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Australian Immigration Law Update No. 152 July 2016: Edited By: DAVID BITEL and ADRIAN BITEL

In this issue

Migration Institute of Australia statement regarding Sonia Kruger’s calls for Australia to stop taking Muslim immigrants.

The Migration Institute of Australia is disappointed with Sonia Kruger’s comments calling for a total ban on Muslim migrants to Australia.

Ms Kruger’s comments showed a complete lack of understanding of Australia’s immigration program, the contribution Muslims make to Australian society on a daily basis, the fact that there are Australian-born Muslim and the current security arrangements and checks already in place.

These security arrangements make sure whoever is granted a visa into Australia meets our security standards, no matter where they come from in the world, no matter what their religious beliefs are.

The migration institute of Australia’s position on this issue is that a person’s religious beliefs should never be determining factor for the Australian visa application.

Her references to Japan as an example Australia should follow are also flawed as Japan is facing a rapidly declining population with migration being looked at by the Japanese government to help boost its population.

Further, these comments made by a prominent media personality are dangerous and only continue to stigmatise a section of our country while encouraging racist and xenophobic sentiments towards migrants.

The very fact is that Australia has an ageing population and does not produce enough of its own citizens to fill skills shortages and drive a taxation base to pay for health, education and all other elements needed to make Australia a strong and prosperous nation.

Because of this Australia will always need migrants, including those who happen to be Muslim. Sentiments like those expressed on television by Ms Kruger only serve to make Australia less appealing to potential migrants which Australia needs.

The migration institute of Australia does believe that more community education and political leadership needs to happen to help Australians:

The contribution migrants make to Australia what the current security requirements and other checks are for all foreign nationals entering Australia to speak against openly xenophobic and racist statements when they occur.

The migration institute of Australia calls for increased government funding of settlement and social cohesion programs. These programs have been proven to reduce the risk of marginalisation of migrants in their new communities.

Source: MIA Media Release 18 July

Sonia Kruger's Muslim comments: Stereotyping breeds hate, race discrimination commissioner says

Kruger appeared on a panel section of Channel nine's The Today Show to discuss the question: "Do more migrants increase the risk of terror attacks?”

In response, Kruger referred to a column by News Corp's columnist Andrew Bolt where he linked Muslim immigration to France for the recent spate of terrorist attacks in the country.

"Andrew Bolt has a point here, that there is a correlation between the number of people who are Muslim in a country and the number of terrorist attacks," Kruger said.

"I have a lot of very good friends who are Muslim, who are peace-loving, who are beautiful, but there are fanatics."

She called for an end to Muslim migration, citing the reason that she wanted to "feel safe".

"I would like to see it stopped now for Australia because I want to feel safe, as all our citizens do, when they go out to celebrate Australia Day and I'd like to see freedom of speech as well," Kruger said.

Co-panellist David Campbell then interjected with: "I'd like freedom of religion as well ... this article breeds hate."

Australia's Race Discrimination Commissioner Tim Soutphommasane agreed with Campbell.

Read More>>

Medicare Eligibility – FAQs

Many RMAs are asked by clients about their eligibility to apply for Medicare. While clients should be directed to Medicare for answers, these answers are often contradictory and can vary from one Medicare branch to another.

Anka Sahin, MIA Vic/Tas President, has clarified specific common issues with Medicare and has provided this valuable information for the assistance of all MIA Members.

1. Eligibility for Medicare under Reciprocal Health Care Arrangements (RHCA) derives from country of residence, not citizenship of a country (except for Italy and Malta).

How does Medicare ascertain if a person is actually resident in the country of the passport they are presenting in their Medicare application?

RHCA eligibility is determined by the specific eligibility criteria set out in each agreement. Proof of residence can vary for each country.

For example:

For Finland, Sweden and United Kingdom (UK), resident status alone is the RHCA eligibility criterion and the visitor can be enrolled in Medicare for the duration of their visa. Malta requires an applicant to be both a citizen and resident and enrolment is limited to six months.

A passport from those countries, or in the case of the UK, a National Health Services (NHS) card or one of the other forms of evidence listed in the UK RHCA, is sufficient to establish eligibility under the RHCA, provided that the passport holder nominates the reciprocal country as their last place of residence on the Medicare enrolment form.

A non-citizen who nominates one of these reciprocal countries as their last place of residence must provide a valid European Health Insurance Card (EHIC) bearing the initials of the relevant country. Where an EHIC or NHS card is unavailable, two substantial residency documents are acceptable.

For Belgium, Italy, the Netherlands, Norway and Slovenia, eligibility depends on the visitor’s membership of their home country’s national health insurance scheme (Evidence must be provided). In these cases, the visitor can be enrolled for the duration of their membership of their particular scheme as shown on the relevant documentation, or the duration of their visa, whichever is the shorter (with the exception of Italy which is limited to six months).

2. What is the difference for applicants from Italy and Malta?

To be eligible under the RHCA with Italy, a person must be a citizen and eligible for services under the National Health Legislation of Italy. Period of RHCA eligibility is limited to six months.

To be eligible under the RHCA with Malta, a person must be a citizen and resided in Malta prior to arriving in Australia. Period of RHCA eligibility is limited to 6 Moths.

3. What evidence would, for example, a Polish citizen who was resident in the UK and registered with that relevant health system for several years be required to provide with a Medicare application?

A non-citizen that resided in the UK prior to arriving in Australia would be required to provide evidence of valid EHIC or NHS card. If this is not available they would be required to provide two substantial residency documents.

4. Is a person from an RHCA country on a bridging visa eligible for Medicare or to renew their Medicare card? Is there any difference between these two procedures?

A person from an RHCA country can enrol in Medicare or extend their Medicare RHCA eligibility providing they meet the eligibility criteria set out in that country’s RHCA. A person must also hold a valid visa (Including bridging visas) to be eligible under RHCA.

5. Is a person who has applied for a permanent visa offshore and who then comes onshore, eligible to access Medicare if they are “resident” in Australia?

Where an applicant has applied for permanent residency offshore they are eligible for Medicare from the date they arrive in Australia to reside, providing all eligibility criteria is met, that is the applicant has permission to work or has a spouse, parent or child that is an Australian citizen or Australian permanent resident visa holder.

However, if there is evidence that suggests that the applicant has not entered Australia to reside at that time, they may be required to provide documents to establish residency.

6. Onshore parent visa applicants are not usually eligible for Medicare, however, is there an exception for parents from the RHCA countries?

Parent visa applicants are not generally eligible for Medicare, however, if the applicant is from an RHCA country and meets the eligibility criteria set out in the agreement they are eligible for Medicare under the RHCA.

7. Are student visa holders who have applied to onshore partner visas immediately eligible for Medicare?

Under the Health Insurance ACT 1973, an applicant for permanent residency is eligible for Medicare if they either have permission to work in Australia, or have a spouse, parent or child that is an Australian citizen or permanent resident visa holder. To be eligible a person must hold a current visa, but eligibility is not determined by visa subclass. Student visa holders do not need to wait until their current visa has expired to access Medicare.

Source: MIA Notice No: 55  

The falling number of Australian migrants

Australia’s migration has been witnessing a fall for a long time now. The number of migrants including students, business migrants and other job-seekers moving to the country is reducing. According to recent data revealed by Commsec, the Australian Bureau of Statistics estimated that the difference between Arrivals and Departures which is termed as net migration has been at its lowest in the month of May.

Since the year 2007, migration has continued to rise and the rate has also dropped in between but it has never been as low as this. Migration is a major source of skilled labour in Australia. The drop in migration therefore means that there will be a drop in the skilled migrants too.

The reasons cited for the fall in migration are mainly the increase in the cost of living in Australia. Economic conditions are a major deciding factor for migrants looking to move to a country. In the recent months, property prices have touched the sky and it has become very difficult for people to rent out spaces, leave alone buying them.

Read More>>

Axing Backpackers tax urgent: Farmers' Federation

The National Farmers' Federation called for uncertainty over backpacker taxes to be addressed urgently in the wake of the Coalition's re-election.

President Brent Finlay said the farm lobby had already contacted the office of Deputy Prime Minister and Agriculture Minister Mr Joyce, and newly elected Coalition MPs, urging them to settle the matter quickly.

"It's an issue where we need to be in the door straight away. There is real concern still out there through agriculture, everyone I speak to," Mr Finlay said.

"Resolving this, getting a clear plan, is one of the highest priorities right now."

Backpackers make up 25 per cent of the national farm workforce, according to the NFF. In the Northern Territory, they represent 85 per cent of agricultural labour.

Read More>>

Queensland restaurant refuses to reimburse underpaid worker who 'ate too much'

A Queensland restaurant operator who claimed a worker ate too much food and used too much air conditioning has been fined $21,000 after refusing to reimburse the underpaid staffer.

The owners of Fire and Stone restaurant at Tangalooma Island Resort on Moreton Island illegally paid a Chinese backpacker $10 an hour in 2014.

At the time the worker was aged in her 20s, spoke limited English and was in Australia on a working holiday visa.

She contacted the Fair Work Ombudsman which found she was underpaid $1,577 in just 19 days, having received less than half the legal rate of pay 

The ombudsman took the business to court after it refused to reimburse the backpacker on the grounds she "ate too much food and used too much air-conditioning".

Penalty to serve as a warning, judge says

The Federal Circuit Court found the restaurant misclassified the worker as an independent contractor and breached sham contracting laws.

It penalized owner/operator Jia Ning Wang $3,500.

Wang's company - Golden Vision Food and Beverage Services Pty Ltd – was penalized a further $17,500.

Judge Michael Jarrett found Wang had not displayed any genuine contrition or remorse, and said the penalties should send a message to the hospitality industry and employers of visa holders.

The penalties should "serve as a warning to others that similar conduct can have serious consequences and ought not to be repeated," Judge Jarrett said.

Fair Work Ombudsman Natalie James said that deliberate exploitation of vulnerable workers would not be tolerated.

Read More>>

Media Release: Mental tribunal rejects prisoner’s forced medication. For the third time.

“The prisoner who was accused of being mentally ill for writing to MP Clive Palmer last year, has again successfully opposed the diagnostic formulations of his treating doctors. They had insisted on using enforced medication that his poor metaboliser genotype, tested in 2012, demonstrated that he could not metabolise. This is a landmark victory” said Justice Action Coordinator Brett Collins.

“The adverse effects of the drugs with which he was injected this time and those he was given in the past are described as ‘torture’ in the literature and by the patient. Such drugs were used to torture Soviet dissidents until 1974 because in Russia, people who opposed the government were deemed to be mentally ill under the Russian mental health act. Mr Baker was said to be suffering from delusions because one of the topics in which he has interest and about which he knew quite a bit was corruption in the pharmaceutical industry. He was desperate to stop them injecting him again and having again misdiagnosed him with paranoid schizophrenia” said psychiatrist Doctor Yola Lucire.

“Justice Health said that his ideas made him vulnerable to attack from other prisoners and the medication would make him less vocal. The hospital had already held him down and injected him with antipsychotic medication although they knew barrister Ben Fogarty and psychiatrist Yolande Lucire had been briefed to oppose them in a hearing a few days later” said Mr Collins.

“The Tribunal found no justification for holding Mr Baker in the hospital and being forcibly medicated. It agreed that Mr Baker presented no risk of serious harm to himself or others. It heard that he needed a job, an interest and stability. It ordered that he be removed from the hospital” said Mr Collins.

The certificates that brought Mr Baker before the Mental Health Review Tribunal were signed by two doctors who did not speak to the patient, did not disclose that fact, and did not appear at the Tribunal hearing. Evidence was given by others only one of whom had had any contact with the patient and who appeared offended by Mr Baker's topics of conversation but did not appear to challenge his beliefs. None of those paid to monitor health delivery helped him or other prisoners. Not the Board, Legal Aid, nor the Board running the Community Reference Group.

“Small wonder that bed requirements in NSW for the forensic patient population nearly trebled between 1992 and 2003 to accommodate a misdiagnosed population who are treated with drugs they cannot metabolise and have no possibility of recovery. This has all increased with new drugs whose side effects our doctors do not recognize” said Dr Lucire.

Read More>>

From a Spanish Legal Firm: Spanish nationality to Sephardi Jews of Spanish origin

The Spanish law No. 12/2015 enacting a procedure for granting Spanish nationality to Sephardi Jews of Spanish origin, has been challenging for our firm, with so many years of experience in immigration and nationality matters.

Although the preamble of the law regarding the unjust expulsion of the Jews from Spain in 1492 and the deep relation of Spain with the Jewish communities due to the drama of Holocaust (the law mentions specially the murder of more than 50,000 Sephardi Jews in Thessaloniki), when it comes to implementation the law establishes requisites which have proved many times very difficult to fulfil: the evidence of the Spanish origin of the names is crucial in this respect, as it has to be of absolute certainty and very solid foundation, from times previous to the expulsion. The law only refers to Sephardites of Spanish origin, so other Sephardites are excluded. Also many other requisites are requested from the candidate: use or haketìa in the family in his childhood, basic knowledge of Spanish language and culture are special relation with Spain (e.g. doing charitable activities in the country, having a house in property, etc.)

Our firm has built an expertise in the implementation of this law and a team of experts directed by Jorge Agüero Lafora is dedicated to it.

This is one more field of our traditional expertise in all types of immigration procedures, both for individual or corporate incorporations and in obtaining Spanish working permits and Spanish nationality.

- Fernando Scornik Gerstein – Senior Partner Fernando Scornik Gerstein Solicitors “Madrid”

Yoghurt chain accused of paying staff $8 an hour

Frozen yoghurt chain Yogurberry faces legal pressure to submit to a national audit after it was found to be allegedly underpaying overseas workers thousands of dollars.

Hot on the heels of Fairfax Media revelations about rampant underpayment of 7-Eleven workers, the national fair work watchdog is now taking aim at the national yoghurt retail chain.

Young backpackers were allegedly paid as little as $8 an hour at the yoghurt outlet in world square shopping centre in Sydney’s CBD.

The head of Australian company and master franchisor of the Yogurberry chain faces legal action and tens of thousands of dollars in fines for allegedly short-changing four Korean nationals who speaks little English.

The national fair work watchdogs alleges the backpackers on 417 working holidays visas were allegedly underpaid almost $18,000 after being paid just $8 an hour initially and a flat rate as low as $11 an hour. Each worker has underpaid about $2000 to more than $6000.

It is alleged YBF Australian formerly controlled the retail outlet through its associated company Yogurberry World Square Pty Ltd.

YBF Australia Pty Ltd and CL Group Pty LTd each face fines of between #25,500 and $51,000 for each breach of workplace laws. YBF Australia part-owner Soon Ok Oh is also facing legal action and fines.

The fair work ombudsman sain the employees should have been paid between $14.82 and $18.52 an hour under the Fast Food Industry Award.

It said the workers did not receive a clothing allowance or superannuation entitlements and that unlawful deductions were made from their wages. Workplace laws regulating record-keeping, pay slips and other requirements were also allegedly breaches.

Fair work ombudsman Natalie James said legal action was necessary because YBF Australia had the need to pay employees’ their lawful minimum entitlements.

A directions hearing will be held at the Federal Court in Sydney on July 26.

Ms James said her office was committed to improving compliance in the hospitality industry.

Source>> SMH 13/07/2016

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 1, 338 Pitt Street
Sydney NSW  2000
Australia 
 
Tel:  +61 2 9286 8700
Fax: +61 2 9283 3323
 
Email: ppmail@ppilaw.com.au

www.ppilaw.com.au

 

 

 

 

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