Overview

The migration legislation meets the government's policy aim of strengthening the economy by providing for various temporary and permanent visas that are dependent on the applicant having a successful business or investment history and, for some visas, a willingness to invest and operate in regional areas that are prescribed by Gazette notice.

Permanent visas are divided into two general categories – skilled and business. The skills stream is discussed in the following chapter.

Overview

The migration legislation provides a range of visas for temporary workers and business people, and working holiday-makers and students, as well as visas for tourists and people visiting friends and relations. In addition, some temporary visas are issued for special purposes.

Temporary workers

Temporary workers and business people can be employer-sponsored or independent. They range from working holiday-makers to those with a need for long-term, but not permanent, residence.

Overview

Many visa applicants require a sponsor or nominator, and for many visas, there is a requirement for an assurance of support and/or a social security bond. Nearly all visas have requirements related to members of the family unit of the primary applicant, called ‘secondary criteria’ in Schedule 2, even though, in some cases, those ‘secondary’ people are not included in the visa application. Like all people who have already made a visa application in Australia, they may be refused a second opportunity to make an application. Those matters are canvassed in Chapter 4.

Most visas have application charges, and several of the permanent visas require those payments to be made in two instalments. The second instalment might include a health charge or payment for English language classes. Those payments are set out in the relevant visa class in Schedule 1.

Overview

Australia became a signatory to the 1951 United Nations Convention Relating to the Status of Refugees (the Convention) in 1954 and to the 1967 Protocol in 1973. It thereby assumed certain obligations under the Convention, the principal one being to grant asylum to people who fall within the definition of a refugee as set out in Article 1A(2). The process or manner in which asylum is granted is not expressly stipulated in the Convention. It is governed by the Migration Act 1958 (Cth).

The Migration Act 1958 (Cth) provides for visas to be issued on refugee and humanitarian grounds to applicants under the government's humanitarian program. That program is made up of onshore protection for those people already in Australia, whether or not they arrived with temporary visas or without a visa at all, and resettlement in Australia for people in humanitarian need overseas (including those who are classified as refugees by the UN High Commissioner for Refugees (UNHCR) and recommended for resettlement). Previously, both the onshore and offshore visa categories included both permanent and temporary residence visas. Now temporary visas have been abolished.

Overview of grounds

Article 1A(2) of the Refugee Convention defines a refugee in terms of the reasons why a person fears being persecuted. A refugee must have a well-founded fear of being persecuted ‘for reasons of race, religion, nationality, membership of a particular social group, or political opinion’. After referring to Article 1 of the Convention, Gummow J explained in Applicant A v MIEA:

Kirby J commented in the same case that the drafters of the Convention would not have included ‘categories of persecution’ in Article 1A(2) had they intended refugees to be defined as people who feared persecution for any reason.

A defining aspect of national sovereignty is that nation states have the right to determine which people are permitted to come within their geographical borders. Individuals, like nations, appear to be inherently territorial. In addition to this, a defining aspect of many people's personhood (their core identity) is the place where they were born or live.

Despite the disparate range of interests and projects that individuals have and pursue, there are basic goals that communities invariably share. Thus, in Australia, the current generation (building on the work of earlier generations) has committed enormous resources to building state institutions (such as our political and legal system), hospitals, schools, roads and recreational and sporting amenities and facilities.

Citizenship

One of the most important and defining aspects of sovereignty is that a state can establish its own criteria regarding citizenship of the nation. Citizenship is the strongest connection that a person can have with Australia. Citizens have an unrestricted right to live and work in Australia and to travel in and out of the country without restriction. The presence and activities of citizens are not controlled by the Department of Immigration and Citizenship – it only has the authority to administer rules in relation to non-citizens. Thus, citizenship is not central to the topic of this book. However, for the sake of completeness we provide a brief overview of the topic.

As a general principle, permanent residents share the same rights and duties as citizens. However, there are some rights and duties that are unique to citizens. These include the right to an Australian passport, the right to stand for public office and for election for parliament, to serve in Australia's defence force and claim diplomatic protection while overseas, and to serve on juries. Only citizens can enrol on the electoral register to vote at Commonwealth, state and local elections.

Introduction

It is not possible to understand the ongoing immigration debate and current immigration policy in Australia without some understanding of its genesis and development, particularly since white settlers first arrived in the late 18th century. Until late into the 20th century, issues that are fundamental to human diversity, particularly race and colour, were overt policy considerations that found their way, one way or another, into Australian legislation. Innate factors of birth and others of conscience, such as religion or political opinion, continue to figure in debate about who is entitled to live in Australia. In recent times, the debate has centred on ‘boat people’, and in the wake of the 11 September 2001 Al-Qaeda attacks on the United States, the issue of religion has been an undercurrent in the focus on terrorism.

History of the Convention

We commence our discussion of refugee law by providing a brief overview of the instruments underpinning refugee law in Australia. This provides insight into the development of the legal definition of a ‘refugee’ and the objectives of the parties involved in framing the definition. This potentially plays an important role in understanding the nature and scope of refugee law.

International refugee law is principally governed by the 1951 Convention Relating to the Status of Refugees as modified by the 1967 Protocol Relating to the Status of Refugees (hereafter together referred to as the Convention). The Convention provides a definition of a refugee and confers a number of rights and protections onto persons falling within this definition.

Merits review

An administrative review tribunal ‘stands in the shoes of the original decision-maker’. It reconsiders an administrative decision with the objective of making the correct or preferable decision based on the facts before it, and in accordance with the applicable law. It is axiomatic to merits review that an administrative review tribunal has power to substitute its decision for that of the original decision-maker.

Primary decisions about migration and refugee visa applications are made under the Migration Act 1958 (Cth) by the Minister for Immigration or DIAC officials acting as the Minister's delegates. Subject to a few exceptions mentioned below, those decisions are subject to merits review by the Migration Review Tribunal (MRT), the Refugee Review Tribunal (RRT) or the Administrative Appeals Tribunal (AAT).

The basic tools of trade for people wanting to understand migration law are the Migration Act 1958 (Cth), the Migration Regulations 1994 and the Minister for Immigration's policy guidelines (Procedures Advice Manual [PAM3]). The last is a crucial component for guidance in providing the evidence needed to satisfy each criterion for a particular visa and in applying or assessing the law. Equally crucial is the necessity to have up-to-date statutory and policy materials, as the Migration Regulations are the subject of constant amendment.

The legislative framework and relationship between the Act and the Regulations

The impetus for legislating about migration derives from the policy of the government of the day. Notwithstanding some disagreement between the two major political parties, there is a largely bipartisan policy, based on a view that there should be a formal immigration policy that is beneficial to Australia. To that end, the policy seeks to address long- and short-term economic needs and interests; the needs of individuals and families who have previously migrated; and an international commitment to humanitarian settlement. It implements its policy by controlling who can enter and remain within Australia's borders.

Overview: Time to stop paying homage to the Convention and to fix it

As noted in Chapter 11, the definition of a refugee was first advanced about 60 years ago. At the international law level, it has remained (effectively) unchanged during this period. Likewise at the domestic law level, although as we have seen the definition has been subject to relatively minor statutory modifications.

The Refugee Convention has been ratified by well over 100 nation states and is one of the most important and successful international humanitarian documents. In Australia, the refugee issue is of widespread social and political importance. It is perhaps the most emotive and divisive social issue of our time. This level of interest in refugee issues was greatly heightened in 2001 when the Australian Parliament introduced legislation and border control mechanisms to prevent asylum-seekers entering Australia without a visa. This polarised public opinion and resulted in a groundswell of action from many people, including many current and former refugees, which in turn led to the establishing of many refugee and asylum-seeker support organisations. The preparedness of so many individuals in the community, and so many community groups, to assist asylum-seekers is, like any altruistic act, commendable.

Validity of visa applications

As described in the previous chapter, the Migration Act 1958 (Cth) provides that non-citizens must only travel to and enter Australia with a visa. Otherwise they will be refused entry or, if they manage to enter, will be unlawful non-citizens, and subject to removal. For the purposes of obtaining a visa, section 45 requires non-citizens to apply for a visa of a particular class, section 47 imposes a duty on the Minister to consider valid applications, and section 65 provides that the Minister, having considered a valid application for a visa, must grant the application if satisfied it meets the relevant criteria, including health criteria and other statutory requirements, and must refuse it if not so satisfied.

Section 46 establishes conditions for the validity or invalidity of a particular visa application, largely by way of providing that the regulations may prescribe criteria to be satisfied for an application to be valid (see regulation 2.07 and Schedule 1). In brief, a valid application must be made on the approved form and in accordance with the directions on the form; be for a specified class of visa; provide correct information; and be lodged at the specified place. The applicant must have paid the appropriate visa application charge (if any) and must not be prevented by legislation from making the application or an entitlement to the particular visa. These rules are reflected in Schedule 1, which sets out the prescribed form; the visa application charges; the place and mode of lodgment; how members of the applicant's family unit might be included; and often, where the applicant must be at the time of lodging the application.

Overview

The migration legislation provides for several categories of family migration on the basis that the visa applicant is a relative (within a defined degree) of the sponsor or has an interdependent relationship with the sponsor. That is, the visa categories in the family stream are predicated on a relationship, and each visa necessarily involves two parties, namely the applicant and the applicant's sponsor or nominator. In addition, the visa application might include members of the applicant's family unit. In general, the latter are not required to meet all criteria for a particular application and are not the subject of discussion in this chapter. They are assessed on the basis that they are, in fact, members of the family unit and meet secondary criteria related to health and character requirements, as alluded to in the previous chapter (at 4.5).

The visa subclasses for applicants migrating from overseas under the family categories are: Partner (100); Child (101); Adoption (102); Parent (103); Aged Dependent Relative (114); Remaining Relative (115); Carer (116); Orphan Relative (117); Designated Parent (118); and Contributory Parent (143). Most of these family stream visas for migrants from abroad have an equivalent visa for onshore applicants: Partner (801); Child (802); Aged Parent (804); Aged Dependent Relative (838); Remaining Relative (835); Carer (836); Orphan Relative (837); and Contributory Aged Parent (864).

Overview

In addition to business and investment visas considered in the previous chapter, the migration legislation further meets the government's policy aim of strengthening the economy by providing for various temporary and permanent visas that are dependent on the applicant having certain qualifications and/or occupational skills and, for some visas, a willingness to reside and work in regional areas that are prescribed by Gazette notice. The temporary categories are discussed in the following chapter.

There are three sub-categories in the skills stream of permanent visas: general skilled, employer nominations and distinguished talent. A fourth sub-category related to business skills (rather than ownership) was discussed in the previous chapter. In addition, there are two temporary skilled subclasses that are precursors to obtaining permanent residence.

Overview of exclusion, cessation and exceptions

The Refugees Convention sets out a number of circumstances where the protection obligations by states towards refugees are limited or expunged. The duty of states to protect refugees is limited in seven broad circumstances. These are set out in:

• Article 1C – which defines several circumstances where refugee status ceases to exist;

• Article 1D – which excludes from the Convention persons who receive protection from certain UN organs;

• Article 1E – which excludes persons who can obtain access to a third country;

• Article 1F – which excludes individuals who have committed specified criminal acts;

• Article 32 – which permits expulsion of a refugee where the refugee is a security danger;

• Article 33(2) – which permits expulsion where there are grounds to believe that the refugee has been convicted of a ‘particularly serious crime’; and

• in addition to this, a person is not entitled to protection in Australia where he or she can receive protection in a third country.

The overarching rationale for the exceptions is that either the protection obligations to refugees only arise as a matter of last resort or a State's security interests trumps its obligations to needy foreigners.

Article 1C applies where refugee status has already been conferred and sets out the circumstances in which refugee status can be lost: that is, where refugee status ceases. The exclusions contained in Articles 1D to 1F relate to situations where a person has not yet been granted refugee status. Articles 32 and 33(2) are properly categorised as exceptions, in that they apply where refugee status has been conferred and operate to expunge a state's protection obligations on the basis of national interest. Where a person is eligible to receive protection in a third country, this is properly classified as an exclusion, since it justifies a state not conferring refugee status.