How informal are the lower courts in Australia


Australia is one of the classic immigration countries. Even today, of the approximately 19 million inhabitants of Australia, 23% were born abroad and a good quarter have at least one foreign-born parent.1 Australia's population has grown by 1 to 2% per year over the past 10 years; Although the birth rate has fallen to 1.7 children per woman in recent years, natural population growth has contributed more to the population growth than the influx of immigrants.2 While the average age of the population was still 34 in 1997, an increase to 40 to 41 years by 2021 and to 44 to 46 years by 2051 is forecast.3

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  1. See Australia in Brief 2000, at: (09/28/00), and CIA, The World Factbook 2000, at: http: // www. (10/17/00). The main country of birth is still Great Britain. DIMA, Population Flows: Immigration Aspects (December 1999), 4, under: (01/20/01).
  2. DIMA, Immigration, Fact Sheet 13, at: (01/20/01).
  3. DIMA, Immigration, Fact Sheet 13 (note 2). For the influence of immigration on the aging of the Australian population, see the DIMA report at: (01/20/01).
  4. Mary Crock, Immigration and Refugee Law in Australia (1998), 2; DIMA, Population Rows (note 1), 94th Google Scholar
  5. While Australia accepted approx. 68,000 immigrants in the immigration and approx. 12,000 in the humanitarian program in 1998/1999, this was the case in the USA. approx. 800,000, in Canada approx. 200,000 and in New Zealand, which has only approx. one fifth of the population of Australia, approx. 55,000 immigrants. See DIMA, Immigration, The Facts, at: (14.09.00) and DIMA, Population Flows (note 1), 14 and 22.
  6. Crock (note 4), 1; see also IOM, World Migration Report 2000, 268 f.Google Scholar
  7. The figures relate to the financial year from July 1 to June 30 of the following year; see DIMA, Fact Sheet 1, at: (01/20/01).
  8. This number does not include onshore refugees and New Zealand citizens who came directly to Australia. In 1998/1999 1,830 “onshore refugees” received a residence permit (“protection visa”). During the same period, 24,686 New Zealanders came to Australia for permanent residence. See DIMA, Population Flows (note 1), 22, 25 and 33. For more details, see 3. Google Scholar below
  9. The five main countries of origin of immigrants who were granted permanent residency in 1998/1999 were Great Britain (14.3%), the People's Republic of China (9.2%), South Africa (8.1%), the Philippines (5%) and India (4.3%). See DIMA, Population Flows (note 1), 25th Google Scholar
  10. These numbers do not include New Zealand citizens. In 1998/1999 9,335 New Zealanders came to Australia for a temporary but planned longer than a year and 883,822 New Zealanders for a stay of less than a year. See DIMA, Population Flows (note 1), 33 and 35. Google Scholar
  11. This group is mainly composed of tourists and people visiting friends or relatives; See below 2. b.Google Scholar
  12. See Schedule 2, Subclass 417; for more information on the schedules see below 1. c. This visa enables people between the ages of 18 and 30 to come to Australia to take vacations and work to finance their stay in Australia. The visa is limited to one year; However, one employer may not work for more than three months. The visa is only valid for countries with which Australia has concluded a corresponding agreement (Germany, Great Britain, Ireland, Japan, Canada, South Korea, Malta and the Netherlands). Google Scholar
  13. See DIMA, Population Flows (note 1), 39 ff. Google Scholar
  14. DIMA, Population Flows (note 1), 28th Google Scholar
  15. Savitri Taylor, Protecting the Human Rights of Immigration Detainees in Australia: An Evaluation of Current Accountability Mechanisms, Sydney Law Review 22 (2000) 1, 50 (91). Google Scholar
  16. Of these, 2,106 came by plane and 926 by boat. DIMA, Population Rows (note 1), 48th Google Scholar
  17. As of July 2000, Google Scholar
  18. In 1998/1999 there were still 920 people; see DIMA, Fact Sheet 81, at: (14.09.00). In response to the increase in the number of boat refugees, the Border Protection Legislation Amendment Act 1999 (Act No. 160 of 1999) was enacted; see IOM (note 6), 271.
  19. Of these, 27.3% are said to have been in the country for more than nine years; See DIMA, Population Rows (note 1), 48th Google Scholar
  20. Regarding the Convention, Australia has a reservation on the introduction of paid maternity leave and the inclusion of women in combat troops. Australia has not yet signed the 1999 Additional Protocol to the Convention.Google Scholar
  21. Tony Blackshield / George Williams, Australian Constitutional Law and Theory (2nd ed. 1998), 682nd Google Scholar
  22. An estimated 404,800 New Zealanders were in Australia in 1999, over half of whom had been in Australia for more than a year; see DIMA, Fact Sheet 6, at: (14.09.00).
  23. Commonwealth of Australia Constitution Act 1900.Google Scholar
  24. Crock (note 4), 21; Blackshield / Williams (note 22), 779. Google Scholar
  25. The consolidated versions of the laws and regulations are available in SCALEplus, the database of the Australian Department of Justice, at:
  26. Act No. 62 of 1958 as amended.Google Scholar
  27. The governor general acts on the proposal of a minister; See Blackshield / Williams (note 22), 439. However, after a regulation has been passed, it must be submitted to the two Houses of Parliament under Section 48 of the Acts Interpretation Act 1901 (Cth) (Act No. 2 of 1901 as amended); if the ordinance is rejected by one of the chambers within the deadline, it loses its effectiveness.Google Scholar
  28. Statutory Rules 1994 No. 268 as amended.Google Scholar
  29. Sections 31–38 of the Migration Act only mention a few less significant visa categories; the other categories, however, are only set out in the regulations.Google Scholar
  30. Schedules 6 through 7 should be read in conjunction with Sections 92–96 of the Migration Act, which authorize the Minister to rate applicants using a scoring system. In this regard, the schedules specify certain qualifications and the points awarded for them.Google Scholar
  31. The other schedules deal with additional criteria for foreigners staying illegally in Australia (Schedule 3), special return criteria (Schedule 5), the amount of the partial reimbursement of the visa fee (Schedule 8A), regulations for special entry and clearance (Schedule 9), for search warrants and within the framework of the agreement on the International Civil Aviation Organization ICAO (Annex 9) mandatory forms (Schedule 10), Memorandum of Understanding (Schedule 11) and correspondence (Schedule 12) with China.Google Scholar
  32. Act No. 83 of 1948 as amended.Google Scholar
  33. Act No. 45 of 1946 as amended. This law regulates the guardianship of foreign children who have come to Australia alone.Google Scholar
  34. Act No. 3 of 1971 as amended. This law applies to English courses and citizenship courses. Google Scholar
  35. Act No. 177 of 1992 as amended.Google Scholar
  36. Act No. 197 of 1991 as amended.Google Scholar
  37. Act No. 26 of 1997 as amended. This law provides for the charging of fees for visa applications.Google Scholar
  38. Act No. 203 of 1997. Google Scholar
  39. See DIMA, Fact Sheet 4, at: (14.09.00).
  40. See Schedule 2, Subclass 444 (“Special Category”). Google Scholar
  41. For this see below 2. of the Google Scholar
  42. DIMA, Fact Sheet 6 (note 23). Google Scholar
  43. This is the case for the following visa categories: "special category visas", "special purpose visas", "absorbed person visas", "ex-citizen visas", "protection visas", "bridging visas", "temporary safe haven visas", “Criminal justice visas”, “enforcement visas”, see Sections 32 ff. Of the Migration Act.Google Scholar
  44. See Regulation 2.01, Google Scholar
  45. Schedule 2 regulates the requirements of the approx. 130 visa subcategories on over 700 pages.Google Scholar
  46. See Section 31 (1) and (3) and Section 40 of the Migration Act in conjunction with Regulations 2.01 to 2.04.Google Scholar
  47. In addition to tourists, people who visit relatives or friends or seek medical treatment in Australia are referred to as such. These include Schedule 2, Subclasses 675 ("Medical Treatment - Short Stay"), 676 ("Tourist - Short Stay"), 679 ("Sponsored Family Visitor - Short Stay"), 685 ("Medical Treatment - Long Stay"), 686 ("Tourist - Long Stay"), and 976 ("Electronic Travel Authority - Visitor). The “long stay” residence permit is required for a stay of more than three months.Google Scholar
  48. See Schedule 2, Subclasses 560 (“Student”), 562 (“Iranian Postgraduate Student”), 563 (“Iranian Postgraduate Student Dependent”). Google Scholar
  49. Schedule 2, Subclasses 456 ("Business - Short Stay"), 459 ("Sponsored Business Visitor - Short Stay"), 956 ("Electronic Travel Authority - Business Entrant - Long Validity") and 977 ("Electronic Travel Authority - Business Entrant - Short Validity "), which only entitle to a stay of less than three months, as well as subclasses 418 (" Educational "), 419 (" Visiting Academic "), 422 (" Medical Practitioner ") and 457 (" Business - Long Stay " ), which entitle you to a longer stay.Google Scholar
  50. Schedule 2, Subclasses 411 ("Exchange"), 416 ("Special Program"), 420 ("Entertainment"), 421 ("Sport"), 423 ("Media and Film Staff"), 424 ("Public Lecturer") , 425 ("Family Relationship") and 428 ("Religious Worker"). Google Scholar
  51. Schedule 2, Subclasses 415 ("Foreign Government Agency"), 417 ("Working Holiday"), 426 ("Domestic Worker - Temporary - Diplomatic or Consular"), 427 ("Domestic Worker - Temporary - Executive"), 995 (" Diplomatic - Temporary "), 442 (" Occupational Trainee "). Google Scholar
  52. For example Schedule 2, Subclasses 560 ("Student") and 686 ("Tourist - Long Stay"), as well as some of the visa subcategories mentioned in note 50.Google Scholar
  53. Schedule 2, Subclass 457. Google Scholar
  54. Schedule 2, Subclass 457.223 (2) in conjunction with Regulation 1.03.Google Scholar
  55. Even if the regulations do not provide for the participation of trade unions and professional associations, such participation takes place regularly; see Crock (note 4), 116 and DIMA, Fact Sheet 59, at: (14.09.00).
  56. See the individual requirements for this in Schedule 2, Subclass 457.223 (4) and (5) in conjunction with Division 1.4A of Regulation.Google Scholar
  57. See the individual requirements for this in Schedule 2, Subclass 457.223 (7). Google Scholar
  58. In addition, there is this visa sub-category for “Service Seilers”, within the framework of the so-called “Regional Headquarters Agreements”, in the case of “Sponsorship by Overseas Business” and for people with certain privileges and immunities. See the individual requirements for this in Schedule 2, Subclass 457.223.Google Scholar
  59. See Schedule 2, Subclass 457.5 Google Scholar
  60. The third group represents the category of persons with special eligibility and comprises Schedule 2, Subclasses 151 (“Former Resident”) and 832 (“Close Ties”). In terms of numbers, however, it is negligible, see 3. a.Google Scholar
  61. See Regulation 1.20, Google Scholar
  62. For more details, see 3. b. bb.Google Scholar
  63. Schedule 2, Subclass 866; Section 36 of the Migration Act.Google Scholar
  64. Schedule 2, Subclass 785. The TPV is valid for a period of three years. Unlike the PA, it does not grant the right to family reunification, no right to re-enter Australia and neither access to the services that are granted to “offshore refugees”, nor to general welfare systems (“social welfare system”). However, people with a TPV are allowed to work, have the right to certain social benefits ("special benefit, rent assistance, maternity and family allowances and family tax payment"), access to medical care ("medicare benefits") and certain other benefits ( "Early health assessment, intervention program, torture and trauma counseling"); see DIMA, Fact Sheet 63, at: (14.09.00) and DIMA, Fact Sheet 42, at: .au / facts / 42assist.htm (14.09.00). A new procedure will be used to decide on the granting of a PV upon request; However, they generally only receive a PV if they have had a TPV for 30 months; see DIMA, Fact Sheet 41, at: (14.09.00).
  65. Schedule 2, Subclasses 200 (“Refugee”), 201 (“In-country Special Humanitarian”), 203 (“Emergency Rescue”) and 204 (“Woman at Risk”). Google Scholar
  66. Schedule 2, Subclass 202, “Global Special Humanitarian.” Google Scholar
  67. The special category for people who are victims of discrimination, kidnapping or other distress ("hardship") and do not fall into either of the other two categories ("Special Assistance Category, SAC"), whose application is usually supported by a close family member based in Australia had to be, was dissolved on November 1, 2000. For 2000/2001 only 900 places are planned for people whose applications are already being processed. The immigration of close family members was integrated into subclass 202 (Global Special Humanitarian). See DIMA at: (02.11.00) and DIMA, Fact Sheet 40, at: 40human.htm (11/02/00). The SAC included Schedule 2, Subclasses 209 ("Citizens of the Former Yugoslavia - Displaced Persons"), 211 ("Burmese in Burma"), 212 ("Sudanese"), 213 ("Burmese in Thailand"), 215 (" Sri Lankan ”), 216 (“ Ahmadi ”).
  68. See Schedule 4, 4002 and 4003. The latter exclusion criterion was established by a change in the regulations on November 1, 2000; see DIMA at: (02.11.2000).
  69. See Schedule 4, 4004. Google Scholar
  70. See Schedule 4, 4005 ff. Google Scholar
  71. See Schedule 4, 4006A (2). Google Scholar
  72. This includes people who had applied for a permanent residence permit within the last five years prior to applying for a visa, as well as people who, based on certain characteristics such as nationality, marital status, age, gender, employment or the requested visa category, have a tendency towards visa overdrafts according to statistical studies See Schedule 4, 4011. Google Scholar
  73. See Schedule 4, 4013. Google Scholar
  74. Section 200 of the Migration Act regulates the deportation of foreign nationals who have resided in Australia for less than ten years and who have been sentenced to death or imprisonment for at least one year (Section 201 of the Migration Act) whose conduct poses a threat to the security of Australia (Section 201 of the Migration Act) or who are guilty of a specific serious criminal offense (Section 203 of the Migration Act) Google Scholar
  75. See Section 198 of the Migration Act, Google Scholar
  76. See Sections 199 and 205 of the Migration Act.Google Scholar
  77. See Sections 85 ff. Of the Migration Act. Neither the Migration Act nor the Regulations.Google Scholar contain further regulations
  78. For 2000/2001, 76,000 places are planned in the immigration program; see DIMA, Fact Sheet 2, at (14.09.00).
  79. This corresponds to a share of 47.2% DIMA, Population Rows (note 1), 14. The share of places for family reunification was still well over 50% until 1996/1997; Since July 1, 1997, people with loose family ties no longer fall under the category of family reunification ("family migration"), but rather under the category of Australian-supported immigrants with certain skills ("Skilled-Australian-linked" or "Skilled- Australian-sponsored ”) within the immigration of people with certain skills (“ skilled migration ”).This reflects the increased weighting of factors that are important for the Australian economy within the selection criteria (“skill-related attributes”). See DIMA, Population Flows (note 1), 13th Google Scholar
  80. In addition, for 1999/2000, 5,000 spots were provided in the “skill stream” in case the spots were exhausted, in order to give the economy and the governments of the member states the possibility to target additional immigrants in case of need; See the press announcement by the Minister for Immigration and Multicultural Affair of April 29, 1999 at: (September 27, 2000).
  81. DIMA, Population Rows (note 1), 14. See note 61.Google Scholar
  82. This also includes so-called de facto couples of different sexes, see the definition of "spouse" in Regulation 1.03 and 1.15A, as well as Schedule 2, Subclasses 100 (visa issuance outside Australia) and 801 (visa issuance within Australia). In addition, Subclass 831 (“Prospective Marriage Spouse”) provides for a permanent residence permit for the spouse who has come to Australia on the basis of a temporary residence permit for the purpose of marriage (“Prospective Marriage”, Subclass 300 ).Google Scholar
  83. "Interdependent relationship". This should essentially include couples of the same sex; See the definition in Regulation 1.09A. Schedule 2, Subclasses 110 (issuing visas outside of Australia) and 814 (issuing visas within Australia) .Google Scholar
  84. These are financially dependent children, orphans and adopted children. See Regulation 1.03, 1.04, 1.05A and 1.14 as well as Schedule 2, Subclasses 101 (“Child”), 102 (“Adoption”) and 117 (“Orphan Relative”) for visas outside Australia as well as 802 (“Child”) and 837 ("Orphan Relative") for visas in Australia.Google Scholar
  85. Cf. Regulation 1.05 in conjunction with Schedule 2, Subclasses 103 (“Parent”) and 118 (“Designated Parent”) for visas outside Australia, and 804 (“Aged Parent”) and 859 (“Designated Parent”) for visas in Australia.Google Scholar
  86. See Regulation 1.03 and 1.05A and Schedule 2, Subclasses 114 (issuing visas outside Australia) and 838 (issuing visas in Australia) .Google Scholar
  87. See Regulation 1.15 and Schedule 2, Subclasses 115 (issuing visas outside of Australia) and 835 (issuing visas in Australia) .Google Scholar
  88. See Regulation 1.15AA and Schedule 2, Subclasses 116 (visa issuance outside Australia) and 836 (visa issuance in Australia) .Google Scholar
  89. Schedule 2, Subclass 832 (Visa currency only within Australia) .Google Scholar
  90. The categories of family reunification are determined by the Migration Regulations and the Schedules, i.e. by the legislator (see 1. c) above. Google Scholar
  91. The family reunification rules apply to Australian citizens, permanent residents and, under certain conditions, eligible New Zealand citizens; see definition in Regulation 1.03. Google Scholar
  92. The “sponsor” undertakes to support the immigrant financially for the first two years; See Regulation 1.20 Google Scholar
  93. See schedules 4 and 5 of the regulations. For more details, see above, 2nd of the Google Scholar
  94. See Schedule 2, Subclasses 124 (visa issuance outside Australia) and 858 (visa issuance in Australia). Of the 35,000 visas granted in 1998/1999 in the “skill stream”, only 210 went to immigrants with special talent, see DIMA, Population Flows (note 1), 14. For this reason, this category will not be presented in any further detail.Google Scholar
  95. These are the following visa subcategories: Schedule 2, Subclasses 137 ("State / Territory-nominated Independent"), 139 ("Skilled-Regional-sponsored"), 119 and 857 ("Regional Sponsored Migration Scheme, RSMS"), 129 and 842 (“State / Territory Sponsored Business Owner”), 130 and 843 (“State / Territory Sponsored Senior Executive”), 134 (“Skill Matching”) and 846 (“State / Territory Sponsored Regional Established Business in Australia, REBA “). Google Scholar
  96. See the overview in DIMA, Fact Sheet 25, at: (14.09.00).
  97. Schedule 2, Subclasses 136 (“Skilled-Independent”) and 137 (“Skilled State / Territory-nominated Independent”). Since July 1, 1999, these two visa subcategories have replaced subclasses 126 (“Independent”) and 135 (“State / Territory-nominated Independent”). See DIMA, Fact Sheet 25 (note 101) and Schedule 1, 1120 and 1128C.Google Scholar
  98. Of the 35,000 visas granted in 1998/1999 in the “skill stream”, 13,640 went to independent immigrants; see DIMA, Population Flows (note 1), 14th Google Scholar
  99. “Skilled occupation”, see definition in Regulation 1.03.Google Scholar
  100. See Schedule 2, Subclass 136.223 in conjunction with Part 2, Division 3, Subdivision B of the Migration Act.Google Scholar
  101. In 1999/2000 it should be reduced to 105 points; see the press announcement by the Minister for Immigration and Multicultural Affairs of April 29, 1999 at: (September 27, 2000).
  102. Division 2.6 in conjunction with Schedule 6A.Google Scholar
  103. The number of points to be awarded is listed in Schedule 6A, Parts 1–8 of the Regulation.Google Scholar
  104. Schedule 2, Subclass 137 in conjunction with Part 2, Division 3, Subdivision B of the Migration Act.Google Scholar
  105. For the points procedure see below 6. a.Google Scholar
  106. See the overview in DIMA, Fact Sheet 25 (note 101). Google Scholar
  107. Schedule 2, Subclasses 138 (“Skilled-Australian-sponsored”) and 139 (“Skilled-Regional-sponsored”). Since July 1, 1999, these two visa subcategories have replaced subclasses 105 (“Skilled-Australian-linked”) and 106 (“Skilled-Regional-linked”). See DIMA, Fact Sheet 25 (note 101) and Schedule 1, 1128A and 1128B.Google Scholar
  108. Of the 35,000 visas granted in 1998/1999 in the “skill stream”, 9,240 went to highly qualified immigrants with family members in Australia; see DIMA, Population Rows (note 1), 14th Google Scholar
  109. Specifically, these are a parent, financially independent children, adoptive and stepchildren, a brother or sister (also adoptive and step-siblings), a nephew or niece (also adoptive or step-nephew or niece) .Google Scholar
  110. See Division 2.7 of the Regulations.Google Scholar
  111. “Skilled occupation”, see definition in Regulation 1.03.Google Scholar
  112. See Schedule 2, Subclass 138.225 in conjunction with Part 2, Division 3, Subdivision B of the Migration Act.Google Scholar
  113. See Schedule 2, Subclass 138 in conjunction with Regulation 2.26A and Schedule 6A, Parts 1–9.Google Scholar
  114. Schedule 2, Subclass 139. With the exception of Sydney, Newcastle, Wollongong, Perth, Brisbane, the Sunshine Coast and the Gold Coast, all areas are currently designated as “designated areas”; see DIMA, Fact Sheet 26, at: (09/14/00).
  115. “Vocational English”, see Regulation 1.15B.Google Scholar
  116. Of the 35,000 visas granted in 1998/1999 in the “skill stream”, 5,650 went to employer-sponsored immigrants and 6,080 to immigrants with business skills; see DIMA, Population Rows (note 1), 14th Google Scholar
  117. Schedule 2, Subclasses 121 (Visa issuance outside Australia) and 856 (Visa issuance within Australia) .Google Scholar
  118. Such persons are considered to be those who have completed at least three years of training, have three years of professional experience in the profession corresponding to their training and meet the requirements for obtaining a professional license, if such is required for the practice of their profession in Australia; See Regulation 5.19 (3) Google Scholar
  119. See the individual requirements for this in Schedule 2, Subclasses 121 and 856 in conjunction with Regulation 5.19, as well as the overview in DIMA, Migration Booklets, at: (06.09. 00).
  120. See Regulation 5.19 (2) Google Scholar
  121. Schedule 2, Subclasses 119 (Visa issuance outside Australia) and 857 (Visa issuance within Australia) .Google Scholar