FOR SOLICITOR & BARRISTERSmarburychambers.com.au/wp-content/uploads/2020-03-29...2020/03/29 · CPD PRESENTATION FOR SOLICITOR & BARRISTERS 29 MARCH 2020 Presenter: Atiq Rahman Solicitor

CPD PRESENTATION

FOR SOLICITOR & BARRISTERS

29 MARCH 2020

Presenter: Atiq RahmanSolicitor and Barrister, The Supreme Court of NSWEx-immigration officerLandBridge Legal, Sydney, NSW

ORGANISER: Margaret Bateman, Barrister, Murbury Chambers 311 Castlereagh Street, Sydney NSW 2000.

OUTLINE OF PRESENTATION

1. Time line of Australian Immigration; historical perspective

2. Tampa Crisis 2001; changed landscape of Australian Immigration

3. Border Protection Bill 2001 (John Howard govt)

4. A wave of regulatory changes so as to Australian visas

5. Excision of Christmas Island & small islands to stop asylum seekers

6. Redefined Australian position to refugees; no PV, only TPV onshore

7. IMAs - no visas for them except two- 785 and 790

8. A new wave of Australian visas; business migration if you got $$$$$

9. COVID-19 and it’s implication to Australian visas © ATIQ RAHMAN, SOLICITOR & BARRISTER, LANDBRIDGE LEGAL, SYDNEY, NSW 29 MARCH 2020 23/29/2020

AUSTRALIAN IMMIGRATION; HISTORICAL PERSPECTIVE

• In 1788, first European settler arrived on the shore of Botany Bay.

• Since 1788, close to 10 million people immigrated to Australia.

• Australia is a country of immigrants although indigenous people lived here more than a million years; Settlers’ claim of Terra Nelius proven wrong by HCA decision on MABO.

• 1788 - 1868, more than 160,000 convicts from UK transported to Australia

• Nearly 200,000 free settler migrated to Australia between 1793 – 1850 mainly English, Irish and Scottish from agriculture and domestic workers

• In this period Chinese migrants also came to Australia during the gold rush and they became the largest migrant group after Europeans.

© ATIQ RAHMAN, SOLICITOR & BARRISTER, LANDBRIDGE LEGAL, SYDNEY, NSW 29 MARCH 2020 33/29/2020

• After the Gold rush many Chinese took up gardening, setting restaurant business and laundries.

• 1850 – 1900 the South Sea Islanders were brought to work on Sugar plantation

• Afghans were brought to work as cameleers at the outback of Australia

• 1900 Federation of Australia was formed unifying all six States and two territories.

• After WW2 more than two million European migrants offered assisted passage called 10 pound Pomes.


WHITE AUSTRALIA

• 1901, Federal Parliament passed the Immigration Restrictions Act 1901.

• This draconian law led to “White Australia” policy that continued for the next 50 years.

• Dictation test to immigrate to Australia; test was based on only European language.

• The Racial Discrimination Act 1975 passed by Whitlam govt.

• RDA abolish Dictation test and made illegal to discriminate people based on race, religion, colour, ethnicity, association; that ends the White Australia policy.

© ATIQ RAHMAN, SOLICITOR & BARRISTER, LANDBRIDGE LEGAL, SYDNEY, NSW 29 MARCH 2020 5

• 1970s a new wave of seaborne refugees came from Vietnam.

• Australia’s involvement in Vietnam war with US made relaxed migration for Vietnamese refugees.

• 1990s a large number of asylum seekers from war torn countries Sri Lanka, Mid-East came to Australia by boat.

• Mandatory Detention for illegal entry to Australia.

• Prior to 1992, detention was discretionary.

• Since 1992, it became mandatory by Keating govt.


MV TAMPA 2001 IN AUSTRALIAN WATER


MV TAMPA CHANGED THE LANDSCAPE OF AUSTRALIA’S IMMIGRATION

• Aug 2001, Howard govt refused Norwegian freighter MV Tampa carrying 433 Afghan refugees predominantly Hazaras to enter Australian water.

• This triggered political controversy in the lead up to 2001 Federal Election and a diplomatic row between Australia and Norway.

• Govt ordered the ship be boarded by special forces when Tampa entered Australian water; violating int’l law, censured by Norway.

• Border Protection Bill 2001 was introduced claiming to protect Australia’s sovereignty.

• Pacific Solution was introduced thereby asylum seekers were taken to Nauru for their refugee status be considered.

• Excision of Christmas Island and some other small islands from Australian immigration zone to stop asylum seekers come by boat.


IRREGULAR BECAME ILLEGAL MARITIME ARRIVALSCOTT MORISON CHANGED IRREGULAR TO ILLEGAL

© ATIQ RAHMAN, SOLICITOR & BARRISTER, THE SUPREME COURT OF NSW. 29 MARCH 2020 9

IMA ILLEGAL MARITIME ARRIVAL

• Over 50,000 boat arrivals during Rudd –Gillard–Rudd era; there about 800 boats arrived in this period. This huge numbers of cases was called Legacy Case Load.

• By 31 Dec 2017, 36,362 granted BVEs, 19,590 remain in the community or some made voluntary departure through IOM (int’l org for mig) assistance program.

• Largest numbers in Victoria 8200, followed by NSW 7780, QLD 1,426.


EXPERT PANEL ON IMA

# In June 2012, an expert panel led by retired Air Chief Marshal Angus Houston provided a report with 22 recommendations on asylum seekers.

# No guarantee of resettlement in Australia# Subject to transfer to a regional processing centre.# No to family sponsorship for boat arrival. # Increased regional engagement


STATISTICS ON BOAT ARRIVALS

Year Nos of boats Crew Nos of people (excl crew)

2009 60 141 2726

2010 134 345 6555

2011 69 168 4565

2012 278 392 17 204

2013 300 644 20 587

2014 1 N/A 160

2015 0 0 0

2016 0 0 0

https://www.aph.gov.au/......© ATIQ RAHMAN, SOLICITOR & BARRISTER, LANDBRIDGE LEGAL, SYDNEY, NSW 29 MARCH 2020 12

LEGISLATIVE CHANGES TO THE MIG LAW

Several legislative changes to Mig Act and Mig Regs;

• s45AA of Mig Act and 2.08 of Mig Reg to convert all Onshore PV 866 to TPV 785.

• s46A (1) stops boat arrival to apply ANY visa in Australia.

• s46A (2) gives power to the Minister to decide & grant PV to an IMA under public interest criteria.

2 types of Visas for IMAs;

TPV 785 and SHEV 790• TPV 785 for 3 years; can apply subsequent TPV• SHEV 790 for 5 years; live, work, or study in rural.• Once this visa is granted that will create pathway to other

visas. © ATIQ RAHMAN, SOLICITOR & BARRISTER, LANDBRIDGE LEGAL, SYDNEY, NSW 29 MARCH 2020 13

LEGAL FRAMEWORK FOR IMA (contd)• S189 to detain an IMA

• S36(2)(a), IMA to meet Australia’s protection obligations under Refugee Conv 1951 and Refugee Protocol 1967. • Race• Religion• Nationality• Political Opinion• Member of a Social group, or

• S36(2)(aa) IMA to meet Complementary Protection obligation for real risk of significant harm.

• S195 gives power to the Mins to grant a PV without an application; it was used to grant Safe Haven Visa to Kosovar refugees

• s195 was used for an IMA s14/2014 v Mins of Immi instead of s46A.

• The HCA was critical about the decision; HCA issued an order of Cetiorari (writ from a superior court to a inferior court to review) & cost order. © ATIQ RAHMAN, SOLICITOR & BARRISTER, LANDBRIDGE LEGAL, SYDNEY, NSW 29 MARCH 2020 14

DIFFERENCES BETWEEN TPV 785 & SHEV 790

• No need to live, work or study in regional Australia

• Need to meet health, character, and identity requirements.

• Can apply subsequent TPV once the TPV is expired

TPV 785 stay up to 3 years

• Need to live, work or study full time in regional Australia for 5 yrs.

• Need to meet health, character, and identity requirements.

• Create pathways to apply for other visas after 42 months

• Need to live, work, or study full time or comb of both without govt benefit

SHEV 790 stay up to 5 years


BVE 050 WITH STRICT CONDITIONS

• Only Minister can grant BVE under s195A with strict conditions;

• 8401; IMAs must report at a time and place specified by the minister

• 8506; must notify the change of address with 2 working days

• 8508; apply only for the visa specified by the Mins, not any other visa

• 8564; must not engage in criminal conduct

• IMAs are to carry IMMICARD- immigration status card

• Eligible to Medicare while holds BVE, no BVE no medicare.

• 1st Oct 2017 was the deadline to apply for TPV or SHEV.

• If missed the deadline cannot apply either of the 2 visas.


NEW WAVE OF VISAS FOR RICH

• Business visa; 4 categories; Innovation, Investor, Significant

Investor, Premium Investor; these are provisional visas for 4 years 3 months, then qualify for PR 888; point tested, age below 55 years.

• Business Talent Visa; 2 types; Significant business, Venture Capital visas;

• Entrepreneur Stream; commercialisation of a product or

service in Australia, funded at least $200,000 by a third party


COVID -19 AND IT’S IMPLICATION • Visitor visa holders must reapply for further extension before expiry date.

• Visa with conditions 8503, 8534 and 8535; need to apply for waivers before visa expires.

• Inbound travel restriction from 20 March 2020 for all except Australian Citz, PR and Eligible NZ citz; however, must go for 14 days Quarantine in a designated place.

• Outbound travel restrictions for all Australian & PRs with a few exceptions; defence force personnel, citz whose usually stay mainly overseas.

• Overseas students can work extended hours to fill in labour shortages at super markets, nursing homes and aged care.

• Visa holders who has to enter to Australia with deadline may travel in but must follow 14 days Quarantine rule, others need to re-apply for new visa, this will be decided case by case.

• Student overseas defer, study online or can apply new student visa if need more time to finish.

• Bridging Visa expires while overseas cannot return, need to apply another visa.

• IMO (Int’l Org for Migration) & UNHCR suspended all re-settlement departure for humanitarian program

• Australia did not suspend humanitarian program


Documents

FOR SOLICITOR & BARRISTERSmarburychambers.com.au/wp-content/uploads/2020-03-29...2020/03/29 · CPD PRESENTATION FOR SOLICITOR & BARRISTERS 29 MARCH 2020 Presenter: Atiq Rahman Solicitor