: Immigration Law - A Comparative Approach
Guide to Immigration Law of Australia, Canada and the United States
By Annmarie Zell
Annmarie Zell is a reference librarian at New York University Law School library. Before becoming a reference librarian, she worked as an attorney for the U.S. Customs Service and as a legal editor for Vendome Group, LLC. Ms. Zell holds a Juris Doctor from the University of Pennsylvania Law School and a Masters in Library and Information Science from Southern Connecticut State University.
Published December 2006
Table of Contents
I.4 Legislation, Regulations & Gazette Notices
I.5 Case Law
I.7 Fee-Based Databases Focusing on Immigration
I.8 Organizations
I.9 Refugees and Asylum Seekers
I.10 Research Guides
II.1 Government Bodies
II.3 Constitutional Provisions
II.4 Legislation, Regulations & Federal-Provincial/Territorial Agreements
II.5 Case Law
II.6 Secondary Sources
II.7 Fee-Based Databases Focusing on Immigration
II.8 Organizations
II.9 Refugees and Asylum Seekers
II.10 Research Guides
III. United States Immigration Law
III.1 Government Bodies
III.2 Government Publications
III.3 Constitutional Provisions
III.4 Legislation, Regulations & Documents in Federal Register
III.5 Case Law
III.6 Secondary Sources
III.7 Fee-Based Databases Focusing on Immigration
III.8 Organizations
III.9 Refugees and Asylum Seekers
III.10 Research Guides
Introduction
This guide is designed to identify key resources concerning the immigration law of Australia, Canada, and the United States. For each country, this guide will identify key government bodies involved in administering immigration law and organizations involved with immigrants and immigration policy. The guide will also identify select legislation, regulations, case law, secondary sources, fee-based databases and research guides relating to each country's immigration law and policy. It will report whether each country has acceded to the United Nations Convention Relating to the Status of Refugees and the United Nations Protocol Relating to the Status of Refugees, two key international conventions concerning refugees. The guide will provide online and print resources for each country's legislation, regulations, and case law relating to immigration, when available. It will also provide links to select resources relating to refugees for each country. Because of the breadth of the subject area, this guide is not comprehensive but selective. It provides an overview of the resources available and aims to serve as a starting point for those interested in conducting in-depth research in this area. Finally, sources marked with an asterisk were consulted in the preparation of this guide.
I.1 Government Bodies
Department of Immigration and Multicultural Affairs
The Department of Immigration and Multicultural Affairs (DIMA) administers Australia's immigration laws. To that end, DIMA determines whether applicants meet the criteria for visas, enforces the immigration laws, and so on.
The DIMA Web-site offers, among other things:
Minister for Immigration and Multicultural Affairs
The Minister for Immigration and Multicultural Affairs, who is also an elected member of Parliament, provides direction regarding DIMA's administration of the immigration laws.
The Minister's Web-site offers, among other things:
Migration Review Tribunal, Refugee Review Tribunal, Administrative Appeals Tribunal, Human Rights Equal Opportunity Commission, and Commonwealth Ombudsman
A number of Australian administrative bodies, including the Migration Review Tribunal, Refugee Review Tribunal, and Administrative Appeals Tribunal, make decisions concerning various immigration matters. The Human Rights Equal Opportunity Commission and Commonwealth Ombudsman may also issue decisions and reports relating to Australian immigration. To learn more about these administrative bodes, consult the portion of this guide concerning Australian immigration case law.
The following are some of the publications issued by the government bodies discussed in the previous section:
Procedures Advice Manual and Migration Series Instructions
DIMA spells out its procedures and policies in the Procedures Advice Manual (PAM). The current edition of PAM is PAM3. DIMA also issues Migration Series Instructions (MSIs), which comment on specific immigration issues and aspects of immigration legislation and regulations. MSIs are eventually incorporated into the PAM.
Ministerial Directions
The Migration Act 1958 authorizes the Minister for Immigration to issue directions to a person or body who has powers or functions under the Migration Act 1958. These directions are usually called Ministerial Directions. Currently, there are a number in effect on a variety of subject matters, ranging from circumstances when DIMA should refuse or cancel a visa to the order in which DIMA should process various types of visa applications.
Select print resources
The Australian Constitution in §51 authorizes the Australian Parliament to legislate for the "peace, order and good government of the Commonwealth with respect to"."[n]aturalisation and aliens" and "immigration and emigration."
Select free online resources
I.4 Legislation, Regulations & Gazette Notices
The Migration Act 1958 is currently Australia's primary legislation concerning immigration. It sets out the law regulating entry and migration to Australia. To that end, it sets out the framework for various types of visas, establishes sanctions for violations of the law, outlines the regulation of migration agents and the judicial review of certain immigration decisions, and so on. The Act was first passed in 1958 but has been amended many times since then.
Migration Regulations 1994
The Migration Regulations 1994 are issued pursuant to authority in the Migration Act 1958. These regulations provide details on the immigration law outlined in the Migration Act 1958. For example, the regulations spell out various types of visas, how the points system for skilled visa applicants is applied, when visas may be cancelled and so on.
Migration Agents Regulations 1998
The Migration Agents Regulations 1998 are also issued pursuant to authority in the Migration Act 1958. They set out information relating to the regulation of migration agents. For example, these regulations spell out the insurance requirements for migration agents, their continuing professional development obligations and so on.
Australian Citizenship Act 1948
The Australian Citizenship Act 1948 is the principal legislation governing citizenship in Australia. It basically concerns who is a citizen, circumstances causing the loss of citizenship, and so on.
Commonwealth of Australia Gazette Notices
The Migration Act 1958 and Migration Regulations 1994 and other immigration legislation specify that certain matters be published in the Commonwealth Government Gazette. For example, the Migration Act 1958 requires that notices be published in the Commonwealth Government Gazette when the annual caps are announced for the various classes of visas.
Select free online resources
Select print resource
For more information on locating Australian legislation, consult Nicholas Pengelley's Update to Researching Australian Law. In addition, Can Print Communications publishes copies of some Australian legislation.
The Migration Review Tribunal (MRT) is an administrative body established by Migration Act 1958 that reviews a variety of visa-related decisions made by DIMA. It replaced the Immigration Review Tribunal. When reviewing a case, the MRT normally conducts a "merits review"--meaning that it re-considers the facts and evidence of the case. In addition, the MRT will conduct a hearing if it cannot find for the applicant based on the papers. These hearings are generally non-adversarial. For more information about the MRT, see its Interpreter Handbook which, according to its forward, "was developed to set out clearly the Tribunal's requirements and to address the concerns of interpreting agencies and individual interpreters in relation to the specialised nature of the Tribunal's work."
The Refugee Review Tribunal (RRT) is a government body established by the Migration Act 1958 that reviews DIMA decisions involving protection visas. (Protection visas are reserved for persons to whom Australia owes protection obligations under the United Nations Convention Relating to the Status of Refugees and United Nations Protocol Relating to the Status of Refugees.) Also, similar to the MRT, the RRT will conduct a hearing if the RRT cannot find for the applicant based on the papers. These hearings too are generally non-adversarial. For more information on legal issues relating to refugee status that come before the RRT, see the RRT's Guide to Refugee Law in Australia.
Administrative Appeals Tribunal
The Administrative Appeals Tribunal (AAT) is an administrative body that reviews a variety of decisions made by Australian agencies. The Migration Act 1958 authorizes the AAT to review certain DIMA decisions, such as a decision to deny or cancel a visa on character grounds, certain decisions involving criminal deportations and so on. The AAT also conducts "merits reviews," like the MRT and RRT. AAT hearings are in general more formal than hearings at MRT and RRT.
Minister for Immigration and Multicultural Affairs Decisions
The Migration Act 1958 authorizes the Minister to replace a decision of the MRT, RRT, or AAT with one more favorable to the applicant if the Minister thinks it is in the public interest to do so. A Migration Series Instruction gives some insight into when this discretion may be exercised.
The Commonwealth Ombudsman
The Commonwealth Ombudsman responds to complaints of unfair treatment against the Australian Government, including DIMA. The Ombudsman does not have the authority to overturn DIMA decisions but it can recommend DIMA change its decisions and practices. Generally, the Ombudsman will review cases only after other avenues of review have been exhausted.
The Human Rights and Equal Opportunity Commission
The Human Rights and Equal Opportunity Commission administers complaints of discrimination under these laws: Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992, and Age Discrimination Act 2004. In addition, the Human Rights and Equal Opportunity Commission investigates allegations of human rights violations under the Human Rights and Equal Opportunity Commission Act 1986. The Human Rights and Equal Opportunity Commission cannot overturn DIMA decisions but it can recommend that DIMA change its decisions and practices.
Select free online resources
Select print resources
Judicial Decisions
Some MRT, RRT, and ATT decisions may be reviewed by a Federal Magistrates Court, Federal Court, and/or the High Court. Often, this review is limited, focusing on the original tribunal's authority to render the decision. Federal Court, High Court, and other courts may also have original jurisdiction to decide certain cases.
Select free online resources
Select print resource
For more information on locating Australian case law, consult Nicholas Pengelley's Update to Researching Australian Law.
Loose-leafs, Treatises & Monographs
Burns, J. & Sudrishti, R. Immigration Kit. Sydney: Federation Press, 2005.*
Crock, M. Immigration and Refugee Law in Australia. Leichardt: Federation Press, 1998.
Dauvergne, C. Humanitarianism, Identity, and Nation: Migration Laws of Australia and Canada. Vancover: UBC Press, 2005.
Glass, A. & Goddard, J. Australian Immigration Law Including PAMs and MSIs. Sydney: Butterworths, 2004-.*
Vrachnas, J. et al. Migration and Refugee Law: Principles and Practice in Australia. Cambridge: Cambridge University Press, 2005.*
Periodicals & Current Awareness Services
Immigration News. Parramatta: Immigration Advice and Rights Center, 1986-.
Immigration Review. LexisNexis Australia, 2002-.
Migration Action. Collingwood: Ecumenical Migration Centre, 1974-.
· Concerns Australian "refugee, immigration and multicultural issues."[2]
Legal Encyclopedias with Chapters on Immigration Law
Cronin, K. and Prince, D. "Citizenship and Migration," in Halsbury's Laws of Australia. Sydney: Butterworths, 1991-.
I.7 Fee-Based Databases Focusing on Immigration
Informit offers a database, Multicultural Australia and Immigration Studies, which indexes and abstracts "published and unpublished material on all aspects of Australian immigration and multicultural issues from 1988 onwards."[3]
LEGENDcom, a database offered on the DIMA Web-site, provides access to the Migration Act 1958, Migration Regulations 1994, PAM, MSIs, and more.
LexisNexis Australia offers online access to two print publications, Australian Immigration Law Including PAMs and MSIs and Immigration Review.
Migration Institute of Australia
The Migration Institute of Australia is a professional organization for migration agents. Since 1998, the Migration Institute of Australia has acted as Australia's Migration Agents Registration Authority (see below).
Migration Agents Registration Authority
The Migration Agents Registration Authority (MARA) regulates the migration agents industry. The Migration Act 1958 spells out MARA's powers and responsibilities. The MARA is responsible for, among other things, maintaining a registry of agents, administering the registration of agents, investigating allegations against agents and lawyers relating to the provision of immigration advice, and disciplining agents who are found to have violated certain rules.
The MARA Web-site includes, among other things:
Immigration Advice Rights Centre
Immigration Advice Rights Centre is a non-profit organization that provides immigration advice to low-income individuals. It is also involved in education on migration issues. The Immigration Advice Rights Centre Web-site offers information sheets on numerous topics in migration.
Austcare
Austcare is an organization situated in Australia that assists refugees by, among other things, helping in the distribution of food, providing information on agricultural techniques, and working to prevent violence.
Refugee Council of Australia
Refugee Council of Australia is a non-profit organization that advocates for various refugee communities in Australia and advises and provides support to refugees.
I.9 Refugees and Asylum Seekers
The United Nations Convention Relating to the Status of Refugees (Convention) and the United Nations Protocol Relating to the Status of Refugee (Protocol) are often referred to as the "principal international instruments that provide protection to persons fleeing persecution."[4] Australia acceded to the Convention on January 22, 1954, and acceded to the Protocol on December 13, 1973. The Migration Act 1958 spells out the "process or manner" in which Australia implements its obligations under the Convention and Protocol.[5]
Select free online resources
In addition, several of the print resources referenced in the Secondary Sources portion of this guide discuss Australia refugee law and procedures. For more information on international refugee law resources, see Elisa Mason's Guide to International Refugee Law Resources on the Web.
The following research guides concern Australian immigration law:
Citizenship and Immigration Canada
Citizenship and Immigration Canada (CIC) is the primary Canadian agency responsible for administering Canadian immigration laws. In this capacity, CIC issues visas, makes certain eligibility determinations on refugee claims, runs programs designed to help new immigrants, and so on.
The CIC Web-site offers, among other things:
Canada Board Services Agency
The Canada Board Services Agency is responsible for protecting Canada's borders. Among other things, the Canada Board Services Agency plays a role in enforcing Canadian immigration laws by screening immigrants and refugees and investigating possible breaches of the Canadian immigration law.
Immigration and Refugee Board of Canada and Tribunal Administratif du Québec
The Immigration and Refugee Board of Canada renders decisions in a variety of immigration matters, including deciding refugee claims made in Canada, hearing appeals of certain CIC decisions, and conducting admissibility hearings. The Tribunal Administratif du Québec, among other things, conducts hearings involving immigration matters in Québec. To learn more about these bodies, consult the portion of this guide concerning Canadian immigration case law.
II.2 Government Publications
The following are some of the publications issued by the government bodies discussed in the previous section:
Citizenship and Immigration Manuals
Citizenship and Immigration Manuals, also called Policy and Program Manuals, provide guidance for CIC employees. The titles of the manuals issued as of November 2006 are Citizenship Policy, Enforcement, Temporary Foreign Workers Guidelines, Information Sharing, Inland Processing, Reference, Overseas Processing, and Protected Persons.
Operational Bulletins
CIC also occasionally issues Operational Bulletins for "one-time-only instructions or to provide urgent instructions to staff for a brief period while the relevant program and policy chapters are being updated."[6]
Select free online resources
Select CD-Rom resource
II.3 Constitutional Provisions
The Constitution Act, 1867 in § 95 confers concurrent powers in immigration matters to both the Federal and Provincial governments. Specifically, the Constitution says that each Province may make laws relating to immigration into the Province and that the Parliament may make laws relating to immigration into "all or any of the Provinces." In addition, the Constitution specifies that law of a Province "shall have effect in and for the province as long and as far only as it is not repugnant to any Act of the Parliament of Canada."
Select free online resources
II.4 Legislation, Regulations & Federal-Provincial/Territorial Agreements
Immigration and Refugee Protection Act
The Immigration and Refugee Protection Act (IRPA) sets out principles of Canadian immigration and refugee law. The IRPA replaces the Immigration Act of 1978 and makes several notable changes to Canadian immigration law, such as modifying the IRB's jurisdiction and setting stiffer penalties for breaking certain provisions of the immigration laws.
Immigration and Refugee Protection Regulations
The Immigration and Refugee Protection Regulations (IRPR), issued pursuant to the IRPA, provide details on that law. For example, the IRPR specify how long a permanent resident card is valid for and what must be done to appeal a removal order.
Citizenship Act
The Citizenship Act sets out the law of Canadian citizenship. Specifically, the Citizenship Act establishes the requirements that must be met to qualify for Canadian citizenship, the situations where Canadian citizenship can be lost, the procedures that CIS must follow when processing citizenship applications, and so on.
Federal-Provincial/Territorial Agreements
The IRPA authorizes the Minister for Citizenship and Immigration to enter into agreements with Provinces and Territories concerning immigration. The Government of Canada has signed agreements concerning immigration matters with Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Québec, Saskatchewan and Yukon. One of these agreements, the Canada-Québec Accord, Relating to Immigration and Temporary Admission of Aliens, is the most comprehensive and gives Québec broad autonomy over the selection of immigrants to Québec and integration services for new immigrants. Some of the other immigration agreements between Canada and the Provinces and Territories are Provincial Nominee agreements. These agreements, among other things, permit the Province or Territory to nominate particular immigrants for permanent residence status to fulfill the Province's or Territory's specific labor needs.
Select free online resources
· CanLII Web-site (Citizenship Act)
· CIC Web-site (Federal-Provincial/Territorial Agreements)
· Department of Justice Web-site (Citizenship Act)
· Department of Justice Web-site (IRPA)
· Department of Justice Web-site (IRPR)
Select print resources
· Annotated Immigration and Refugee Protection Act of Canada. Toronto: Carswell, 2003-.
· Immigration and Refugee Protection Act and Regulations: English/French consolidation. Toronto: Carswell, 2002-.
· Gaudet, L. Immigration Consultant's Handbook, 2006. Toronto: Carswell, 2005 (publishes IRPA and IRPR).
· Waldman, L. Canadian Immigration & Refugee Law Practice. Markham: LexisNexis Butterworths, 2004- (publishes IRPA, IRPR, and Citizenship Act).
· Waldman, L. Immigration Law and Practice. Markham: LexisNexis Canada, 2005- (publishes IRPA, IRPR, and Citizenship Act).
For more information on finding Canadian legislation, see Ted Tjaden's Researching Canadian Law.
Immigration and Refugee Board of Canada
Immigration and Refugee Board of Canada (IRB), the largest administration tribunal in Canada, is responsible for making certain decisions relating to immigration and refugee matters. The IRB currently consists of the three divisions: Immigration Division, Refugee Protection Division, and the Immigration Appeal Division. The Immigration Division conducts certain admissibility hearings and detention reviews. The Refugee Protection Division decides refugee claims brought by persons in Canada after the CIC officer makes a preliminary determination whether the claim is eligible to be heard by IRB. And the Immigration Appeals Division conducts appeals on immigration matters, including appeals of rejected sponsorship applications, appeals of certain removal orders, and appeals of certain decisions relating to residency obligations. Each Division has rules that govern its operations (together, Divisional Rules).
Tribunal Administratif du Québec
The Tribunal Administratif du Québec (TAQ) conducts proceedings concerning decisions made by the Quebec government. The Social Affairs Division of the TAQ hears cases involving a number of social issues, including immigration.
Select free online resources
Select CD-Rom and print resources
Judicial Decisions
The IRPA discusses judicial review of certain immigration matters. It says, among other things, that judicial review by the Federal Court must start with an application for leave to the Court, which can only be made if other appeal rights under the IRPA have been exhausted. Some sample cases involving immigration heard by the Federal Court include cases involving appeals of CIC refusal to refer refugee claim to the IRB, appeals of certain removal orders, appeals of RPD's rejection of claims to refugee status, and so on.
Select free online resource
Select print resources
Loose-leafs, Treatises & Monographs
Annotated Immigration and Refugee Protection Act of Canada. Toronto: Carswell, 2003-.