Monday, April 27, 2009

Mr Habib's Passport

One of the reasons why you may be refused an application for an Australian passport (even if you are a citizen) is because a competent authority suspects on reasonable grounds that you would be likely to engage in conduct that might prejudice the security of Australia or a foreign country.

The Full Federal Court has recently refused to overturn the decision not to grant a passport to Mamdouh Habib. Mr Habib was one of two Australians who spent a considerable time in detention at Guantanamo Bay. ASIO (the Australian security service) conducted a security assessment and provided a list of reasons why Mr Habib remained a security risk. Mr Habib (and his wife) didn't help their own case by not being truthful in their first hearing in the AAT, with the court finding that:

"These untruths make us wary of Mr and Mrs Habib’s uncorroborated evidence. We consider that where their evidence conflicts with that of the respondents and there is no other evidence to support their version of events, we must prefer the evidence of the respondents."

Having found that he was lying there were two issues for the Court: firstly whether there was an obligation to disclose to Mr Habib that this finding was being used against him; and secondly having found the obligation existed, whether it was satisfied in the circumstances. The answer to both was "yes" and Mr Habib is without a passport. I can't help wondering why he didn't just argue that his past conduct was not indicative of his future conduct rather than being in denial.

Habib v Director-General of Security [2009] FCAFC 48 (24 April 2009)

Sunday, April 26, 2009

Procedural Fairness

Section 359A of the Migration Act is a statutory procedural fairness provision. It requires disclosure of any information that the Tribunal (ie the MRT) "would be the reason, or a part of the reason, for affirming the decision that is under review".

There has recently been a case before the High Court in which an application for a spouse visa was refused after DIAC received information from an informant that the relationship was not genuine and was only for "migration purposes". The identity of the informant and the precise content of the information were not disclosed to the visa applicant. Ultimately, the High Court said that information of that nature need not be disclosed. The Court relied on a previous decision in VEAL where it found:

"It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations."

I understand the need for confidence, but there is some room for debate on how much disclosure is required before the "substance" is known. This seems to me to be subjective and not necessarily fair at all.

You can read the whole case here: http://www.austlii.edu.au/au/cases/cth/HCA/2009/10.html

Thursday, April 23, 2009

Overcharging


There has been a lot of press recently about overcharging by lawyers (or more precisely, overcharging by one particular firm of lawyers in Sydney). Click here to see some of those press reports.

The problem that I have is about punishment and sanctions. Mr Keddie (the principal of the firm) has made his fortune in life (at the expense of his clients). Any punishment he is given by fine or being barred from future practice won't really make much difference to him. Contrast that with a (probably not too smart) young person who robs a service station or convenience store and possible gets a few hundred or a few thousand dollars. This person is likely to find themselves in jail. I don't think we have the proportionality right here!

Photo used under creative commons license: http://www.flickr.com/photos/infomofo/139808866/

Monday, April 20, 2009

Bring back the TPV?

In an interview on radio this morning the opposition leader advocated bringing back the temporary protection visa ("TPV"). TPV's were introduced by the Howard government as a way of deterring asylum seekers arriving by boat - it required refugees to reapply for their visa every three years and had no family reunion rights.

These visas were abolished by the Rudd government (who as I have said previously is taking a more humane policy stance on refugees). Now, the Opposition is saying "we told you so" in relation to the recent boat incidents. If I can quote from Mr Turnbull's interview:

"...between 2002 and the end of 2008, fiscal year 2008, there were around half as many people arriving as have arrived since August last year. So the fact of the matter is since the TPV’s were abolished by the Rudd Government there has been a dramatic increase. Now bear this in mind, the people smugglers are a business. They are charging people big money and they cannot succeed in their business unless they can get people into Australia."

However, he probably does have a point if:

"The objective of our policy should be no unauthorised boats, boat arrivals. We don’t want them. It’s bad in terms of our….the integrity of our borders and it also poses enormous danger to life and limb on the high seas – not just of the passengers but as we’ve seen also of our Navel personnel."

This is a difficult policy issue, but I don't think the TPV is the way to go.

A full transcript of the interview is available on Mr Turnbull's website.

Sunday, April 19, 2009

Asylum Seekers Policy Debate #2

I have just read two media releases by Greens Senator Sarah Hanson-Young. It looks like I'm not the only one who thinks that asylum seeks should be treated with a bit more dignity (and no, I'm not a member of the Greens or any other political party for that matter). Onshore processing of these applications would be a good place to start.

You can view the senator's press releases here:

  1. 17 April 2009; and
  2. 18 April 2009.
POST SCRIPT

Since my post of this afternoon I have also discovered (and read) Kerry Murphy's article in the social justice magazine Eureka Street. Once again I support the views expressed there.

Saturday, April 18, 2009

Asylum Seekers Policy Debate



I agree with our PM that people smugglers are the scum of the earth, but the recent fire on the asylum seekers boat and news that there is another boat on the way raises some difficult policy issues. The former government had a very hard line on border protection and the current government has a softer approach. Is the policy change causing boat loads of asylum seekers to come to Australia or is it a sign of the global economic crisis or something else?

In any event, there must be a balance between humane treatment of genuine refugees and the deterrence of people who want to bypass ("jump the queue") migration procedures.

Follow the news in more detail on the ABC News.

Photograph used under creative commons license: http://www.flickr.com/photos/yewenyi/1016337679/

Thursday, April 16, 2009

Visas for Football Players


This article caught my attention yesterday. The NRL is complaining that visa laws are preventing players coming from Papua New Guinea to play rugby league in Australia, presumably because clubs don't want to pay the 457 minimum salary to up and coming footy players.

Considering the recent changes to policy on the 457 and the emphasis on "benefit to Australia", and finding skills that are not locally available, I question whether this complaint is misplaced.
Surely there are plenty of things to worry about in Australia without the "pressing" public policy consideration of supporting development of rugby league in PNG!

Photo: creative commons license: http://www.flickr.com/photos/kabl1992/2896935393/sizes/s/

Wednesday, April 15, 2009

English for Agents

Public comment is currently being sought on whether the bar should be raised on the standard of English language ability for registered migration agents. While I understand that in multicultural Australia the ability to speak another language is a great asset, there are two aspects to professional practice. Firstly, there is the reading and interpreting of the law and secondly the communication of its effect to the client.

It beats me how "step 1" can be achieved without proper English ability - the Migration Act and Regulations are complex legislation by any standard.

Having said that - I hope they don't make me do an IELTS test.

The discussion paper is available by clicking here.

Tuesday, April 14, 2009

English Requirement

From today (14 April 2009) the English language requirement for Subclass 457 - Business (Long Stay) visa applicants increased from an IELTS score of 4.5 to 5. This is an average band score.

This requirement applies to people making a subclass 457 application on or after 14 April 2009 and, applies to nominated occupations within ASCO major groups 4 to 7, and to people applying as chefs or head chefs (ASCO 3322-11 or 3322-01).

Note that if the nominated occupation requires the applicant to hold a licence, registration or membership that is mandatory for the performance of the activity nominated, and if that licence, registration or membership requires an IELTS score of more than 5 (average), it is a time of decision criterion that the applicant must have that IELTS score.