According to the Chicago Sun-Times, a $6 million settlement was reached in a settlement stemming from a motorcycle accident in Will County.

Motor Cycle accidents have been on the rise for the last decade:

“According to the National Highway Transportation Safety Administration (NHTSA), motorcycle accident injuries and deaths have continued to increase over the last decade. In 2006, when the Wrights were injured, the NHTSA recorded 88,000 motorcycle injuries and 4,837 motorcycle fatalities, up from 58,000 injuries and 2,897 fatalities in 2000. In 2007, there were a record 103,000 motorcycle accident injuries and 5,154 fatalities.

In October the Federal Highway Administration announced that it will conduct a new study to understand and prevent motorcycle accidents. The motorcycle crash causation study will be the first study of its kind since the 1981 “Hurt Report,” which found that alcohol was involved in more than half of all motorcycle accidents, and that most motorcycle riders involved in accidents were self-taught riders.”

http://www.aboutlawsuits.com/motorcycle-accident-lawsuit-settlement-7130/

Does Abusive Litigation Against Physicians Really Happening?
Frivolous lawsuits and abusive litigations are not only found adversely affecting care but, also trigger for healthcare costs to go up and thereby affecting us all consumers.
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Pentru ca am auzit de petreceri de divort, uite si cateva idei pentru tort )

Over ten years ago, a small outfit by the name of Stritmatter Kessler Whelan Coluccio took on the case of Jesse Magaña, who was thrown out the rear of his Hyundai when the seat back failed, rendering the seat belt useless. The case went to trial, where Hyundai fought discovery tooth and nail. Even though Magaña had asked for information regarding other similar incidents, none were turned over. Magaña obtained a verdict against Hyundai, which Hyundai appealed based on failure to instruct as to testimony of an expert which was stricken. The case went back down for a new trial, and Magaña renewed his discovery requests, and had to file a motion to compel. On the eve of trial, Hyundai produced what it should have years ago. By that time, after investigation, it was learned that much of the evidence related to those OSIs were stale, lost, forgotten, or destroyed. The trial court held a hearing on the evidentiary issues and, after the hearing, entered default against Hyundai for $8 Million (the verdict in the original trial).

Hyundai appealed, and the Court of Appeals reversed. The COA held that time to investigate would have been enough.

The supreme court, in a manner not seen since Fisons, strongly admonished the conduct of Hyundai, lambasted the court of appeals on its substitution of judgment, and affirmed the trial court. The entire majority is worth the read, but here are the highlights:

     Trial courts need not tolerate deliberate and willful discovery abuse. Given the unique facts and circumstances of this case, we hold that the trial court appropriately diagnosed Hyundai’s willful efforts to frustrate and undermine truthful pretrial discovery efforts by striking its pleadings and rendering an $8,000,000 default judgment plus reasonable attorney fees. This result appropriately compensates the other party, punishes Hyundai, and hopefully educates and deters others so inclined. We determine the trial court acted well within its discretion and reverse the Court of Appeals, which improvidently reversed the trial court.

. . .

     “There is a natural tendency on the part of reviewing courts, properly employing the benefit of hindsight, to be heavily influenced by the severity of outright dismissal as a sanction for failure to comply with a discovery order.” Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642, 96 S. Ct. 2778, 49 L. Ed. 2d 747 (1976). However since the trial court is in the best position to decide an issue, deference should normally be given to the trial court’s decision. Fisons, 122 Wn.2d at 339. A trial court’s reasons for imposing discovery sanctions should “be clearly stated on the record so that meaningful review can be had on appeal.” Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). If a trial court’s findings of fact are clearly unsupported by the record, then an appellate court will find that the trial court abused its discretion. Mayer, 156 Wn.2d at 684. An appellate court can disturb a trial court’s sanction only if it is clearly unsupported by the record. See Ermine v. City of Spokane, 143 Wn.2d 636, 650, 23 P.3d 492 (2001) (noting that a reasonable difference of opinion does not amount to abuse of discretion).

. . .

     A corporation must search all of its departments, not just its legal department, when a party requests information about other claims during discovery. Here Hyundai searched only its legal department. Hyundai’s counsel told the trial court that in response to request for production 20, Hyundai’s search “was limited to the records of the Hyundai legal department” and that “no effort was made to search beyond the legal department, as this would have taken an extensive computer search.” CP at 5319. As the trial court correctly found, “[t]here is no legal basis for limiting a search for documents in response to a discovery request to those documents available in the corporate legal department. This would be the equivalent of limiting the responses in Smith[, 133 Wn. App. 306,] to a search for chemical tests which were on record in the corporate legal office, without disclosing that the search was so limited.” CP at 5319-20. The trial court went on to say, “the legal department at Hyundai worked closely with the Consumer Affairs Department with respect to customer complaints and claims, including product liability claims. The vehicle owners’ manual directed customers to call the Consumer Affairs number.” CP at 5320. Hyundai had the obligation to diligently respond to Magaña’s discovery requests about other similar incidents. It failed to do so by using its legal department as a shield. The trial court also found “Hyundai had the obligation not only to diligently and in good faith respond to discovery efforts, but to maintain a document retrieval system that would enable the corporation to respond to plaintiff’s requests. Hyundai is a sophisticated multinational corporation, experienced in litigation.” Id. Hyundai willfully and deliberately failed to comply with Magaña’s discovery requests since Magaña’s initial requests in 2000 and continued to do so.

. . .

     The Court of Appeals concluded, “[i]f [Magaña] tries to find experts and they are unable to analyze the evidence and would have been able to analyze it if it had been provided earlier, then and only then could irrevocable prejudice be shown that may warrant the trial court’s usurping of the right to trial and directing a verdict in Magaña’s favor.” Id. at 520. But the problem is Magaña is unable to find the evidence because others who had accidents involving Hyundai vehicles are no longer living, have disappeared, or have discarded their evidence. The evidence that could be analyzed by experts has been lost because of the time that has elapsed between when Hyundai should have disclosed the information and the time it was compelled to do so — more than five years late.

     Magaña’s ability to prepare for trial was substantially prejudiced because of Hyundai’s egregious actions during discovery. The Court of Appeals substituted its own discretion for the trial court’s, which is inconsistent with the abuse of discretion standard. The record supports the findings of the trial court that Magaña was prejudiced in preparing for trial.

. . .

     In addressing whether a monetary fine would suffice, the trial court found it would be difficult to know what amount would be suitable since “Hyundai is a multi-billion dollar corporation.” CP at 5332-33. It also found a monetary sanction would not address the prejudice to Magaña or to the judicial system. Since there were no counterclaims in this case, the trial court could not strike those as a remedy. The trial court also denied a continuance, which Hyundai proposed. The trial court held that sanctions for discovery violations should not reward the party who has committed the violations and that granting a continuance would only exacerbate the situation. The Court of Appeals disagreed claiming, “[a]llowing Magaña to investigate the incidents of seat failure will shed light on whether Hyundai manufactured and sold a defective product.” Magaña II, 141 Wn. App. at 519. But as aforementioned, time will not allow Magaña to investigate other incidents because much of that evidence is lost or stale.

. . .

     Appellate courts may not substitute their discretion for that vested in the trial court, absent abuse. Where there is no abuse of trial court discretion, we may not reverse simply because there are other possible ways the trial court could have possibly exercised it. The trial court properly imposed a default judgment against Hyundai for its willful and deliberate failure to comply with discovery. Accordingly we reverse the Court of Appeals and award Magaña reasonable attorney fees and expenses for responding to this appeal.

Blind spot

Régebben is nagyon szerettem a Lineage2 és World of Warcraftról készült amatőr képregényeket. Ezért már most körbenéztem, hogy mik készültek Aion körökben.

Néhány ötletes alkotást már lehet is találni. Ezeket összegyűjtöttem a légóm fórumában, illetve a fórumba mindig frissíteni fogom, ha újabbakat találok. Jó olvasgatást mindenkinek!

A képregényeket itt találjátok:
Aion amnesia fórum – Aion Képregények (comics)

Fie că vreti a vă îndulci ziua, fie că este ziua de naștere a cuiva drag, fie că vreți să faceți o surpriză cuiva, puteți încerca această rețeță! Tort de miere de albine.

Ingrediente:
Blatul

CREMA

Mod de preparare:
Din făină, gălbenușuri, miere, unt , zahăr, praf de copt și puțină apă se face un aluat. Acesta se împarte în trei părți egale care se întind într-o formă de tort și se coc. Albușurile se bat cu zahăr, se adaugă marmeladă, nucile măcinate și o lingură de coniac. Cu această cremă se umplu foile, iar cu restul se decorează tortul.

Betsy Grey has recently posted her intriguing paper, “Neuroscience and Emotional Harm in Tort Law: Rethinking the American Approach to Free-Standing Emotional Distress Claims” on SSRN.  Here’s the abstract.

* * *

American tort law traditionally distinguishes between “physical” and “emotional” harm for purposes of liability, with emotional harm treated as a second class citizen. The customary view is that physical injury is more entitled to compensation because it is considered more objectively verifiable and perhaps more important. The current draft of the Restatement of the Law (Third) of Torts maintains this view. Even the name of the Restatement project itself – “Liability for Physical and Emotional Harm” – emphasizes this distinction. Advances in neuroscience suggest that the concern over verification may no longer be valid, and that the phenomena we call “emotional” harm has a physiological basis. Because of these early scientific advances, this may be an appropriate time to re-examine our assumptions about tort recovery for emotional harm.

Using studies of Post Traumatic Stress Disorder as an example, this paper explores advances in neuroscience that have begun to shed light on the biological basis of the harm suffered when an individual is exposed to extreme stress. These advances underline the shrinking scientific distinction between physical and emotional harm. Drawing on these scientific developments, as well as on the British approach to emotional injury claims, the paper concludes that we should rethink the American treatment of emotional distress claims. In general, it proposes that we change our approach to account for advances in neuroscience, moving toward a more unified view of bodily and emotional injury. Two potential legal applications are advanced in this paper: (1) that science can provide empirical evidence of what it means to suffer emotional distress, thus helping to validate a claim that has always been subject to greater scrutiny; and (2) that this evidence may allow us to move away from the sharp distinction between how physical and emotional injuries are conceptualized, viewing both as valid types of harm with physiological origins.

* * *

To download the paper for free, click here.  To read a sample of related Situationist posts, see “New Study Looks at the Roots of Empathy,” “Placebo and the Situation of Healing,” “The Situation of Time and Mind,” “The Rubber Hand Illusion,” “The Body Has a Mind of its Own,” “A (Situationist) Body of Thought,” and “A Closer Look at the Interior Situation.”

Here you go again, as Demi Lovato says!

© 2009 Jeremy Shum 1
IMMIGRATION & REFUGEE LAW PART 1 1: UNDERSTANDING MIGRATION
State and nation: Definitions-
1. State: A legal and political organization, with the power to require obedience and loyalty from its citizens (barriers to entry)
2. Nation: A community of people whose members are bound together by a sense of solidarity, a common culture and a national consciousness
3. Citizenship: Is the essential link between state and nation
4. Nation-State: The predominant form of political organization. It is important in understanding immigration.
Ways of understanding migration:
One way to look at migration is through the Neo-classical economic theory. There are “push and pull factors”, including:
1. Density of population (into less dense)
2. Wealth and standard of living (into wealthier)
3. Labor opportunities
4. Physical climate
Migration as an investment:
1. Remittances
2. Free movement of people, open borders (as with free movement of goods)
Note the assumptions in neo-classical theory:
1. People have perfect knowledge
2. People have the capacity to move across borders (even if they are open)
3. The competing interests can be weighed sensibly
4. Individual rather than collective decision-making
Other factors which affect migration (not easily captured in economic modeling):
1. Collective decision making
2. Culture
3. Nation building of receiving States
4. Refugee creating events
5. National politics (and resultant migration policies)
6. Particular links between sending and receiving countries
7. The effectiveness of the migration industry
Historic-structural accounts: Disparity of power between states based on their historical relationship and continuing disparity in wealth. Mobilization of cheap labor by receiving States. But, receiving States do not have complete control, for example of guest workers in Germany.
From migration to settlement:
1. Transformation of temporary to permanent migration: After coming to Australia, some people want to bring their families over later, etc
2. Ethnic communities: Change from ethnic communities to ethnic minorities
3. Three approaches to migration:
 Assimilation: You must become like us
 Integration: You can hold on to more cultural practices, but still integrate into community
 Multiculturalism: Allows more individual cultural practices, and formation of cultural communities within state
Understanding resistance to migration:
1. Views on ethnicity: Clifford Geertz, “a primordial attachment which results from being born into a particular religious community, speaking a particular language … and following particular social practices”
2. Views on national identity: Attachment to a nation based on ethnicity; other views of national identity, based on location, being born into a particular territory (regardless of ethnic traits)
Pauline Hanson, Maiden speech in Commonwealth Parliament (Tuesday, September 10, 1996): “Immigration and multiculturalism are issues that this [Howard] government is trying to address, but for far too long ordinary Australians have been kept out of any debate by the major parties. I and most Australians want our immigration policy radically reviewed and that of multiculturalism abolished. I believe we are in danger of being swamped by Asians. Between 1984 and 1995, 40% of all migrants coming into this country were of Asian origin. They have their own culture and religion, form ghettos and do not assimilate. Of course, I will be called racist but, if I can invite whom I want into my home, then I should have the right to have a say in who comes into my country. A truly multicultural country can never be strong or united. The world is full of failed and tragic examples.”
Understanding resistance to migration: Racism is “a process whereby social groups categorize other groups as different or inferior on the basis of phenotypical or cultural markers.” Phenotype means organisms which look alike. As compared with xenophobia, hostility to foreigners, ethnocentrism. 2: AUST IMMIGRATION HISTORY
Pre-federation debates: From 1850‟s, colonies became self-governing and introduced restrictive immigration policies (“white” nation), becoming a debates leading to federation, leading to eventual Immigration Restriction Act 1901 (Cth).
Indentured laborers in Queensland: As it was more frequent Pacific Islanders were taken, Polynesian Laborers Act 1868 (Qld) officially allowed them to come in laborers to come in temporarily. Sourcing indentured labor – Peter Corris, Passage Port and Plantation 1973; kidnapping/blackbirding: “the method most frequently used was for the crew to attract islanders alongside in their canoes and then to hole or upset the canoes by dropping pig-iron or heavy harpoons into them. They were then hauled aboard and imprisoned below decks; those who put up a spirited resistance in the water were shot.” Controls – government agents.
When Pacific Islanders did come in, labor conditions (hours, food and shelter, death rate) were BAD! Sir Samuel Griffith (CJ of High Court) and Conservatives in QLD, pushed to have this to STOP. Pacific Islanders Laborer’s Act 1901 (Cth) stated trade can go on until 1907, but then all laborers must be returned, causing mass deportations in 1907, where 4269 deported (including 1654 exempted, but they couldn‟t work).
Federation: Underpinning immigration policy for the next 70 years, Immigration Restriction Act 1901 (Cth) excluded others, s3: The immigration into the Commonwealth of the persons described in any of the following paragraphs of this section is prohibited, namely: a. Any person who when asked to do so by an official fails to write out at dictation and sign in the presence of the officer a passage of fifty words in length in an European language directed by the officer; b. Any persons likely in the opinion of the Minister or of an officer to become a charge upon the public or upon any public or charitable institution; c. Any idiot or insane person; d. Any person suffering from an infectious or contagious disease of a loathsome or dangerous character; e. Any person who has within three years been convicted of an offence… and has been sentenced to imprisonment for one year or longer; f. Any prostitute or person living on the prostitution of others;
Administering the dictation test: The case of Egon Kisch: Facts, Czeck born who lived in Berlin, journalist; communist and fierce critic of Nazi regime. In 1930‟s, expelled from Germany after the Reichstag fire, which was used by the Nazis as an excuse to crush communist opposition. Kisch attempted to join a group in London which ran a counter trial to the Reichstag fire trial in Germany. Was refused entry to the UK; Invited to attend an anti-war conference in Australia. Conservative (anti-Communist) government wanted to refuse him entry. Kisch bought an application for
„habeas corpus‟ on the grounds he was being imprisoned upon the SS Straithaird by Captain Carter; Evatt J ordered his release (R v Carter: ex parte Kisch (1934)). Meanwhile Kisch had jumped from the ship and broken his leg; carried to government office and subjected to a dictation test in Scottish Gaelic; challenged the validity of the test (R v Wilson; Ex Parte Kisch (1934)).
S3 states dictation test may be given „in any European language‟; question for the Court was whether „Scottish Gaelic‟ fitted this description. Dixon J held, Scottish-Gaelic NOT a European language.
Abolishing the White Australia policy:
 1966: Statements about eligibility of non-whites to immigrate. Focus on „suitability‟ rather than race.
 1973: Whitlam Labor Government introduced new law and policy – all migrants, of whatever origin, eligible to obtain citizenship after three years of permanent residence; issued policy instructions to overseas posts to totally disregard race as a factor in the selection of migrants; ratify all international agreements relating to immigration and race.
Immigration policy in the last 40 years: Non-discriminatory on grounds of race.
 Rising proportion of skilled migrants over family reunion within permanent migration program
 Rising proportion of temporary over permanent migration visas
 International Student numbers increase dramatically from the early 1990‟s; in 2000, enabled overseas students who have studied in Australia to apply onshore to migrate permanently
 Humanitarian program: Refugees from all over the world, responding to international crisis; beginning of phenomenon of people arriving by boat:
o From Indo-China and Vietnam in the 1970s
o From Cambodia and China in the late 1980s and 1990s
o From Afghanistan and Iran in late 1990s and 2000s
o 1992 introduced law of mandatory detention (by Labor Government) for people arriving on-shore and seeking asylum
o Went to a new level during the Tampa incident and new policy initiatives (including increasing controversy, particularly regarding children). PART 2 3: THE SYSTEM FOR REGULATING THE MOVEMENT OF ALIENS INTO AUSTRALIA
Who determines who is Australian: Constitution s51, Parliament shall have power to make laws with respect to:
 (xix) Naturalization and aliens
 (xxvii) Immigration and emigration
Definitions:
 Immigration: Power over conditions of entry of people who are „immigrants‟
 Emigration: Power over exit, of immigrants and nationals
 Naturalization: Power to confer citizenship/nationality
© 2009 Jeremy Shum 2
 Aliens: Power to make laws with respect to aliens, extent of power depends on the interpretation of „alien‟, in legislation equated with non-citizen
Early cases:
 Robtelmes v Brenan (1906): Facts are, challenge of Pacific Islander in deportation out of the country. What the case stands for is, Griffith CJ said, once you are an alien, Commonwealth has power to determine conditions of your entry; conditions of your time within Australia; conditions of when you leave Australia.
 Potter v Minihan (1908): Facts, young man born in Australia to English mother (Australian) and Chinese father, with issues such as “is there a legal marriage?” He was naturally born in Australia, lived in Australia until 5; father took him back to China for next 26 years; when he came back to Australia, authorities tried to put dictation test forward. Minihan argued back, because he was citizen. Court divided; Griffith CJ and Barton J emphasized he was born in Australia and he hadn‟t enunciated his connection with Australia; Higgins J and Isaacs JJ emphasized the question of domicile (26 years had been in China), where there must be shown an “unbroken intention to return to Australia”. Minihan eventually won.
Ways of acquiring citizenship:
1. Automatic acquisition of Australian citizenship: Australian Citizenship Act 2007, ss11-15. S11A The most common way you become an Australian citizen under this Division is by being born in Australia and by having a parent who is an Australian citizen or a permanent resident at the time of your birth. There are some other, less common, ways of becoming an Australian citizen under this Division. These cover:  Citizenship by being born in Australia and by being ordinarily resident in Australia for the next 10 years: see s12; and  Citizenship by adoption: see s13; and  Citizenship for abandoned children: see s14; and  Citizenship by incorporation of territory: see s15.
2. Acquisition of Australian citizenship by conferral: Australian Citizenship Act 2007, s21: (1) A person may make an application to the Minister to become an Australian citizen; General eligibility (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person: a) Is aged 18 or over at the time the person made the application; and b) Is a permanent resident… c) Satisfies the residence requirement (see s22), or has completed relevant defense service (see s23), at the time the person made the application; and d) Understands the nature of an application under subsection (1); and e) Possesses a basic knowledge of the English language; and f) Has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and g) Is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and h) Is of good character at the time of the Minister’s decision on the application.
S21(2A) Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the person has, before making the application: (a) sat a test approved in a determination under s23A; and (b) successfully completed that test (worked out in accordance with that determination).
Citizenship test: Australian Citizenship Act 2007, s23A: (1) The Minister must, be written determination, approve a test for the purposes of subsection 21(2A) (about general eligibility for citizenship, note the test must be related to the eligibility criteria referred to in paragraphs 21(2)(d), (e) and (f); (2) a determination under subsection (1) must specify what amounts to successful completion of the test.
Citizens and non-aliens: Is there a status of „non-alien‟ with respect to which Parliament cannot make laws? Is a person born in Australia a „non-alien‟?
 Singh v Commonwealth (2004), facts are, Singh was Indian girl born in Australia after parents had come in 1997 seeking a protection refugee visa, she was born in detention, but when the application for humanitarian visa had failed, the Australian Government wanted to deport the Singh‟s back to India, including Tania Singh. An action was brought upon her, that she wasn‟t an alien. However, according to the legislation, she hadn‟t acquired citizenship, because she didn‟t have parents born in Australia. Her argument is that that was unconstitutional.); is a person who was not born in Australia but has lived in Australia for 30 years since 4 weeks old a „non-alien‟?
Meaning of „alien‟: Limits determined by its meaning at Federation. Gleeson CJ; Gummow and Hayne JJ and Heydon J, „alien‟ did not have a fixed meaning at the time of federation, pointed to developments in Nationality law in the UK in the late 19th century, influence of both ius soli and ius sanguinis (so Parliament can make it; but they did say it must have limits).
McHugh J (dissent): DID have fixed meaning, and Parliament is stuck with meaning regardless of inconvenience in present. He looked at
o Convention debates: framers of Constitution expressly considered adding a citizenship power and rejected it.
o History of the concept of ‘alien’
o Cases reveal that the core concept is allegiance to the Crown: That Americans had broken their allegiance with the (British) Crown.
o A subject automatically owes allegiance upon birth within the dominions of the Crown. Sir William Blackstone, ‘the children of aliens, born here in England, are, generally speaking, natural-born subjects’.
 MIMIA v Nystrom (2006): Facts are, Mr. Nystrom‟s parents were Swedish, born in Sweden, came to Australia 28 days old. He lived in Australia his whole life; had little connection with Sweden, committed a number of offences. In 2004, his visa was cancelled on the basis he didn‟t pass the “Character Test” (power of a minister to Deport). Court accepted Mr. Nystrom was an alien; thus, had Minister properly
implemented discretion. Thus, you cannot be a domicile by being a non-alien.
Australia‟s system of immigration control:
 The Migration Act 1958 (Cth): sets out the objects; regulations and schedules; ministerial and departmental policy and procedures; the Policy Advise Manual (PAM 3). 4: THE VISA SYSTEM
Migration Act 1958, s4: Object of Act: 1. The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens 2. To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain 3. TO advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering 4. To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act
Migration Act 1958, s13: Lawful non-citizens, (1) a non-citizen in the migration zone who holds a visa that is in the effect is a lawful non-citizen.
Migration Act 1958, s29: What is a visa? Visas, (1) subject to this Act, the minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following: (a) travel to and enter Australia; (b) remain in Australia.
Migration Act 1958, s30: Types of visas Kinds of visas, (1) a visa to remain in Australia may be a visa, to be known as a permanent visa, to remain independently; (2) a visa to remain in Australia may be a visa, to be known as a temporary visa, to remain: (a) during a specified period; or (b) until a specified event happens; or (c) while the holder has a specified status.
Regulations, Sch 1: Classes of Visa: (short list) 1104AA. Business Skills — Business Talent (Migrant) (Class EA) 69 …………………………. 1108. Child (Migrant) (Class AH) 75 ……………………………… 1128C. Skilled — Independent (Migrant) (Class BN) 114 1129. Partner (Migrant) (Class BC) 126 …………………………….. 1134. Skilled — Designated Area sponsored (Residence) (Class CC) 135 1135. Skilled (Migrant) (Class VE) 137 1136. Skilled (Residence) (Class VB) 138
1135, Skilled (Migrant) (Class VE):
© 2009 Jeremy Shum 3
Forms: 1276 and 1276 (Internet). (2) Visa application charge: (a) First installment (payable at the time application is made): $2 105 …… (3) Other: (a) Application must be made: (i) as an Internet application; or (ii) by posting the application …. (b) Applicant seeking to satisfy the primary criteria must be less than 45. (c) Applicant seeking to satisfy the primary criteria must nominate a skilled occupation in his or her application. (d) …… (4) Subclasses: 175 (Skilled — Independent) 176 (Skilled — Sponsored)
Sch 2: Subclass 175; Skilled, independent: 175.1 Interpretation 175.111 In this Part: Degree has the same meaning as in sub regulation 2.26A (6). Diploma has the same meaning as in sub regulation 2.26A (6). Etc… 175.2 Primary criteria 175.211 Either: (a) the applicant has been employed in a skilled occupation for at least 12 months in the period of 24 months ending immediately before the day on which the application was made; 175.212 (1) The skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation. 175.3 Secondary criteria Note These criteria must be satisfied by applicants who are members of the family unit, or the interdependent partner or dependent child of the interdependent partner, of an applicant who satisfies the primary criteria. 175.31 Criteria to be satisfied at time of application 175.311 The applicant is: (a) a member of the family unit; or (b) the interdependent partner; or (c) a dependent child of the interdependent partner; Of a person who satisfies the primary criteria in Subdivision 175.21 and made a combined application with that person. 175.4 Circumstances applicable to grant 175.412 … each applicant included in the application must be outside Australia when the visa is granted. 175.5 When visa is in effect 175.511 Permanent visa permitting the holder to travel to and enter Australia for 5 years from the date of grant. 175.6 Conditions 175.611 If the applicant is outside Australia when the visa is granted: (a) first entry must be made before a date specified by the Minister for the purpose; and (b) if the applicant satisfies the secondary criteria for the grant of the visa, condition 8502 may be imposed; and (c) Condition 8515 may be imposed.
Schedule 8, Visa conditions: (sub regulations 2.05 (1) and (2)) 8502 The holder of the visa must not enter Australia before the entry to Australia of a person specified in the visa. 8515 The holder of the visa must not marry before entering Australia.
Application form for subclass 175, skilled independent: Application form for the visa (1276): 1. General information (including all countries of residence for 12 months or more during the last 10 years) 2. Applicant skills (including skill assessment, language requirements, qualifications, employment and work experience) 3. Partner information and requirements 4. Points test – self-assessment 5. Details of migrating family members; dependents over 18; 6. Details of non-migrating dependents 7. Details of other family members (parents, dependent children over 18, brothers and sisters, 8. Sponsorship 9. Health requirements 10. Character requirements 11. Previous visas 12. Skill matching database (optional)
Procedures for dealing with visa applications:
1. s51A – 64 – procedural requirements.
2. S65 – if all requirements met, Minister is to grant the visa.
3. But minister has power to suspend processing in s84 and control numbers in s85.
4. Making a lawful visa application decision – see guidelines Vrachnas p47- 50.
5. If a visa is refused, requirement for notification of decision, providing reasons and explaining right to seek review in s66.
Migration Act 1958, s65: Decision to grant or refuse to grant visa: (1) after considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and … (iv) any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa.
Migration Act 1958, s84: Minister may suspend processing of visa applications (1) the Minister may, by notice in the Gazette, determine that dealing with applications for visas of a specified class is to stop until a day specified in the notice (in this section called the resumption day); (2) where a notice is under subsection (1) is published in the Gazette, no act is to be done in relation to any application for a visa of the class concerned until the resumption day. Exceptions: Spouse, de facto or dependent child of Australian citizen, permanent residents, persons usually resident in Australia.
Migration Act 1958, s85: Limit on visas: The minister may, by notice in the Gazette, determine the maximum number of: (a) the visas of a specified class … that may be granted in a specified financial year.
Determination and review process: Original decision on visa, by Minister (or delegated).
 Merits review:
o Migration Review Tribunal: Decisions to refuse visas other than protection visas in Australia
o Refugee Review Tribunal: Decisions to refuse protection visas in Australia
o Administrative Appeals Tribunal: Decisions to refuse or cancel protection visas on character grounds; decisions to deport non-citizens convicted of certain crimes; decisions to refuse visas or cancel visas on the basis of failing the character test
 Judicial review, in Federal Court and High Court: Migration Reform Act 1992, restricted judicial review on migration on certain grounds; consequently, applicants went directly to the High Court (since there is a Constitutional guard on the High Court); in 2001 further reforms, it removed restrictions on judicial review to Federal Court but added a privative clause, s474.
S474(1), a privative clause decision:
a) Is final and conclusive
b) Must not be challenged, appealed against, reviewed, quashed or called into question in any court; and
c) Is not subject to prohibition, mandamus, injunction, declaration, or certiorari in any court or any account
This wasn‟t successful however, since in Plaintiff S157/2002 v Cth (2003): Privative clause only prohibits review of decisions which do not involve jurisdictional error
Restrictions on visa applications, Haneef v Minister for Immigration and Citizenship [2007]: Facts are, Haneef was a doctor in Queensland on a Skilled Migrant Visa, was caught up in a claim he was related to some people who were linked to the [attempted] 2007 London Bombings. He was questioned by ASIO and AFP; he was ultimately charged, sought bail before magistrate; and against expectation of Government, granted bail (because Government‟s argument was so weak). Minister immediately sought to cancel Haneef‟s visa on “character grounds” (s501 of Migration Act, “refusal or cancellation of visa on character grounds”).
In s501(3): The Minister may: (b) cancel a visa that has been granted to a person, if: (c) the Minister reasonably suspects that the person does not pass the character test; and (d) the Minister is satisfied that the refusal or cancellation is in the national interest. (4) The power under subsection (3) may only be exercised by the Minister.
Character test: s501(6) for the purposes of this section, a person does not pass the character test if: a) The person has a substantial criminal record (as defined by subsection (7)); or b) The person has or has had an
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association with someone else, or with a group or an organization, whom the Minister reasonably suspects has been or is involved in criminal conduct; or d) In the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: i. Engage in criminal conduct in Australia; or ii. Harass, molest, intimidate or stalk another person in Australia; or… Otherwise, the person passes the character test.
Statement of Reasons of the Minister: Under the heading, ―CHARACTER TEST‖, the following appears: 1. I noted that on 14 July 2007, Dr HANEEF was formally charged with intentionally providing resources to a terrorist organization, consisting of persons including Sabeel AHMED and Kafeel AHMED, being reckless as to whether the organization was a terrorist organization, contrary to section 102.7 Criminal Code Act 1995. 2. Dr HANEEF has advised the Australian Federal Police (AFP) that he is the second cousin of two people suspected of involvement in the London incident and the Glasgow bombings: Dr Sabeel AHMED and Dr Kafeel AHMED. Further, I note that since leaving the UK, Dr HANEEF and Dr Sabeel AHMED have been in correspondence via on-line chat rooms. The most recent correspondence was on 26 June 2007, regarding the birth of Dr HANEEF’s daughter. From this information, I reasonably suspected that Dr HANEEF has, and has had previously, an association with Dr Sabeel AHMED and Dr Kafeel AHMED. 3. Dr Sabeel AHMED and Dr Kafeel AHMED are suspected of involvement in the London incident, and the Glasgow bombings. Based on this information, and further information provided to me including section 503A protected information, I reasonably suspect that Dr Sabeel AHMED and Dr Kafeel AHMED are, or have been, involved in criminal conduct. 4. Based on the information provided to me, including section 503A protected information, I reasonably suspect that Dr HANEEF does not pass the character test by virtue of section 501(6)(b) in that he is a person who has or has had an association with Dr Sabeel AHMED and Dr Kafeel AHMED whom I suspect are or have been involved in criminal conduct.
The Minister concluded his Statement of Reasons with the following: 32. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, (2) Ministerial Direction 21 under s499 of that Act and (3) all other evidence available to me. 33. Having formed the necessary suspicion that Dr HANEEF does not pass the character test, and having decided that cancellation of Dr HANEEF’s visa would be in the national interest, I concluded that the seriousness of Dr HANEEF’s suspected conduct and, to a lesser extent, the expectations of the Australian community outweighed all other considerations mentioned above. 34. I therefore decided to exercise my discretion to cancel Dr HANEEF’s visa under s501(3).
Haneef v Minister for Immigration and Citizenship [2007]: Spender J: To fail the character test, „association‟ in s501(6) must be more than an innocent association. Therefore Minister made an error of law (interpretation of the statute). Error went to jurisdiction so the decision a nullity. 5: OVERVIEW OF VISA CATEGORIES
General issues in Australian migration policy:
 Population growth: overall numbers of migrants
 Balance of family reunion, economic and humanitarian migration: social cohesion; mental health
 Balance of permanent and temporary migration: social cohesion; immigration and emigration
Family migration, subclasses:
 Spouse
 Child
 Adoption
 Parent
 Interdependency
 Aged Dependent relative
 Remaining relative
 Carer
 Orphaned relative
 Designated parent
 Contributory parent
Sponsorship requirements: Sponsor must be Australian citizen. Residence requirement. For most visas, requires an assurance of support and payment of bond.
Spouse/partner visas: Engaged couples, de jure and de facto spouses. Same sex couples eligible, but more limited options. Relevant relationship, „parties have a mutual commitment to a shared life to the exclusion of all others‟ – evidence of the relationship, cohabitation; joint finances; evidence of joint life together (Green Card). Initial application for provisional visa (subclass 309/310). For spouse visa: hold provisional visa; 2 years have passed in continuing relationship.
Spouse visas: Exceptions to continuing relationship – domestic violence, the dilemma, proof of relationship AND relationship breakdown; the evidence required of domestic violence. Death of sponsor.
Children: Must be dependent child, generally under 18. Natural, adopted or orphaned relative. Inter-country adoption: Hague Convention on Inter-country adoption; Australian legal requirements, State and Commonwealth responsibilities; overseas legal requirements, in particular, authorities must approve the departure of the child for the purpose of adoption; House of Representatives Standing Committee on Family and Human Services, „Inquiry into Overseas Adoption‟, 2005.
Other family categories:
 Parents: Contributory and non-contributory sub-classes; criteria discussed in seminar
 Remaining relatives: Last relative of Australian resident (e.g. of an elderly parent)
 Carers: Carer who is also a relative of an Australian resident (the sponsor); sponsor must have been assessed by Health Services Australia as having a specified impairment rating
Business visas: Includes, people wishing to establish or buy into a business in Australia; investors; executives. Main criteria, requires substantial evidence of established, successful business – for example, evidence of business ownership, financial records, evidence of participation in the day to day management of the business for two (2) of the four (4) fiscal years prior to application; financial assets, at least $500,000. Start out with provisional business, and if business successfully established apply for permanent visa.
Skill based visas: Two categories: independent and Australian-sponsored (more points), as based on points test. Additional points for skilled occupation list; occupations in demand list.
Issues in relation to skilled migration: Ethical issues relating to sourcing skilled migrants from developing countries. Economic impact in Australia, on local employment, on local training, on economy. 6A: CONTROLLING MOVEMENTS OF PEOPLE
Mechanisms of control: Employee sanctions. Legalization programs, „legalizations can be interpreted as evidence of governmental inability to prevent illegal migration or as evidence that sovereign states can adapt to, and cope with, international population movements in the era of globalization‟ (Age of Migration). Criminalizing people smuggling and trafficking. Regional integration (the example of Europe, where there are lots of „illegal immigrants‟).
The migration industry: [There is] “a vast unseen international network underpinning a global labor market; a horde of termites … boring through the national fortifications against migration and changing whole societies” (Quoted in Age of Migration). Agents, transporters, financial institutions.
The Australian context: Means of entry to Australia limited by land or boat. The effectiveness of the visa system. Becoming unlawful includes over staying, entry without authority, and character (or other) grounds. Consequences of being unlawful, include removal and deportation.
Cancellation of visas: „notation of intention to cancel’; grounds – incorrect information, character grounds (Migration Act, s500), if decision made by Minister, no merits review (e.g. Haneef); if decision by Department, Merits Review before the AAT.
Australian context: immigration offences: Subdivision A—General offences 229 Carriage of non‑citizens to Australia without documentation 230 Carriage of concealed persons to Australia 242 232A Organizing bringing groups of non‑citizens into Australia 233 Persons concerned in bringing non‑citizens into Australia in contravention of this Act or harboring illegal entrants 234 False papers etc. 235 Offences in relation to work 236 Offences relating to visas
Criminalizing people smuggling and trafficking:
Migration Act, Section 232A : A person who: (a) organizes or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people; and (b) does so knowing the people would
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become, upon entry into Australia, unlawful non-citizens; is guilty of an offence punishable, on conviction, by imprisonment for 20 years or 2,000 penalty units, or both.
Section 233 provides: (1) A person shall not take any part in: (a) the bringing or coming to Australia of a non-citizen under circumstances from which it might reasonably have been inferred that the non-citizen intended to enter Australia in contravention of this Act; Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
President Mason in Feng Lin [2001]: “Smuggling non-citizens into Australia presents obvious social problems to the fabric of Australian society. It undermines the attempted equities of an organized immigration and refugee system; it exposes the participants to exploitation and risk to health and life; and it imposes significant costs upon the Australian public. The need for deterrent penalties is manifest given the difficulties of detection and the exposure of Australia through its vast coastline.”
The dilemma of smuggling refugees: “There is nothing illegal about charging people for helping them reach safety, any more than there is something illegal about fleeing for your life in the first place. And governments, including Australia’s, implicitly recognize this when they set up or endorse refugee camps which people can only reach by fleeing unauthorized across borders.” (Chandran Kukathas, „The Strange Virtue of People-Smuggling‟ (2003) September Quadrant 40, 40.)
Refugees and asylum: Supply and demand; The Australian context, source of refugees; the means of control in the humanitarian program; disruption activities in Indonesia.
The Tampa: Facts are, Palupa was fishing boat that left for Indonesia. Tampa was on its way to Singapore. SOS (from Australian Coastguard) who noticed boat in distress; Tampa picked up people on the boat. There were 434 people on boat. It took several hours to get people off Palupa. Initially, captain was allowed to enter Australia. Official had spoken to Canberra, then said they couldn‟t come in. He then went towards Indonesia. Once he turned around, 433 people protested, and number of them threatened to harm themselves. Captain feeling outnumbered said “okay”, and started heading for Australia. When 12km offshore in Australia, The law in relation to on-shore arrivals prior to the Tampa incident: mandatory detention; processing of claims through tribunals and courts; executive attempts to reduce the role of the Courts.
The new policy: Pacific solution; border control (SIEV 1 – SIEV X); TPVs; conditions in detention; the cost of detention; demonization of asylum seekers (children overboard). The outcomes of new policy. 6B: FAMILY AND BUSINESS MIGRATION TO AUSTRALIA
What are the comparative benefits to Australia of migration via the family stream and migration via the economic stream (business and skilled migration)? How has the balance changed over the past 20 years? Have we got the balance right?
Permanent Migration Outcomes, Migration and Humanitarian Visa Eligibility:
Main changes in Australia‟s Migration Policy since 1989:
1. Change in focus: from family to skill-oriented
2. Skilled Migrant Program: SOL and MODL
3. Skilled migration to certain regions: 2007-08; state/territory agencies approved over 2100 sponsorship applications, meaning around 94% of all business skills provisional visa applications were state/territory sponsored
4. Change in emphasis from permanent to temporary migration: 2006-7; 148,000 permanent non-humanitarian visas issued, 493,000 temporary visas issued
General Skilled Migration (GSM) Program: Designed to attract young, highly skilled people, with a good level of English language ability and skills in particular occupations that are required in Australia. These occupations are listed on Australia‟s Skilled Occupation List (SOL). People applying for a GSM visa will need to:
 Be under 45 years of age at the time they apply
 Have an occupation listed on the SOL
 Have their skills assessed as being suitable for that occupation by the relevant assessing authority
 Have a good level of English language ability
 Have recent skilled work experience or have recently completed an Australian qualification as the result of two (2) years full-time study in Australia
 Most visas require that applicants are assessed against the GSM points test and obtain a pass mark
Permanent non-humanitarian visa grants:
Proportion of skilled visa grants, by broad groups:
Comparative benefits to Australia of migration via the family stream and economic (business and skilled) stream: Family stream Economic (skilled stream) Both Characteristics A potential migrant is sponsored by a relative who is an Australian Potential migrants are selected for their capacity to contribute to Australia‟s Ensure that only job ready and productive immigrants citizen, or a permanent resident of Australia (often, but not always, a previous migrant). Such persons generally include spouse, dependent child or aged relative. Largest category of migration. commercial and economic development. Either sponsored by employer or job offer or critical skill. English language requirements are admitted, naturally implies language component. Increased proficiency in English language means increased likelihood of social integration and community involvement. Economic growth Weak positive effect. Can‟t say definitively what their effects are as a whole re welfare (lower than Aust born), unemployment, earnings. Nil effect because sponsorship requirements ensure they make no demands on domestic system. At the start expenses outweigh revenues, though balance is reached for migrants in the Family Stream by year 10. More substantial contribution to economy. High income, direct tax payment. Meet employment gaps. All international migration has economic dimensions. Human motility makes economies more efficient. Help lift countries out of economic crisis. Higher rate of growth increases with liberalisation of immigration. Likely to enhance economic growth and welfare of both natives and migrants. Beneficial for consumer and household spending. Unemployment No more than Aust Born. Unemployment closely related with low education Better labour skills, business skills. Higher level of employment compared to Australian born. High levels of unemployment when migrants first arrive. But overall little impact. Adverse impact on wages and employment opportunities of competing native groups. May push down real wages but this staves off inflation. Create new businesses and jobs and fill labour market gaps. Investment Bring very little money with them. But requirement to provide bond/sponsorship undertaking ensures that migrants with some capital are self-selected for migration. Sometimes rely on remittances from overseas. Largest wealth transfers. Family members used in family run businesses. Public finance Those with lower level of skills make greater demand on the public purse in the medium term. In the long term, cost on public finance no different to Australian born. Positive contributions in short term and long term. Less likely to be on welfare or use government assisted language tuition programs. More favourable effect than non-immigrants on the whole. Av income Low income associated with low education. Higher level of qualifications lead to higher income. Higher levels of home ownership Neutral – positive impact on income levels and distribution Social Those with family support find the migration process less stressful. Social support network helps transition. Creates Those with more skills adapt better to their destination country. Fall in fertility rates, decline in working age population. Ensure economic sustainability and growth of the economy but they only
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stability within families. Develop their own social and economic infrastructure, length of stay increases, less likely to return to homelands – linked with needs of migrant‟s children. make a small contribution since migrants tend to take on the patterns of the host society in the long run. Cultural diversity. Conclusion: Interlinked May encourage skilled migration who would otherwise not consider relocating. May encourage family migration. Economically active people start off temporary, return home, remigrate with families. With the birth of children settlement takes a more permanent character. Flows to family reunion, undocumented arrivals or asylum seeker Benefit the Australian economy by: developing international markets; business networks in those markets; transferring investment funds and expanding the nation‟s capital base; creating or maintaining employment; introducing new technologies and, exporting goods and services. Overall increase business and labour skill of Aust economy. Economic migrants generally do not select their settlement location for commercial reasons but more for reasons of family, friends and other prior connections. Broader „education-tourism-economic migration‟ linkages vs segmented „economic migration‟ focus.
Have we got the balance right? The primary focus of migration policy since the 1980s has been the labor market outcomes of migrants. Three of the main arguments made in favor of the current policy model:
 Important for Australia to remain competitive in the worldwide market for skilled migrants
 Skilled migrants will strengthen the economy
 Temporary migration (most commonly associated with skilled migration) usually leads to permanent migration
How do we define “balance”? When policy maximizes the economic advantage of migration but also encourages permanent migration and eases the transition of migrants into the Australian community.
Have we struck an ideal balance between economic and family migration?
a) The current policy of emphasizing economic migration over family migration is important for Australia to remain competitive in the worldwide market for skilled migrants. BUT, could we be using the higher demand for family migration to our advantage?
b) Skilled migrants will strengthen the economy, BUT there are reasons to question the framing of policy on almost entirely economic factors – centrality of the migrant family in Australian nation-building; political rather than commercial motivations for migration; minimal knowledge of Australian business practices and labor-market regulations
c) Temporary migration (most commonly associated with skilled migration) can lead to permanent migration, BUT there is also evidence to suggest that skilled migration is often not permanent. Migration via the family stream carries more incentives for migrants to remain permanently in Australia.
What are the problems with the current “balance”? “The trend towards temporary migration over permanent settlement, the favoring of short term outcomes over long term ones and the trend towards using immediate employability as the primary measure of settlement potential”. 7: TEMPORARY VISAS
Overview of temporary visas (granted 2007-08):
 Non-business visitors: 3,191,678 (Includes visa for tourist, sponsored family visitors and visitors for prearranged medical treatment)
 Business visitors: 418,250
 Student: 278,184
 Working holiday makers: 154,148
 Business (long stay): 110,570
 Others: 44,530 (Other temporary visas include social/cultural, international relations, educational and medical practitioner visas)
 Total: 4,197,360
Permanent (2007-08):
 Skill stream: 108,540
 Family stream: 49,870
 Special eligibility stream: 220
 NZ settlers: 34,491
 Humanitarian: 13,014
 Total: 206,135
Short stay business visitors: Over 80,000 from China and then 60,000 from US.
Working holiday makers: Over 30,000 from each of UK and South Korea
Student visa grants, by education sector (2007-08):
 ELICOS (570): 30,545
 Schools/secondary exchange (571): 16,976
 Vocational education and training (572): 68,382
 Higher education (573): 130,127
 Postgraduate research (574): 6,935
 Non-award (575) / Other: 20,698
 AusAID / Defense (576): 4,521
Student visas (country of origin):
 China (2007-08): 49,763
 India (2007-08): 47,639
 South Korea, Thailand, and Brazil: Over 10,000 each
Issues with student visas: Dramatic growth in numbers (2007-08, 278,184). Lack of regulation of vocational education and training providers; exploitation of students, low standards. Expectation of a link between study and permanent settlement. Impact on reputation of Australian higher education providers.
Business migration: Temporary business (long stay) visa (457); medical practitioner visa (422); educational visa (418).
1. Visas valid for four years
2. Multiple entry
3. No access to Medicare or social security
4. Minimum skill and salary requirements
457 visas: Must be sponsored; numbers more than tripled from 2002-03 to 2007-08 to 110,570. UK, 10,660; then India, 8,250; then South Africa, Philippines, China, and US.
Main industries and occupations:
 Health and community services: 9,090
 Construction: 5,690
 Communications services: 5,200
 Manufacturing: 5,480
 Mining: 4,890
 Property and business services: 6,020
Issues with 457 visas: Balance of permanent and temporary visas. Demand for permanent places for temporary visa holders – 2007-08, skilled migration scheme accounted for 47% of all onshore additions to the resident population (other main on-shore categories are family and student).
“If temporary migration does outstrip permanent migration in future, then there may be a mismatch between the settlement places available and the number of aspiring residents who will have already invested significantly, both financially and psychologically in Australia.”
Pressure on local wages and jobs. Exploitation of temporary workers, the power disparity – for example, two step migration process (457 visa holders need the support of their employers to gain permanent residency); can only work for a single employer, „if a residence visa is tied to a particular job with a particular boss, then migrant workers are less likely to protest against or expose exploitation‟. Formal warnings from Department of Immigration to employers in 2007-08, 1353 and 192 employers sanctioned.
457 visa stories: 457 nurse sacked for arriving pregnant (Singapore). Malaysian chef paid less than $10,000 for 18 months work. Workers have money withdrawn from wages for expenses and accommodation.
Review of 457 visas: Department appointed Industrial relations commissioner to conduct a review of the integrity of 457 visas. Final Report October 2008.
Recent changes:
1. Introduction of market salary rates to replace minimum salary levels in September 2009
2. Increase in the English language skills requirements for all chefs and lower skilled occupations
3. Introducing formal trade assessments for all trades from countries that are not considered low-risk countries
4. Employers demonstrate a history of non-discriminatory employment practices
5. Formal training for employer sponsors
6. Requirement of labor agreements for low skilled occupations
Pacific Seasonal Worker Pilot scheme: Seasonal work in horticultural industry. Particular labor needs in horticulture. Pilot program beginning this year – four Pacific Island countries (Kiribati, PNG, Tonga and Vanuatu); select employers in Victoria (Swan Hill and Robinvale regions) and NSW (Griffith region); employers need to demonstrate that they have tested the local labor market.
Benefits for Pacific nations – skills; remittances
Benefits to Australia – fill labor shortages; aid to pacific nations; not designed to lead to permanent settlement
The burden of history – QLD sugar fields
What has changed? Highly regulated; pacific islands now have national identity. Labor practices (international and domestic law). Migration law – regular status, clear rules PART 3 9: REFUGEE AND HUMANITARIAN VISAS
Humanitarian visas in Australia:
 On-shore: The application and review process. Changes in policy from Howard to Rudd. Responding to an increase in onshore arrivals
 Off-shore: The classes of visa.
Also look at public & national interest requirements
Refugee convention: History of the convention (provided for political persecution from Communism).
Convention grounds: The definition of a refugee, Art 1A(2), “… the term refugee shall apply to any person who: (2) owing to a well-founded fear of being 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…”
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225: Facts are, couple fled China arriving in Australia by boat. Wife 8 months pregnant. Faced forced sterilization on return. Accepted by Minister that forcible
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sterilization was persecution and that couple faced a well-founded fear of being forcibly sterilized if returned to China. Question for the Court, were the couple ‘members of a social group’ (required for them to fear persecution for a Convention ground)
Brennan CJ in Applicant A: ACCEPTED; appropriate way to apply the definition of refugee:
1. Does the putative refugee fear persecution?
2. Is the fear well-founded?
3. Is the feared persecution practiced or likely to be practiced because of a characteristic of the victims that is not common to the members of the society at large?
4. Is the persecution practiced officially or is it officially tolerated or is the government of the country of the putative refugee’s nationality unable to control it?
5. Is the putative refugee unwilling to avail himself or herself of the protection of the country of his or her nationality?
6. Is that unwillingness due to the feared persecution?
Dawson J on membership of a particular social group: “a particular social group… is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large” | “what unites them cannot simply be ‘fear of persecution’” | “requires some sort of voluntary association, even if it before the purpose of asserting a particular human right (including the right to reproduce)” – “in the absence of such an association, there is nothing to unite a collection of persons in China who do not accept the limits imposed upon their reproductive freedom”
McHugh J, emphasized the required nexus between ‘persecution’ and ‘membership of a particular social group’. That is, ‘by reason of’. Larger the group, harder it is to make out the connection, for example of prisoners. Difficulty of distinguishing whether discrimination is on the basis of membership, or on refusal to comply with regulations (query, can it be both?) | This case lists groups in US and Canada which have and have not been accepted as members of a particular social group. | Association with other Convention grounds suggests social grounds intended to be large in number. | Concludes like Dawson J that not members of a particular social group as the groups is “defined by reference to persecutory conduct”
Sanchez-Trujillo v Immigration and Naturalization Service (1986): Held that a “class of young urban, working-class males of military age who maintained political neutrality” was not a “particular social group”. “The phrase ‘particular social group’ implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest. Of central concern is the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental or their identity as a member of that discrete social group.”
Applicant A: Distinction between the majority and minority. Interpretation of the Convention as a whole -protection limited to people facing persecution; AND facing persecution on defined grounds. Particular social group as a “safety net” for other convention grounds, or a further limited ground
Dawson J, “By including in its operative provisions the requirement that a refugee fear persecution, the Convention limits its humanitarian scope and does not afford universal protection to asylum seekers. No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is nota refugee within the terms of the convention. And by incorporating the five Convention reasons the Convention plainly contemplates that there will even be persons fearing persecution who will not be able to gain asylum as refugees”
Relevance of view of Convention to the interpretation of “membership of a particular social group”, Brenann CJ, Dawson J.
Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1: Facts. Gummow J’s (majority) interpretation of “membership of a particular social group”. Minority views: Gaudron J, McHugh J, Kirby J. 10: PERSECUTION
Interpreting the Convention: Who interprets convention provisions? UNHCR; Domestic courts. What resources do domestic courts rely on to interpret the provisions? Australian legislation; text of convention; history of convention; material surrounding the Articles of the Convention; secondary materials (e.g. academic commentary)
Article 31 of the Vienna Convention on the Law of Treaties: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its objects and purpose”
Dawson J in Applicant A (1996) 190 CLR 225, “[The interpretation of the Refugees Convention[ involves the construction of a domestic statute which incorporates a definition found in an international treaty. Such a provision, whether it is a definition or otherwise, should ordinarily be construed in accordance with the meaning to be attributed to the treaty provision in international law."
Text (Articles 1-46); Schedule (paragraphs 1-16); preliminary remarks of the Final Conference of Plenipotentiaries on the Status of Refugees and Stateless persons. Point II: "The Conference decided, by 17 votes to 3 with 3 abstentions, that the titles of the chapters and of the articles of the Convention are included for practical purposes and do not constitute an element of interpretation."
Conference recommendations (A to E).
Preamble: The high contracting parties,
THE HIGH CONTRACTING PARTIES,
CONSIDERING that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination, [etc]
Travaux Preparatoires: 35 meetings of the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons
Overview of the convention: Notes, Article 1 (definition); Article 2 (rights of refugees in the receiving state, same as other aliens, or as nationals so far as possible. Including rights to employment, public education, welfare and housing)
Article 31: Refugees unlawfully in the country of refugee
Refugees unlawfully in the country of refugee
1. The Contracting States shall not impose penalties, on account of their
illegal entry or presence, on refugees who, coming directly from a territory
where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain
admission into another country.
Article 33: Prohibition of expulsion or return (“refoulement”)
Prohibition of expulsion or return (―refoulement‖)
1. No Contracting State shall expel or return (―refouler‖) a refugee in any
manner whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to
the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
Article 34: Naturalization
Naturalization
The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.
Migration Act and the Interpretation of the Convention: For example, Subdivision AK—Non‑citizens with access to protection from third countries | 91M Reason for this Subdivision: This subdivision is enacted because the Parliament considers that a non‑citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re‑enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa. Any such non‑citizen who is an unlawful non‑citizen will be subject to removal under Division 8.
Defining persecution: The degree of harm for conduct to amount to persecution: Chan Yee Kin (1989) 169 CLR 379: Mason CJ at 388: “some serious punishment or penalty or some significant detriment or disadvantage if he returns. Obviously harm … as part of a course of selective harassment of a person .. Amounts to persecution if done for a Convention reason”
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989)169 CLR 379: Dawson J at 396-7: “Some would confine persecution to a threat of life or freedom, whereas others would extend it to other measures in disregard of human dignity”
McHugh J at 429-31: “Measures ‘in disregard’ of human dignity may, in appropriate cases, constitute persecution …”
McHugh J in Ibrahim (2000) 204 CLR 1, at [55] –[65]: “[55] Persecution involves discrimination that results in harm to an individual, but not all discrimination amounts to persecution. With the express or tacit approval of the government, for
© 2009 Jeremy Shum 8
example, some employers may refuse to employ persons on grounds of race, religion and nationality. But discriminatory though such conduct may be, it may not amount to persecution. Other employment may be readily available.”
s91R (2001): Modification of “persecution”
91R Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
The meaning of persecution in Australian law: Serious harm, Vrachnas et al advocacy for a narrow interpretation: State’s small appetite for refugees; Distinction between genuine refugees and economic refugees.
Other elements of persecution:
 Motivation: Not random persecution but directed at the attribute of person
 Systematic conduct: See s91R(1)(c), McHugh J discussion in Ibrahim (2000)
 Causation: s91R(1)(a)
 Persecution vs. Prosecution: Critique of Vrachnas (lecturer thinks this is a false dichotomy)
 Persecution by non-state agents – failure of the State to Protect. See Minister for Immigration and Multicultural Affairs v Respondents s152/2003 (2004) 222 CLR 1 – Jehovah‟s witness in the Ukraine.
 Responsibility to avoid persecution: Fact that can avoid coming to the attention of authorities does not disentitle a person from refugee status. [note bizarre commentary in text book at p250 – to critique in lecture]
Well-founded fear of persecution:
1. Subjective and objective elements
2. Objective element – the danger of probabilities
McHugh J in Chan: “an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot …‟ SGKB v MIMA, [2003] FCAFC 44, [18], “ As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate.”
Sur place claims: 1. Change of circumstances in country of origin (but not in the country when that occurred) | 2. Voluntary behavior.
91R Persecution
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted … disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
Relocation: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18: Facts are, Ukrainian journalist criticized politician well-connected to national politician. Question whether person allowed to relocate. 11: LIMITS ON PROTECTION OF REFUGEES
What are the limits on refugee claims under the convention? Limits within the definition of “refugee” itself; Limits within Article 1 of the Convention.
Article 1C:
C. This Convention shall cease to apply to any person falling under the terms of section A if:
(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(2) Having lost his nationality, he has voluntarily re-acquired it, or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality.
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1: Facts are, granting TPV to Afghan person. Eventually, PPV was refused, based on that things had changed in Afghanistan. Tribunal upheld, saying that cessation clause (in 1C(5)) applied. This was upheld by Dawson J in the Federal Court; but applied 1A(2) instead. Full Court disagreed; and was successful here (stated HAD to satisfy 1C(5).
Majority, Gummow A-CJ, Callinan, Heydon and Crennan JJ: Interpreting the Migration Act 1958, s36 – words of the Act which govern; Act only refers to definition of Refugee in Article 1A(2); rest of convention may be referred to, but only for the purpose of aiding in construction of the Statute.
Majority: The relevant law of Australia is found in the Act and in the Regulations under it. It is Australian principles of statutory interpretation which must be applied to the Act and the Regulations. … The Convention has not been enacted as part of the law of Australia. … Section 36 of the Act is the only section … which refers in terms to the Convention. That does not mean that thereby the whole of it is enacted into Australian law.
By reason of s 15AB(2)(d) of the Acts Interpretation Act, the Convention may be considered for the purposes described in s 15AB(1). Further, Australian courts will endeavor to adopt a construction of the Act and the Regulations, if that construction is available, which conforms to the Convention. … But despite these respects in which the Convention may be used in construing the Act, it is the words of the Act which govern.
Majority focus on s36, and note: Not concerned with permanent protection; Protection only if person satisfies definition of a refugee. Therefore, fresh inquiry into this question every time relying on Art 1A(2). This is what the s36 of the Act requires.
Majority in QAAH: [The principle concern of s36 of the Migration Act] is with protection of a person against a threat or threats of certain kinds in another country. [It does not] require that when the threat passes, protection should be regarded as necessary and continuing.”
Offer an interpretation of Article 1C(5) even though majority held that it is not required to conclude the appeal. Article 1C(5) operated automatically. So that a person ceases to be a refugee when circumstances change. Not triggered by request for a visa.
Kirby J (in dissent):
1. Relationship between Australian law and the Convention
2. Value of assistance of the UNHCR
3. Relationship between Art 1C(5) and Art 1A(2).
4. Does Art 1C(5) require a change that is „fundamental’, „stable’ and „durable’
“Protection” and “recognition”: s36 of the Act incorporates a distinction that is central to the operation of Art 1 of the Convention, namely, the distinction between recognition of a person as a refugee; and the conferral of Australia’s protection. Recognition, as envisaged by the Convention, can only lapse in accordance with one of the cessation grounds set out in Art 1C. Protection, on the other hand, may lapse in accordance with the provisions of the Act. Because they are distinct processes, the lapse of protection does not necessarily have any causal effect on a person’s recognition as a refugee.
Reforming refugee law: Australian law (case on interpretation of Art 1(2); introduction of s91R in 2001). Ought Courts adopt a wide or narrow interpretation? The process argument – the role of Courts vs. role of Parliament; the policy argument – the appropriate scope of refugee protection.
The appropriate scope of refugee protection – the case for wide and narrow interpretations; the case for reforming the convention and fundamentally rethinking the definition of a “refugee” – the wide acceptance of the Refugee Convention; the textbook proposal – remove convention grounds; utilitarian approach – focus on suffering.

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California Toxic tort lawyers handle not only massive personal injury cases in which the injuries caused by exposure to a toxic substance or chemical affect scores, hundreds or thousands. We also handle individual instances of toxic chemical exposure that affect persons in hospitals, nursing homes, schools, shopping malls, fitness centers and other public places. Sources of toxic substances include pharmaceuticals, consumer products, and substances found in the home, the air, the water, the soil and elsewhere in our environment.

If you’ve been the victim of a chemical toxic exposure, visit our law firm website at http://www.SebastianGibsonLaw.com for more information and call us at any of the numbers easily found on our website.

Today, we are all vulnerable to toxic exposure. It has come to the point where almost all of us are or know someone else who has been exposed to things like asbestos, dangerous drugs, contamination of our water supply, or toxic dumping.

Whether you live in the mountains, in the cities, on farm land, in a house or apartment in rural or big city America, you may have been exposed to toxic chemicals.

In the news nearly every day are stories of mass torts involving dangerous chemicals in baby formula, or pet food, ice cream bars, milk, candy, baby cereal or cheese. Recently, there have been dangerous products coming out of China and Mexico, but fertilizer use in agriculture in the U.S. and the raising of other farm animals on a massive scale is an equally dangerous condition for the environment. It may sound funny, but gas emissions from cows are a real barrier to solving global warming and emerging countries like China with a growing desire for meat are adding to that problem.

Some toxic torts are difficult to pin the blame on any one defendant. Mercury in fish is an example. It is abundant. It is toxic. And it has far too many causes over far too many years to now blame one company or one country even over another. However, with new rules such as the new Country of Origin labeling law in states like California, in the future it may be possible to trace foodborne illnesses to certain farms and distributors.

In agricultural areas of California including Orange County, Central California, the Central Coast, San Diego County and the Coachella Valley, toxic tort exposure is a real concern. Sadly, many of the workers most likely to be exposed to such chemicals have the least exposure to quality medical attention or lawyers. When medical attention is sought, unfortunately, many medical providers fail to consider that a person’s skin rashes or hair loss may be a symptom of toxic exposure and not due to an allergy or old age.

As years go by, we will find that many of the common items we encounter on a daily basis and take for granted are exposing us to serious danger. Add to that, one-time exposures by tainted food or milk, longer term exposures when the air, water or soil are contaminated and it is no wonder we fight so much disease and sickness in our lives.

Today in order to fight the spread of more and more virulent germs, viruses and pathogens, disinfectants are being made stronger and stronger. If these disinfectants and cleaning solutions are misused, you can be exposed to a lethal dose of toxic chemicals.

Toxic tort lawyers can redress these problems when people come to us with their suspicions, stories of their symptoms and treatment, and we find either the causes or patterns of symptomology. If you think you’ve been injured as the result of a toxic substance, seek medical attention, visit our law firm website at http://www.SebastianGibsonLaw.com and call the law firm of R. Sebastian Gibson immediately.

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Voalete

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California Toxic Tort Lawyer Sebastian Gibson On Toxic Fumes Exposure Injuries at Hospitals, Medical Offices Schools, Fitness Centers, Shopping Malls and Other Public Places

Hospitals, schools and public places today are faced with a serious dilemma. Risk the spread of germs that can inhibit the recovery of patients, cause students, shoppers, fitness center members and other members of the public to become sick and allow their germs to spread to others, or utilize dangerous sanitary cleaners and disinfectants, which if used incorrectly or diluted improperly can be fatal to patients, workers and visitors alike.

Common disinfectants used by hospitals today can cause toxic fumes which if a patient, visitor or hospital worker is exposed to will injure their lungs and other areas of their body and can cause death. The warning on such products, many of which are used widely by hospitals and other medical facilities state in bold print on the warning labels such as, Danger! Causes Digestive Tract, Eye and Skin Burns. Causes Respiratory Tract Irritation. May be fatal if inhaled. Do not get in eyes, on skin or on clothing. Avoid breathing vapors, spray or mists. Use only with adequate ventilation.

With such dire warnings, the question one must ask is, what is such a product doing in a hospital? Today, hospitals must cope with viruses and germs such as the H1N1 virus, and bloodborne pathogens such as hepatitis B, hepatitis C and the human immunodeficiency virus, HIV. They must deal with blood and bodily fluids on the floors, on the bed sheets and on medical instruments.

If you’ve suffered a severe toxic chemical or toxic fumes exposure, visit our website at http://www.sebastiangibsonlaw.com and call us at any of the numbers easily found on our website.

The risks of catching such germs and viruses by patients, extends to visitors alike and to hospital workers. To prevent the transmission of such germs and viruses to everyone in hospitals and medical offices, disinfectants have been produced and are now being sold to and used by medical providers the world over.

The first problem with using such products is that even under the safest of conditions, there is the risk that such products will be made stronger than they should be. Despite quality controls, mistakes in the manufacture of anything, can happen. Machines fail, humans make mistakes, and products can come out of a manufacturing plant with the wrong levels of chemicals. Prior to manufacture, research can be faulty as well. What may be thought to be a safe level of toxicity when put into the stream of commerce, years later it may be determined to not be safe at all.

Even when a product is made safely, the warnings on such products can be unclear or not sufficiently dire. The warnings and directions may be misread, ignored or not followed correctly. Products that need to be diluted before use, may be used in their concentrated level instead by mistake by workers who cannot read the warnings or directions due to a reduced proficiency in English, in their reading skills or due to being put under pressure to clean up a spill quickly before someone slips and falls.

Directions for dilution of the products only in safe rooms with protective gloves, breathing apparatus or safety goggles may be ignored or not followed by mistake. The vapors from such products may then be breathed into the lungs of the hospital workers, the patients, the medical staff, nurses and visitors. Patients who seemed on the road to recovery may suddenly develop new and more deadly symptoms that make no sense to their doctors, who themselves feel worse the longer they are at the hospital or in certain rooms where the products have been used.

While workers may use precautions for their own safety, they may forget to use such precautions for the safety of patients, staff and visitors. Directions to only use such products in well-ventilated areas to prevent breathing in concentrated fumes may be forgotten when such products are used in patient, staff or visitor areas that are not well-ventilated.

Anyone thinking that the cleaning and disinfectant products used by hospitals are the same as what one finds and uses at home is sadly mistaken. Many of the products used by hospitals have numerous ingredients which have high toxicity. With hospitals using different brands of disinfectants along with germicidal products such as wipes for surfaces throughout the hospital, the risk of overexposure is high with the possibility of irreversible eye damage, redness, swelling, itching, dermatitis, intense pain, blistering, tearing, ulceration, tissue destruction, nasal discharge, headaches, nose and throat pain, cough, vomiting, drying, defatting and cracking of the skin, burns to the mouth, throat and stomach, dizziness, drowsiness, incoordination, slowed reaction time, slurred speech, severe mouth, throat and abdominal pain, nausea, diarrhea, blood in the feces or vomitus, liver damage, shortness of breath, cloudy appearance of the cornea, chemical burns, damage to the central nervous system and significantly impaired vision, or complete loss of vision. If the cause of such symptoms is not discovered soon enough and proper medical treatment is not administered quickly, unconsciousness and death can result. Years later, the chemicals can cause birth defects or other reproductive harm. Some chemicals in such products can also cause asthma and cancer.

Visit our website at http://www.sebastiangibsonlaw.com and call us if you’ve been seriously injured by toxic fumes or a toxic chemical exposure at a hospital, medical office, school, fitness center, shopping mall or other public place.

Today there are hundreds of thousands of hospitals, medical offices, schools, fitness centers, grocery stores and other places frequented by the public and the sick at which the staffs are concerned about public safety and the spread of germs and viruses, and at which these highly toxic and dangerous products are being used. And while they address their concerns by using highly toxic disinfectants and cleaning products and even encourage the public to use such products themselves, many are failing to protect the public and themselves from the dangers of overuse, misuse, combined uses and over-concentrated uses of such products.

If you’ve been exposed to such toxic chemicals by contact or by breathing in their fumes at any public facility of this nature and have suffered any of these life-threatening or life-altering injuries, first we encourage you to seek proper medical treatment immediately. Tell your doctor what you suspect you’ve been exposed to. If you are in a health plan such as an HMO that first requires you to be seen by a general practitioner, ask your doctor to refer you on an emergency basis to a toxic exposure specialist and if your doctor won’t refer you, speak to someone at your health insurance company and demand to be seen by such a specialist so the proper blood work and lab work can be performed and your symptoms addressed, studied and treated.

As the germs and viruses that cause illness to humans become more resistant, ironically we can expect more and more toxic exposure injuries in public facilities concerned about public safety.

Once you’re receiving the proper medical treatment, call the law offices of Sebastian Gibson at (800) 589-3202 or e-mail us from our website at www.SebastianGibsonLaw.com Toxic exposure cases are lengthy and expensive and require a significant injury and medical bills in order for it to justify the time and costs involved in their prosecution. However, if you’ve been hospitalized and/or have suffered permanent injury as a result of a toxic exposure, call us.

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Tortul mireasa

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Tort czekoladowo – cytrusowy

To tort dla naszej Córeczki. Lekki i orzeźwiający. Teraz wydaje mi się, że jasny biszkopt byłby lepszy, choć z czekoladowym wygląda efektowniej.

Pierwotnie tort miał być czekoladowy, z różowymi świnkami taplającymi się w czekoladowym błotku, ale pech chciał że… różowy lukier plastyczny dotarł po imprezie :|

Forma o średnicy 24 cm.

Biszkopt genueński:

* 187 g przesianej mąki pszennej (w wersji czekoladowej zamiast 187 g mąki, bierzemy 137 g mąki i 50 g kakao),
* 6 jajek o temperaturze pokojowej, średniej wielkości,
* 187 g cukru,
* 45 g masła, rozpuszczonego i wystudzonego,

+ odrobina masła do wysmarowania formy.

Poncz:

* 1 szklanka świeżo zaparzonej mocnej herbaty,
* 1 łyżka soku z cytryny,
* 1 łyżka cukru,
* 2 łyżki rumu.

Lemon curd:

* sok i skórka otarta z 1 pomarańczy i 1 cytryny,
* 1/4 szklanki cukru,
* 1 jajko,
* 1 żółtko,
* 3 dag masła,

Krem cytrusowy:

* 400 ml śmietanki kremówki 36%,
* cukier puder do smaku,
* śmietan fix (dałam 1 saszetkę),
* lemon curd.

Dodatkowo:

* około 300 ml śmietanki kremówki,
* cukier puder do smaku,
* śmietan fix,
* jadalne perełki.

1. Rozgrzewamy piekarnik do 190°C. Formę smarujemy masłem i lekko oprószamy mąką.
2. Jajka i cukier wkładamy do miski i roztrzepujemy na gładką masę. Ubijamy jeszcze przez 12 minut mikserem, na średnich obrotach. Masa powinna powoli spływać z trzepaczki.
3. Dodajemy mąkę (lub mąkę + kakao) delikatnie mieszając.
4. Dolewamy masło i mieszamy ostrożnie.
5. Ciasto przelewamy do formy i pieczemy około 30 minut. Sprawdzamy patyczkiem czy jest gotowe.
6. Studzimy na kratce. Odstawiamy do ostygnięcia na 3-4 godziny.
7. Przygotowujemy poncz: w tym celu mieszamy wszystkie składniki razem i gotowe
8. Przygotowujemy lemon curd: Sok i skórkę z owoców, cukier, jajko i żółtko ubijamy na parze aż otrzymamy krem o konsystencji delikatnego budyniu (ubijanie trwa około 30 minut). Dodajemy masło, mieszamy i odstawiamy do przestudzenia, a następnie do lodówki.
9. Przygotowujemy krem: ubijamy dobrze schłodzoną kremówkę na sztywno razem ze śmietan fixem, dodajemy lemon curd i cukier puder do smaku (jeżeli istnieje taka potrzeba).
10. Ząbkowanym nożem przekrawamy biszkopt na 3 równe blaty. Ponczujemy. Przekładamy kremem, dociskamy lekko i odstawiamy do lodówki.
11. W tym czasie ubijamy 300 ml kremówki, z odrobiną cukru pudru i śmietan fixem. Wyjmujemy tort z lodówki, na wierzch i boki wykładamy bitą śmietanę, wygładzamy dużym i szerokim nożem. Dekorujemy perełkami. Odstawiamy do schłodzenia.

Przepis na biszkopt pochodzi z książki M. Roux pt.: “Jajka”.
Przepis na lemon curd wzorowany na przepisie Elki z Cincina.
Przepis na poncz pochodzi z książki pt.: Kasia, Pieczenie to tyle radości!