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Austalian Immigration Law Update - No 157 - Edited by: ADRIAN BITEL and MICHAEL JONES

In this issue

Subclass 400 Temporary work (Short Stay Specialist) ImmiAccount incorrect document request

MIA members are advised that ImmiAccount may be requesting an incorrect document during the online lodgement for Subclass 400 Temporary Work (Short Stay Specialist) visa application

The document attachment drop down menu request Health Insurance, evidence of

Evidence of health insurance is not required for this subclass.

The Department has provided the following suggestion for any members experiencing this problem:

Until this issue is resolved, you may wish to include the following explanation in the free text box:

“Steve Lambert from Specialist Entry Section has confirmed in an email dated 10 January 2017 that Health Insurance is not a requirement for granting a subclass 400 visa and that evidence of Health Insurance is not required”.

Source: MIA Notice No. 2 11 January 2017

Subclass 457 job changes – reminder new nomination required

MIA members are reminded that changes to the working conditions of Subclass 457 visa holders’ employment may require a new Subclass 457 nomination to be lodged by the sponsor.

A good example is provided by changes to working conditions in the WA mining sector. Wage cuts have become common in this sector due to the mining downturn. If any Subclass 457 visa holder argues to take such a pay cut, their sponsoring employer will need to lodge a new Subclass 457 nomination, to have the lower salary rate approved and to avoid breaching the previously approved salary.

Source: MIA Notice No.2 11 January 2017

Peter Dutton corrected by Julie Bishop on Refugee swap.

Mr Dutton has backed down on his comments that a refugee swap with Washington would take place.

Ms Bishop made very swiftly corrected a statement by Mr Dutton that, Australia’s plan to resettle refugees from Manus Island and Nauru was contingent on Australia resettling Central America Refugees.

“We wouldn’t take anyone until we had assurances people were going to go off Nauru and Manus,” Mr Dutton said on Tuesday.

“One of the lessons we’ve learnt from past arrangements, say the Malaysia deal for example that Julia Gillard entered into, we accepted all the people from Malaysia [and] not one person went from Australia.”

“So we’re not going to be sucked into that sort of silly outcome.”

“It wasn’t a people swap deal if that’s the language people want to use [but] I don’t have any problem with that characterisation if people want to put that.”

On Wednesday, he sought to take back the comments, conceding the two refugee deals were “separate”.

Mr Dutton retreated from the controversy on Thursday saying:

“In the end, people can use whatever language they want, which is the point that I was making, I’m not going to get bogged down in nuance and discussion,” he said on 2GB radio.

“I’m a pretty frank speaker, I’ve been clear that it’s not a people swap, they’re two separate arrangements but in the end what’s most important to us is to get people out of Nauru and Manus.”

Julie Bishop in response said:

“He’s made it quite clear that we have a humanitarian and refugee program, it’s quite separate from the agreement we’ve reached with the United States, and our officials are currently working with the United States in progressing that agreement,” she told Sky News in Washington.

A digest of ideas from The Guardian, ABC News, The Sydney Morning Herald, The Australian, and Australian Association Press.

Thursday 23 February 2017.

Skilled and Business Migration seminar in Hanoi, Vietnam on 15 January 2017

Parish Patience Immigration Lawyers ran a seminar about Skilled and Business Migration in Hanoi, Vietnam on 15 January 2017 in a joint event with our proposed Vietnamese counterpart and partner. The seminar went very well and was well received. The number of people who attended the seminar was 220 and our partner was pleased with us and underestimated the number of people who came, so are happy with the outcome.

The first presentation was started by Mr. Blair Commin, Mr. Thong Nguyen, and Mr. Motasim Billah and the second was presented by Mr. Ramtin Towdiee, Mr. Thong Nguyen and Mr. Motasim Billah. Both presentations were followed by Questions and Answers which resulted in a vigorous discussion. There was a lot of interest at the seminar. A number of consultations were carried out after the seminar and several have realistic migration prospects.

Following the seminar, we were fully booked for the next four days before we left Hanoi. We saw about 60-70 people after the seminar. We worked from 8:00 am to 7:00 pm every day to see prospective clients. We have sent about several cost agreements and have opened files for business and skilled visas so. We should expect more to come once the agency agreement has been finalised.

Overall it was a successful trip.

Thong Nguyen
Director – Parrish Patience Immigration Lawyers
MARN: 0322836

Manus Island asylum seekers deportation looming

Asylum seekers at Australia’s offshore detention centre on Manus Island and begging for help as Papua New Guinean and Australian authorities prepare to deport them.

The forced removal of detainees on Manus Island will be debated in the Senate, as some asylum seekers say PNG’s immigration service told them they could be flown to their countries of origin in the coming days.

Vietnamese asylum seekers Son Pham is one of those who has been told he will be sent back.

“I’m very scared now, I don’t know what will happen to me in the next few days,” he said.

PNG’s immigration service would not confirm how many others were facing imminent deportation, saying that was “sensitive operational information”. Over 50 were likely to be deported.

The United Nations Refugee Agency said no deportations should be taking place, because there were concerns at how people’s refugee claims were assessed.

Asylum seekers on the island have provided dozens of examples of mistakes, inconsistencies and perverse decisions.

Greens senators Nick McKim will move a motion in the Senate, noting the removals “may violate international law” as the UNHCR had suggested PNG’s status determination process did not comply with the Refugee Convention.

PNG’s immigration service has issued a removal notice to high-profile asylum seeker Benham Satah, an Iranian who is a community leader inside the detention centre.

Mr Satah was recognised as a vulnerable witness by PNG’s National Court after he received death threats for testifying at the trial of the men who killed Iranian asylum seekers Reza Barati.

“I witnessed my roommate’s murder and I testified in court and because of that I found many, many enemies inside security, inside the island, local people, the friends and relatives of those who are in jail at the moment, so how can I live here?” he said.

The Australian Government, in a submission to the High Court, said Mr Satah was not likely to be deported anytime soon, because Iran does not accept the involuntary return of its citizens.

The deportations come as contractors working on behalf of the United States Government begin “pre-screening” refugees on Manus Island for settlement in the US.

-Report from PNG Sources.

International students studying in Australia reach record number, Education Department figures show

The number of international students in Australia hit a record high last year with more than half a million choosing to study here.

Figures from the federal Education Department shows there were 554, 179 full-fee paying international students in 2016, an increase in more than 10 per cent on the previous year.

The higher education sector had the largest share in Australia’s international students, with 43 per cent.

Of those the largest number came from China and India.

The vocational education sector accounted for 26 per cent of international student enrolments with English Language Intensive Courses attracting 21 per cent.

The schools sector only attracted 3 per cent of the total figure.

Federal Education Minister Simon Birmingham said the numbers showed the importance of attracting overseas students.

“International education is now our third largest export sector generating more than $21 Billion of economic activities in Australia, supporting many jobs and providing benefits to both Australian and International students,” he said.

“There are real upsides in terms of the jobs that are created, the opportunities for Australian students to study with international students and to gain exposure to people from more than 200 different countries who are now studying in Australia.”

As well as the data on enrolments, the Government has released the results of last year’s International Student Survey.

The survey found 89 per cent of students were satisfied or very satisfied with their overall experience in Australia.

-Federal Education Minister – Simon Birmingham.

Vietnam added to work and Holiday Subclass 462 eligible countries

Legislative Instrument – IMMI 17/022 – F2017L00140 – Arrangements for Work and Holiday and Working Holiday Visa Application Amendment Instrument 2017, adds Vietnam to the list of countries whose citizens are eligible to apply for a Subclass 462 Work and Holiday Visa.

This Instrument specifies the place and manner for Vietnamese passport holders to make an application for this visa subclass and the qualifications that must be held by the applicant to be eligible to be granted a Work and Holiday Subclass 462 Visa.

Applications can be lodge at AVAC Visa Application Centres in Ha Noi, Ho Chi Minh City and Danang City or at the Australian Embassy in Ha Noi.

This instrument commences on 1 March 2017 and amends IMMI 17/003.

Source: MIA Notice No: 8 02 March 2017.

50 non- citizens located in major Taskforce Cadena operation in WA

Australian border Force (ABF) with the support of the Western Australia Police, the Australian Federal Police (AFP) and the Fair Work Ombudsman (FWO) have conducted a major Taskforce Cadena operation in Western Australia targeting labour hire intermediaries and employers suspected of exploiting foreign workers.

Taskforce Cadena is a multiagency taskforce targeting those involved in the organisation of visa fraud, illegal work and the exploitation of foreign nationals.

ABF investigation started after information was received about a labour hire intermediary company operating unlawfully in Pemberton, Western Australia.

Starting in the early hours of Wednesday morning, officers from the ABF, AFP and WA Police executed a number of search warrants in Pemberton, locating 27 unlawful non-citizens and 23 non-citizens working in breach of their visa conditions.

Forty-five non-citizens located during the operation have been detained in immigration detention, and five are assisting the Department to resolve their immigration status.

ABF Assistant Commissioner Investigations, Wayne Buchhorn, said the ABF is committed to tackling the practice of illegal work in Australia.

“The exploitation of foreign workers can have a lasting negative impact on Australian communities and individuals,” Assistant Commissioner Buchhorn said.

“This can include the underpayment and exploitation of vulnerable visa holders in workplace and the closure of small business due to unfair competitive advantage gained by competitors not complying with the law.”

Evidence obtained by warrant activity will be used to continue investigations into the use of labour hire intermediaries who source unlawful non-citizens or non-citizens in breach of work conditions.

Taskforce Cadena is a joint agency between the Department of Immigration and Border Protection (DIBP) led by its operational arm the ABF and the Fair Work Ombudsman (FWO).

Since it was established in June 2015, Taskforce Cadena operations have targeted high-risk industries including agriculture, hospitality, entertainment, poultry, security, and beauty services.

Read more>>

Guilty by Association – Australia’s Lingering Torture Island

Australia’s strict immigration policy about refugees who arrive by boat has been subject of intense internal debate and scrutiny since Howard’s Tampa incident in 2001. Parliamentary elections have been won and lost due to this issue alone, and despite heavy rhetoric from all Australian leaders since 2001, the truth behind current policy continues to evade most media organisations.

With the recent election of Mr Trump as the president of the United States, the Australian immigration issue once again became subject of intense international scrutiny and debate. This was not the first time since Tampa that Australia’s boat arrivals were subject of intense media scrutiny. Like many other incidents before Tampa, Australia has been subjected to waves of arrivals by boat ever since the continent was invaded and settled by European settlers.

Generally speaking, immigration law and policy, asylum seekers and intake of refugees are hotly debated political issues which have determined election outcome in Australia in the past. It is a general rule that when an issue is highly politicised, the victim of the issue is always the truth.  This article seeks to answer a few questions with regards to Australia’s current immigration policy: what makes the arrival of asylum seekers by boat so special in recent years and why are asylum seekers who arrive by boat so infamous for doing so. This article further explores the current policy with regards to the detention of asylum seekers and refugees in Nauru. 

Asylum seekers who arrive by boat are infamous simply because they arrive by boat. There is nothing else to it. They are simply guilty of arriving by boat because they arrived by boat – and nothing else. There are two major reasons why the asylum seekers in Nauru and Manus continue to linger there and why no solution has been found to date.

The first reason is the misconception and misinformation with regards to laws and facts surrounding people seeking asylum in Australia, and the second, being the over-politicisation of immigration law and policy and in particular the issue of asylum seekers who arrive by boat to Australia. Despite contrary popular opinion, it is not illegal to seek asylum to Australia, nor is it illegal to arrive without a valid visa for the purposes of seeking asylum. Every year, many asylum seekers arrive in Australia by plane and seek asylum, yet the Australian government does not make an issue out of it and the matter is now up for public scrutiny.

Australia’s current immigration laws make it perfectly legal for a person who fears harm from their country of former habitual residence to seek asylum on the basis of their race, religion, nationality, membership of a particular social group or political opinion. According to Australia’s own laws it is not illegal to seek asylum in Australia. So where did the notion that ‘seeking asylum in Australia is illegal’ originate?

The answer to this question lies in the 2001 Tampa incident and the origins of the phrase, when the then Prime Minister of Australia coined the boat arrivals as ‘illegal immigrants’. Despite the factual oxymoron in the coining of the term, nothing was done by rights groups, legal experts or the successive Labor governments to correct this misconception and it soon became popular opinion and indeed a misconceived fact that those who arrived by boat in Australia to seek asylum were ‘illegal immigrants’. The term, Illegal Maritime Arrivals replaced the phrase ‘Irregular Maritime Arrivals’ in the Department of Immigration’s vocabulary and many asylum seekers themselves were led to believe that their arrival to Australia was ‘illegal’.

Following the 2013 elections, the Coalition government, commenced a vigorous campaign to stop the arrival of boats to Australia. The Coalition government utilised two tactics in order to stop the arrival of boats to Australia. Under the guise of stopping drownings at sea, the Coalition government took advantage of a policy which had been put in place by the Labor government prior to the election to transfer asylum seekers to offshore detention centres in the Pacific Ocean. The second method, involved the pulling of boats back to international or Indonesian waters in order to avoid the boats reaching Australian territories.

Despite the success of the campaign to stop the boats, the maintenance of these two policies have come at a heavy price to Australia’s reputation in upholding human rights and the rights of the children. The planning, implementation and the continued use of the policy to maintain the offshore detention centres has been and will continue to be a major blot in Australia’s reputation. There is no doubt, that in the future there will be parliamentary and fact finding missions set up to make full enquiries into the extent of abuse, corruption and absolute disregard for the rule of law. The policy will also be a perpetual blemish on Australia’s long history of abuse of immigrants to the country.

With the extent of the news reports and leaks covering the abuse and the torture that the current asylum seekers in Nauru and Manus Islands had to endure, it surprising that the current policy against the remaining asylum seekers and refugees has continued to be strictly enforced by the Australian government. The enduring strict policy cannot be attributed to anything else other than lingering negative public opinion against asylum seekers as a result of years of misconceived and misrepresented legal facts and arguments by the successive Australian governments since 2001.

Indeed it is extremely surprising that despite the extent of the reports about the abuse, the Australian public remain unsympathetic to the plight of the refugees and asylum seekers on the Islands of Nauru and Manus.

The Island of Nauru for example, which is home to a local population of about 10,000 is home to a number of refugees and asylum seekers, which consists of unaccompanied minors, single adult females, families with children and single adult males.

Since the reopening of the detention centre in 2012, the Australian government has continued to confine asylum seekers in detention centre facilities despite the fact that the government was aware at the time that Nauru did not have the capacity or the logistics to confine people. From the very outset, asylum seekers who were kept in detention on the island suffered from constant lack of water, including drinking water, access to medical facilities, proper shelter, food or basic needs.

Asylum seekers were also subjected to abuse, including physical and sexual abuse against women and children by the local Nauruans, Australian expatriate staff, and the international staff who were stationed there as guards, medical personnel, including nurses and doctors and other subcontractors placed there for the purposes of the upkeep of the facilities.

The facts surrounding the extent and the level of abuse has been confirmed by multiple sources, despite extreme vetting of individuals entering the country and the blanket ban on the media by the Nauruan and Australian governments. The Australian government has attempted many times to quell the amount of leaks coming from the Island, including reverting to capricious legislations that threatened imprisonment on whistle-blowers.

Despite the extent of the abuse and the Australian government’s own attempts to hide the facts from appearing in the Australian and international newspapers, the Australian government’s own enquiry into the alleged abuses in 2013 found extensive cases of abuse including sexual abuse at the detention centre and on the Island.

The Current Situation

Australian botched deal with the United States to exchange asylum seekers in exchange for refugees from the America’s is in tatters with the unexpected Trump presidency and his infamous telephone call with the Australian Prime Minister. If there is anything to go by, the unpredictability of the deal has led to further insecurities for the stagnating refugees who are desperately awaiting good news in order to be free of their ordeal.

There are a number of issues however that need to be addressed here: Australia does not wish the refugees to enter Australia out of fear that this may lead to further boat arrivals; yet the government has continued the rhetoric that this policy is implemented to ‘avoid drownings at sea’. Despite the Australian government’s so called humanitarian concern, refugees and asylum seekers stranded on the Island have stated on a number of occasions that they wished they would have drowned at sea because being stranded on the island is much worse. Indeed, Australia’s policy and lack of care for the refugees and asylum seekers is directly in contrast to their rhetoric about the reasons why they have attempted to stop the boats from arriving.

The level of abuse both within and outside of the detention centre on Nauru is systemic and much more deeply rooted than that which is reported in the mainstream media. Should the asylum seekers or the refugees ever arrive in Australia, it is possible and highly probable that they may be able to lodge and win a class action case against the Australian government with compensations ranging to hundreds of millions of dollars.

Another aspect of this situation is the current mental and physical health of the refugees and asylum seekers on the Island. Due to the prolonged and excessive detention, most, if not all of the asylum seekers have developed some form of physical or mental ailments which would be a heavy burden on any country in which the refugees would eventually reside. There have been many instances of self-harm including two infamous instances of self-immolation directly as a result of the deterioration of mental health of refugees who have been kept on the Island.

Australia Department of Immigration has continued to actively ignore medical opinion including extremely compelling medical opinions for medical evacuations; often intervening at times at the very last moment to transfer the refugees or asylum seekers to Australia or Paua New Guinea for medical treatment. These extreme measure have resulted in continued medical issues and sometimes in the death of asylum seekers or refugees.

Lastly, the financial cost of the maintenance of the two facilities has been extremely unconscionable to the Australian public and the tax payers. It has been reported that the cost of the maintenance of the detention centres in Nauru and Manus has been much more than the original cost reported to the Australian public. The actual cost has ballooned as a result of bad management of the facilities and incompetence of successive immigration ministers who have preferred to maintain the strict policy at the expense of the taxpayers. Conservative estimates have put the cost of each detention centre at AUD$1billion annually since 2012.

The news of the cost of the upkeep of the detention centres comes at a time when the government was considering measures such as increasing the GST and raising the cost of medical fees in order to be able to maintain the detention centres.

The future

Australia should plan to find a rapid resolution to the issue of the asylum seekers especially as the deal with the United States look increasingly likely to falter. The asylum seekers and refugees continue to remain on the edge as they are hopeful that they would be leaving Nauru for the United States in the very near future. However, should the deal with the United States falter, Australia will likely face a wave of unrest and possible extreme backlash by way of protests and suicide attempts from the asylum seekers and the refugees. It would be in the best interest of Australia that a speedy resolution to the issue is reached before further disaster which would irreparably damage Australia’s international reputation would strike again.

Mr Ramtin Towdiee
Solicitor
Registered Migration Agent
MARN: 1277621
Contact: ramtint@ppilaw.com.au

 

Mr Ramtin Towdiee is a Solicitor and Migration Agent in Parish Patience Immigration Lawyers in Sydney.

A.P.B. Education

Specialist IELTS Test Training and Coaching

Passing an IELTS test is now an essential requirement for all applicant for General Skilled Migration, student visas, and for many employer sponsored applicants. Adrian Bitel provides individual lessons to assist applicants achieve proficiency to the required levels in:

  • Reading

  • Speaking

  • Writing

  • Listening

He gives comprehensive ONE to ONE Personalised Coaching in any or all of the above areas at very competitive rates.

Contact: Adrian Bitel on (02) 9286 8700 or Mobile: 0412 656 026                                                                         

 

Parish Patience Immigration Lawyers
Level 3, 83 York Street
Sydney NSW  2000
Australia 
 
Tel:  +61 2 9286 8700

Email:         ppmail@ppilaw.com.au

Website:  www.ppilaw.com.au

  

 

 


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