it seems likely that a decision by the Minister under the Autonomous Sanctions Regulations would be deemed as political also, and therefore not reviewable in a court.

Scope and breadth of the scheme

Submissions made to the Department of Foreign Affairs and Trade universally complained of the vagueness and generality of the Regulations, and the far-ranging scope of the sanctions, and highlighted the fact that a number of important terms in the Act and Regulations are not defined. For example, Regulation 5 defines ‘sanctioned service’ to include the provision of: technical advice, assistance or training; financial assistance; financial advice; or another service. It will be a sanctioned service if “it assists with, or is provided in relation to” the country and corresponding activity listed in the item in the regulation. It is a breach of a sanction law (and thus a criminal offence) if a person provides a sanctioned service. As submissions pointed out, this definition could easily extend to the legal services provided by lawyers or tertiary education provided by universities or even individual academics. Universities Australia complained that the “broad wording … means that almost any area of learning and research in a university has the potential for inappropriate application, and identifying what would constitute due diligence or reasonable efforts under these circumstances is far from clear”. It was suggested that the scope of sanctioned service be narrowed or that the term “another service” be defined. The government declined to narrow the application of ‘sanctioned service’ in any way on the basis that it was “intended to be as open-ended as possible, to capture [a] variety of conduct”. Where the Regulations provide for such criminal offences, and heavy penalties for their breach, a lack of clear definitions of terms and confined application of the sanctions, make compliance by individuals, corporations, universities, lawyers etc. extremely challenging.

There is also a distinct lack of publically available guidance on the interpretation and application of sanctions to assist individuals or entities with compliance. Despite being posited as reform to improve transparency, transparency is what is lacking in the new system, including in relation to the prosecution of those found to be in breach of sanctions. The government has provided an assurance that the prosecution policy of the Commonwealth “will ensure that criminal liability will not extend to technical contraventions,” although this comforting guarantee does not provide elucidation of government policy.

Aye v Minister for Immigration and Citizenship

Although this case was decided before the introduction of the Act and Regulations, it provides an example of where the application of sanctions amounting to travel bans against individuals can be unfair or unjust. Aye was the adult daughter of a Brigadier General of the Burmese Air Force. She was completely estranged from her father both emotionally and financially and had originally been encouraged to come to Australia by her uncle, an Australian permanent resident. In 2008 the Foreign Minister made a declaration that Aye was a person whose presence in Australia was contrary to Australia’s foreign policy interests and her student visa was subsequently cancelled. This decision was appealed to the Full Court of the Federal Court of Australia.

At that time, travel sanctions existed against senior members of the Burmese regime, including Aye’s parents, as well as their immediate family members. The Court held that the decision of the Minister to make Aye a person whose presence in Australia was contrary to Australia’s foreign policy interests was a foreign policy decision and therefore not justiciable. Even if it was justiciable, procedural fairness extended to Aye only insofar as she was able to make submissions as to whether she fell within the description of “immediate family member” of the sanctioned Brigadier General, which she undoubtedly did. The fact of her estrangement from her family and that she did not share her father’s views, had no bearing. She was not entitled to challenge the correctness or fairness of the policy that adult children of designated persons be also subject to travel bans. The Court upheld that because the decision of the Minister was of a political nature and in relation to Australia’s foreign policy interests, matters to which the Courts are not privy, the Minister’s decision was not reviewable.

This decision may have serious implications for individuals who are caught in the far-reaching new Act and Regulations, with little recourse to review of a decision by the Minister to designate them. The only recourse for an individual is to challenge the fact of them being such an individual or member of a designated group.

In submissions it was suggested that the meaning of ‘immediate family member’ of designated persons (see particularly Item 1(h), 4(e) and 6(d) of Regulation 6) be limited so as not to include those who do not share the primary person’s views and are not associated in any way other than by familial relation. This amendment was declined on the basis that the Minister has discretion to actually designate a person who is eligible for designation under the Regulations. The government has said that the decision to apply sanctions to a particular person will depend on a number of factors including whether such a designation would meet the aims of the sanctions regime. As we have seen in Aye, such a discretion can still be applied to the detriment of persons who do not support the views of the primary person and are not associated with them in any way other than as an immediate family member.

Additional issues

The Act empowers Commonwealth entities to compel information from a person and creates a corresponding offence for failing to do so. The Act also abrogates the privilege against self-incrimination. A blanket abrogation of this basic procedural right is excessive in achieving the stated objectives of the government.

Universities were advised by the Department that they would be expected to pass on information about both the formal and informal activities of students from sanctioned countries. This purportedly includes activities ranging from their participation in student groups to informal discussions with staff about equipment or courses. This wide-ranging surveillance of students appears discriminatory, does not support the facilitation of relations with other countries (as is required by Section 10 of the Act), nor does it appear to be highly targeted or applied to minimize the impact on the general population of a sanctioned country, as the Explanatory Memorandum assures.

The scope and application of the new autonomous sanctions regime is yet to be tested. Whether the courts will uphold the potential separation of powers breach, or enforce provisions of the legislation that are vague and general remains to be seen.

Skillselect – The Final Blow In The Slow Death Of General Skilled Migration?

Mon, 05 Mar 2012 13:00:00 GMT

By Helen Duncan

Registered Migration Agent, Australian Migration and Visa Lawyers

The Minister for Immigration and Citizenship has announced a new system under which skilled migrants, who do not have an employer to sponsor them, will need to apply in order to migrate to Australia. SkillSelect represents the most fundamental change for General Skilled Migration (GSM) since the introduction of the Migration Regulations in 1994. From 1 July 2012, potential migrants will be required to lodge an Expression of Interest (EOI) and then wait in a pool of potential migrants until they receive an invitation to lodge an application. If no invitation is received by the end of two years, the EOI will have lapsed. We have to wonder if this is the final blow in the slow death of GSM.

It was not too long ago that GSM accounted for the majority of visas granted in the skilled migration program. The table below illustrates the decline of GSM grants, and in particular the independent (not state or family sponsored) visa grants over the last 4 years.

Program Year	Skilled visas granted	% GSM	% Independent
2007/08	108,540	72%	51%
2008/09	114,777	60%	39%
2009/10	107,868	55%	35%
2010/11	113,725	54%	32%

While the number of skilled visas granted fluctuates around the 110,000 mark, there is a marked decline in the percentage of these grants attributed to GSM, especially independent visas. Interestingly, for the year 2011/12, the migration program indicates a planning level of 125,850 skilled visas with 58% of these GSM visas and 35% independent visas – planning levels that go against the trend shown above.

Significant changes to the GSM points test introduced on 1 July 2011 may make these levels difficult to achieve. In a media release on 11 November 2010, Minister Bowen stated that the changes would:

“set the foundations for a skilled migration program that will be responsive to our economic needs and continue to serve Australia’s interests in the medium to long term… The existing points test has not always led to outcomes consistent with the objectives of the skilled migration program. For example, the current test puts an overseas student with a short term vocational qualification and one year’s work experience in Australia ahead of a Harvard educated environmental engineer with three years’ relevant work experience.”

The idea was to introduce a system that preferred the latter sort of applicant to the cooks and hairdressers that were said to be rorting the system.

So have these reforms worked? If we assume that the Harvard educated engineer is a citizen of the USA, has a Bachelor Degree in Engineering and is aged in his or her late 20’s, he or she could be awarded the following points:

Age – 30

English – 0

Overseas degree – 15

Overseas work experience – 5

With a requirement to score 65 points, the engineer is well short of the benchmark. He or she would have to sit the IELTS test (which is often seen as an insult for native English speakers) and attain a score of 8 in each component of reading, writing, speaking and listening, or score 7 in each component and apply for state or territory sponsorship. The states and territories that currently sponsor Environmental Engineers are the ACT, NSW, Queensland and South Australia. However, as the ACT requires current employment in the ACT, and NSW and Queensland require at least five years’ experience, South Australian sponsorship is the only option.

Our young Harvard-educated engineer with good work experience may therefore actually find it difficult to apply independently for migration. But maybe it is just as well, because when our engineer does arrive in a South Australian mining town, he or she is likely to find that the local restaurant is closed because there are no cooks available and it is impossible to get a good haircut.

SkillSelect is seen as the final chapter in the reform of GSM as it is meant to target exactly the type of migrant needed at any one time and continues the move from a “supply driven” migration program (people independently applying to migrate) to a “demand driven” program (people being selected for migration by employers, the States and Territories or the Department of Immigration and Citizenship (DIAC)).

The shift in the emphasis of the skilled program does imply however that there was a problem with the program previously. It suggests that there is a greater need to ensure that skilled migrants arriving in Australia are less likely to be unemployed and more likely to work in the occupation for which they were trained. But was this really a problem?

Studies show that independent migrants in the past have had good employment outcomes. The Continuous Survey of Australia’s Migrants, a survey commissioned by DIAC which commenced in late 2009, surveys recent migrants every six months. This survey has shown that while the best employment outcomes were not surprisingly for the onshore employer sponsored migrants with an unemployment rate of 1% after six months in Australia, the offshore independent skilled migrants were not faring too badly in what were then difficult economic times, with an unemployment rate after six months of 6%. By comparison the unemployment rate of state and family sponsored GSM migrants was around 12% after six months in Australia. (See further, How New Migrants Fare: An analysis of the Continuous Survey of Australia’s Migrants, Department of Immigration and Citizenship, 2010. Available here.)

We have seen significant changes to GSM in recent years that have seen the proportion of the skilled program attributable to GSM decline. Changes to the points test in July 2011 have resulted in it being difficult for most applicants to meet the points threshold and the introduction of SkillSelect on 1 July 2012 will mean that it will no longer be possible to apply upfront for GSM. All this change has been aimed at achieving a more employable skilled program, however you have to ask if there was ever a problem to start with.

Deterring People Smuggling Bill 2011

Sun, 04 Mar 2012 13:00:00 GMT

The lower house of Parliament has passed the Deterring People Smuggling Bill 2011 that seeks to clarify the legal position of people smugglers. However, the Bill raises questions regarding the rights of people coming to Australia seeking asylum with respect to its impact on our international obligations.

This Bill seeks to clarify the legal definition of what constitutes “no lawful right to come to Australia” to include a person that is seeking protection or asylum. It is a crime to organize or facilitate the coming to Australia of a person who has “no lawful right to come to Australia”, even if that person is a person to whom Australia owes protection obligations. While the Bill purports to have no impact on individuals seeking protection or asylum, the criminalization of the act of assisting a person to come to Australia undermines Australia’s protection obligations.

Victoria Legal Aid made a submission to the Senate inquiry into the Bill and points out that the Bill “effectively declares than an asylum seeker is not a person who has a lawful right to come to Australia” despite being a person that may have such a lawful right under international law. This position is supported by other major interest groups, including the Law Council of Australia and the Immigration Advice and Rights Centre. Professor Ben Saul from the University of Sydney expresses the view that the Bill “cannot purport to validly implement Australia’s obligations under the Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the United Nations Convention on Transnational Organised Crime if the scope of the Protocol in fact excludes refugees”.

In addition the government aims to apply a mandatory sentencing provision of five years, without consideration of whether the person is a crewmember or the person organizing the people smuggling. Crewmembers are often a patchwork of poor Indonesian fishermen who are signed up for their usual day’s work, who do not necessarily intend to be involved in people smuggling activities. Mandatory sentencing is a mechanism for “shooting the messenger” rather than tackling the issue in a constructive, humane and effective manner.

The Explanatory Memorandum to the Bill stated that there have been 960 prosecutions for people smuggling since similar provisions were introduced in 1999. The stated motivations for the new Bill appear somewhat dubious, given that prosecution for people smuggling is clearly possible under the current framework. The Bill also has retrospective application.

These questionable provisions together with the nature and timing of the Bill’s introduction raise serious doubts about the government’s competency in dealing with the problem of people smuggling and whether the disciplinary measures go toward tackling the real issues or simply fuelling the “stop the boats” media mayhem.

The ALRC's Commonwealth Laws and Family Violence Inquiry

Thu, 01 Mar 2012 13:00:00 GMT

The ALRC’s Commonwealth Laws and Family Violence Inquiry

Khanh Hoang*

Overview

On 9 July 2010, the Attorney-General, the Hon Robert McClelland MP, asked the Australian Law Reform Commission (ALRC) to inquire and report on the treatment of family violence in a number of areas of Commonwealth laws, including migration law. The ALRC was directed by the Terms of Reference to consider ‘what, if any, improvements could be made to relevant legal frameworks to protect the safety of those experiencing family/domestic violence’.[1]

Reflecting its commitment to widespread community consultation, the ALRC used a multi-pronged strategy of seeking community input. One hundred and ten consultations in two national rounds of stakeholder meetings, forums and roundtables were conducted. In the migration area, the ALRC consulted with, among others, community migrant legal centres, migration agents, academics, the Department of Immigration and Citizenship, and the Migration Institute of Australia. The ALRC would like to express gratitude to the IARC for its valuable contribution to the Inquiry, including a fruitful consultation and submissions the ALRC’s Issues Paper and Discussion Paper.

The ALRC’s report, Family Violence and Commonwealth Laws—Improving Legal Frameworks, ALRC Report 117, is now publicly available on the ALRC’s website. It contains 14 recommendations in the migration law area. The ALRC has also produced factsheets about the effect of the Inquiry on culturally and linguistically diverse (CALD) communities, people with a disability, and those from gay, lesbian, bisexual trans and intersex communities. It is now up to the Australian Government to decide whether to implement the recommendations, in whole or in part. There is no set time frame in which to respond, and some reports are implemented several years after they have been completed. Implementation of ALRC recommendations is tracked and recorded each year in the ALRC’s Annual Report. The ALRC looks forward to positive responses to Report 117.

Policy tensions — accessibility vs system integrity

The focus of law reform in the migration context surrounded the ‘family violence exception’ found in Division 1.5 of the Migration Regulations 1994 (Cth). The family violence exception allows a person to be considered for permanent residence after the breakdown of their married or de facto relationship on which their migration status depends, if they, or a member of their family unit has suffered family violence by their partner (Australian sponsor).[2] The exception was introduced to alleviate concerns that a person may feel compelled to remain in a violent relationship with a partner to ensure that their migration status is not compromised.

The major policy challenge in this Inquiry was finding the right balance between ensuring accessibility to the family violence exception for genuine victims, while at the same time, preserving the integrity of the visa system. Accessibility is a broad concept, but can refer to:

removal of barriers to accessing the family violence exception;
improving the ability of victims of family violence to access appropriate services, merits and judicial review; and
ensuring that visa decision makers—and the legal system in general—are aware of, and are sensitive to family violence issues.

System integrity relates to ensuring that the family violence exception is not open to abuse or manipulation. As the Department of Immigration and Citizenship articulated in its submission, given the finite number of permanent visas that may be granted, ‘some applicants will seek to contrive or exaggerate claims to meet visa requirements’.[3] In its view:

an ideal arrangement would be sufficiently simple that it could be accessed by all applicants without generating an ‘industry’ while providing robust assessment of claims and correct identification of non-genuine applicants.[4]

Striking the appropriate balance between these two competing tensions was crucial to the formulation of the ALRC’s recommendations.

Areas for reform

This section outlines some of the major recommendations from the ALRC’s report. As not all of the recommendations are discussed here, stakeholders are encouraged to consult the fuller discussion in the Report.

Common definition of family violence

To ensure consistency in the treatment of family violence across Commonwealth laws, the ALRC recommended that a common definition of family violence be inserted into the relevant pieces of Commonwealth legislation—including the Migration Regulations 1994 (Cth)—and a range of other guidelines and materials.[5] The ALRC recommended that family violence should be defined by reference to:

a) a core definition of conduct that is violent, threatening, coercive and controlling, or intended to cause a family member to be fearful; and

b) a non-exhaustive list of examples of physical and non-physical conduct.

The ALRC considers that a common definition of family violence will provide the basis for education and training and help to improve consistency in decision-making. For example, a common definition would ensure that independent experts—who are Centrelink social workers—can apply the same definition of family violence when considering a migration case as when they are considering family violence in the social security context.

Expanding the scope of family violence exception

The family violence exception is currently available primary applicants for partner visas and secondary applicants for certain skilled stream (business) visas. Throughout the Inquiry, stakeholders called for reforms to expand the family violence exception to cover:

those on Prospective Marriage (Subclass 300) visas who have not married their Australian sponsor;
all secondary applicants for permanent visas; and
those temporary visas.

Prospective marriage visas

A Prospective Marriage visa allows the holder to enter Australia to fulfil the intention of marrying his or her Australian spouse and then applying for a Partner visa onshore. Under the current arrangements, the family violence exception is only available if the Prospective Marriage visa holder has married his or her Australian sponsor, the relationship has broken down, and the visa holder has suffered family violence committed by the sponsoring partner.[6]

In consultations and submissions, stakeholders emphasised to the ALRC that prospective marriage visa holders are in a particularly vulnerable position, as they are dependent on their sponsor for financial and other support. When family violence occurs, such persons may lack knowledge of the legal system, and do not have social and other support networks to help ensure their safety. In particular, threats to ‘withdrawal from the marriage’ or being ‘deported from Australia’ may be used by sponsors to keep such persons in violent relationships.[7] Stakeholders—including the IARC—also suggested that, where the relationship fails, it may be difficult to return home for reasons of social stigma, lack of funds, or in the worst case scenario, the risk of persecution.[8]

The ALRC recommended that the family violence exception be expanded to cover Prospective Marriage visa applicants, in circumstances where the person has not married their Australian sponsor.[9]

Secondary applicants for permanent visas

A secondary visa holder is usually a partner or child accompanying a person who holds a visa (primary visa holder). The migration status of a secondary visa holder depends on their genuine and continuing relationship with a primary visa holder.

Under the current arrangements—apart from certain skilled stream (business) visas—secondary visa applicants do not have access to the family violence exception when an application for a permanent visa is made. There appears to be little reason why the family violence exception can be accessed by some secondary visa applicants, but not others, when applying for a permanent visa. Family violence can occur between a primary and secondary visa applicant on any kind of visa.

To ensure consistency in protection for victims of family violence, the ALRC recommended that where an application for an onshore permanent visa is made, secondary applicants should be able to access to the family violence exception.[10]

Secondary holders of temporary visas

Australia’s migration system provides for pathways to permanent residency that may require persons to hold a temporary visa before applying for a permanent visa. In a number of instances, a family may be in Australia for a number of years on temporary visas, before an application for a permanent visa is made. Stakeholders expressed concern that, even if the ALRC’s recommendation above that the family violence exception be made available to all secondary applicants for onshore permanent visas, this does not protect someone for the duration of the temporary visa, or where they are not included in the eventual permanent visa application. Similarly, stakeholders called for greater protection for primary holders of temporary visas, who may form relationships with Australian citizens and experience family violence while in Australia.

In this context, the integrity of the visa system requires that those who are in Australia on a temporary basis—with no legitimate expectation of a permanent migration outcome—should not automatically be granted permanent residence by reason of the family violence exception. While there are instances where secondary holders of temporary visas may have a legitimate expectation of a permanent migration outcome with their partner, this expectation is difficult to determine where there is no pending permanent visa application. The ALRC did not recommend that the family violence exception be extended to temporary visas, as to do so would risk ‘incentivising’ family violence claims as a way to obtain a permanent migration outcome.

However, the ALRC considers that the Australian government has moral and legal obligations to protect persons in Australia, whether temporarily or otherwise. The ALRC recommended that secondary visa holders who experience family violence on temporary visas should be able to apply for another temporary visa that allows them to time to seek appropriate services and to make arrangements to return home, or to apply for another visa in their own right.[11] It was further recommended that a person on such a visa should be able to access Special Benefit payments under social security law.[12]

This would allow victims of family violence to remove themselves from violent relationships, without being liable to be removed from Australia straight away. Further, if the person goes on to make another visa application—whether for a temporary or permanent visa—on their own merit, the outcome of such a visa application does not jeopardise the integrity of the visa system.

Non-judicially determined evidence

The Migration Regulations 1994 (Cth) provide that a family violence claim can be substantiated by judicial and non-judicially determined evidence.[13] Non-judicially determined evidence requires an applicant to submit statutory declarations from certain ‘competent persons’. Such competent persons include doctors, nurses, psychologists, family law counsellors and managers of women’s refuges.[14] There are strict requirements for valid statutory declaration, including that the competent person must state: his or her claim to be a competent person; his or her opinion as to whether the alleged victim has suffered family violence; and the evidence relied on to form that opinion. Where a statutory declaration from a competent person is not submitted, or where the statutory declaration does not meet the statutory requirements, a visa decision maker does not have to consider the family violence claim.

Where a visa decision maker is not satisfied on the non-judicially determined evidence that a person has suffered family violence, the visa decision maker can refer the matter to an independent expert (a Centrelink social worker) for assessment. The visa decision maker must take independent expert’s decision to be correct.

The non-judicially determined evidentiary system has been criticised by the courts and academics as ‘a triumph of form over substance’.[15] Stakeholders argued that the system was in need of substantial reform to remove rigidity and increase accessibility.

A new system

The ALRC recommended a new system of non-judicially determined evidence which would allow the applicant to submit whatever forms of evidence they can in support of their family violence claim.[16] The idea of a competent person would be retained in the Regulations in their current form, but the ALRC recommends repeal of the prescriptive requirements governing the content of a competent person’s statutory declaration. [17] The effect of this is that, while evidence from a competent person may attract more weight, a failure to submit evidence from a competent person would not invalidate a family violence claim. Rather, the system encourages applicants to submit a wide range of evidence, including from those to whom they are more likely to disclose the instance of family violence, such bi-lingual workers in culturally and linguistically diverse communities. This may result in more and, in some cases, better quality evidence on which a visa decision maker can assess a family violence claim.

The ALRC was also conscious that, under this model, there is a greater burden placed on visa decision makers to make decisions about the merits of family violence claims. However, the ALRC considers that this could be overcome by ongoing moves towards specialisation within the Department of Immigration and Citizenship, along with adequate training and education. The Department noted in its submission that it had already seen some benefits from having specialised teams assess family violence claims. The ALRC supports such moves towards specialisation, and recommended that the Department ensure that visa decision makers are given targeted training about the nature, features and dynamics of family violence.[18]

The ALRC hopes that such initiatives will lead to greater competence among visa decision makers in assessing family violence claims and quicker resolution of cases for those experiencing family violence.

Under the ALRC’s model, ensuring integrity of the system is protected by retaining the visa decision’s maker discretion to refer the matter to a Centrelink independent expert. While there were some concerns expressed about the nature of referrals to, and the decision-making processes of independent experts, the ALRC considered that the option of referral to an independent expert was essential to the integrity of the visa system. The ability for applicants to place a wide range of evidence before the independent expert, and the knowledge that the independent expert will apply a common definition of family violence should result in greater confidence in their decision-making processes. The ALRC also recommended that independent experts be provided with regular, targeted and consistent training about the nature, features and dynamics of family violence.[19]

Refugee law

The ALRC Report also considered the position of asylum seekers who may seek protection in Australia as victims of family violence. Stakeholders were concerned that the principle in Khawar v Minister for Immigration and Multicultural Affairs—that a victim of family violence could be considered a refugee in circumstances where the State withdrawals protection for a Convention reason—was not being applied consistently by decision makers.[20]

The ALRC recommended that the Minister for Immigration and Citizenship should issue a direction under s 499 of the Migration Act in relation to family violence in refugee status determinations, and that such a determination should refer to the Department’s Gender Guidelines.[21] The ALRC’s aim is that the issuing of a ministerial direction will ensure greater consistency in decision making, and ultimately, greater protection for victims of family violence.

* Legal Officer, Australian Law Reform Commission. This article is drawn from the ALRC report, Family Violence and Commonwealth Laws—Improving Legal Frameworks, ALRC Report 117 (2011), particularly Part G, Migration.

[1] Other areas included child support and family assistance, employment law, social security law and superannuation law. The complete terms of reference can be found on the ALRC’s website at www.alrc.gov.au.

[2] Department of Immigration and Citizenship, Factsheet 38 — The Family Violence Provisions www.immi.gov.au/media/fact-sheets/38domestic.htm.

[3] See Department of Immigration and Citizenship, CFV 121 at http://www.alrc.gov.au/inquiries/family-violence-and-commonwealth-laws/submissions-received-alrc. All public submissions are available from the ALRC’s website.

[4] Ibid.

[5] Recommendation 3–1.

[6] See http://www.immi.gov.au/media/fact-sheets/38domestic.htm#b

[7] See eg, Submissions CFV 32, Immigration Advice and Rights Centre; CFV 76, Visa Lawyers Australia; CFV 80, Erskine Rodan and Associates.

[8] See Submissions CFV 32 and 149, Immigration Advice and Rights Centre.

[9] Recommendation 20–1.

[10] Recommendation 20–2.

[11] Recommendation 20–3.

[12] Recommendation 7–2. Under the Social Security Act, the Minister for Families, Housing, Community Services and Indigenous Affairs has the power to make a determination that a ‘specified subclass of visa’ meets the requirements for Special Benefit. The ALRC recommended that the Minister should make a determination in respect of this visa, should it be created.

[13] See Chapter 21 of the Report for a fuller discussion of the evidentiary requirements.

[14] A full list of persons deemed competent to give evidence can be found under reg 1.21 of the Migration Regulations.

[15] See Ibrahim v Minister for Immigration and Multicultural and indigenous Affairs [2002] FCA 1279 per Wilcox J, at [40]. See also M Crock, ‘Women and Migration Law’ in P Easteal (ed) Women and the Law (2010) 328.

[16] Recommendation 21–3.

[17] Recommendation 21–4.

[18] Recommendation 20–5.

[19] Recommendation 4–5 and 20–5.

[20] See Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1.

[21] Recommendation 22–1.

Amnesty releases report into Australia’s IDCs

Thu, 01 Mar 2012 13:00:00 GMT

On 22 February 2012 Amnesty International Australia (Amnesty) released its initial report into the conditions at Australia’s immigration detention centres (IDCs) and reiterated its position that long-term indefinite detention is a harmful and ineffective policy. Amnesty again raised concerns about violations of fundamental human rights in the immigration detention system, particularly pertaining to the Refugees Convention, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child. There is special concern for unaccompanied minors and families with children in detention.

The delegation from Amnesty visited a number of IDCs, where they interviewed detainees and staff from DIAC, Serco, International Health and Medical Services, and other service providers in the facilities. Amnesty also spoke with asylum seekers living in the community.

The length of time asylum seekers are being held in detention and the indefinite nature of that detention are of crucial concern to Amnesty. The report indicated that mental illness was prevalent among long-term detainees, where “self harm and attempted suicides were talked about as a fact of life”. The indefinite nature of detention is exacerbating mental health issues amongst asylum seekers and the use of medication is widespread. A number of the IDCs are also extremely isolated from local communities and services, with excursions out of the centre difficult and contact with the outside world, including family and visitors, limited.

The report also raises serious concern about the prison-like nature of IDCs, particularly on Christmas Island. Amnesty recognised that efforts have been made to improve the physical conditions at IDCs and increase the number of activities and excursions available to asylum seekers. However, the effect of these efforts is minimal where IDCs are extremely remote and people have been detained for long periods.

Amnesty describes confusion and frustration with the refugee claims processing system but cannot attribute its cause to any one source. A lack of information about processes and rights, limited access to legal assistance, and mental health issues associated with detention or past trauma are all posited as possible reasons for this confusion and frustration.

The report calls for the immediate end to indefinite detention in accordance with internationally recognised human rights and makes the following recommendations:

1. A maximum 30-day time limit is placed on the detention of asylum seekers, so that all asylum seekers are moved into the community once health, character and identity checks are complete.

2. Immigration detention centres that are remote and isolated be shut down as soon as possible.

3. The shift toward processing asylum seekers in the community is expedited, with long-term detainees, families and unaccompanied minors moved out as a priority.

4. In all detention centres, but particularly remote ones, asylum seekers’ ability to communicate with the outside world must be significantly improved. Specifically, increases in access to both outbound and inbound telephones, Internet, external activities, and visits from the Australian community.

The complete report, including information and statistics from particular IDCs, can be downloaded at http://www.amnesty.org.au/refugees/comments/27966/. A more comprehensive report is expected later in the year.

Visa places in the SHP significantly reduced

Thu, 01 Mar 2012 13:00:00 GMT

The Department of Immigration and Citizenship has stated that the number of visas allocated under the Special Humanitarian Program (SHP) could be as low as 750 for the 2011/2012 financial year, down from the 3,000 granted last year and 9,000 granted in 2003. This means that Australian permanent residents (who have already been granted protection in Australia) trying to reunite with their family by proposing them under ‘split-family’ or “offshore humanitarian” applications will have to endure lengthy processing times. The Sydney Morning Herald has reported that there remain only 10 places left in the SHP until the end of the current financial year. Under the SHP, visa places are shared between those who seek Australia’s protection after arriving in Australia, and those who apply for protection from offshore. Higher numbers of boat arrivals has meant that the number of places available for those applying from overseas is reduced. The Refugee Council of Australia says that Australia is the only country in the world that links the onshore and offshore applicants.

The Department has stated that the 2011-12 Humanitarian Program has 13,750 places – 6,000 places for refugees (i.e. the offshore humanitarian visa subclasses 200, 201, 203 and 204) including 1,000 for UNHCR referred refugees from Malaysia; and 7,750 other humanitarian places that are shared between onshore protection and the SHP. There were approximately 4,800 onshore protection visas granted, leaving only 3,000 for the SHP (including split family). The Government has said that the number of places available in the SHP is dependent upon the number of Protection visas granted.

For further information, see “Australia’s Humanitarian Program 2012-13 and beyond: Information Paper”, Department of Immigration and Citizenship, December 2011. Available at: http://www.immi.gov.au/about/contracts-tenders-submissions/humanitarian-program.htm.

The ALRC's Commonwealth Laws and Family Violence Inquiry

Thu, 01 Mar 2012 02:40:00 GMT

The ALRC’s Commonwealth Laws and Family Violence Inquiry

Khanh Hoang*

Overview

Policy tensions — accessibility vs system integrity

removal of barriers to accessing the family violence exception;
improving the ability of victims of family violence to access appropriate services, merits and judicial review; and
ensuring that visa decision makers—and the legal system in general—are aware of, and are sensitive to family violence issues.

Striking the appropriate balance between these two competing tensions was crucial to the formulation of the ALRC’s recommendations.

Areas for reform

Common definition of family violence

a) a core definition of conduct that is violent, threatening, coercive and controlling, or intended to cause a family member to be fearful; and

b) a non-exhaustive list of examples of physical and non-physical conduct.

Expanding the scope of family violence exception

those on Prospective Marriage (Subclass 300) visas who have not married their Australian sponsor;
all secondary applicants for permanent visas; and
those temporary visas.

Prospective marriage visas

The ALRC recommended that the family violence exception be expanded to cover Prospective Marriage visa applicants, in circumstances where the person has not married their Australian sponsor.[9]

Secondary applicants for permanent visas

Secondary holders of temporary visas

Non-judicially determined evidence

A new system

Refugee law

[2] Department of Immigration and Citizenship, Factsheet 38 — The Family Violence Provisions www.immi.gov.au/media/fact-sheets/38domestic.htm.

[4] Ibid.

[5] Recommendation 3–1.

[6] See http://www.immi.gov.au/media/fact-sheets/38domestic.htm#b

[7] See eg, Submissions CFV 32, Immigration Advice and Rights Centre; CFV 76, Visa Lawyers Australia; CFV 80, Erskine Rodan and Associates.

[8] See Submissions CFV 32 and 149, Immigration Advice and Rights Centre.

[9] Recommendation 20–1.

[10] Recommendation 20–2.

[11] Recommendation 20–3.

[13] See Chapter 21 of the Report for a fuller discussion of the evidentiary requirements.

[14] A full list of persons deemed competent to give evidence can be found under reg 1.21 of the Migration Regulations.

[16] Recommendation 21–3.

[17] Recommendation 21–4.

[18] Recommendation 20–5.

[19] Recommendation 4–5 and 20–5.

[20] See Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1.

[21] Recommendation 22–1.

IARC Volunteer wins Young Volunteer Award!

Tue, 06 Dec 2011 13:00:00 GMT

IARC staff and management extend a warm congratulations to Ji-Boem Jang.

Ji-Boem was awarded the Young Volunteer Award for his services to IARC by the Federal Minister for Human Services and Social Inclusion, Tanya Plibersek at a ceremony on 5th December to mark International Volunteer Day.

Congratulations Ji-Boem!

Asylum Seekers Scrabble

Sun, 13 Nov 2011 13:00:00 GMT

First published on www.eurekastreet.com.au on November 7, 2011.

Last week there were three significant events affecting refugees including, tragically, more deaths.
Yet another detainee killed himself after a prolonged period in detention and while awaiting a security check. It has never been satisfactorily explained why these checks take so long. For more than 15 years, mental health professionals have been stating that prolonged detention can cause serious damage to a person's mental health. Yet the mandatory detention policy remains.

The second event was the passing of the Deterring People Smuggling Bill. The law ensures that a person convicted under people smuggling offences introduced in 1999 will not be able to claim that they did not commit an offence if the people they transported were later found to be refugees. The law was introduced into Parliament and passed within a day to defeat ongoing court proceedings.

Then there were more deaths at sea when another unseaworthy boat sank. The tragedy refuelled the debate about whether a Nauru or a Malaysia based 'solution' would more effectively 'stop the boats'.
The Government and Opposition will tighten the system when challenged, but refuse to accept that the flawed system of mandatory detention is in need of major reform.

The use of language in the debate is always striking. It has evolved and adapted over the years.
Previously, governments spoke of 'border protection' as a reason for mandatory detention and methods of deterring applicants who arrive by boat. Now the tactic is to speak about 'preventing deaths at sea'. However, the politics is still driven by a philosophy of border control. The human rights of asylum seekers and international obligations are secondary considerations.

In 2001 we had the 'Pacific Solution', which was a misnomer: it was not 'pacific', and warehoused refugees rather than providing a solution. We saw, too, the creation of 'excision', whereby islands formerly considered to be part of Australia were no longer so for the purposes of Migration Law.

The prize for legalese must go to 'offshore entry person', which is defined as a 'person who arrives at an excised place after the excision time and becomes an unlawful non-citizen'. Everyone who has arrived at Christmas Island since late September 2001 has been designated as such.

We now have 'offshore processing'. This, too, is a misnomer, when it is used for people held in Christmas Island or in detention in Australia itself — which is definitely 'onshore'.

The term 'offshore processing' was used in an attempt to pretend such cases were not subject to the same judicial scrutiny as 'onshore' cases. This fiction was destroyed in November 2010 when the High Court handed down its judgment in M61 & M69. All of the 'offshore processing' of 'offshore entry persons' was subject to judicial oversight, in a similar manner to onshore cases.

Then, in August 2011 the High Court scuttled the misnamed 'Malaysian solution'. Again, it was not a solution, but a system of refugee 'warehousing'. No 'processing' of cases by Australia is involved at all, so again it is wrong for this to be called 'offshore processing'.

Since this decision and the political impasse over Nauru or Malaysia, we now have the 'Australian solution' — the processing of applications in Australia.

Sometimes language is used to demonise refugees, such as the term 'queue jumper' which persists despite the fact there are no queues (acceptance into Australia's offshore system is more like a lucky dip). In other instances, the language has adapted to avoid pejorative or inaccurate terms; for example, the term 'illegals' is less common now (it is not an offence to arrive without a visa).

Whatever the language used, it does not change the fact that the arrival of small numbers of people claiming asylum from some of the most dangerous countries on the planet continues to prompt both major parties to turn community fear to political advantage, rather than acknowledge our duty as a global citizen to contribute to refugee resettlement without moving our responsibilities offshore.

Meanwhile, people will continue to be damaged by this flawed system.

By Kerry Murphy (D’Ambra Murphy Lawyers)

Don't Make a Mistake!

Mon, 07 Nov 2011 22:53:00 GMT

In Patel v Minister for Immigration and Citizenship, [2011] FCA 1220 Robertson J was faced with a case where an applicant for a skilled visa whose migration agent erroneously nominated the skilled occupation of “family counsellor” on his application form had sought to change that nominated skilled occupation during the course of the Migration Review Tribunal proceedings. The Tribunal found that an error had been made in nominating the occupation of “family counsellor” in circumstances where all of Mr Patel’s impressive qualifications were in the sciences and computer technology.

Two arguments were put forward on behalf of Mr Patel. One was that the scheme of the Regulations, read with section 54 and 55 of the Migration Act, permitted a change in nominated skilled occupation. His Honour rejected that submission, finding that the structure of the Regulation in question did not permit a change in nominated skilled occupation. The other argument was that Mr Patel had merely sought to correct an error, and was required to do so under section 105 of the Migration Act. That section states;

105 Particulars of incorrect answers to be given

                   (1)     If a non‑citizen becomes aware that:

                           (a)         an answer given or provided in his or her application form; or

                           (b)         an answer given in his or her passenger card; or

                           (c)         information given by him or her under section 104 about the form or card; or

                           (d)         a response given by him or her under section 107;

was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

                   (2)     Subsection (1) applies despite the grant of any visa.

The argument was that an “error” in nominating an occupation was a species of incorrect answer. The Minister’s response, and the argument that prevailed, was that the purpose of section 105 was to oblige a visa applicant, or visa holder to correct information given to the Department that was incorrect at the time it was given. This answer was not “incorrect” at that time.

Quite apart from the consequence of this case to the unfortunate Mr Patel whose considerable abilities may be lost to this country because of the inflexibility of migration laws and the actions of his agent, the case draws attention to the regime in the Act that seeks to ensure that visa applicants and holders keep the Department fully informed of accurate information.

Section 101 states that a non‑citizen must fill in or complete his or her application form in such a way that all questions on it are answered; and no incorrect answers are given or provided. An incorrect answer includes information given to a Departmental officer or a review Tribunal in any way whatsoever (s 99), and is incorrect even if the applicant did not know that it was incorrect at the time the information was given.

The Act (s. 103) also provides that a “bogus document” is not to be provided to the Department. A bogus document is one that has a person’s name on it but was not actually issued to him or her, has been faked or altered, or was obtained because of a false or misleading statement, whether or not made knowingly.

From the above it could well be concluded that a person has a duty to reveal information of which they have no knowledge, but the Migration Act is not quite that silly. That is because section 104 and 105 deal with the situation of what must be done if a person’s circumstances change or he or she becomes aware of an incorrect answer.

Section 104 imposes a duty for persons to inform the Department in writing if their circumstances change so that an answer that they have given to a question on an application form or previously given to an officer of the Department is incorrect in the new circumstances. However that only applies before a visa is granted if the applicant is in Australia at the time the visa is granted. It applies to a person whose visa is granted abroad before the person is cleared through Immigration control at a port or airport.

This all leads up to section 105, which imposes an overriding duty of a visa applicant, or a visa holder, to inform the Department in writing of any inaccuracy in any information given to an officer of the Department as soon as reasonably practical. This applies to information that was incorrect at the time it was provided, and the duty is to provide details of the incorrect information given and the correct information.

As Mr Patel’s case demonstrates, s. 105 has a specific and limited purpose. It will be a brave or desperate applicant who in the future seeks to construe that purpose widely for their benefit.

By Leonard Karp, Barrister  
(Counsel for the Appellant in Patel v MIAC [2011] FCA 1220)

Senate Inquiry into the Malaysian Arrangement

Mon, 07 Nov 2011 13:00:00 GMT

The Senate Inquiry into the Malaysian Arrangement proposed by the Australian Federal Government began 17 August 2011, and a report was produced 11 October 2011. The result of the report was a recommendation from the Senate Committee that the Australian Government not proceed with implementation of the Arrangement. In making its recommendation, the Committee considered thirty-seven submissions on the Arrangement from various organizations and individuals. It also held a public hearing in Canberra in September 2011, where fifteen individuals appeared, including Government representatives from the Department of Immigration and Citizenship. A full list of those submissions and appearances which were relied on can be found at http://www.aph.gov.au/senate/committee/legcon_ctte/malaysia_agreement/report. The Committee’s reasoning for its recommendation is summarised below:

Non-legally binding nature of the Malaysian Arrangement

The Senate Committee identified three main issues with the non-legally binding nature of the Malaysian Arrangement.

Firstly, it found that the language and terms of the Arrangement are very vague, which means rather than expressing solid obligations, they tend to merely express the ‘political commitments’[1] of the parties to the Arrangement.

Secondly, it found that the non-legally binding nature of the Arrangement means that the Australian Government is completely powerless to take any sort of action or enforce any sort of obligation in the event that Malaysia does not comply with the terms of the Arrangement.

Thirdly, the Committee found that the conflict resolution clause contained within the Arrangement, which stipulates merely that in the case of a conflict the parties consult to resolve said conflict as soon as is reasonably practicable, is completely inadequate at providing an effective resolution to conflict between the parties to the Arrangement.

Malaysia is not a Party to the Refugee Convention

The Committee found that the Australian Government should honour the commitment made by the Prime Minister in a radio interview in July 2010 that countries which are not signatories to the Refugee Convention will be disqualified from consideration as possible offshore processing destinations for asylum seekers travelling to Australia by boat.

Pre-transfer Arrangements

The Committee made strong note of the reluctance of the Government to ensure ease of access for the Committee or the Commonwealth and Immigration Ombudsman to the Pre-removal Guidelines, which stipulate the assessments that must be made on an asylum seeker prior to transfer to Malaysia under the Arrangement. The Committee emphasised the difficulties this reluctance posed for their decision making process.

Conditions in Malaysia

The Committee expressed grave concern at the conditions asylum seekers currently face in Malaysia, including harassment, violence, and the constant threat of arrest. It expressed special concern regarding the volunteer Malaysian citizens’ police force, RELA, which it stated would be difficult to regulate or control, and has a “well-documented history of extortion, intimidation, harassment, and abuse of asylum seekers and refugees.”[2]

A further concern for the Committee was the use of caning in Malaysia, not just as a penalty for being found to be an illegal immigrant, but for approximately forty other crimes under Malaysian law. Although the Committee was pleased that the Malaysian Government has launched an initiative which will give some form of legal status to illegal immigrants, asylum seekers, and refugees, the Committee also noted that the Australian Government has no way of ensuring any legal rights or human rights standards are upheld in Malaysia. The Government had stated during the public hearing in September 2011 that they accept a moral obligation to ensure that transferred asylum seekers receive reasonable standards of treatment, but the Committee found that a transfer of asylum seekers to Malaysia would fail to fulfil any such moral obligation.

Identification of the 800 Transferees

The Committee found that the proposed security safeguards to ensure identification documents for the transferred asylum seekers, consisting of the use of an identification card bearing a Nexcode sticker, are inadequate to guarantee the safety of the transferred asylum seekers in Malaysia. The Committee highlighted the fact that technology to read the Nexcode stickers will only be accessible to normal Malaysian law authorities, meaning RELA citizen police will not have the means to identify the transferred asylum seekers as being genuine and protected by law. The Committee further highlighted the fact that asylum seekers currently residing in Malaysia are subject to sub-standard treatment, even when bearing a UN granted refugee registration card. Therefore, the Committee found that the proposed identification documents to be issued to asylum seekers transferred under the arrangement would accord no guarantee of safety for the transferred asylum seekers.

Unaccompanied Minors

The Committee found that unaccompanied minors’ rights failed to be met by the Arrangement in two key areas.

Firstly, the Committee found that the Arrangement did not make provisions for an unaccompanied minor to have the requirement of an adult present at their pre-removal interview whose purpose is to advocate for the child’s legal rights. The Committee found that, because all children require a legal guardian, an asylum seeker who is an unaccompanied minor requires an adult legal advocate to be compulsorily present during their pre-removal interview to fulfil such a role.

Secondly, the Committee found that the Arrangement is deficient in an “explicit provision”[3] that would transfer the legal guardianship of unaccompanied minors upon arrival in Malaysia from the Australian Minister for Immigration, to an appointed Malaysian official. The Committee called attention to the fact that the Arrangement in its current state makes no provision for legal guardianship of unaccompanied minors once they are transferred to Malaysia.

[1] Senate Committee Report, Chapter 4, Para 4.2

[2] Senate Committee Report, Chapter 4, Para 4.13

[3] Senate Committee Report, Chapter 4, Para 4.26

High Court Decision in M70 v MIAC (31 August 2011)

Mon, 07 Nov 2011 05:41:00 GMT

In M70 v MIAC [2011] HCA 32, the High Court considered applications by Offshore Entry Persons detained in Christmas Island regarding their proposed removal to Malaysia as part of an agreement between the Australian and Malaysian Governments. The Court also considered the situation of a child being removed to Malaysia and what this means under the Immigration Guardianship of Children Act (IGOC). By a 6-1 majority, the Court ruled in favour of the applicants on both points.

The background was that on 25 July 2011, the Australian and Malaysian Governments established an arrangement for the removal of 800 persons from Australia to Malaysia. Such person would be those arriving irregularly by sea from 25 July 2011. Certain arrangements were to be set up in Malaysia by the Australian Government and the Malaysian Government agreed to certain procedures to be followed in Malaysia. Also part of the arrangement was the resettlement of 4000 refugees to Australia at 1000 per year, but these 1000 would not include any person removed under the arrangement.

The first issue for the Court was the validity of a declaration by the Minister under s198A regarding Malaysia. Section 198A(3) has four prerequisites:

The Minister may:

(a) declare in writing that a specified country:

(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv) meets relevant human rights standards in providing that protection;

It found that the Minister failed to make a valid declaration of Malaysia under s198A for several reasons. These included the fact that Malaysia was not a signatory to the 1951 Refugees Convention nor 1967 Protocol, and Malaysia had no domestic law to implement the protections of the Refugee Convention. This meant that a declaration under s198A could not be positively be made whilst these facts continued.

Without such a declaration, the Court found that the applicants were entitled to have their claims for protection assessed and not be removed to Malaysia. This assessment process was considered in a previous High Court decision of M61 v MIAC [2010] HCA 41 and found to be flawed. Since the M61 Case, the process was changed to take into account the findings of the High Court in that case.

The second aspect to the case was the claims of a minor under the IGOC Act. The Court held that prior to the removal of a minor, the Minister is required to grant the consent to the removal of the minor before the removal can take place. That consent is subject to possible judicial review under the Administrative Decisions Judicial Review Act 1977. This meant the Minister had to give reasons for the consent and those reasons could be reviewed in the Federal Court. No reasons were given so the lack of consent meant the provisions of the IGOC Act had not been followed.

Following the decision, the Government sought to amend s198A and the IGOC Act to enable the removals without having to make a declaration subject to the existing four prerequisites. Effectively it meant that the Minister could declare any country as suitable and such a declaration was not subject to any form of review nor precluded by the IGOC Act. Although the Opposition supports what is called ‘offshore processing’, that is, removing people to third countries for assessment, the Bill did not reach a vote in the parliament as it was clear it would not even pass the House of Representatives.

This means the situation for people arriving by boat and without a visa is still the same as was set up following the M61 Case. Offshore entry persons will have their claims assessed through the Protection Obligations Determination (POD) process. They have access to IAAAS providers to assist them in the preparation of their applications. Whilst the political issues remain contested, the law is settled until the Act is changed.

By Kerry Murphy (D’Ambra Murphy Lawyers)

Family Violence - Commonwealth Laws Discussion Paper

Sun, 06 Nov 2011 13:00:00 GMT

IARC recently made a submission in response to the Australian Law Reform Commission’s (“ALRC”) Discussion Paper 76 on Commonwealth Family Violence Laws. In particular, IARC commented on many proposed changes to Division 1.5 of the Migration Regulations 1994 commonly known as the “Family Violence Provisions”.

This is a significant area of interest for IARC, which has extensive experience with holders of temporary visas who are victims of family violence. The services offered by IARC including casework, pro-bono advice, education and training, gives it the advantage of a thorough understanding of both the legal and practical issues in the application of the Family Violence Provisions.

The main focus of the paper was the ‘family violence exception’, which gives those on temporary partner visas access to permanent residence if they become victims of domestic violence at the hands of their sponsoring spouse. This exception aims to ensure visa applicants are not compelled to remain in violent relationships in order to obtain permanent residence in Australia. The fundamental issue within the paper is the need to protect those vulnerable to abuse whilst ensuring the integrity of the system is not undermined.

Summarised below are the key issues addressed in the IARC submission.

MRT Fee Waiver

In July 2011, the Migration Review Tribunal’s ability to waive the review application fee was abolished. Currently, an applicant who is able to prove that they are suffering financial hardship must be able to make payment of $770. The IARC submission provided anecdotal evidence of the detrimental impact this obligation has on migrants suffering from abuse and unable to access Centrelink or job opportunities. IARC’s resolute objection to the abolition of the fee waiver is founded on a view that the amendments did not take into account the disadvantage, hardship and excessive stress it causes for victims of family violence.

Secondary Applicants

The family violence exception currently only applies to those on temporary partner visas. IARC agreed with the ALRC proposal that the exception should also apply to secondary applicants on a temporary visa who are applying for permanent residence. IARC believes this would reduce inconsistent application of the law and uphold the policy objective of protecting individuals who have suffered domestic violence at the hands of a permanent resident or an eligible permanent resident.

Prospective Spouses

Under the current system a temporary visa holder may only activate the family violence exception once they have married their potential spouse. Those on a Prospective Marriage who have decided not to marry their spouse as a result of violence cannot access the exception. The policy aim is to allow partners to stay together and one may argue that if the partnership has no future, the prospective marriage visa applicant should simply go home. However, IARC highlighted issues arising where unmarried individuals feel compelled to remain in an abusive relationship to avoid being deported. Many may even face persecution in their country of origin after returning unmarried. Additionally, some temporary visa holders who gave birth whilst in Australia face losing access to their child if they leave the relationship. IARC submitted an alternative option of offering a permanent visa on the basis of having joint custody of a child, similar to the provision in Regulation 801.221(6)(c)(ii).

Education and Training

Decision makers must make a determination regarding whether family violence has actually occurred. Discontent surrounding the inconsistencies between decision makers and the lack of real understanding of family violence has led to a call for greater education. Whilst IARC receives funding to deliver information sessions to various organisations, the funding falls far short of the demand. IARC emphasised the necessity of more funding for education to ensure consistency and integrity within the system.

Evidentiary Requirements

To access the family violence exception, one must prove that the violence occurred during the relationship. Whilst this may make sense on face value, in our experience this requirement fails to recognise the complex nature of relationships. Many partners separate for a phase and later attempt to reconcile. IARC argued that this requirement be extended to cover situations where violence occurs during a period of separation.

The ‘Independent Expert’

In non-judicially determined claims of family violence, the applicant can appeal to an ‘independent expert’. Currently, that expert is Centrelink. IARC raised concern regarding the process that will be undertaken in determining the new panel of experts. There may be situations where the victim is unable to connect with the expert and due to the likely time lapse on appeal, the victim may be viewed as unaffected by the violence at the time of the interview and lack credibility. IARC would, however, be interested in being consulted regarding how the expert panel will be chosen and operate once those details been further developed.

Third Party Intervention

The family violence exception fails to take into account cases where third party intervention results in a relationship breakdown. When the Department of Family and Community Services decides to remove a child from their home after reaching the view that the child may be subject to harm from the Australian sponsor, the temporary visa holder is required to either remain with the sponsor and lose their child, or leave with the child. IARC submitted that intervention by a third party resulting in separation should be included in the family violence exception.

Processing Times

Applications made under the family violence exception may take up to a year to process. Further applications made to the MRT can take up to two years. Most visa applicants will be living in poverty during this period and relying on community centres and charities to survive. IARC requested that claims under this exception be processed as a priority and that this be enshrined in legislation.

Evidently there are many complexities and challenges to face under the Migration Regulations. The balancing act between protecting the vulnerable and creating a watertight and efficient migration system is an extremely precarious one. The majority of the proposals from ALRC are positive and responsive to the previous submissions of a variety of stakeholders. Whilst there are many more issues on the table for discussion, Discussion Paper 76 is certainly a step in the right direction.

By Leanna Burnard
Volunteer at IARC

Knight Review - Strategic Review of the Student Visa Program

Sun, 06 Nov 2011 13:00:00 GMT

By Mark Webster (CEO, Acacia Immigration Australia)

Overview

The Knight Review was commissioned by Department of Immigration and Citizenship (DIAC) and Department of Education, Employment and Workplace Relations (DEEWR) in December 2010. The review was conducted by Michael Knight AO, and was commissioned to look into the student visa system and work visas post-study. The Knight Report entitled the Strategic Review of the Student Visa Program 2011 was released to government on 30 June 2011 and made a series of 41 recommendations for reform. Most of recommendations have been accepted by government in a joint DIAC/DEEWR press release dated 22 September 2011.

Rather than recommend that the international education system be entirely recreated, the Knight Report recommends a number of incremental changes to improve the performance of the student visa system. The main changes which have been accepted by government are:

Introduction of a new "Genuine Temporary Entrant" requirement to allow greater flexibility and responsiveness in assessing student visa applications
Treating most students seeking to study at Australian Universities as being low risk, and significantly streamlining processing for such applicants
Widening work rights for all student visa holders, and allowing research students to work full time during their studies
Eliminating automatic and mandatory cancellation of student visas, and allowing Department of Immigration staff greater discretion in considering cancellation
Introduction of a new work visa for graduates of universities in Australia which may last between 2 and 4 years

Overall, the changes are most beneficial to university students, particularly those undertaking Master and PhD qualifications by research.

The changes introduce more discretion in assessing visa applications for students, moving away from a strict application of the Assessment Level System which relies only on the nationality of the visa applicant and the type of course to be studied.

Genuine Temporary Entrant Requirement

The Genuine Temporary Entrant Requirement will be introduced from November 2011 and will apply to all student visa applications lodged on or after this date.

Prospective students will still need to show they are a "genuine student" under the current assessment level system and so meet financial, English and other criteria. However, the new "Genuine Temporary Entrant" requirement will allow DIAC officers to consider the following criteria in assessing student visa applications:

Circumstances in the applicant's home country: for example civil unrest or compulsory military service
Potential circumstances in Australia: such as the applicant's knowledge of Australia, the course and educational institution
Immigration history of the applicant: for instance if they have a history of non-compliance
Value of course in applicant's future: for example whether the course is consistent with the applicant's current education level
Background intelligence: that is, a history of fraud or non-compliance for applicants from certain regions, educational institutions or linked to certain education agents

One of the main reasons for introduction of this requirement is to allow refusal of student visa applicants who are studying in Australia with the intention of obtaining permanent residence. This requirement introduces a significant amount of discretion and applicants may need to attend an interview.

Streamlining of Students Completing University Students

Students completing university studies in Australia, and particularly those completing Higher Degrees by Research, will enjoy streamlined visa processing from mid-2012 and a number of advantages on arrival in Australia.

In particular, such students will be treated as Assessment Level 1 applicants, regardless of their country of origin. The significance of this is that the requirements for English language ability and the amount of funds available for study would be significantly lower for a large number of applicants.

Significantly, it appears that the change will be a procedural one and the students will not officially change assessment level. This has a number of significant consequences:

Lower assessment level students will still need to lodge paper rather than online visa applications; and
The Department of Immigration will have the discretion to require applicants to provide the usual level of evidence if there are particular concerns with a student from a higher assessment level

Not all university qualifications will be eligible for streamlined processing - significantly, students completing graduate diplomas, graduate certificates and any qualification lower than a bachelor degree in Australia will be excluded. The proposed arrangements are summarised in the table below:

Eligible Qualifications	Excluded Qualifications
Bachelor Degrees Master by coursework or research PhDs ELICOS/Foundation courses linked to university study 2+2 or 3+1 arrangements where the student studies first in a vocational course, then completes a qualification at university Exchange semesters where the final qualification is awarded by an overseas institution	Short courses Associate degrees Graduate diplomas Graduate certificates Diplomas and advanced diplomas

In addition to streamlined processing, university students may be eligible for a work visa after completion of their studies in Australia (see below). This advantage will not apply to students completing vocational qualifications.

Higher Degree by Research (HDR)

Higher Degree by Research students are considered to be those completing a Master by Research or a PhD in Australia. HDR students will have a number of advantages over other students.

They will have 6 additional months on their student visas to undergo thesis marking. This avoids the situation where a student completes the formal part of their course and is waiting for their thesis to be marked. Under current arrangements, the student needs to apply for a further student visa to cover the period of thesis marking.

The main visa holder (ie the student undertaking research) will have full time work rights once their course commences. Dependent family members of HDR students already enjoy full work rights, but the main visa holder is restricted to 20 hours per week during semester under the current arrangements. The new work rights will be introduced in the first half of 2012.

Student Visa Cancellation

Student visas are currently subject to automatic/mandatory cancellation for:

Non-attendance
Unsatisfactory progress
Breaching work conditions

Currently, if an educational institution reports a student for non-attendance or unsatisfactory progress, the student must attend meeting with DIAC or face automatic cancellation of their student visa. If at the interview the student is found to be in breach, cancellation is mandatory, and there is no possibility of exercising discretion.

As a result, many students are cancelled without full review of their individual circumstances. DIAC has also had a series of issues with the method of notification of the cancellation process, resulting in many students being reinstated onto student visas after being cancelled.

The Review recommends that automatic/mandatory cancellation be abolished and DIAC officers be able to exercise discretion in deciding whether to cancel visas. These new arrangements are due to commence in the 1st half of 2012.

Post-Study Work Visa

A new post-study work visa is due to be introduced in early 2013. This visa will allow a stay of 2-4 years depending on the type of course studied in Australia. The visa is anticipated to be processed relatively quickly, as it will not require a skills assessment. The current equivalent visa, the Skilled - Graduate Subclass 485 visa is currently taking 12 months or more to be processed.

To qualify for the new work visa, the applicant must:

Hold a student visa granted under the new "genuine temp stay" system to be introduced in November 2011
Complete 2 years of study in Australia within last 6 months
Obtain a minimum of 6 in each of the 4 components of the IELTS test of English language ability

No skills assessment will be required, and there will be no specified skilled occupations list. However, the student must have completed a Bachelor, Master or PhD qualification in Australia. In particular, vocational education students will not be eligible for the work visa.

Visa duration will depend on the course completed in Australia. The period of validity would be:

4 years: PhD students
3 years: Master by Research
2 years: Bachelor Degree

Conclusion

The Knight Review recommendations are highly beneficial to students completing university studies in Australia. Streamlined processing in particular should be a significant boon to international education in this sector. Australia's reputation for international education has taken a battering after the changes to General Skilled Migration in 2009-2010.

The introduction of more discretion into the visa processing and compliance areas is a positive change, and allows DIAC to be more flexible and responsive in dealing with emerging problems in the student visa caseload.

All in all, Michael Knight is to be commended on the quality of the recommendations, and the Department of Immigration and Department of Education commended for accepting so many of these for implementation.

References

DIAC page on Knight Review
Knight Review Discussion Paper
Knight Review Report
Joint government press release accepting Knight Report Recommendations

Fees matter - Application for review in the MRT and RRT

Wed, 14 Sep 2011 02:03:00 GMT

The facts

In tandem with the 2011-2012 Budget announcements, the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) made an announcement with respect to their application fee structure. The Budget announcement proposed to increase the MRT/RRT application fees from $1400 to $1,540. The MRT/RRT announcement went further. It announced that from 1 July 2011 the MRT fee waiver application based on financial hardship, if successful, would only affect half of the application fee of $1540 (i.e. $770). The same change goes to those MRT applicants who have a decision made in their favour. This means that successful review applicants would only have half the fees paid refunded as opposed to a full refund for those successful applications made prior to 1 July 2011. Simply put, if the applicant can successfully show financial hardship s/he must continue to pay $770 before the review application is valid. If they finally have a successful outcome they will not get any refund. Other applicants must pay $1,540 and if the review is successful $770 will be refunded.

The relatively high fees

These significant changes would seem to be an added barrier for financially disadvantaged people accessing the MRT considering the relatively high existing review fees. Some comparisons below may demonstrate the point.

At the Commonwealth level, the Administrative Appeals Tribunal (AAT) has fees ranging from zero to $777 depending on the matter type[i]. It is common knowledge that the way in which the AAT operates is quite similar to a Court where hearings often run for days. Fair Work Australia (FWA) deals with workplace relation matters. It sets out a fee of $62.4 for the application of a dispute resolution heard and it contains fee waiver provisions for fees to be completely waived.[ii]

At the State level, The Administrative Decisions Tribunal of NSW (ADT of NSW) has application fees ranging from zero to $291 with a typical fee of between $71 and $148 and $291 on appeal.[iii] The Victorian Civil and Administrative Tribunal (CAT of VIC) has application fees ranging from zero to $1,258.7. The CAT of VIC charges most applicants a fee of $314 but for civil matters involving a credit provider having over 3000 related contracts or developments involved with values of $5 million or more, an application fee of $1,258.7 is charged.[iv]

While the MRT/RRT fees cannot be said to be prohibitively high, they are quite high when one takes into consideration that some other comparable tribunals often have hearings over a number of days and are presided over by multiple members, including judicial members. On the contrary, MRT and RRT matters are regularly handled by a single member. A typical hearing would only last for half a day. These twoTribunals impose a uniform fee regardless of whether the applicant is an asylum seeker, an international student who has paid thousands of dollars to come Australia to use its education services or an international conglomerate which wants to sponsor overseas employees to work in Australia.

Disadvantaged applicants

The seemingly higher application fees aside, the way in which the new fee structure has been announced may have devastating effects for some review applicants. An example can demonstrate the problems:

An Australian citizen whose husband had an accident resulting in his severe physical disability, has to look after her dependent children and is unable to care for her husband. She sponsors her overseas brother for a Carer visa application with the view that her brother could provide daily care for her husband. The Carer visa application is refused. The reason for the refusal is due to the fact that the decision maker wrongly thought that the visa applicant and the person who needs care must be directly related.[v]

One way of dealing with a situation like this is to ask the primary decision maker to re-open the matter due to an obvious legal error. But as a matter of departmental policy which sometimes is said to be due to legal reasons (citing the common law doctrine of functus officio[vi]) the Department of Immigration and Citizenship (DIAC) often declines to re-open a finalized application. The applicant is left with no option but to seek a review in the MRT. An application of this kind with detailed submissions might result in a decision without the need of a hearing. The applicant could simply file a review application along with the required fee or fee waiver application, if s/he was financially disadvantaged. Prior to 1 July 2011, whether the fee was waived or paid, once the MRT made a favourable decision the aggrieved applicant would not be worse off, apart from the inconvenience of the delay in the processing of the visa application. Following the legislative changes, the applicant will be $770 worse off even if a rapid decision is made on the papers without a hearing. Worse still, if the review applicant does not have the financial resource to pay the required fee, whether full or reduced, the review application will be invalid and no redress will be available other than taking the matter to the High Court by way of judicial review.[vii]

The legislative changes also affect those visa applications which were refused by the DIAC but were subsequently found to be invalid visa applications on review and the matter remitted on that basis. Prior to 1 July 2011 an invalid visa application found by the MRT would result in remitting the matter to the DIAC and the review application fee would be fully refunded. Based on the new fee structure, an invalid visa application (not an invalid review application) found by the MRT (whether it is due to DIAC’s oversight or due to different findings of the law between DIAC and the MRT) would mean that the MRT would only refund half of the review application fee.[viii] The recent legislative changes do not affect the RRT fee structure. This is because the RRT operates under different regulations. Nonetheless, an invalid Protection visa application found by the RRT would make the $1,540 application fee payable by the review applicant within 7 days of being notified of the RRT’s decision.[ix]

The amendment regulations and other problems

In the 2011-2012 Budget the incumbent Government only announced its intention to increase the MRT/RRT application fees from $1400 to $1540. The Migration Act 1958 (the Act) itself is silent in relation to the actual fees but includes provisions that the regulations can prescribe the fees. Relevantly the Migration Regulations 1994 (the Regulation) makes provision to deal with review fees and fee waiver matters.[x]

On 16 June 2011 amendments were made to the Regulation to, amongst other things,change the prescribed fees with effect from 1 July 2011.[xi] This amendment only amended the existing fees of $1,400 to $1,540 but did not deal with the fee refund and waiver matters.[xii] On 30 June 2011 another amendment to the Regulation was made which came into effect on 1 July 2011.[xiii] The latter amendment sought to amend regs 4.13 and 4.14; which empowers the MRT to waive or to refund half of the applicable fees. The provisions in relation to a complete refund or waiver have been removed except for those invalid review applications that the MRT does not have jurisdiction to review.

It is a concern that the new regulations eliminate situations where a successful review applicant in the MRT can have a total refund and also where applicants who would suffer severe financial hardship can have a total fee waiver. This is particularly so considering the fact that some matters that were compelled to come before the MRT are due to mistakes made by the primary decision makers.

As was stated earlier, the RRT operates under different regulations in relation to fees and fee waiver matters. Reg 4.31B purports to prescribe the applicable fees for the RRT but it also makes provisions in relation to when fees are payable. Reg 4.31C deals with fee waivers and refund of fees. This would seem to be problematic when these regulations are viewed against the empowering Act and the RRT’s administrative practice.

Section 412(1) of the Act uses similar wording to that used in relation to the MRT in s347(1). It provides that, “An application for review of an RRT-reviewable decision must….(c) be accompanied by the prescribed fee (if any)”. Under ss347 & 412 of the Act, Parliament intends that review application fees need not be mandatory. There are two issues here. First, implicit in those sections, Parliament intends to give the executive arm of the government discretion in dealing with application fees to the extent that, they can choose to impose no fees (thus the choice of the expression “if any”), as well as various fees, if imposed, to be prescribed by regulations. Regulations cannot create a situation to oust this “no fee” discretion intended by Parliament. Second, in so far as the review application fee is concerned, an ordinary reading of this subsection would seem to suggest that, an RRT review application is valid only if it is accompanied by the prescribed fee. It is common knowledge that the RRT does not require an upfront application fee for RRT matters and will review an application without upfront fees. Therefore, the logical deduction would seem to be that, there has not been a prescribed fee because the RRT has exercised its discretion not to charge a fee. The RRT clearly does not intend this outcome. Can this seeming inconsistency be reconciled?

In order to reconcile the practical outcome of the current RRT practice one would need to read in words the Act does not have. That is to read s412(1)(c) as if it were expressed as, “be accompanied by the prescribed fee (if any prescribed fee is already payable)”. The way in which s347 is similarly expressed and the way the MRT operates do not support this interpretation. The only class of MRT applications that would be valid when they were not accompanied by the prescribed fee before the statutory time limitation for review application expires would be the ones that were lodged along with fee waiver applications. This class of application would become valid retrospectively only if the fee waiver application was accepted or the applicable fee was subsequently paid within a reasonable period following a refusal of the fee waiver request.[xiv] The writer is mindful of the qualification imposed by the Full Court in Braganza in relation to the interpretation of ss347(1)(c) where the Full Court said that, “s 347(1)(c) should be read as being subject to the qualification that, provided an application for a waiver of the fee has been made within the prescribed period, the MRT is not prevented from considering the application for review merely because the prescribed fee has not been paid within the prescribed time.”[xv] There is no apparent reason why the similarly worded s412(1)(c) should not be understood in the same way. However, fee waiver applications are not available for review applicants at the RRT.

In order to deem an RRT review application a valid application, not only has s412(1)(c) to be read with an expression that does not exist but a legal fiction has to be created, namely, to take each RRT review application also as an application for a fee waiver. The fee waiver decision will then be seen as being suspended until a review decision is made by the RRT. Whether the fee will be waived or not depends not on the exercise of a discretionary power by the RRT but on a set of rules prescribed by regulations. Even if this legal fiction were to be accepted, a few problems would remain: 1) By its own nature, a waiver decision must necessarily be an exercise of a discretionary power by the RRT and not be simply dependent on a set of written rules[xvi]. 2) The outcome of such fictional fee waiver requests ought not to be contingent on whether the applicant seeks further Court action or not, or whether the applicant seeks Ministerial intervention or not. [xvii] 3) The regulations in relation to RRT fee refund or waiver refer to “fee paid”. When a fee was not paid, no refund or waiver provisions can be enlivened.[xviii]

With the above discussion in mind, the issue of “no fee” discretion under the Act can be dealt with simply. Unlike reg 4.13(2) for the MRT where some kinds of review application do not attract a fee at all, the RRT does not have similar provisions. A fee that can be refunded or waived is not the same as an application that does not attract a fee from the outset.

In so far as the RRT is concerned, the fee regime would seem to be inconsistent with Parliament’s intention and is open to the argument that the relevant regulations are repugnant to the empowering Act. When subordinate legislation, such as regulations made under an Act of Parliament, is inconsistent or repugnant to the empowering Act the subordinate legislation is invalid to the extent of that inconsistency or repugnancy.[xix]

A hope

It is apparent that there are factual and legal issues in relation to the ways in which the MRT and RRT structure their respective fee regimes. It is hoped that, the Senate will consider disallowing the regulations or that the incumbent Government will soon restore the situation which allows a complete refund of fees paid and a complete fee waiver regime when the situation is warranted. It is further hoped that the authorities will soon put in place interim schemes to make sure that financially disadvantaged people will have an opportunity to seek a review application in the MRT.

By Chris Yuen[xx]

[i] See http://www.aat.gov.au/FormsAndFees/Fees.htm. The AAT is established under the Administrative Appeals Tribunal Act 1975. S29A is the relevant section in relation to application fees.

[ii] See http://www.fwa.gov.au/index.cfm?pagename=aboutbriefs&year=2011#300611 and http://www.fwa.gov.au/index.cfm?pagename=disputeapplication#feewaived. The FWA is established under Fair Work Act 2009 and s367 empowers the FWA to charge a fee.

[iii] See http://www.lawlink.nsw.gov.au/lawlink/adt/ll_adt.nsf/pages/adt_fees

[iv] See http://www.vcat.vic.gov.au/CA256902000FE154/Lookup/miscellaneous_pdfs/$file/new_vcat_fees_effective_1%20July%202011.pdf

[v] See definitions of “carer” in Reg 1.15AA of the Migration Regulations 1994 http://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/s1.15aa.html

[vi] It is the writer’s view that a matter of this nature does not give rise to functus. See Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597; 187 ALR 117; 76 ALJR 598 (14 March 2002)

[vii] The Migration Act 1958 specifically excludes the jurisdiction of the Federal Magistrates Court and the Federal Court in matters of this kind. See ss475-476A of the Act. The High Court has its original jurisdiction to hear migration decisions despite the Act. See Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476; 195 ALR 24; 77 ALJR 454 (4 February 2003) and a recent decision in the High Court: Plaintiff M13-2011 v Minister for Immigration and Citizenship [2011] HCA 23 (23 June 2011) It is worth noting that, due to the nature of judicial review applications, not all mistakes made by a decision maker can be cured by a superior court. For instance, if the mistake was a mistake of fact that did not affect the jurisdiction of the decision maker, no remedy is available.

[viii] See new Reg 4.14(1)(b)6 which came into effect on 1 July 2011.

[ix] See Regs 4.31B & 4.31C of the Migration Regulations 1994.

[x] See Reg 4.13 & 4.31A of the Migration Regulations 1994

[xi] See Migration Legislation Amendment Regulations 2011 (No.1), http://www.comlaw.gov.au/Details/F2011L01098

[xii] Ibid, see schedule 8 of the amendment regulations.

[xiii] See Migration Legislation Amendment Regulations 2011 (No.4) http://www.comlaw.gov.au/Details/F2011L01376

[xiv] See Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318 (28 March 2001) at par 50-52 and also, Patel v Minister for Immigration and Citizenship [2009] FCA 392 (23 April 2009) also par 13-14.

[xv] Ibid, at 51.

[xvi] The regulations do have this effect, see reg 4.31C generally.

[xvii] Ibid, see reg 4.31C(1)(a)(i) and (b).

[xviii] Ibid, see reg 4,31C(2).

[xix] See Northern Territory v GPAO [1999] HCA 8; 196 CLR 553; 161 ALR 318; 73 ALJR 470 (11 March 1999) per Gleeson CJ & Gummow J at 41 & 52.

[xx] Chris Yuen has been practising migration law for a number of years both commercially and at community legal centres. Chris was the principal solicitor of the Immigration Advice & Rights Centre (IARC) and he is now the principal solicitor of the Refugee Advice & Casework Service (RACS).

Judicial review and the rule of law

Tue, 13 Sep 2011 02:39:00 GMT

In the field of immigration law, the executive arm of government receives continual condemnation from the judiciary with respect to its failure to afford procedural fairness and natural justice in accordance with the rule of law. Cases such as Plaintiff M61, Haneef and Plaintiff S157 highlight instances where the Department of Immigration displayed callous disregard for established rules of fairness and equality in favour of advancement of its policy agenda.

So what impact do these judicial utterings have on the drafting of legislation within the immigration portfolio? Does criticism from the federal courts bring the legislature into line with the rule of law or are these criticisms falling on deaf ears?

The consistent passage of legislation in order to circumvent the rule of law and procedural fairness is arguably demonstrated in no other area of law as frequently as Australian immigration law. Quoting Justice Sackville, the Honourable Justice McHugh, stated:[1]

Irrespective of which political party is in government, migration law has seen a “bipartisan governmental mistrust of the role performed by the courts in reviewing migration decisions”.

It is often identified in extra-judicial commentary that the role of the judiciary is crucial in maintaining the check and balance system in the Australian democratic model. Therefore it remains of even greater importance that the judiciary not be swayed by political banter deliberately aimed at influencing decisions.^[2] The Honourable Justice McHugh AC, in his paper titled ‘Tensions between the executive and the judiciary’,^[3] noted that it comes as no surprise that the judiciary’s re-defining of executive boundaries is continually met with displeasure.

In an empirical study undertaken in Canberra,[4] it was found that most administrative decision makers find value in the judicial review process. Respondents in the study considered the avenue of appeal operated to maintain a check and balance system and that administrative law decisions offer assistance in the performance of their duties. Despite these findings, it is hard to see that the decisions in the immigration context are having a positive impact on the executive’s exercise of power.

Departmental decision makers are often guided by immigration policy in reaching their determinations. As a result, the unfortunate situation in which we find ourselves is to ask the courts to interpret the law and enforce the rule of law. Despite repeated judicial determinations regarding the absence of recognition and adherence to the rule of law Departmental decision making processes do not appear to be changing.

Over the past decade both major political parties argued that irregular maritime arrivals seeking asylum in Australia breached our sovereignty, thereby justifying disposal with the rule of law and human rights standards. Despite being called to account by the United Nations, the Australian Government sees no need to align itself with international human rights standards or amend legislation to recognise the rule of law. If criticism by the United Nations and the Australian federal courts do not force the Department to align legislation and policy with the rule of law, what hope do we have? The legislature will continue to draft legislation to prevent avenues of appeal, diminish individuals’ rights and move the goal posts so frequently that judicial review applications swiftly become futile.

by Andrea Christie-David

[1] McHugh, M. H. ‘Tensions between the executive and the judiciary’ The Judicial Review (2002) 6 TJR at page 124

[2] McHugh, M. H. ‘Tensions between the executive and the judiciary’ (2002) 6 The Judicial Review 111

[3] (2002) 6 The Judicial Review 111

[4] Creyke, R. McMillan, J. ‘Executive perceptions of administrative law – An empirical study’ August 2002 Australian Journal of Administrative Law Volume 9 at 163

Back to basics on asylum seeker policy

Mon, 29 Aug 2011 06:16:00 GMT

First published on www.eurekastreet.com.au on June 22, 2011

Forty four months of Labor governments have seen mixed results for refugees and asylum seekers. The Rudd Government promised positive reforms after the decade of 'boat people'-bashing we saw from the previous government. At first a change of government was seen as a relief for those working with refugees — a chance for proper reform.

The progress was slow but it came in a major speech by former Minister Evans in July 2008 at the ANU, entitled, 'New Directions in Detention — Restoring Integrity to Australia's Immigration System'. Senator Evans set out seven key immigration values, and started with the following observation:

At my first meeting with department officials as Minister for Immigration, I asked who was detained at the immigration detention centre on Nauru and at what stage were their claims for asylum.

I was told there were eight Burmese and 81 Sri Lankans there. Virtually all of this group had already been assessed as refugees but had been left languishing on Nauru.

When I asked why the eight Burmese had not been settled in Australia in accordance with international law there was an embarrassed silence.

Eventually the answer emerged. The Howard Government had ordered they stay put. They had been left rotting on Nauru because the Howard government wanted to maintain the myth that third-country settlement was possible.

Sadly, Australia's treatment of asylum seekers had sunk this low.

Within three years, we are back at a process of interdicting boats and sending people for processing offshore. How did this come about? It will help to overview the changes under Labor and to see the gradual decline in the 'key immigration values'.

On the positive side, Nauru was closed in February 2008 and in the budget in May 2008, it was announced that the Temporary Protection Visa (TPV) would be abolished in that year. Sure enough, the legislation was passed in August 2008.

Other changes included the abolition of detention debt in March 2009, the end of the 45 day rule for permission to work on 1 July 2009 and the introduction of complementary protection legislation in 2009 which was reintroduced in 2011, but still not legislated. As a practitioner, I noticed that case officers made more reasonable decisions requiring less cases going onto review.

Throughout the whole period there has been a steady refrain from the Opposition of 'stop the boats'. For a while, the Government was not caught up in 'stop the boats' rhetoric, however it continued like an annoying whine in the background. The slogan was ramped up to almost hysterical levels under Abbott. As more boats arrived, the cry to 'stop the boats' only got louder. It was one of the Coalition slogans in the August 2010 election.

In April 2010, a processing freeze on Afghans and Sri Lankans was instituted, for six and three months respectively. The 'logic' was that as the cases could not be refused in April, maybe the country information would improve by the time the freeze ended so the cases could be refused. This unprincipled position meant longer periods in detention for already traumatised people.

Slow processing due to long delays in security checks left people in detention limbo for months and sometimes years. This added to the stress levels in a traumatised population in detention, and there were riots, self harm and protests. The deteriorating mental health of asylum seekers was again noted by the Australian Human Right Commission report into Villawood in 2011. The Commission noted that it had raised all these issues about mandatory detention a decade before, yet still the system was in place that leads to breaches of human rights.

Rather than deal with the causes — the long processing times — the Government under Gillard has returned to punitive measures: changes to the character test which will reintroduce a form of TPV for protestors in detention and 'offshore processing' anywhere, it seems, but Nauru.

The 'offshore processing' (which in fact was done onshore and mimicked much of the onshore protection visa process) was subject to a successful High Court challenge in November 2010. The case meant that the rule of law did apply to asylum seekers and they could not be dealt with entirely outside the Migration law and Constitution. This was possible because the appellants were detained and held in Australia.

The Opposition said this meant that a return to actual processing offshore, in Nauru for example, was needed to avoid such legal challenges. This is untested but the grey legal area of what law applies when Australian officials work in Nauru will possibly be avoided by the 'Malaysian solution' (which replaced the mooted East Timor and PNG (again) solutions).

While an annual increase of 1000 refugees is welcomed, it should not come at the forced relocation of 800 asylum seekers in Australia to join the mythical 'queue' that governments and UNHCR know does not exist.

Malaysia is not a signatory to the refugee convention. Over 90,000 refugees in Malaysia are termed 'illegal immigrants' in Malaysia. Any improvement in the process in Malaysia is to be welcomed, but it should not come at the cost of Australia dropping human rights standards and not accepting some responsibility for working with what is a global phenomenon of the movement of asylum seekers and refugees around the world.

Sadly the promise of serious reform to mandatory detention and making detention 'the last resort' has faded under the constant media and political attention whenever another boat arrives. If the July 2008 speech of Senator Evans was a high point, the recent exchange between Minister Bowen and Tony Jones reaches a new low:

TONY JONES: So, just to confirm, you are actually saying that in order to break the people smugglers' model, you will make an example with the 800 of the unaccompanied minors and send them to Malaysia, is that correct?

CHRIS BOWEN: It's not a matter of making examples of people, Tony, it's a matter of ensuring you have a robust system in place to break the model. And of course we will treat people with dignity and of course we will treat people with regard to their circumstances as to how we implement this arrangement.

TONY JONES: But no exceptions for unaccompanied minors, is that what you're saying?

CHRIS BOWEN: I do not want to send the message that it's OK to get on a boat if you fit one sort of particular category. Now I know these are hard decisions, I know these emotive and difficult issues.

Scott Morrison is right to say that people were never whipped on Nauru — a reference to one of the penalties imposed on 'illegal immigrants' in Malaysia — but that does not make the use of Nauru and the Pacific Solution right. Maybe we should not be too surprised; it was the Hawke and Keating Labor Governments that fought hard to introduce mandatory detention in the first place.

The chance of reform outlined in the ANU speech is still possible. The policy focus needs to return to ensuring adherence to basic human rights, protecting refugees from refoulement and treating people with dignity.

It would help to return to those basic principles outlined in the ANU speech back in 2008. They include: firstly, no children in detention. Secondly, arbitrary or indefinite detention is not acceptable and should be subject to regular review. Thirdly, detention should be a last resort for the shortest practicable time. Finally, people in detention should be treated fairly and reasonably and detention conditions should ensure the inherent dignity of the person.

These principles are founded in concepts of human rights and respect for the dignity of people. Shaping the policy around these principles, rather than political push factors, would lean to a more humane and justifiable process all round.

By Kerry Murphy (D'Ambra Murphy Lawyers)

New Schedule 4 requirement; Criterion 4020

Mon, 29 Aug 2011 06:10:00 GMT

Is there an implied provision of knowledge about bogus documents in criterion 4020?

Criterion 4020 was added as a new schedule 4 requirement to deal with the problem of false documents being submitted to DIAC. By itself, the provision seems to imply a strict liability regardless of the knowledge of the person affected. However this seems unworkable and it is argued that interpretation of criterion 4020 implies a certain degree of knowledge by the visa applicant that the document(s) contained false information at the time it was presented to DIAC. This can be implied from the nature of the provision which is directed at combating document fraud.

Otherwise an applicant could fall victim to fraud by a third party who wishes the applicant harm. Take for example a ‘jilted former partner’, a jealous work colleague, a corrupt migration agent trying to demand further payments. If they were involved in preparation of a false document, which was then submitted to DIAC without the visa applicant being aware it was false, then the strict liability interpretation would adversely affect the applicant.

The only redress the applicant would have is to seek the waiver but the waiver requires a benefit to Australia or there be an adverse effect on an Australian citizen. It is unlikely that the intention of Parliament was to create a strict liability provision that does not consider an aspect of fault or culpability by a visa application unless the provision was far more explicit.

If there were no difference in the treatment between bona fides and mala fides applicants, then there is an extremely heavy onus on an applicant to check the veracity of every document they have provided, including statements and documents which originate in Australia such as those from their University in Australia and the AFP certificate. This would place an administrative burden on the tertiary institutes and the AFP which would not be accepted by those organizations.

If a person has no information to suspect the authenticity of a document, they cannot be expected to personally verify every document. To require otherwise means that no delegate (or Tribunal Member) can accept as genuine any document submitted to DIAC or to the MRT. Such a proposition renders the processing of applications almost impossible and therefore cannot be the intention of the provision.

If a person has a reason to doubt the authenticity of a document, then they would have an obligation to verify that document prior to forwarding it to DIAC.

There is an analogy with the reasoning in the case of Dai v MIAC [2007] FCAFC 199. That case dealt with the cancellation of a student visa due to the breach of clause 8202, and the Court found the regulation to be ultra vires because it required an applicant to control the actions of third parties which was impossible for an applicant to do.

In its consideration in the Dai Case, the Court looked at whether the provision could be read down to make it workable and found this was not possible. In this case, it is submitted that a reading down, or implication of culpability into 4020 is a way of making this provision workable.

This reading is supported by the PAMS which notes:

‘A visa applicant who is assessed as not meeting the s501 character test may be refused a visa under s501 (Refusal or cancellation of visa on character grounds). However, the s501 power is generally not appropriate for addressing fraud within the application caseload. This is because, by itself, the giving of false/misleading information or bogus document is not usually significant enough to trigger visa refusal on character grounds (see PAM3: Act - Character - s501 - The character test, visa refusal & visa cancellation.) - hence the creation of PIC 4020.’^[1]

In fact, PAMS does not explicitly consider the situation of a person affected by third party fraud, and this, it is submitted, reinforces the submission that culpability or mala fides must be implied by an otherwise strict liability provision.

Furthermore, the provision makes specific reference to s97 which defines bogus document. That section is in Subdivision C of the Act dealing with the powers of the cancellation of visas obtained by a person providing DIAC with incorrect information. That subdivision makes specific reference to factors to be considered in a cancellation as set out in reg 2.41. Those factors include: consideration of the circumstances in which the non-compliance occurred, present circumstances of the person and any breaches of the Act or regulations.

Whilst this is specifically related to a cancellation process, a refusal or cancellation, the effect is the same – no visa. Also, the process in subdivision C would consider the situation of a victim of fraud by a third party, such is explicit in reg 2.41

Therefore, it is reasonable to assume that if Parliament were to intend a more serious strict liability for refusals in criterion 4020, it would say so.

Kerry Murphy

[1] PAMS 3 ‘The Fraud PIC’, section 6

Refugee Lotto

Mon, 29 Aug 2011 04:36:00 GMT

First published on www.eurekastreet.com.au on July 26, 2011

An old legal maxim is 'hard cases make bad law'. Maybe complex cases compromise policy. Refugee law and policy is complex and the Malaysian agreement signed this week is another example of a compromise on human rights principles for political expedience.

In May 1992 mandatory detention was made a legal requirement by the then Labor Government. This occurred at a time of legal challenges to detention of Cambodian asylum seekers. Nearly ten years later, the Liberal Government used increasingly harsher policies, from the temporary protection visa to the misnamed 'Pacific Solution' (it was neither pacific nor a solution).

The continued politicisation of 'boat people' and calls to 'stop the boats' shows that policies regarding asylum seekers still bedevil Governments. The Malaysian Solution is the latest policy reaction.

How far will a Government go to 'stop the boats'? Rather than consider ways of ensuring protection of the human rights of refugees not just in Australia but also regionally, political responses are designed to achieve 'border security'. If we are prepared to achieve the political solution of 'stopping the boats' we have to act in a way that does not respect human dignity.

Australia has certain international obligations as a signatory to the Refugee Convention. It is not a responsible solution to move our international responsibilities offshore as was done with Nauru and is part of the Malaysia agreement. Arrivals onshore by boat or air should all have their cases assessed onshore. This approach is not politically likely because it is will not 'stop the boats'.

However, when the politics is so hostile that principles are lost in policy setting, what is the next best option for the refugees?

Assessing cases by Australian officials in Nauru did nothing to improve the protection of refugees in our region. Whereas getting non-signatory countries such as Malaysia to enter discussions with the UNHCR about improving protection for refugees is a small but positive step. Many refugees live in countries that are not full signatories to the refugee convention, such as Pakistan, India and Turkey.

The deal means the 800 asylum seekers transferred from Australia will not end up as part of the 4000 refugees to be resettled. Good if you are in that 4000, not so good if you are one of the 800.

The agreement provides that the transferees should not be detained beyond health and security checks. This is in fact better treatment than they would receive in Australia. They will be able to work and children will have access to education.

There is also a provision to provide some consideration for what is known as 'complementary protection' for those who do not meet UNHCR assessment criteria. This is not currently standard in Malaysia and is a small step forward in protecting the rights of refugees in the region.

Resettling 1000 refugees annually from Malaysia is the equivalent of 1 per cent of the total number of refugees in Malaysian. However it increases Australia's refugee resettlement by over 13 per cent.

Part of the justification is to 'send people to the back of the queues'. This plays into the view that refugees arriving by boat are 'bad' because they 'take' the place of the more 'deserving' refugees. UNHCR has repeatedly stated that the queue does not exist. There are no queues, there never have been. Few are resettled, most wait for the refugee lotto in the hope they might be picked next time.

How someone arrives and makes their application for protection is legally irrelevant to whether they meet the refugee definition.

There will always be far more refugees than can even be resettled and at best, we can help a small number who meet the strict refugee criteria. It is not true to claim that the most deserving miss out thanks to people arriving on boats, because Australia will and does refuse families with health issues, such as a family with a Down syndrome child.

Some of the major reforms in immigration history in Australia have occurred despite adverse public opinion. Consider two examples: the resettlement of non Anglo-Celtic Europeans and Jews after WWII by the Chifley Labor and then Menzies Liberals governments. Then the Fraser Government accepted many thousands of Vietnamese and Cambodians in the 1980s.

These policies were not driven by popular opinion but were able over time to change opinions for the better. As former Liberal MP Bruce Baird stated on the ABC program, Leaky Boats, 'people will change their opinions when they are informed of the facts'.

Still, the last two decades has seen few positive developments for the protection of refugees who arrive by boat.

Australians will welcome around 180,000 new migrants and refugees this year. It is estimated that around 40 per cent of Australians were born overseas or have one parent who was. The notion of the fair go is solidly embedded in Australian culture. However we need bipartisan political leadership which provides accurate information about refugees, not politics that reinforces ill-informed fears.

By Kerry Murphy (D'Ambra Murphy Lawyers)

Refugee Rage

Mon, 29 Aug 2011 04:33:00 GMT

First published on www.eurekastreet.com.au on April 27, 2011

Minister Bowen's announcement of 'tougher measures' for refugees in detention harks back to a time when the previous Government kept finding new ways of vilifying asylum seekers. He is proposing changes to the character test and a new 'temporary visa'. It is sad that within such a short time, the Labor Government has moved away from the promising rhetoric of former Minister Evans at ANU in July 2008.

Senator Evans stated: 'A person who poses no danger to the community will be able to remain in the community while their visa status is resolved ... The department will have to justify why a person should be detained. Once in detention, a detainee's case will be reviewed every three months to ensure that the further detention of the individual is justified.'

As more boats came, and the Opposition ramped up the rhetoric to shrill antediluvian levels, the policy reforms were eroded. People were left in detention for longer and longer periods. The changes proposed do not address some of the causes of frustration in the first place.

I have clients in detention who have been there for over a year. Some took that long to finally get approval as refugees, now they are waiting for security clearances. When I contact Immigration about the security delays I am told they know nothing, as the case is being processed by an 'another agency' — code for ASIO. Immigration cannot tell me how long this process will take.

I have no reason to doubt ASIO are doing what they should, but they are clearly under-resourced, because it is taking 9–12 months or even longer to get the security checks. This period is commonly longer for clients out of detention.

When I complain about these delays to the Inspector General of Intelligence and Security (IGIS) I am told in classic Yes Minister style:

'We will not provide any other feedback but will contact you if we require any further information about the case. I suggest you maintain contact with the Department of Immigration and Citizenship (DIAC) for information about the status of the visa application.'

In other words: Don't call us and we won't call you!

So DIAC tell me they are unable to tell me anything, and IGIS tell me to contact DIAC. As an immigration lawyer, I am frustrated by this circular process. What must it be like, then, to be locked in detention and told after a year 'You are a refugee, you will be released, but we do not know when ... be patient.' And, 'There is nothing further we can tell you.'

The inability of Immigration to move the cases along is a major cause of the frustration among detainees, which led to the riots.

There are a number of major reports from experienced psychologists about the significant adverse consequences of prolonged detention. Now the Minister wants to punish them further.

The character test is already strong enough. Every person must pass the test before they get a visa for Australia. Now refugees will have a higher hurdle than anyone else, despite being found to meet the refugee criteria. Furthermore, they will be punished by a temporary visa which precludes family reunion — one of the worst parts of the old TPV regime.

The Refugee Convention provides that someone should not be refused refugee status unless they have 'committed a serious non-political crime', been involved in 'war crimes, or crimes against humanity', or are a serious security risk. In my many years of practice, I have seen less than a handful of such cases, because they are rare.

Burning of property, and alleged assaults are serious and not to be condoned. However, they are not so serious as to warrant someone not getting the full benefit of refugee protection.

A similar change was introduced by the Howard Government in 2001, leaving a number of refugees delayed in the process due to minor offences. The criminal justice system can deal with these cases under existing laws. The character test is strong enough; an individual fails if they have received a prison sentence of 12 months. That is good enough for every other visa, why not for refugees?

The Minister needs to show leadership, let the criminal justice system deal with the cases, and not pander to the Opposition's 'race to the bottom' politics. There are changes needed, but they relate to the need to speed up processing of security checks to avoid having people in detention for so long.

By Kerry Murphy

Mr NK and his Human Rights

Fri, 08 Jul 2011 03:34:00 GMT

On 1st June 2011, the Sydney Morning Herald reported the following: “The Human Rights Commissioner, Catherine Branson, wants the federal government to pay $500,000 compensation and apologise to a Chinese man convicted of double murder who has been refused a visa.” It also said that, “He was refused a protection visa because he fails the character test.” The media concluded that, “Parliament is debating toughening the character test, to make it easier to refuse a visa to asylum seekers who have been sentenced for a criminal offence.”[1]

The opposition shadow Minister went further and said that the issue of compensation was offensive and that this case was not about the legal principle that once you are punished and you have served your time you ought to be rehabilitated and released[2].

The Minister for Immigration has not commented.

The truth is that the Human Rights Commission’s report on Mr NK was never about whether he should be granted a visa, nor about the Protection visa he was refused. It was about whether he should be detained in a less restrictive detention facility such as community detention instead of a high security facility like the Villawood Immigration Detention Centre where Mr NK has been since he was released on parole. In addition, Mr NK’s character issue was not considered by the Department of Immigration (the “Department”) nor the Refugee Review Tribunal (the “RRT”) in his Protection visa application. Rather, he was refused a Bridging visa on character grounds which denied him the opportunity to be released into the community while waiting for the outcome of his Protection visa application. The Protection and Bridging visa issues occurred and concluded before the end of 2007.

The facts contained in the Human Rights Commission’s report, which were accepted by the Department, include:

Ø Mr NK made a Protection visa application in 2006 at a time when he was about to be released from prison on parole after a 15-year non-parole period jail term.[3]

Ø While he was waiting for the decision on his Protection visa application he was put in the Villawood Immigration Detention Centre.

Ø The RRT and the Federal Magistrates Court finalised his unsuccessful applications on 20 April 2007 and 26 July 2007 respectively.[4]

Ø On 4 February 2008, the Department itself initiated a request for Ministerial intervention asking the Minister to consider placing Mr NK in a community detention facility rather than being held in the Villawood Immigration Detention Centre. This request was withdrawn on 13 February 2008.[5]

Ø On 1 August 2008, Mr NK requested Ministerial intervention asking for community detention. On 20 October 2008, the Department also made submissions to the Minister seeking his intervention, among other things, to place Mr NK in community detention.[6]

Ø On about 20 November 2008, Mr NK made a complaint to the Australian Human Rights Commission.[7]

Ø On 25 November 2008, the then Minister for Immigration asked the Department to provide further submissions in relation to a community detention option but otherwise declined the Department’s other requests.[8]

Ø In 2009, the NSW state parole officer expressed a view that Mr NK did not pose any threat to the community and was suitable to be released into the community on conditions.[9]

Ø On 12 August 2009, following proposals made by the Department to the Minister in relation to the conditions and restrictions that would be imposed on Mr NK before placing him in community detention, the then Minister declined to exercise his personal power to place Mr NK in community detention.[10]

Ø On 6 November 2009 Mr NK again asked the Minister to place him in community detention.[11] The Minister subsequently declined.

Ø At the time of writing, Mr NK is still detained in the Villawood Immigration Detention Centre.

The Human Rights Commission made its findings and recommendations based on the standards of human rights applicable universally under the International Human Rights Covenant and Declarations[12]. These universal rights are not subjected to the municipal laws of a specific country for a good reason. For example, an act in a particular country (such as certain types of punishment including torture) while lawful may nonetheless breach a person’s human rights. The Australian Federal Parliament made specific law to set up the Australian Human Rights Commission asking the Commission to perform its functions with regard for the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights[13].

Disappointingly, the only basis on which the Immigration Department rejected the Commission’s finding was that the detention of Mr NK was lawful, but sidestepped the issue of failing to place Mr NK in a less restrictive detention facility by alluding to the fact that only the Minister alone had that power. The Minister did not make a separate response to the Commissioner’s finding and declined to comment on the matter.

The Commissioner was at pains to point out that the issue of arbitrary detention in the human rights context is not about the lawfulness of the State agency’s act or omission. The Commissioner expressed a view that the test involved proportionality and necessity, citing various Australian and international jurisprudence.[14] This was precisely why the Commissioner found that the Commonwealth Government had failed to consider and act in placing Mr NK in a less restrictive detention facility while the Government was working through the complex matter.

If political reality had anything to do with the way in which Mr NK’s matter was handled, a less restrictive detention facility would seem to cost tax payers less, and the issue of whether Mr NK poses any threat to the community should have been (and had been) answered by the NSW parole board, not the politicians.

Chris Yuen

(Chris Yuen is the Principal Solicitor at IARC and acted for Mr NK in matters before the Minister and the AHRC)

[1] http://www.smh.com.au/national/push-to-pay-chinese-killer-500000-20110531-1fes1.html

[2] http://www.abc.net.au/news/stories/2011/06/01/3233045.htm?site=sydney&source=rss

[3] http://www.hreoc.gov.au/legal/humanrightsreports/AusHRC43.html : report No.43 at par 25.

[4] Ibid, at par 29.

[5] Ibid, at par 31 & 32.

[6] Ibid, at par 34.

[7] Ibid, at par 18.

[8] Ibid, at par 35.

[9] Ibid, at par 88-91.

[10] Ibid, at par 37.

[11] Ibid, at par 38.

[12] Australian Human Rights Commission Act 1986, s46A.

[13] Ibid, s10A.

[14] par. 56-63 and 79-101 of the AHRC’s Report No 43.

Queue Jumpers – an unfortunate and misconceived argument

Fri, 08 Jul 2011 03:25:00 GMT

A panellist[1] in a TV program Q & A broadcast on 20^th June 2011 had this to say:

RUSLAN KOGAN: The whole refugee issue is very close to me because in 1989 my parents fled Russia, arrived in Australia with $90 in their pocket and I'm very fortunate for the great opportunities that this country has given me. But, yeah, I think the refugee issue is an important one because, you know, if you look at it as well though, you know people are going to act on incentives. So there's people that are trying the fully legitimate path of coming to Australia and if you're allowing the illegitimate path[2], they're actually - the government is causing all of these deaths on the boats because the more boat people are going to come as you're - if you're going to start letting them in because they're going to say, oh, why am I going to go the legitimate path if there's this other path. But I think also, you know, we have to care for these people. We have to care and sympathise with them because we don't want anyone hurt and you've got to look at the real issues, like what's going on in these countries that are making the people flee.[3]

The “queue jumper” argument was widely publicised during the Howard government era. It continues to be circulated as a matter of fact. The Refugee Council of Australia has published a document titled “Myths and facts about refugees and asylum seekers” that addresses the relevant issues. The document is available on their website.[4]

The facts are:

Ø By definition, a person must be outside his/her country of origin in order to be recognised as a refugee;

Ø Whether the person fled his/her country of origin by arrangement or by compulsion and whether s/he entered another country lawfully, by deception (such as by obtaining a visitor’s, student or business visa when s/he had no intention to visit, study or do business other than seeking asylum) or by boat, in itself has no bearing on whether the person is or is not a refugee.

Ø Likewise, an asylum seeker’s financial situation has no direct bearing on whether s/he has a well-founded fear of persecution for one or more of the five Convention reasons.

Ø It is therefore unhelpful to single out “boat people” because the real issue is whether or not they are refugees according to the UN Refugee Convention. If an asylum seeker is assessed not to be a refugee, s/he will be repatriated. People who are compelled to seek asylum in another country will simply take the best available means to do so at the time.

Ø Those people who fled their respective countries (say, from Afghanistan to Pakistan, from Iraq to Jordan or from Myanmar to Thailand) and subsequently were assessed by the UNHCR or by the respective hosting country to be refugees are no more refugees than those who came to Australia by boat or by a lawful means and have subsequently been assessed to be refugees by the Australian government.

Ø Importantly, according to the Refugee Council’s information, Australia is the only country in the world that links its offshore humanitarian program (i.e. the number of places for refugees from a third country such as Afghanis from Pakistan, Iraqis from Indonesia or Burmese from Thailand) to the onshore Protection visa regime (i.e. places for asylum seekers found to be refugees in Australia will come from the same pool as those from a third country)

Ø Consequently, the total number of available places under the Australian Humanitarian Program will be made up by a combination of those asylum seekers in a third country (known as offshore applicants) who are recognised as refugees and who have a compelling need to be settled in Australia and those successful Protection visa applicants (known as onshore applicants) who are assessed in Australia as refugees and allowed to remain in Australia. The 2011-2012 Budget has announced that the total number will be 14,750.

Ø The argument based on population sustainability does not arise. This is because once the number reaches its financial year allocation, humanitarian visas will simply not be granted. The processing delay would seem in one sense (but at the expense of prolonged detention for some asylum seekers) to relieve the pressure due to the closed quota for the program.

Ø It is worth noting that the number of asylum seekers in Australia in any given time is far fewer than asylum seekers in other developed countries. (e.g. asylum applications in Australia in 2010 were 8,250 and in Canada and France were 23,160 and 47,790 respectively) The same is true for boat arrivals. Boat arrivals in Australia in 2010 were 6,535 but in Greece and Italy there were 46,015 and 82,248 respectively.[5]

Taking above facts into account, the boat people problems are clearly more political than real.

[1] According to ABC’s website, Ruslan Kogan is a 28 year old self-made multimillionaire. A millionaire by the age of 24, he established his own company Kogan in 2006. See http://www.abc.net.au/tv/qanda/txt/s3242467.htm

[2] emphasis added.

[3] http://www.abc.net.au/tv/qanda/txt/s3242467.htm

[4] http://www.refugeecouncil.org.au/resources/myths.php#queue

[5] Refugee Council’s website: http://www.refugeecouncil.org.au/resources/myths.php#queue

MEDIA: IARC Principal Solicitor speaks to ABC Radio

Wed, 01 Jun 2011 21:22:00 GMT

about the controversial case of Mr NK who is been held in immigration detention for an as yet indefinite period
Click here to listen

Detention on Christmas Island - a continuing dilemma

Fri, 29 Apr 2011 05:33:00 GMT

The territory of Christmas Island is described by the Migration Act 1958 (Cth) (the “Act”) as an “excised offshore place”. It follows from the Act that a person who arrives on the Island, after the excision time[1], and who becomes an unlawful non-citizen because of that entry is identified as an “offshore entry person”[2] and for that reason is prevented from making a valid application for a visa[3]. The Act does, however, provide the Minister with a non-compellable power to allow an “offshore entry person” to make a valid application[4]. The exercise of the Minister’s discretion would usually only occur following a determination that Australia’s protection obligations are engaged.

The assessment of irregular maritime arrivals at excised offshore places has long been described as non-statutory with provisions in the Act greatly limiting access to most Australian Courts[5]. In a recent decision before the High Court[6] the Minister argued that the process was an exercise of non-statutory executive power, and as such, decision makers did not need afford procedural fairness or decide applications according to law. In a unanimous decision the High Court disagreed. The Court made a finding that the Act was engaged and because “making the inquiries prolonged the plaintiffs' detention, the rights and interests of the plaintiffs to freedom from detention at the behest of the Australian Executive were directly affected, and those who made the inquiries were bound to act according to law, affording procedural fairness to the plaintiffs whose liberty was thus constrained”[7].

The Christmas Island Immigration Detention Centre can be described as a high security prison with two notable differences. Firstly, there is no suggestion that the detainees have committed any offence under Australian law or indeed a law of any other country. Secondly, the length of detention is anyone’s guess. The position becomes even more complicated if a person is stateless. The High Court in Al-Kateb[8] found that an asylum seeker could continue to be held in immigration detention indefinitely. In Re Woolley[9], the High Court unanimously held that the same detention powers equally applied to children, and in Behrooz[10], the Court found that detention remains lawful despite harsh conditions.

The Refugee Status Assessment (the “RSA”) process commences with an initial entry interview with an immigration officer, where a person is given an opportunity to make claims of being a refugee and a person to whom Australia owes protection obligations. An asylum seeker is then afforded a few hours to see a migration agent who can assist them complete a lengthy application and present their claims to a decision maker. Subject to matters of health and character, a successful application will be referred to the Minister who can exercise his discretion and allow the making of a valid protection visa application. Unsuccessful applicants can seek review by the Independent Merits Review (the “IMR”).

While there are similarities with the on-shore protection visa process it is by no means an even playing field. Those who arrive by boat are subject to mandatory detention because of their mode of arrival. Their prolonged detention, usually in remote areas, not only affects their well being, it impacts on their ability to communicate with their representative and adequately present their claims for protection. The Second Reading Speech of the Migration Amendment (Excision From Migration Zone)(Consequential Provisions) Bill 2001, delivered by the then Minister for Immigration, Phillip Ruddock, identified the changes as a “disincentive” for boat arrivals. On reflection, the term ‘punishment’ may have been equally suitable.

Images of the recent riots in the Christmas Island Immigration Detention Centre highlight the tension that exists there. While it is difficult to excuse the torching of buildings, labeling all those involved as ‘trouble makers’ and ‘thugs’ should be avoided. It is necessary to understand some of the factors that have led the detainees to act in such a manner. While a person may be recognised as a genuine refugee, they generally continue to need a positive security clearance from ASIO before a visa can be granted. It is this process that can take an unfortunate length of time. Many are sole breadwinners for their remaining family members and find themselves in a world of uncertainty, having escaped persecution and now unable to provide for their children while their detention becomes a political game. Then there are those who have been promised a better life by smugglers. They sell their house to pay for a journey that could cost them their life, only to be told many months down the track that their sacrifices were in vain. That people in such circumstances can break and act irrationally is understandable. It should not be forgotten that many of the people in the detention centre arrive as victims of torture and trauma.

Then there is the plight of children in detention. The harm on minors as a result of prolonged detention cannot be disputed or disregarded. In a welcomed move, on 18 October 2010, the Prime Minister Julia Gillard and Minister for Immigration Chris Bowen announced plans to expand the government’s residence determination program and move significant numbers of children and vulnerable family groups into community accommodation. The idea being that once the group has passed relevant health and security clearances they will be released into the care of charity and church groups.

Importantly, the Convention on the Rights of the Child, to which Australia is a signatory, provides:

Article 27:

States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.

Article 37:

States Parties shall ensure that:

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time (emphasis added)

While the government’s move to remove most children from detention is commendable, more needs to be done. Despite the announcement, minors continue to be held in detention. The safeguard of Section 4AA of the Act (specifying that a minor shall only be detained as a last resort) has failed to fulfill its purpose. In a statement on 1 March 2011, the Minister reiterated the government’s commitment to follow through with the promises. More importantly, the Minister recognised that the government owed a special duty of care to children. This must be the case.

Detention may be acceptable for initial identity, security and health screenings. Anything beyond that, however, is unnecessary and cruel, particularly when it involves children. While deterrence has long been used as an argument for mandatory detention, the fundamental rights owed to minors, and adults for that matter, must outweigh the politics. The government’s policy on mandatory detention for unauthorised arrivals must be changed to reflect the position that detention for a minor must only be used as “a measure of last resort and for the shortest appropriate period of time”: not only because it is consistent with Australia’s international obligations and the Migration Act, but because a failure to take such measures places the most vulnerable at risk of irreparable harm. Many of the asylum seekers on Christmas Island will eventually make their way to the mainland; whether they become an asset to this country or a burden on our health care system due to harm caused from prolonged detention can only be resolved by what the government of the day does next.

Ali Mojtahedi
Solicitor/Editor of Immigration News - IARC

[1] 8 September 2001

[2] see s. 5 of the Act

[3] see s. 46A of the Act

[4] see s. 46A of the Act

[5] See s. 494AA of the Act

[6] Plaintiff M61/2010 and Plaintiff M69/2010 v Commonwealth of Australia [2010] HCA 41

[7] See paragraph [9]

[8] 219 CLR 562

[9] 225 CLR 1

[10] 219 CLR 486

Forced Migration and Climate Change

Fri, 29 Apr 2011 03:32:00 GMT

Climate change is a political issue. Refugees and asylum seekers have always been a political issue. What happens when you put the two together? Not something any political party would want to touch. But it’s an issue that has developed quickly in the past few years and cannot be ignored.

Despite the deniers about climate change, no one could ignore the horrific natural disasters that have happened recently in our region and overseas. The severe and fatal flooding in Queensland, and the cyclone that followed. More recently, the horrific earthquakes in New Zealand and Japan, and the subsequent tsunami that has devastated a country and its people. Yet, these countries are well developed and able to cope with natural disasters and the effects of climate change, but what of smaller pacific countries in our region. In particular those countries that are most at risk are Kiribati, Bangladesh and Tuvalu.

There has not yet been definitive research on climate change and the effects it will have on movement of people, however it would appear that it would be a temporary situation and once people were able to return to their homes, they would wish to. It has also been argued that it will happen internally rather than people moving to other countries, and this is turn will create problems with their definition as a refugee. This is not always the case, as it has been predicted that some smaller pacific countries will no longer be habitable, as they will no longer exist by 2050.

Although the term environmental refugee or climate change refugee has been around as a concept since the mid-eighties, the 2004 Tsunami brought new light onto this concept. The shocking images of entire cities destroyed and the resulting devastation meant tens of thousands of people were forced to leave their homes. Despite these developments there is no international definition for environmental migrant, or refugee.

The term climate change refugee or environmental refugee is contentious in international law. This is because of the definition in the Refugee Convention 1951 that clearly outlines the criteria one has to fulfil to be recognised as a refugee, namely having a fear of persecution under one or more of the five grounds; race, religion, nationality, membership in a particular social group, or political opinion. Although the interpretation of this definition has evolved over time, the climate change or environmentally displaced person does not fit in with this strict definition. However, there has been growing support for economic and or social persecution to be included under the grounds.

Walter Kalin, Representative of the Secretary-General on the Human Rights of Internally Displaced Persons has highlighted that, “climate change per se does not trigger movement of persons, but some of its effects do, including sudden and slow on-set disasters’. In particular it is likely that the effects of climate change on a society will worsen an already struggling economy, and create further persecutory treatment.

There have been calls for an international treaty, similar to the Refugee Convention to be implemented but this is not without its problems. For example, general poverty is not enough to claim refugee status; it must be particular to the group. The New Zealand Refugee Status Appeals Authority outlined in a matter about very poor applicants from Tuvalu that:

Clearly, none of the fears articulated by the appellants vis-à-vis their return to Tuvalu, can be said to be for reason of any one of the five Convention grounds in terms of the Refugee Convention, namely race, religion, nationality, membership of a particular group and political opinion. This is not a case where the appellants can be said to be differentially at risk of harm amounting to persecution due to any one of these five grounds. All Tuvalu citizens face the same environmental problems and economic difficulties living in Tuvalu. Rather, the appellants are unfortunate victims, like all other Tuvaluan citizens, of the forces of nature leading to the erosion of coastland and the family property being partially submerged at high tide. As for the shortage of drinkable water and lack of hygienic sewerage systems, medicines and appropriate access to medical facilities, these are also deficiencies in the social services of Tuvalu that apply indiscriminately to all citizens of Tuvalu and cannot be said to be forms of harm directed at the appellants for reason of their civil or political status.[1]

Some mechanisms for dealing with environmentally displaced people have been put forward. The main suggestion is within the existing refugee protection framework, for example a protocol to the Refugee Convention or under the United Nations Framework Convention on Climate Change. Other suggestions were a convention, or a treaty, or adding another protocol to the European Convention on Human Rights.

Professor Jane McAdam argues that a treaty is not an option for three reasons. That being that there is not enough empirical evidence on movement and the causes of movement, which begs the question whether climate change causes movement, and finally the political obstacles to a new treaty.[2] Professor McAdam argues that a better response would be focussing on States’ burden sharing obligations to each other, and our responsibility to the international community as a whole. The response needs to contain practical, rational policies and normative frameworks instead of a universal treaty which may be too vague and not translate to the particular situation individuals and smaller countries face.[3]

It has become even more apparent that the effects of climate change and environmental change is causing forced migration for people around the world. Indeed, it has been argued that smaller pacific countries close to home will be the worst hit victims of this shift. Not just because they do not have the complex infrastructure to cope with such a disaster but they do not always have the necessary capacity to rebuild.

At present, there is no foreseeable solution for those who are forced into migration for environmental or climate change reasons, but it is an emerging issue that Australia will need to address not only because of our proximity to smaller pacific countries that will no doubt be affected by these changes, but because it is our responsibility as a member of the global community. Whether this takes the form of capacity building for smaller nations, or as a staggered, temporary, or supported migration program, Australia cannot ignore the plight of those displaced by climate change.

By Gayatri Nair - Solicitor, IARC

[1] Refugee Appeal No 72189/00 (New Zealand Refugee Status Appeals Authority, Member Joe, 17 August 2000) [13]

[2] Jane Mcadam, Swimming against the Tide: Why a Climate Change Displacement Treaty is Not the Answer Int J Refugee Law (2011) 23(1): 2-27.

[3] Ibid, pg 25-26.

REPORT ON THE COMMONWEALTH AND IMMIGRATION OMBUDSMAN’S OVERSIGHT OF IMMIGRATION PROCESSES ON CHRISTMAS ISLAND OCTOBER 2008 TO SEPTEMBER 2010

Fri, 29 Apr 2011 01:36:00 GMT

The Ombudsman recently released a report on the Christmas Island Detention facilities. This followed a request from the then Minister for Immigration and Citizenship in September 2008, to the Commonwealth Ombudsman. In particular, the Ombudsman agreed to take on an oversight role of the non-statutory refugee assessment process for asylum seekers at the Christmas Island Immigration Detention facilities[1].

During its oversight Ombudsman staff visited the Island eight times and observed the steps involved in the refugee assessment process, from when an asylum seeker arrives to the point where they may be granted or refused a visa. Ombudsman staff also inspected the immigration detention facilities and accepted complaints from detainees.

The Ombudsman noted that there have been many changes in the last three years. The most significant being the increased number of asylum seekers passing through the non-statutory process, which in turn has made the conditions worse for detainees. For example in October 2008 there were 31 people in detention but by June 2010 there were 2454 people in detention including 270 children. By 1 September 2010, this had further increased to 2603. This meant that the detention centre was operating at 500 people more than it was built for.[2]

The Ombudsman recognised the complexities that the management of Christmas Island provided for the Department of Immigration and Citizenship (DIAC). The Ombudsman noted that from their first visit in 2008 it appeared that although DIAC was set on its goals there was insufficient planning with regard to collaboration with other agencies, and also internally.

It was also highlighted that despite this, DIAC was responsive to concerns from the Ombudsman and was responsive to the reports provided after the visits.

The Ombudsman made six recommendations on various issues that they deemed integral to the successful operation of Christmas Island. In particular, it recommended improving cooperation and communication amongst agencies, a thorough review of the non-statutory Refugee Status Assessment (RSA) process as well as the processes for relocation of persons with a positive assessment to more appropriate community detention, and recommendations on the appropriate numbers and use of interpreters.

A key issue was that of unaccompanied minors or families with children. The Ombudsman welcomed recent announcements about changed procedures that will facilitate processing of their claims on the Australian mainland. Community detention was the preferred way of housing those waiting for the outcome of the RSA process with families and children.

The Ombudsman’s was aware that DIAC had cleared a heavy backlog of torture and trauma cases that needed professional attention. However, because of the increasing number of detainees in the past three years, there is great pressure on the resources and facilities on Christmas Island.

The Ombudsman continues to receive complaints about a variety of issues, including processing delays and detention times, and the lack of services and facilities. The report recommended that detainees be moved to the mainland as soon as possible to assist with overcrowding as well as the lack of services, especially access to mental health services.

Overall the report found that DIAC met or exceeded expectations. However, the Ombudsman found that, “simply put, there are too many people detained at the combined Christmas Island Immigration Detention facilities.”[3]

The Ombudsman recognised that it was a policy decision for the Government as to whether they continue to use remote places for detention or whether they move detainees to the mainland. The Ombudsman noted concerns that if DIAC continued to use remote places for detention this would mean difficulties not only in that there may not be enough infrastructure to deal with the number of detainees but also access to mental health and other services.

Recommendations

The Ombudsman recommended that:

1. Conduct a thorough review of the RSA assessment processes with a view to introducing initiatives which will improve the overall timeliness of such assessments. The review should include reconsideration of the timing and processing of security clearances for successful RSA applicants.

The Ombudsman noted there were initial systemic problems in co-ordination between agencies. This resulted in duplication of questioning from different agencies and was also caused by a shortage of photocopiers, interpreters, and phones. DIAC was able to improve this, and following six-month postings for key positions to promote streamlining of administrative processes saw clients having less disruption as they had the same case officer over a period. Another reason for the improvement was the increase of case managers on Christmas Island.

The Ombudsman noted that the non-statutory Refugee Status Assessment (RSA) process was intended to be more transparent, this included all claimants having access to publicly funded advice and access to independent merits review of unfavourable decisions. An area still in need of improvement is the training of RSA interviewers so that decisions become more consistent. Another area is the quality of personnel selected to perform the Independent Merits Review process. The Ombudsman supported the use of those with experience at the Refugee Review Tribunal. Lengthy processing times is another area which could be improved, and the Ombudsman noted that this was sometimes because of the time involved in the security clearance process. DIAC had dealt with this by telling people if their claim to refugee status had been accepted after the RSA interview regardless of the security clearance process.

2. Examine means by which a person who has received a positive RSA can in a timely manner be released from immigration detention on Christmas Island. Such means could include placing the person in community detention on the Australian mainland subject to strict reporting conditions. A community detention strategy could also be considered for any person in similar circumstances who has been detained in an immigration detention facility on the mainland.

Recently the Minister announced his intention to place significant numbers of unaccompanied minors and vulnerable families in community detention. Over the coming months collaborating with community organisations to provide more suitable long term accommodation for these people. DIAC still maintains that community detention is not available on Christmas Island due to the large number of arrivals. The Ombudsman noted that this is a good first step but that all who have received positive refugee status assessments should be relocated to the Australian mainland.

3. Ensure that adequate numbers of accredited interpreters are available on Christmas Island to meet the needs of detainees, in relation to the processing of refugee claims and also in relation to the provision of support services such as medical assistance.

The issue of interpreters has been ongoing at Christmas Island. When the Ombudsman first visited, it was noted that there was a case involving a Sinhalese interpreter being used for a group of Tamils. However, more recently DIAC has established an interpreter pool that was dealing with this problem more efficiently. Most recently, the Ombudsman noted that there was strain on the availability of interpreters to handle complaints on the island. Some other problems noted were the practice and use of interpreters – for example, not all relevant information was being translated to the client, and a case of interpreters not being used when detainees were being transported to the hospital for appointments. There were also noted instances where interpreters were exceeding their role by explaining procedures to clients

4. Process any unaccompanied minors or families with children on the Australian mainland. Pending the outcome of their RSA claims and security clearances, they should be placed in community detention.

The Ombudsman highlighted that the management of children in families or unaccompanied minors was a problem on the Island. Firstly, this was because the Minister is the guardian of a non-citizen child who arrives in Australia but is not in care of, or joining a parent or relative over 21, this is established under the Immigration (Guardianship of Children) Act 1946 (IGOC Act). The Minister was able to delegate this function to a Commonwealth or State officer or authority, but had not at Christmas Island. Later the Minister made a delegation to two DIAC officers, but they were not there in January 2009 when the Ombudsman visited. However, in August 2009 a number of officers were given delegation. However, the Ombudsman noted that the conflict of interest between the best interests of the child, and the Government’s policy on border security was not resolved by delegating authority. Eventually DIAC appointed independent persons to act as guardian. The Ombudsman also noted that it was important that they be moved to the mainland, perhaps somewhere such as Port Augusta, and be able to attend school. The Ombudsman also supported that DIAC move all families with children onto the mainland and in community detention.

5. Expedite the movement of as many detainees as possible from Christmas Island to the Australian mainland so as to address the current situation of overcrowding on Christmas Island.

The Ombudsman noted the large increase of detainees on Christmas Island and how this has contributed to pressure on services. This meant there was limited access to computers for detainees, and limited access to green space. The number of telephones was also not enough to keep up with the demand, especially on Phosphate Hill. The Ombudsman noted that for example there were only 25 computers available for 1600 to 1800 men. Other issues were hygiene and the risk of outbreak of disease due to overcrowding. One basic problem noted was that mud and dirt was being tracked into tents and toilets, to assist in this, DIAC provided footpaths and raised levees. This has alleviated some of the problems, but the detention centre is part of a construction site and the Ombudsman outlined that this should not be the case.

Another problem was that excursions on Christmas Island were no longer taking place, apart from religious visits, and that there was heavy reliance on volunteer groups. There was not much in the way of activity programs to promote morale for detainees. However the Ombudsman noted this had improved greatly in recent time, in particular, by a new Activities Officer at North West Point IDC. Volunteer groups were also being more organised, for example volunteer ESL teachers had to provide lesson plans. Detainees were also now leading activities themselves, which promoted a sense of ownership and responsibility at the Island.

6. Address a shortage of facilities on Christmas Island as a matter of urgency so as to provide appropriate services for detainees requiring health services, especially those relating to mental health.

The Ombudsman noted that there was a lack of medical and dental services on the island. In particular the level and availability of mental health services was an issue for detainees. A mobile dental unit was due to begin operation in May 2010 but it had still not been established by June 2010. In September 2010 they were still waiting for the service to start work, but it was planned to be soon. Medical services are adequate but are really only for primary health care, and the Ombudsman was concerned that the specialist services were not being provided to the same standard as at mainland detention centres.

The Ombudsman also raised concern that the accommodation available for mental health treatments was not adequate, as there were instances of interviews being taken in corridors or outside. In August 2010, there were seven mental health nurses, four team leaders, and four psychologists. There were 20 to 50 consultations a day with medications for up to 70-80 people a day.

The Ombudsman noted that DIAC was planning to re-open the Curtin Immigration Detention Centre in WA and transferring detainees to other IDCs to try and cope with the pressure on services. The Ombudsman accepted this but was concerned that some of the same issues would arise if people are detained in remote locations on the mainland.

The Ombudsman intends to monitor the progress of implementation of the recommendations, as part of the their ongoing oversight role. DIAC has been requested to provide a report to the Ombudsman within 3 months of the date of this report, on how they are implementing the recommendations.[4]

[1] Christmas Island detention facilities comprise the Christmas Island (North West Point) Immigration Detention Centre (IDC) and the Alternative Places of Detention at Phosphate Hill.

[2]Report on the Commonwealth and Immigration Ombudsman’s oversight of immigration processes on Christmas Island, October 2008 to September 2010, report by the Commonwealth Ombudsman, published February 2011.

[3] Report on the Commonwealth and Immigration Ombudsman’s oversight of immigration processes on Christmas Island, October 2008 to September 2010, report by the Commonwealth Ombudsman, published February 2011.

[4] Report on the Commonwealth and Immigration Ombudsman’s oversight of immigration processes on Christmas Island, October 2008 to September 2010, report by the Commonwealth Ombudsman, published February 2011, see recommendations.

Student Visa Review

Thu, 28 Apr 2011 14:00:00 GMT

The Minister for Immigration and Citizenship and the Minister for Tertiary Education, Skills, Jobs and Workplace Relations have jointly appointed the Hon Michael Knight AO to conduct an independent strategic Review of Australia’s student visa program.

This is the first independent Review of the student visa program.

Submissions to the review close 15^th April with recommendations to Government from the Review due by mid 2011.

http://www.immi.gov.au/students/student-submissions

All migration professionals should be actively making recommendations either to Migration Institute of Australia and Law Council of Australia or directly to the Knight Review.

The student visa system needs changing. All would agree. DIAC, agents, clients, education providers and especially overseas parents wishing to invest hard earned money in Australian education for their children’s future. Economists would surely agree too. An $18 Billion export earning industry is in peril. Net Overseas Migration levels are growing at their slowest pace in 4 years. Labour markets are threatening wage rises which in turn threaten inflation rises and place interest rate rises on the horizon for the mortgages of all electorates – especially the marginal ones.

We also all agree on the need for urgent change.

The terms of reference for the Review outline the key areas that need change and I would suggest that most stakeholders agree with the areas identified. However, not everyone agrees or knows how to change the student visa programme.

Unlike other discussion papers put forward in the past, what is most encouraging is the fact that Mr Knight has clearly stated that his discussion paper is not a foreshadowing of his intended recommendations. The opportunity to engage and provide solutions is there. Most likely because there is also a degree of uncertainty within government on how best to manage the balancing act of change.

The Terms of Reference for the Review are as follows:

1. An effective partnership framework that considers the respective roles and responsibilities of key stakeholders, including education providers, the Department of Immigration and Citizenship (DIAC), the Department of Education, Employment and Workplace Relations, and state and territory education departments.

2. The appropriateness of existing threshold requirements for Student visa applicants including English language proficiency, financial capacity and educational qualifications.

3. Approaches to more effectively gauge and manage immigration risk in the Student visa caseload, including considering the suitability of the Assessment Level model.

4. Approaches, including compliance measures, to prevent misuse of the program and deter breaches of visa conditions.

5. The suitability of separate visas for Schools, Vocational Education and Training (VET), Higher Education, Postgraduate Research, AusAid or Defence, Non-award and Student Guardians.

The Review will take into account:

• student visa programs in comparable countries

• relevant reviews and inquiries

• global trends in the international education market

• the objectives of Australia’s demand-driven Skilled Migration program

• best practice data management, exchange and analysis, with regard to privacy principles.

While there is a lot of territory to cover within the Review, my intention here is to provide commentary on the 3 key areas I believe warrant the greatest attention: effective partnership model for all key stakeholders to engage in; reform of the unrealistic threshold requirements for a visa, especially financial; better integration into a demand driven skilled migration program.

An effective partnership framework that considers the respective roles and responsibilities of key stakeholders

This area has been a complete basket case for as long as we have had an international education sector.

Issue number one has been the failure for key federal government departments to communicate and work together.

Issue number two has been the failure of State and Territories government agencies and Federal Government agencies to work together.

Issue number three the failure of skills assessment agencies to set correct benchmarks in their assessment of Australian qualifications for effective employable outcomes.

The lack of a coordinated approach left the system open for inconsistencies in quality and loopholes wider than the Grand Canyon. With such inviting loopholes, the cowboys rode into town. The Skilled Occupation List (SOL) was turned into a shopping list for permanent residency and to-date no one in government is clear on who or what decided that 900 hours voluntary experience and a Certificate III was equivalent to a 4 year apprenticeship when assessing tradespersons.

While all the inconsistencies were repeatedly pointed out by DIMA/DIMIA/DIAC to DEST and DEWR and then DEEWR, it seemed that change was being pushed and pulled every which way but loose by its various stakeholders in the trade unions, the private vocational sector, Universities Australia, the State Governments (remember that education became Victoria’s number one export earner) and employer groups. Employers in certain industries loved that students were willing to work for 1 year for below minimum wage or no wage at all. Employers in other industries were rapidly employing more Australians as their businesses expanded.

While all these issues were repeatedly raised, reported and bemoaned, change was slow and dysfunctional and at best, impossibly coordinated. The GFC came right in the middle of the arguments for change. The bitter pill of change would have closed a vast swathe of private colleges rapidly as their business plans evaporated. With a keen eye on the politics of unemployment rates, changes were slow, piecemeal and too late.

That’s the story of the last ten years. If the key stakeholders can’t coordinate better there will not be a story to tell five years from now.

Appropriateness of the threshold visa criteria

AKA the infamous Schedule 5A criteria. Schedule 5A underpins the student visa regulations and the definition of a “genuine student”. It defines English language, financial and educational requirements for all the various subclasses of visa according to the assessment level of nationality – a complex matrix not for the faint-hearted agent.

Schedule 5A was born in 2001. It created a highly objective way for student visas to be assessed in high risk countries. When mixed with Assessment levels, potential applicants could effectively rule themselves in or out regarding eligibility for a student visa. Prior to this, English was commonly assessed over the counter in a five question ‘interview’ conducted in many instances by locally engaged staff who were not native English language speakers. Finance was assessed on an even vaguer criteria and the opportunity for inconsistency and subjectivity across the student visa program was enormous. Schedule 5A laid subjectivity to rest, effectively removed any case officer discretion in decision making and brought a highly objective assessment tool into being. Strong and sustainable growth in student visas and consistency in decision making was achieved in the years 2001 to 2006 especially. These are key years as DIMA had introduced a system that allowed for effective screening in high risk countries during the same period other key competitor markets had all but closed their doors on international students in the aftermath of September 11. That there have been no discernible threats to Australia’s national security from international students during this same period of growth indicates that the functional nature of assessment that Schedule 5A and an Assessment Level regime had brought was a success. That was of course, until the demand for student visas ran too high (2006 – 2008) and the overreliance on bank statements and savings histories created an entire industry itself in offshore fake bank statements and fraud within banks in certain key markets. DIACs resources and training in such matters were well behind the sophisticated methods available to unscrupulous operators beyond jurisdiction.

It’s hard enough for a DIAC case officer based overseas to assess the myriad of banks and banking products available in countries with populations ranging from 100 million to 1 billion or more. Imagine the work of an Australian based case officer assessing the same documents for visa extension purposes. At least the offshore case officer can be trained on a single country’s banks. On any given day case officers in Sydney may be reviewing bank statements from Brazil to Bangladesh, Moldova to Mongolia or Libya to Lithuania.

Our criteria is far too complex and fails to serve its intended use. As a Continuing Professional Development presenter on student visas I can attest to the look of fear on the face of both lawyers and agents when we move to this topic. We need simplification. We need common-sense.

The Review poses the question “Should DIAC officers have more discretion when assessing student visa applications?” While migration agents generally regard such a move with angst, DIAC does need to provide greater discretion to case officers, especially onshore. The policy guidelines on such a measure must however be transparent and the underpinning objective must be limited to the need for discretion when a case officer can clearly identify a genuine student based on other indicators the applicant onshore can demonstrate. These indicators may be previous visa compliance, quality of study plan and education provider, obvious financial stability in meeting previous living and education costs while onshore. The one size fits all financial assessment does not work.

Having said that, DIAC also needs to be very careful about how case officers employ existing discretionary powers where the discretion to refuse already exists under Schedule 2 of the Migration Regulations and the “other relevant matters” criteria. This was used as a panic button in India in late 2009 to much detrimental effect on that particular market, the long term consequences are on-going.

Here’s how ridiculous the system is now and why we fail to attract the highest grade students to our university courses in the highest areas of skills shortages.

An Assessment Level 4 applicant for a 4 year Bachelor of Civil Engineering at UNSW would need approximately $144,000 AUD in liquid cash assets which have been held as the minimum account balance for the immediate 6 months prior to application in order to apply for a student visa. Alternatively, their asset wealthy parents could opt for an Education bank loan if offered in their country of origin for the same amount and then incur interest payments as well.

In 2001 the Australian Dollar was at 49c to the USD, It is now $1.03 and moving higher. The average tuition fee for Engineering students was $16000 p.a in 2001. Now it’s between $22000 and $30000. Obviously the higher the price the higher the quality. The real increase in costs to an overseas parent in a market where the local currency has tended to move in concert with changes to the USD is massive. The only variable on the financial equation is tuition. Living and travel costs are fixed. This has eroded the higher education sector for years as genuine applicants were forced to choose the cheapest course in order to meet Schedule 5A criteria. The fact that the parents may have had adequate cash flow to continually support their fee obligations when due (semester by semester) was not considered. Cash up front for the full course and living costs for 3 years is currently required. No other country requires this. If all of this is demonstrated, discretion to refuse still exists. However if they fall short of the financial equation or the currency rate moves more than 10% during the potential 2- 3 month visa assessment period, there is no discretion under law to approve what would for sense and purpose still be a completely genuine applicant.

The fact that they never needed to send the funds, they just needed to show them in bank statements has made a mockery of the student visa program and created a huge business in fake bank statements and quasi fake ones (real documents issued by corrupted bank managers). A parent is hardly likely to send their child off to Australia without financial support if the chosen education provider is a 4 year engineering degree at $25000 per year. They are if the chosen course is only $5000 to $10000 per year.

We need a system that achieves both the initial objectives that Schedule 5A brought with it – that being transparent and objective assessment criteria, with a real world common-sense approach.

How? To coin the phrase from Jerry McGuire: “Show me the money”….. after you have transferred a significant amount to an Australian-based trust account!

Not all of it. That is unrealistic. The first 12 months would be sufficient. Migrant banking services at most major Australian banks already allow overseas students, 457 visa holders or new migrants the ability to set up online a new account and transfer funds from overseas. Onshore they are required to undergo the usual identity checks to finalise opening the account and access their funds. The systems are available commercially already.

Funds payable on a semester by semester basis could be held in a DIAC/DEEWR or ACPET/Universities Australia controlled trust account with PRISMS functionality extended to allow overview authorisation of provider payments. Concerns over money laundering would be limited if the funds were being cleared by the Central banks in both countries. If the funds are monitored through AUSTRAC and it was clear to all parties that this was the case, the likelihood of terrorists or criminal organisations using the student visa program as a conduit for their laundry would be minimal. Students arriving in Australia could access their living costs by way of a monthly allowance draw down facility and could nominate any bank they wished to as the nominated account. Whether they could access the full living costs up front may require additional scrutiny. In some cases they need more than the allowance (they may wish to buy a car, pay a bond , take a holiday or buy a plasma TV). In other cases their sponsor overseas may not want the whole amount being bet on red late at night at Star City.

This idea is not new. It has floated in the halls of DIAC for some years but never seen the light of day. Discussions I’ve had in the past on this subject with DIAC indicate that it fell into a “too hard basket” or the particular driver of the argument moved to another area etc. New Zealand has taken it and is currently piloting a version of it. The kiwis are taking our ideas and making them their own! What’s going on?

The benefits would potentially free up massive backlog and resources in the student visa case load by negating integrity checks on funds and income sources overseas. This would create faster processing, competitiveness, allow genuine students seeking the highest quality education to access it and draw real foreign investment funds in Australia. It would also help further avert Trans-Tasman losses.

The objectives of Australia’s demand-driven Skilled Migration program

Realigning General Skilled Migration policy with the student visa programme rather than becoming fixated with the headline grabbing rhetoric of “breaking the nexus” is crucial to fixing core issues. If done with better planning consultation and sustainable policies Australia can achieve the above flow-on benefits and be a market leader in international education.

The blame for the current 130,000 backlog in GSM has been squarely aimed at “non-genuine students” who were “facilitated by some agents and institutions whose business practices were highly dubious, sometimes illegal.”

We are at great risk of throwing the baby out with the bathwater on this issue and have lost sight of the real objectives of Government and the Skilled Migration Program.

In 2001 the then Immigration Minister Phillip Ruddock introduced for the first time regulations that permitted international students to apply onshore for permanent residency visas on completion of studies that lead to skills assessments in key occupations in high demand by the Australian economy.

"From 1 July 2001, successful Australian-educated overseas students with ICT and other qualifications in high demand will be allowed to apply for, and be granted, permanent residence under the Skilled-Independent and Skilled-Australian Sponsored categories without leaving Australia. This initiative builds upon previous measures designed to retain successful overseas students with qualifications that are in shortage in Australia and who are sponsored by Australian employers, including waiving work experience requirements for those who have obtained Australian qualifications in the six months prior to lodging their visa applications and giving bonus points to applicants with Australian qualifications

The Procedural Advice Manual in the current migration stack updated as recently as 2/04/11 provides the following advice to student visa case officers when assessing the genuineness of the student:

An established migration pathway allows students to transition to General Skilled Migration onshore, so officers should not draw an adverse inference should an applicant express an intention to apply for skilled migration in Australia or be seeking to take a course of study for the purpose of applying for skilled migration. Therefore, notwithstanding section 81.4 Incentives to remain in Australia an intention to apply for skilled migration upon completion of studies is not a reason to doubt the genuineness of a student visa applicant if the proposed course is consistent with the skilled migration program requirements.

So how is it that the political rhetoric is we need to break the nexus, that the students, their agents and their education providers pushed themselves upon the Skilled Migration Program and descended upon this great country as a swarming horde flailing carving knives and hair-dryers, leaving in their wake a landscape of dodgy curries and bad hair. If the skills assessment authorities had in place consistent assessment criteria that actually required them to undertake Australian training equivalent to a 4 year apprenticeship we may have actually resolved what is still a critical skills crisis in the hospitality and hairdressing industry.

The real problems in the student visa program came about not in 2001 or the immediate years following, but in 2006 onwards once key changes in skills assessments at Trades Recognition Australia effectively steered the overseas students Australia was targeting towards cheap and easy qualifications and skills assessments rather than keep them targeting ICT and engineering programs to name a few.

Once the option for a cheaper tuition fee and shorter duration of study was clearly outlined as what is now referred to as “an almost guaranteed pathway” to PR, the interaction of Schedule 5A in the student visa assessment tool bag became a disincentive for parents who may have genuinely wanted to send their kids for 4 years of Engineering but instead opted for the cheap PR alternative.

Australia has a unique economic situation among the current developed economies of the world. We have a labour shortage that is becoming extreme and demand from industry is acute.

The migration industry is best placed to make recommendations that not only address front end student visa eligibility but also creates a sustainable framework where pathways for Australian trained graduates are more reliable, feed directly to employment outcomes in key skills, link to employer sponsored visas better, feed into regional areas better, and ultimately benefit the Australian economy. Whilst being vigilant on integrity.

Get it right it’s a win–win. Get it wrong it’s a lose–lose situation.

The migration industry has a vested interest in students. With 400,000 in the country they feed us all. Some need employer sponsored visas, others GSM, others family reunion. They invest, they spend, they work and they study. They get into legal problems, they get cancelled, they refer and they provide Australia with valuable links to 200 countries.

We have the opportunity to benchmark quality in the Asia pacific region and dominate this for decades to come. We have squandered our first opportunity over the past decade.

Australia’s regional partners India and China are questioning our ability to provide high quality education safeguards for personal security and financial risks and assurances that our marketing message is not false and misleading. We accuse them sometimes of falseness, non genuineness and fraud but fail to acknowledge adequately our own government and industry short comings.

Government regulators and policy makers at both federal and state level have failed abysmally over 10 years to acknowledge and fix inherent failures in the education industry (public and private sector), in the education agent and migration advice sector, in the macro policies and micro management of them.

The opportunity to address this with the current student visa program review is here. Considered recommendations need to be made to bring about appropriate regulatory changes across education and migration laws to consolidate what has been learned, solidify our 3^rd largest export industry and lay a framework for sustainable growth over 30 years not just to the next election.

The terms of reference are clearly stated in the review paper. They want recommendations that cover a better framework for all key stakeholders to engage with each other to regulate and self regulate through to technical changes to student visa rules to allow better competitiveness internationally without compromising quality.

If a whole of government and a whole of industry approach can get the student visa program back on track, the benefits a better system can bring will be the restoration and sustainability of Australia’s reputation for quality, significant and sustainable export income for Australia, clearly defined GSM outcomes that address key skill shortages and consolidation of trade /bilateral relationships globally and access to new markets.

By Jonathan Granger

Director of Granger Australia

Commonwealth Ombudsman's Report on DIAC Proper Process for Challenging a Tribunal Decision

Thu, 28 Apr 2011 05:49:00 GMT

The Ombudsman completed a report on the proper procedures for challenging a Tribunal decision. This came about due to a complaint made by Mr A to the Commonwealth Ombudsman about his partner Ms B being refused a partner visa in May 2010. The Migration Review Tribunal had directed that Ms B met the relevant relationship requirements in October 2008. In particular, that she met the requirements for a temporary partner visa. Generally, the temporary visa would be granted unless a court overturns the MRT finding. This would also mean that the visa holder could travel to and enter Australia, and a permanent partner visa could be granted later if the conditions continued to be satisfied.

DIAC informed the Ombudsman while the matter was being investigated, that they had concerns about the integrity of Ms B’s visa application. Because of this, DIAC disagreed with the Tribunal’s finding on the relationship, but they did not apply to the court for a review of that decision. They granted the temporary partner visa in May 2010. However, two days after they did this, DIAC made another decision to refuse Ms B’s visa because the same relationship did not meet the same requirements.

The Ombudsman came to the conclusion that although DIAC’s concerns were reasonable they were not handled in a way that was fair to Ms B. Because of this and other procedural deficiencies, this led to a flawed decision to refuse Ms B a permanent partner visa. There were three main areas of concern in the process that the Ombudsman found, and they are outlined below:

Inconsistency and denial of natural justice

The Tribunal’s decision related to the temporary visa but the same definition of ‘spouse’ applied to permanent visa, and the Tribunal confirmed that this definition was met. DIAC did not seek judicial review and no new information about the relationship had come to light since the Tribunal decision.

The delegate was not legally prevented from doing this, but similarly, was not required by law to make this decision. The Ombudsman was concerned that this may have been an attempt to avoid a Tribunal decision that DIAC did not agree with but had not challenged appropriately.

DIAC did not inform Ms B that the delegate might make a decision on the permanent visa so soon after confirming the Tribunal decision, and did not give her an opportunity to comment on DIAC’s concerns.

The Ombudsman found that by applying the Tribunal decision correctly but in a narrow, legalistic sense, DIAC failed to act consistently and to accord natural justice in its decision making. The Ombudsman highlighted that these are fundamental principles of good administration and may, in a case like this, be equally important as whether a decision is legally valid.

Failure to follow the appeal process

DIAC wrote to the Tribunal to ask it to reconsider its decision, and the Tribunal refused to do so. This was not in line with the system of decision review and the Ombudsman found it was inappropriate. This happened because DIAC did not seek advice within the required timeframe for review. Agencies are bound by the decisions of courts and tribunals, this allows for independent review of decisions in a way that lets each party become aware of the case they need to make in order to be successful.

Delay

It took DIAC 18 months to implement the Tribunal’s decision. There were a number of factors that contributed to this delay, including the complexity of the matter, staffing, workload and a lack of proper communication. DIAC did not read the Tribunal decision in time, and wrote to the Tribunal instead as they missed the deadline. This made the process take longer than necessary. It took eight months, after the Tribunal determined Ms B met the relationship requirements, for DIAC to start the visa processing.

The Ombudsman emphasised the importance in reading and analysing the court or tribunal decisions as soon as practicable after the decision was made. This will assist with meeting time limits, but also ensure more certainty for the applicant.

It was also highlighted that the Ombudsman had already commented on the problems that arise when administrative drift is not controlled by agencies.[1] The Ombudsman accepted the difficulties involved in visa processing. However, Ms B’s matter made clear that careful attention must be taken so that cases are managed in a proper and fair way.

Recommendations

The Ombudsman made three recommendations to DIAC aimed at ensuring that:

any challenge to tribunal or court decisions occurs through the proper processes and in a timely fashion
difficult cases are actively managed
the flawed decision on Ms B’s visa application is remedied.[2]

DIAC accepted all three recommendations. It responded in a short time frame and granted Ms B a permanent partner visa in response to the Ombudsman’s investigation. It also conducted an internal enquiry, which identified a further two areas for improvement, those being:

consideration be given to the development of a monitoring mechanism which actively oversights progress with the implementation of MRT and other Tribunal decisions, to ensure they are not lost in administrative drift

further policy guidance be developed and promulgated which indicates that when deciding a permanent partner visa, decision makers should proceed consistent with the MRT’s directions for the provisional partner visa, unless substantial new information has come to light, in which circumstances, the client has been provided with natural justice in relation to the new information.[3]

[1] Lessons for public administration, report by the Commonwealth Ombudsman, published August 2007, see Lesson 3 and Lesson 6.
[2] Proper Process for Challenging a Tribunal Decision, report by the Commonwealth Ombudsman, published February 2011, see recommendations.
[3] Proper Process for Challenging a Tribunal Decision, report by the Commonwealth Ombudsman, published February 2011, see recommendations.

Riots and refugees

Thu, 28 Apr 2011 05:22:00 GMT

First published on www.eurekastreet.com.au on March 21, 2011

This week, calls for reform of the mandatory detention policy coincide with the reintroduction of the Complementary Protection Bill to Parliament. The latter ought be welcomed, while the former is long overdue. It is important to adumbrate the key issues in these areas.

The Complementary Protection Bill was originally introduced in 2009 and reintroduced in early 2011. It is one of the most significant changes to Australia immigration law in the area of refugee and humanitarian visas for many years.

'Complementary Protection' is about providing a mechanism for accessing the non refoulement (no return) provisions in several human rights treaties, such as the Convention Against Torture (CAT), the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

Previously, the only way to access protection under these international treaties in Australia was through the cumbersome and sometimes arbitrary process of ministerial invention. This is popularly known as a section 417 request. Section 417 of the Migration Act gives the Minister power to grant any visa the Minister wants to grant, if there are circumstances in the public interest. The Minister's power is only available if there is a review decision by the Refugee Review Tribunal (RRT).

According to the changes proposed under the Complementary Protection Bill, issues that would underpin claims for complementary protection can now be considered at the first stage of a case, at the same time as the factors that determine whether someone meets the refugee criteria.

In other words, a case officer will in the first instance assess two separate issues: Does this person meet the refugee criteria? If no, then do they meet the complementary protection criteria?

This is a sensible and worthwhile change and should reduce the need for cases to have to go through the long path to the Minister. It also brings Australian law more in line with similar complementary protection provisions in the European Union, Canada, US and New Zealand, among other countries.

I recall a case where someone did not meet the refugee criteria, but had strong evidence that they would face torture as part of a routine police investigation for a minor matter in their home country. This was accepted by Immigration and by the RRT, but still we had to take this case to the Minister to access the protection offered in the CAT.

Under the new provisions the case could be dealt with at the first level and would not waste resources further up the administrative review chain.

It will take a period of time for the impact of the changes to seep through, and case officers, review officers and advocates will need training on the new provisions. Fortunately they apply to all current cases, even those on review. These reforms are long overdue and the Minister ought be supported.

Given the protests in Christmas Island, it is also time to reform the mandatory detention policy.

A major cause of the protests were the delays in security checks that occur after the Department of Immigration and Citizenship (DIAC) accepts someone is a refugee.

One of the major frustrations is that there is no way to know why the security check is taking so long. I contact DIAC and are told things like: Mr A is currently awaiting security clearance. This is obvious, but fails to tell me anything about how long the delay might be, or whether there is some reason for it.

I think DIAC are as much in the dark as I am about the delays. I accept that security checks must be done, but it is frustrating when the process is so opaque and takes so long, and when information about progress is non-existent.

If I am annoyed and frustrated as an advocate, how much worse must it be for refugees, especially those in detention? Detention periods are arbitrary. The longer someone is in detention, the worse are the psychological effects. The build-up of tension and psychological harm will go on unless there is reform of mandatory detention.

ASIO and the security assessors need to be better resourced to process these cases more quickly. A system of release into the community with strict reporting conditions would reduce some of the tension and stress of prolonged detention. Hopefully the Government will seek to reform the system, not vilify the victims — the refugees.

By Kerry Murphy.

Complementary Protection visa changes

Thu, 28 Apr 2011 04:58:00 GMT

The Migration Amendment (Complementary Protection) Bill 2011 reintroduces Complementary Protection legislation that was before a Senate Committee in 2010. Critically, the criteria for a protection visa will be amended with the addition of subsection (2aa). This means that all current and future applications will be assessed against two criteria. Firstly, the refugee criteria, then if that were unsuccessful against the complementary protection criteria. :

2(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) to whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;

There are definitions for a number of terms. Significant harm is defined and qualified and has five criteria:

(2A) A non-citizen will suffer significant harm if:

(a) the non-citizen will be arbitrarily deprived of his or her life;

(b) the death penalty will be carried out on the non-citizen; or

(c) the non-citizen will be subjected to torture; or

(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non-citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

Other terms that are defined include ‘torture’, ‘cruel or inhuman treatment or punishment,’ and ‘degrading treatment or punishment’. These definitions are in section 5 and will be discussed in separate articles. A new subsection effectively sets out the exclusion criteria of article 1F, which was previously at s91T.

The good parts of the amendments mean that strong cases which previously did not meet the refugee criteria and previously had to go through the s417 intervention route can now be considered at the first stage. This also applies to the RRT. However there are gaps such as for Stateless Persons, who still do not have a way of directly accessing Australia’s obligations under the Statelessness Convention.

The terminology is thought to have introduced a test that will not be easily reached by many applicants, but these are early days and as yet the legislation has not had the opportunity to be used or interpreted by the Courts. Practitioners should refresh their understanding of a number of International Treaties and Conventions such as the ICCPR, Conventions Against Torture, Convention of the Rights of the Child and Second Optional Protocol to the ICCPR Aiming at the Abolition of the Death Penalty.

Kerry Murphy

Processing delay

Thu, 28 Apr 2011 04:55:00 GMT

A black hole……all in the name of national security, but how so?

The scene

Processing delay has been increasingly a matter that IARC clients have come across and sought assistance for. In the past, most of these issues have been resolved either by managing the client’s unreasonable expectation or rectifying existing administrative oversights. More recently, a lot of cases have had delays that do not have a solution or a satisfactory response from the DIAC other than a response that the matter is in the hands of an “external agency”, that is, external to the DIAC.

This disturbing trend has started to affect a sector of the most vulnerable clients in the community.

IARC has had onshore clients who are victims of family violence, whose ex-spouse was the perpetrator who was convicted and sentenced by the Court, but the permanent partner visa cannot be granted pending an external agency’s security checks. The delay in granting the victim’s permanent visa could mean that the applicant could not continue to access necessary Centrelink support (including special benefits for family violence victims) and other services. It is particularly difficult for those who have dependent children and are fleeing their respective violent ex-spouse.

More disturbingly, when an external agency is involved there is virtually nothing the DIAC would or could do. IARC has seen similar circumstances where the victim had tried every avenue to resolve the problem including the assistance of a Federal Parliamentarian who sought response directly from the Inspector-General of ASIO but all in vain.

It would seem that the external agency has virtually taken over that visa granting process. It would be worth examining whether the way in which arrangements made by the DIAC with an external agency are authorised by law and if so, whether the current administrative arrangements serve the purpose they aim to achieve.

The law

Under s56 of the Migration Act (the ‘Act’), which is within subdivision AB – Code of procedure for dealing fairly, efficiently and quickly with visa applications, the Minister is empowered to get any information that he or she considers relevant …in making the decision whether to grant or refuse the visa. A fair reading of this section would seem to suggest that the Minister can get any relevant information from the visa applicant as well as from other governmental agencies, such as security information of a particular visa applicant from ASIO. This subdivision further provides that the Minister can seek the additional information “at an interview between the applicant and an officer” (s58). “Officer” is specifically defined (s5(1A)) and ASIO officers are amongst the ones who are authorized in a Gazette notice.

Further questions

If the current arrangements between the DIAC and an external agency stem from the authority under s56 of the Act, further questions arise: The way in which the DIAC handles security checks with an external agency would seem to suggest that, once the visa applicant falls within certain profiles the matter must be referred to the external agency for further assessment as a matter of departmental policy. How and how long the external agency purports to deal with the matter is entirely out of the hands of the DIAC officer. Until and unless the external agency reports back to the DIAC, it is unable to take action on the file to grant the visa. It raises a question as to whether the decision maker is subrogating part of his/her legal duties in making a decision authorised by the law?

In practice, most, if not all cases that have experienced delays due to the involvement of an external agency have had other visa granting criteria satisfied. Once the information comes back from the external agency clearing the applicant’s security check, the visa will be granted. We understand that, once the matter is referred on to the external agency, DIAC is not privy to the processing, including any interview between the external agency and the visa applicant.

The way in which processing arrangements are being organised also raises a further question as to how the DIAC could comply with s57 of the Act in relation to its obligations. The DIAC must put adverse information to the applicant for comment except for “non-disclosable information” under the Act. Matters of non-disclosable information envisaged in s57 do not arise because the person who needs to form an opinion of the nature of the information lacks any knowledge of the information. IARC has seen visas granted to applicants right after the external agency cleared the applicant. We have also seen many cases where matters were said to be with an external agency many months after DIAC cleared other visa granting criteria. It is our concern that the external agency might have used the visa granting process to facilitate its other duties which were not relevant to the security check of the visa applicant. Unfortunately, it is impossible to know whether the delay is for a legitimate purpose or not. A recent Federal Court decision in relation to ASIO’s adverse assessment on a visa applicant re-enforces this difficulty.[1]

Is it all warranted?

It leaves a further question as to whether the way in which the DIAC and an external agency handle the processing enhances Australia’s national security and, whether the significant delays on a large number of onshore visa applications are warranted. We have seen situations where a family violence victim whose matter was delayed for a significant period of time to a point that the refuge that sheltered the victim had to invite her to leave because of limited resources. We have also seen situations where client’s Centrelink special payment had to be suspended because it had reached the maximum period that the payment can be made. Victims who otherwise are not eligible for Centrelink assistance due to their temporary visa status (whether on a bridging visa or on a temporary partner visa) find it very difficult. That aside, while we cannot pre-empt that applicants in this cohort couldn’t have national security concerns, we don’t know what security measures have been put in place vis-à-vis these applicants in the interim. Unlike those visa applicants who are in their own country or a country where they are being held in detention or being held in detention in Australia[2], if no particular measures are put in place in the interim on those individuals, the significant delay in processing for onshore applicants does not enhance Australia’s national security.

It is hard to see what difference it makes in relation to Australia’s national security by delaying the grant of a permanent visa significantly but allowing the same applicant to remain in the community on a temporary visa. Unlike the grant of Australian citizenship, a permanent visa is not a guarantee that the holder can never be removed from Australia if later found to be a threat to our national security. It is the writer’s view that, the DIAC should resume control over the visa granting process and put in place law and policy that would allow it to clear the backlog of the onshore visa granting process and to allow it to suspend those few individuals, whose national security checks by an external agency are warranted and pending, from being granted their Australian citizenship until they are considered to be no longer a national security concern.

Chris Yuen

Principal Solicitor / Education Coordinator IARC

[1] See Sagar v O'Sullivan [2011] FCA 182 (4 March 2011) which shows that the adverse information is not available to the visa applicant, DIAC nor the court in which a challenge of the legality of the adverse finding was litigated.

[2] See Sagar above where applicants were held in Nauru at the relevant time.

Dual Regulation of Lawyers

Thu, 03 Feb 2011 01:23:00 GMT

The following is the content of a letter by IARC to the Editor of the NSW Law Society Journal in repsonse to an article published in the December 2010 issue entitled “Lawyers and the law undermined by Dual Regulation”

We read with interest your article on dual regulation for immigration lawyers, (“Lawyers and the law undermined by dual regulation”, LSJ December 2010). The Immigration Advice and Rights Centre (IARC) endorses several of the concerns raised in the article. We’d like to specifically comment on two issues: vulnerable clients with complex cases getting assistance from registered migration agents (RMA) who have no previous qualifications and experience in the practise of black-letter law; and the failure as yet of the Department of Immigration and Citizenship (DIAC) to indicate any intention to implement the recommendation of the Productivity Commission to abolish dual regulation.  

As an organisation that helps many financially disadvantaged and otherwise vulnerable people with their immigration problems, we can attest to the fact that a number of our clients who have previously sought advice from non-lawyer RMAs have had their cases disadvantaged because the RMA did not appear to have properly considered all the legal issues and, in some cases, did not know what the relevant legal issues were, because they fell outside the usual parameters of the migration law and extended to areas such as administrative law, equitable and common law principles, etc.

Like views have also been noted by the judiciary, such as in the recent SZOOW case, in which Federal Magistrate Driver put the view that applications for a valid protection visa should be made through a registered migration agent who is a legal practitioner. Problems often resulted, he said, from “ineffective assistance being provided by registered migration agents who are not legal practitioners and who appear not to have an adequate understanding of their professional obligations”.

This is not intended as a general criticism of non-lawyer migration agents per se; indeed many are extremely professional, altruistic and hard working people. The point is simply that the way in which “immigration assistance” is defined in the Act does include matters that require the expertise of a legal practitioner.

In relation to the second point, a submission to the Productivity Commission from the Law Council of Australia (LCA) argued that dual regulation is an “unnecessary and costly burden” that creates “a major disincentive for lawyers to practise migration law and has perverse effects for consumers”. Some of the perverse effects were touched upon in your article.

It is important to note that the overwhelming majority of submissions received by the Commission’s draft report on this issue were supportive of the LCA’s argument and the Commissions’ recommendation to abolish dual regulation.  

The DIAC has not yet indicated an intention to implement that recommendation, mainly due to its perceived need for consumer protection. The DIAC argued that consumers who receive immigration assistance from lawyers who are not registered migration agents have no regulatory complaints mechanism to protect them, claiming that “... the Office of the Legal Services Commissioner (NSW) (NSW OLSC) does not consider immigration assistance to be within its remit”.

In its submission to the Productivity Commission, the OLSC was quick to clarify this misconception, saying it was not in favour of dual regulation and was “strongly of the belief that all legal practitioners in NSW, including legal practitioners performing migration agent work, should be regulated by the OLSC and the professional associations”. 

In the result, the Productivity Commission concluded that there “appears to be an absence of firm evidence to support the position that an exemption of lawyer migration agents from the Migration Agents’ Registration Scheme would be likely to result in reduced protection for clients of those agents”.

We hold high hopes that the DIAC will take the necessary step to abolish dual regulation of lawyers, such that the taxpayer funded report by the Productivity Commission and all the time invested by the various stakeholders is not in vain.

Yours sincerely

Mark Papallo Chris Yuen
Chief Executive Officer Principal Solicitor

New member appointments for MRT and RRT

Wed, 29 Sep 2010 14:00:00 GMT

On 4 June 2010, the Minister for Immigration and Citizenship, Senator Chris Evans, announced the appointment of 43 members to the MRT and RRT. Regarding the appointments Senator Evans stated:

'The Government endorsed the selection advisory committee's recommendations based on the applicants' demonstrated strong sense of fairness and understanding of the principles of administrative law and their ability to apply these skills in determining review applications with sound judgement.'

Among the appointments is IARC caseworker Rowena Irish. Rowena commence working at IARC in 2004 and is a co-author of the Immigration Kit and previous editor of the Immigration News. Rowena is a great loss to IARC but will no doubt be a valuable asset to the Tribunal.

New Minister for Immigration and Citizenship

Wed, 29 Sep 2010 14:00:00 GMT

The Hon. Chris Bowen MP is the new Minister for Immigration and Citizenship. He was initially elected to Federal Parliament as Member for Prospect in 2004, however, is now the Member for McMahon. Following the election victory for Labor in 2007, he took on two portfolios as Assistant Treasurer, and Minister for Competition Policy and Consumer Affairs. In 2009, he was elevated to Cabinet as Minister for Human Services, and also served as Minister for Financial Services, Superannuation and Corporate Law.

Amongst the fists steps as Minster for Immigration and Citizenship, Chris Bowen announced that additional immigration detainee accommodation would be prepared for families and unaccompanied minors in Melbourne, and for single men in northern Queensland and in Western Australia. In addition, the capacity at the existing Curtin Immigration Detention Centre would be expanded to allow for up to 1200 single men to be held there.

In an interview held with Sky Agenda on 16 September 2010 the Minister explained the reasons for the significant number of people in detention was partly due to the shortage of staff at DIAC; the fact that DIAC is rejecting more applications for asylum (which starts a very complicated repatriation process or labor intensive appeals process); as well as the suspension of processing of Afghan and Sri Lankan asylum seekers as being contributing factors.

The Minister also made mention of the challenge that is currently before the High Court of Australia by two Sri Lankan nationals. The High Court was asked to consider the legitimacy of the current offshore processing system for asylum seekers which considers the processing of applications as a non-statutory process and thus outside the Australian legal system without access to the Courts. Among the issues for consideration by the Court was the applicant’s submission that the Government cannot arbitrarily detain people while suggesting the process had no statutory legal affect. The High Court has reserved its decision.

People smuggling inquiry ignores advice

Wed, 29 Sep 2010 14:00:00 GMT

Issue 93 of the Immigration News examined the Anti-People Smuggling and Other Measures Bill 2010 and outlined the concerns raised by IARC and other stakeholders in relation to the Bill.

Despite the concerns raised by many stakeholders, including IARC, the majority of the Senate Committee inquiring into the Bill recommended that it be passed with only one minor amendment. The Anti-People Smuggling and Other Measures Act 2010 received royal assent on 31 May 2010.

The Greens representative on the Senate Committee, Senator Sarah Hanson-Young, issued a dissenting report. This stated:

The majority report makes a mockery of the senate committee ’s ability to scrutinise legislation. Despite the issues and concerns raised throughout the inquiry process and the recommended amendments put forward, the majority report fails to appropriately address any of them in their response to the inquiry.

….Like many in the legal profession, the Greens share serious concerns that this Bill, in its current form, not only breaches our obligations under international law, but also our obligations under domestic law. We remain very concerned that this Bill is a direct attack on the refugee communities in Australia, and those that support them. Despite assurances from the Attorney-General’s Department that innocent individuals will not be caught under this poorly drafted legislation, the definition of “providing material support”, is such that anyone who is seen to send money over to a friend or relative in a refugee camp, who may subsequently use that money to pay a people smuggler, could be charged under this broad definition.

….The Greens recommend that this Bill should not proceed:

· without significant amendments to prevent harm to vulnerable groups and their families, and

· until it has been subjected by the Federal Government’s new parliamentary Joint Committee on Human Rights and a statement of compatibility with our international obligations is produced.

Relationship Register in NSW

Wed, 29 Sep 2010 14:00:00 GMT

On 12 May 2010 the NSW Parliament passed the Relationship Register Bill 2010, which established a relationship register for NSW administered by the Registry of Births, Deaths and Marriages. The purpose of which was to provide for the legal recognition of persons in a relationship as a couple, regardless of their sex, by registration of the relationship. The bill was promoted as a step towards removing discrimination against unmarried couples, whether they are in a heterosexual or same-sex relationship.

Registration is available to couples who are over the age of 18 and where at least one of them lives in NSW. A relationship cannot be registered if either person is married; in another relationship; in a relationship as a couple with another person or if the couple are related by family.

The process for registration involves completing the relevant form; payment of a fee, providing proof of identity and the partners making a statutory declaration to the effect that they:

Wish to register their relationship;

Are in a relationship as a couple with another person;

Are not married or in a relationship as a couple with anyone else and that they are not related to each other by family;

Are not in another registered relationship whether in NSW or in another Australian jurisdiction (currently also available in Victoria; Tasmania and the ACT);

Reside in NSW.

Once an application is made there is a 28 day cooling off period in which either party can withdraw the application. After that time, a Registrar will register the relationship and issue the certificate.

The impact on Partner visas

Before the introduction of the Register in NSW, couples in the State who were not married (either by choice, or prevented by law in the case of same-sex couples) could only apply for a partner visa on the basis of being in a de-facto relationship. A key requirement being that the visa applicant and sponsor must have been living together, or not been living apart on a permanent basis, for the 12 months immediately before making the application for the visa, unless there existed “compelling and compassionate circumstances”. That same requirement does not apply to married couples who can simply apply on the basis of being in a “spousal” relationship. The difficulty, of course, for same-sex couples was that whilst a heterosexual couple had the option of marriage to avoid the 12 month living together requirement, they did not.

Regulation 2.03A of the Migration Regulations 1994 provides for the 12 month living together requirement, however, also states that it does not apply to relationships that are registered under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008. Thanks to the bill, the Relationships Register Act 2010 (NSW) is now prescribed and operating.

The Relationship Register in NSW has been generally welcomed as a step towards removing the discrimination that existed towards couples who choose not to get married or who were otherwise prevented from getting married. It is still early days but the changes have received praise from anti-discrimination groups and from many of IARC’s client. How smoothly it will actually operate, only time will tell.