New permanent migrants are more highly educated and have better incomes than both their predecessors and the average Australian, according to a report by the Migration Council of Australia.

Many Australians have not been keeping up with the shift in Australia’s economy away from manufacturing and resources toward a high skilled service economy that is diversified. Australia’s migration policies over the last 2 decades has helped fill this gap “enabling structural changes to unfold relatively seamlessly and supplying the human capital needed for the expansion of technology driven sectors,” noted the MCA paper.

This paper analysed the latest ABS statistical information to gain an in-depth picture of how Australia’s migration program is performing and provides an overview of the demographic and socioeconomic characteristics of recent Australian immigrants.

It concluded that, “English language proficiency is the primary determinant for migrants in the labour market, more important than both work experience and formal qualifications…improving English language proficiency is the single most effective method to increase the economic benefit [for new migrants]”.

It notes that migrants with low or no language proficiency have historically faced a 10–20 per cent earnings gap. In contrast, the paper notes that newer migrants with very good English proficiency are thriving in the labour market, outperforming even their native English peers who have been in Australia for decades.

The report warned that the gap between those who can and those who cannot speak English well is growing as the economy prioritises skilled work and high tech service industries and noted that due to both skills and English language ability, there is growing gender disparity with female migrants lagging well behind.

The purpose of this article is to provide readers with details about the decision of Justice John Logan of the Federal Court in the case of Eden v Minister for Immigration and Border Protection (2015) FCA 780 (24 July 2015). 

As my colleague and fellow writer for the Migration Alliance blog, Jerry Gomez reported yesterday, Justice Logan has overturned a decision by the Assistant Minister for Immigration and Border Protection, Senator Michaela Cash, to cancel the visa of Mr Mas Eden.  Mr Eden’s visa was cancelled by the Assistant Minister on the ground that he did not meet the “character test” as a result of his having been convicted for a sexual offence while in Australia. Justice Logan decided to set aside the visa cancellation action on the grounds that it was “unreasonable”, and thus “infected” by jurisdictional error.

The factual background of the Eden case was as follows:

In plans to cut resettlement costs of refugees, the Coalition government is reportedly considering a proposal to fast track visa applications of refugees if they agree to pay AU$19,000 and their family in Australia promise to cover health and welfare costs.

Refugee advocates support the proposals which they say will help advantage refugees who have relatives in Australia with financial means.

"It definitely does advantage refugees who have relatives in Australia with financial means over people who otherwise would have been resettled on the basis of humanitarian need," Refugee Council of Australia chief Paul Power told WAToday but added that the measures, which are based on a pilot established by the former Labor government, would effectively shift the cost burden onto desperate families in Australia and prioritise people with financial means over those in greater need.

Under the pilot, which was established in 2013 a refugee is charged AU$19,124 for the first time and AU$2,680 for subsequent applicants. Mr Power estimates that the application fees plus the cost of airfares, medical checks and payments to community organisations that help facilitate resettlement could potentially cost $45,000 to bring a family of five to Australia

Almost 670 people - mostly from Syria, Iraq, Eritrea, Afghanistan and Somalia have been granted a visa under the pilot which raked in an estimated $2 million for the government.

In a scathing judgement against a ministerial decision to deport New Zealander, Mas Eden, the Federal Court effectively accused Assistant Immigration Minister Michaelia Cash of being ‘oppressive and unreasonable’.

Justice John Logan accused the minister of using “a sledgehammer to crack a nut” in the ministers  ill-fated attempt to deport Iranian-born New Zealand citizen Mas Eden and ordered the government to release Mr Eden and pay legal costs, according to a report in The Australian.

In 2011, Mr Eden had pleaded guilty to the indecent assault of a passenger in the taxi he was driving in Brisbane two years earlier. A District Court judge then sentenced Mr Eden to 12 months’ jail — wholly suspended for two years — remarking that “actions can often be misinterpreted and I think this is probably a case like that”.

While Mr Eden committed no offence in the ensuing two years, and quit working as a taxi driver, the Australian Federal Police alerted the Immigration Department to his conviction in January last year.

In April this year, Senator Cash cancelled Mr Eden’s visa on character grounds, ordering that he be sent back to New Zealand. Immigration officers went to Mr Eden’s southeast Queensland home early one morning, detaining him in front of his wife and five-year-old son.

Is there a difference between being given an opportunity to “comment” on adverse information at a merits review hearing before the Administrative Appeals Tribunal (formerly the Migration Review Tribunal) and being given the opportunity to “respond” to that information? 

And if there is a difference, what difference does it make? 

Judge Cameron of the Federal Circuit Court of Australia was called upon to answer these questions in the case of Shrivastava v Minister for Immigration & Anor, (2015) FCCA 483 (10 March 2015).