Migration changes and visa capping – more consideration to those affected

Note: This legislation is about to be approved. Please sign and forward this to your friends all over the world. (You will have no repercussions by signing this even if you are temporary residents)

OUR VOICES MUST BE HEARD BEFORE ANY CATASTROPHIC EVENT

There have been unprecedented changes in migration and related laws which resulted in great panic and uncertainty. We note that there are more substantial changes to come.

On 26 May the Senate has referred the “Visa Capping” Bill 2010 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report and once it moves to get passed during the winter session of the Parliament it could become a new law before the federal election.

The writer appreciates the need for change and to streamline the process, but is alarmed at the lack consideration for human life and for lack of transitionary arrangements. There has been almost no consultation with the migration advice profession regarding these changes which is highly regrettable.

The purpose of the bill is to enable the Minister to cap and terminate visas. The Minister’s powers to Cap and Cease could be applied not only to Skilled Migration visa classes, but to all classes of visas. Even the law council of Australia has opposed the bill.

This may mean for example that if the minister decides that a particular number of accountants (or cooks) are required for the year 2010(e.g. only 1000 accountants - this will be the cap), all applications lodged after reaching this limit may be ceased and application fee may be refunded.

This can have far reaching adverse effects. An example is if a permanent partner visa application were capped and ceased, an applicant’s temporary partner visa would be ineffective, thus requiring the applicant to depart Australia. The results may cause permanent separation of families.

Retrospective legislation

Retrospective laws take away the freedom of our clients and people to have chosen not to have made a decision to come to Australia or not to apply and settle down in Australia at all.

There may be circumstances when retrospective legislation is warranted. History suggests and has accepted such retrospective law particularly in war crimes where the wrongdoer has transgressed the "natural law" and in tax cases where an un-foreseen loophole needs to be closed immediately.

Deprivation of Merits Review

If the minister were to cap and terminate the applications, the applicants may only have 28 days to wind up their affairs and leave (there will be no review rights). These applicants would have been in Australia for years after lodging a valid application for PR. They may have found good jobs and well settled in Australia. Some may have married and have children, purchased property etc;

People and their families already in Australia will have to find jobs and start life again from the beginning if they are forced to go. It will take years for these adjustments and to be financially stable. Children will have difficulties getting adjusted to the new life and will have language problems and adjustment issues in their parents countries which may affect their educational advancement and the repercussions may be felt throughout their life. As such we consider certain aspects and affect of the retrospective legislation to be inhumane. Visa capping retrospectively is a crime against humanity.

No parliamentary oversight is undemocratic

The proposed amendments are a challenge to our law-making system; giving expansive, unfettered powers to the Minister for Immigration to make retrospective changes based on arbitrary criteria with no parliamentary oversight. This is both dangerous and undemocratic.

The proposed Bill may breach aspects of administrative law, by failing to afford affected visa applicants procedural fairness and allowing the Minister’s delegates to make decisions inconsistent with the legitimate expectations created by the acceptance of visa applications.

The Department of Immigration is therefore under an obligation, pursuant to established principles of administrative law. Further the General Skilled Migration pathway for students has been quite clearly flagged, by the establishment of the onshore GSM visa subclasses for which overseas students are eligible, and DIAC’s own policy, states that there are initiatives to encourage access students to permanent residency.

In overseas expos for international students the relevant government affiliated bodies in the past has clearly indicated that students will have pathways for PR once the studies are over.

We question the logic behind such a move when Australia faces its greatest skills shortage in history. We doubt that the government has undertaken any impact assessment on the effect for Australians and the Australian economy as a result of these changes.

What can be done?

We have made submissions to the senate Legal and Constitutional Committee and the last date was 18 June 2010. This legislation is about to be approved but it is still not too late.

PETITION to the Federal Parliament

OUR VOICES MUST BE HEARD BEFORE ANY CATASTROPHIC EVENT

We have created a petition which will be submitted to the Parliament. (You will have no repercussions by signing this even if you are temporary residents).

Please go to www.dlegal.com.au and sign and forward this petition to all your friends ALL OVER the world to sign.

The right of a petition to the parliament

A petition is basically a request for action. The right to petition Federal Parliament has been one of the rights of citizens since federation, and it is the only way an individual can directly place grievances before the Parliament.

The Standing Committee on Petitions has been tasked with receiving and processing petitions on behalf of the House. The Committee may choose to forward the petition to the relevant Minister. If this is the case, it is expected that the Ministers will respond within 90 days. Details of ministerial responses will be tabled in Hansard.

If I have substantial amount of signatures from all over the world it will add more power to the petition. The petition will also be submitted to the Prime Minister, Deputy Prime Minister, and Minister and to the Leader of Opposition. We will submit the same to any interested party.

Australia’s reputation as a “fair go’’ country would suffer and will badly damage our reputation overseas and call into question our moral values. Any reasonable right minded person would consider such a law to be simply unfair and inhumane.

Based on the reasoning set out above, we request that the minister and the government not to make hasty decisions that would be effective in retrospect and with complete disregard for human life.

We further urge the government to provide more generous transitional provisions than has already provided to international students who has been on a student visa at least as at 8 February 2010.

The writer Dinesh Iriyagolle Weerakkody is practicing as an Australian Solicitor & a Barrister at Oates Rennick & Associates. He was the former head of the Asia Pacific Forum of Environmental Journalists facilitated by UNEP & UN-ESCAP. He has a keen interest in Social, environmental sustainable development issues. He can be contacted on dweerakkody@hotmail.com (0425725570)