Australian Migration Law: Irina Boldova - Essay Example

Australian Running Head: AUSTRALIAN MIGRATION LAW: IRINA BOLDOVA Australian Migration Law: Irina Boldova 6 May 2008 Australian 2 Australian Migration Law: Irina Boldova The basic facts about Irina Boldova are: she is a Russian national; she is 30 years old, she is a prima ballerina of the Bolshoi Ballet, one of the oldest and most prestigious ballet company in the world; she is presently in Australia, and works as an agent for the ASIO (Australian Security Intelligence Organisation) and therefore her life and liberty is in danger. She has a present valid visa Subclass 420 (Entertainment visa) which is valid for two weeks more and she has an intimate relationship with an Australian citizen, and has been promised a job by the local ballet company.. There are three options from which Irina may choose to achieve her purpose which is to seek for a permanent residency status in Australia. These are the following: apply for a territorial asylum status under Subclass 800; apply for a protection visa (subclass 800), and; apply for a Distinguished Talent Visa (Migrant or Resident which are Class BX), 1 Territorial Asylum Visa A territorial asylum visa is one of the types of political asylum visa. It is indicated as Class BE under Schedule 1, Section 1131 of the Migration Regulations 1994. This visa is a two staged process. First, Irena must write to the Minister of Foreign Affairs of her intention to seek for a political asylum. If the Minister grants her one, she must then proceed with the formal procedure under Section 1131 of the said Act. This is because under Section 3, subsection (aa) of the said law, she must, at the time of the application, attach documentation which “evidences the Australian 3 grant by a Minister to the applicant of territorial asylum in Australia; and was issued by or on behalf of the Commonwealth.” The other pertinent requirement under the said provision is for the applicant to be actually in Australia. In a recent case involving a Chinese diplomat, Chen Yonglin who sought the Minister’s approval for political asylum in Australia, the Australian Senate Foreign Affairs, Defence and Trade Committee conducted a hearing into the case in connection with the inquiry on asylum and protection visas. It was established during the said inquiry that the government through the Minister, in considering political asylum applications, is guided by the following criteria: “national interest, legal obligations, humanitarian considerations, and public opinion.” It was also learned during the said inquiry that three government agencies are actually involve in deciding political asylum cases: ASIO which will determine the security risk status of the applicant; the immigration agency will determine the suitability as immigrant of the applicant, and; external affairs, the humanitarian aspect of the application (Mr. Chen Yonglin’s Request for Political Asylum 2005). In the present case, there is a greater possibility that an application by Irina to the Minister for Foreign Affairs will result in greater success than that of Mr. Chen. In the first place, Irina is an asset of the ASIO, having spied for them for several years already. Secondly, the government will be pressured to accede to Irina’s wishes considering that spying even on Russia is not a very diplomatic or a moral activity and that the cold war is over and Russia, after its collapse in the late 1980s, has ceased to be a global threat. The public opinion, not to say of the international judgment, will not be very favorable to the Australian government if the word of Irina’s spying gets out. Of course, this is not to say that Irina should blackmail the Australian Australian 4 government. There is no need because the government bureaucrats will recognise and understand it even without anyone stating it. Assuming that the above theory proves true and Irina is granted approval by the Minister, the next step is to go through the formal process under the above-mentioned provision and under Schedule 2 of the Act, Subclass 800, Sections 800.1 to 800.7. This means applying with the Department of Immigration and Citizenship for the issuance of the visa itself because the approval of the Minister does not carry with it the issuance of the Territorial visa. Under the subsections of Subclass 800, the applicant is required to satisfy the criteria for certain public interest. There are seven of them, in the case of Irina because she is above 18 and they are the following: 4001, 4002, 4003, 4004, 4005, 4009 and 4019. Public Interest Criteria (PIC) 4001 is concerned with the character test. Under this provision, it is really up to the Minister’s discretion whether the passing of the character test by the applicant should affect his decision to grant or not to grant the visa. The specific provision which discusses the character test mentioned is set forth in Section 501 of the Migration Act of 1958. There are four major character determinants which may affect the decision of the Minister: a substantial criminal record; association with person or persons with criminal record or conduct, past and present criminal conduct and the possibility that the applicant, once he or she has attained a permanent Australian visa will pose considerable hazard to peace and order in the country. If Irina has none of the aforesaid, then she will pass this particular requirement although it will not guaranty alone a grant of visa. The next criteria should not be difficult to hurdle for Irina since she has served the ASIO as an informer for years. PIC 4002 requires ASIO’s favorable assessment of the applicant Australian 5 as a non-security risk which is related to PIC 4003’s requirement of the possible involvement with weapons of mass destruction and other anti-Australian foreign policy interests. While 4004 is concerned with personal debts, 4005 is about diseases that may put at risk the lives and health of Australian citizens. PIC 4009 on the other hand, requires the intent to reside permanently in the country while 4019 touches on language proficiency and financial capacity which are however discretionary upon the Minister to include. 2 Protection Visa In the case of Chen Yonglin, the rejection by the Minister of his preliminary application to him for political asylum did not deter him from taking the next step to ensure that he stays in Australia permanently. The next move he pursued was to apply for a Protection Visa, indicated under Section 36, Subdivision A, Division 3 of the Migration Act of 1958. The basis of this class of visa is the international treaty/convention to which the country of Australia is signatory to. This is the 1951 Convention to the Status of Refugees which provisions were extended to apply equally to all other refugees not mentioned in the original Convention by the provisions of the 1967 Protocol Relating to the Status of Refugees and the Resolution 2198 of the UN General Assembly. In effect the said agreements provided for the granting of the signatory states to refugees of refugee status in their jurisdiction. A refugee is one who is “persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country…” Australian 6 Under the above condition, Irina may avail of the Protection Visa on the ground that she feared for her own life and liberty considering that she felt she is being shadowed by MIBs. Her fears are undeniably well-founded considering the activities she got herself into with the ASIO. Her affiliation with the ASIO can be rationalized by claiming that she has a political opinion inconsistent with that of her country which drove her to spy for ASIO. Section 36 of the Migration Act of 1958 grants Protection visa to non-Australian citizens if the Minister has determined that the case falls under the Convention provision which Australia has an obligation to honor. As an asylum seeker, however Irina must pass the health test under Public Interest Criteria 4005 which requires among others that she be free from certain diseases that are communicable and therefore can pose hazard to the health of the population in general like tuberculosis and the like or in a condition which would require her to be placed under health care or community services. The rationale for the latter is that if an asylum seeker requires all these, costs of such will prejudice the community and deprive Australian citizens and permanent residents of the opportunity to make use of those health care for themselves. In the same manner that Irina is required under the territorial asylum visa to undergo a character test; the protection visa likewise requires that she must be possessed of a character that will not make her a liability to the Australian peace and order. Thus, under the Migration Act 1958, Section 501, Irina must not have a criminal record or has exhibited in the past or in the present criminal behavior or conduct. Likewise her association with criminal elements is scrutinized and her entry into the country must not likely expose the country and its citizens to WMD and other anti-Australian foreign policy activities like terrorism. Australian 7 Under the Protection Visa provisions, Irina may be granted temporary or permanent visa. But since Irina entered into the Australian jurisdiction lawfully – that is with a valid visa, she is entitled, if qualified, to a permanent protection visa. Subclass 866 of the Migration Regulations of 1994 is a protection visa that is permanent in effect. The main requirement under this provision is, of course, the rightful claim of the applicant under the 1951 Convention to the Status of Refugees. As was stated earlier, Irina falls within the ambit of a political refugee because her alliance with ASIO has exposed her to danger of persecution and prosecution at home. In addition, the said provision requires that an applicant has been granted a Subclass 785 (temporary), the said visa has not been cancelled and the applicant has not left Australia or the applicant, at the time he entered Australia had a valid visa issued in his name and the visa was applied with genuine supporting documents, valid and was not invalidly altered or the applicant has been issued a temporary safe haven visa and has not left Australia since the grant of the visa. Among the aforesaid options, Irina can only claim under the second one considering that she has not been issued any Subclass 785 or temporary haven visa. Assuming that all the requirements of that second option is met by Irina, viz., valid, genuine visa issued under her name, and then she falls within the ambit of the said law up to this point. The law likewise sets forth requirements for the applicant which he must meet at the time the application is decided. In the case of Irina, she must not have been convicted of an offence which is against the law of the Commonwealth, State or territory which is punishable by a maximum penalty of 12 months. She must have also undergone by that time a medical examination conducted by any of the medical practitioners indicated by the law: a Australian 8 Commonwealth Medical Officer; a Minister-approved medical personnel, or; one employed by a Minister-approved entity. Irina must have also, by that time, undergone a chest x-ray examination conducted by an authorized radiologist. There must have already been a finding, by that time, that the results of Irina’s medical examination will not pose a hazard to the Australian public. Likewise Irina is to satisfy Public Interest Criteria 4001 on character test, 4003 on non-involvement with WMD and other anti-Australian foreign policies, 4003A on proliferation of WMD and 4019 on language proficiency and financial capacity (Migration Regulations 1994). Distinguished Talent Visa Being a prima ballerina of one of the oldest and most prestigious ballet companies in the world, must give Irina some kind of edge. To bolster her prima ballerina status, she had an excellent record as a student at the Moscow Conservatorium for Ballet. Under the Australian immigrations laws, the country welcomes talented individuals and gives them the opportunity to live in the country under a permanent status. There is a class of visa under the Distinguished Talent category which could very well fit the talent of Irina. This is the Distinguished Talent visa Migrant (Class BX) which is a very interesting provision because not only does it take into account talent but also service to the ASIO. The visa type is governed by Section 1113 of the Migration Act 1994 and it has one subclass which is 858. This type uses Form 475V and requires the application to be made in Australia which therefore implies that the applicant must also be in Australia at the time of the application. The application may be made either by mail to the post office box of the Australian Australian 9 Immigration or through the use of a courier service. There are two ways by which the visa requirements can be met. The first method is by completing the requirements under 858.212 (2) or secondly, by meeting the requirements under 858.212 (4). Under Subclass 858, there are requirements which must be satisfied at the time of the application, the first being that the applicant must not hold visas like the Electronic Travel authority Class visa, Long Stay visa and the like, none of which is the Subclass 420 Entertainment being held by Irina which means that she passes the requirement up to this point. A very interesting portion of the provision of the subclass is the two methods, which can be met in the alternative, with which the visa can be availed of. It is interesting because both methods can be met by Irina. Provision 858.212 (2) for example requires that an applicant must have the following: (2) the applicant (a) has an internationally recognized record of exceptional and outstanding achievements in one of the following fields: a profession, a sport; the arts; academia and research, and (b) is still prominent in the area, and (c) would be an asset to the Australian community, and (d) would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area, and (e) produces a completed form 1000; and; (f) if the applicant has not turned 18, or is at least 55 years at the time of the application - would be of an exceptional benefit to the Australian community.” Irina completely fulfills all of the above requirements. First, she is a prima ballerina in a well-known form of art, ballet, employed in one of the most prestigious ballet companies in the world and as an indicator that she is a world-recognized talent she travels all over the world with the ballet company; second, she is currently active in her profession and at her age of 30, she is still at the peak of her career; third, there is no doubt that she would be an asset to the Australian 10 Australian community with her world-class talent; fourth, one proof that she would not have any difficulty in obtaining employment in Australia is that no less than the Director of Ballet Australia promised to give her a job in the company once she obtained a permanent visa. Irina has to however complete Form 1000. The second method by which a visa can be obtained under this particular subclass is 858,212 (4). The said provision sets forth the following requirements: if the applicant will claim to have given “specialised assistance to Australia in matters of security”, the Minister may act on the said application after consultation with the Minister of ASIO or the Director-General of the Security. Obviously, Irina fulfills the requirements as well under this method because as was earlier stated she has worked for the ASIO by providing information to them matters of national security which is tantamount to spying on her own country for the benefit of Australia. Giving her a visa under the Distinguished Talent category upon favorable recommendation by ASIO to guaranty her safety is the least thing the country can do for her. Of course, the methods are in the alternative and it will be entirely up to Irina which method she will choose to obtain visa under this category. At the time of the decision, Irina must as well meet some more requirements like the Public Interest Criteria discussed earlier falling under PIC 4001, 4002, 4003, 4004, 4005, 4009 and 4010. PIC 4010 which has not been discussed earlier refers to the requirement that if an applicant will stay permanently in the country or for more thasn12 months, it must be without undue personal difficulty or burden the Australian community. Anent this requirement, it is unlikely that Irina will have any personal difficulty. In the first place, she is already promised a Australian 11 job by the local ballet company. Second, she will be likely kept company by her lover Letas Rollova which means that she will not be penniless and will not be therefore begging from the Australian community and that she will not be lonely although she is new to the country. Conclusion: Recommendations This paper discussed three options for Irina and the best option for her is the third one which is the Distinguished Talent visa (Class BX) (subclass 858). Her talent as well as her previous work for the ASIO, the Australian Intelligence, come in very handy and could very well more than fulfill the requirements of the provision. However, the question that must be asked is whether the mere application of the visa will suspend the period of the running of the expiration of her presently held visa which is a Subclass 420 Entertainment visa. If it does not, there is no way that the visa application will be decided and granted before two weeks when her visa will already expire. The implication is that Irina will be compelled to go home to her home country Russia which is contrary to her purpose and intention to apply for a permanent residency in Australia. There is however a class of visa which Irina can apply for temporarily before the expiration of her Subclass 420 Entertainment visa and during the pendency of her application for a Distinguished Talent Visa. Under Subclass 010 on Bridging visas, a bridging visa is issued if a non-citizen has made a valid application while he/she is in Australia and the visa that is being applied for is a substantive visa (meaning not a bridging or a criminal justice visa) and that such a visa application has nit yet been determined and decided by the appropriate authorities. . Australian 12 References (2005). Mr Chen Yonglins request for political asylum. Chap 3. 3.3; 3.11. Senate Foreign Affairs, Defence and Trade Committee. http://www.aph.gov.au/SEnate/committee/fadt_ctte/completed_inquiries/2004-07/asylum/report01/index.htm Migration Regulations 1994 Migration Act 1958 Read More