But his fight continues…

Multi-award winning Filipino Australian theatre director-actor-writer-educator, Marcelino “Mars” Cavestany, is openly known in the Filipino community in NSW as well and in the Philippines as being HIV positive in the past eleven years now.

In fact, he has even made an outstanding advocacy out of his “Life as an Artist Living with HIV” which is also the title of the autobiographical novel that he was supposed to launch and make a film of in the Philippines.

Early this month, he literally became a cause celeb, the subject of Philippine and international media for having been refused entry to the Philippines because of his illness.

Last 6 March, he was stopped at the Bureau of Immigration (BI) after arriving via Jetstar at the Ninoy Aquino International Airport in Manila based on a blacklist order issued almost a year ago describing him as being an “undesirable alien” who “poses a serious and imminent threat to public safety…” as he “intends to spread his AIDS (HIV Positive) disease.”

Whilst being escorted back to the same carrier which brought him to Manila to be flown back to Sydney, he suffered a heart attack and was rushed first at Makati Med then transferred to Paranaque Medical Centre.

News of this incident spread like wildfire as played up by local press turning into a seven-day wonder that caused local public uproar and attracting global attention so much that the new BI head lifted the ban in a speedy record span of two days, especially in a country steeped in bureaucracy and red tape. The Department of Health and the Human Rights Commission also came to his defense as Cavestany himself figured prominently in radio and television interviews.

In Sydney, community leader and businessperson Emma de Vera immediately reached out to Cavestany and wrote to seek help from the Australian Ambassador. Also, the Ilocano Association of Australia headed by Kate Andres issued a press statement decrying the wrongful and inhumane blacklisting of Cavestany, an active member and the current Artistic Director of the association.

Cavestany returned to Sydney last Monday, 21 March which coincidentally was his 57th birthday.

Yesterday (28 March), this writer phoned and emailed Mars Cavestany about the incident. Below are his responses for sharing with readers of this website.

1. What was the first thing that came to mind when you were refused entry?

Gosh, this is both alarming and dehumanizing, methought. As I said in my eventual letter to the Philippine Board of Immigration, the exclusion order came as a shock to me because I was never given the basic human rights to INFORMATION, and to REPLY. The new BI head himself Mr. Ledesma, was quoted as saying that the intent of the order was “malicious” to think that it has questionably been in place about a year ago to harass and embarrass me — all through the machinations of one former fellow worker of mine at the National Commission for Culture and the Arts with whom I had a fight and that which could have been verily resolved under Police jurisdiction and certainly not via a tall order such as “blacklisting” which is beyond me.

Wasn’t that alarming, to say the least? You know this notion that in the Philippines it’s so easy to blacklist anybody — you just pull the right strings and presto! Where is the due process here?

2. How does it feel being refused entry to your home country?

It’s like cutting off the umbilical cord that binds me to my Mother country of origin even if I had adopted Australian citizenship. No one but no one has a right to deny you that unless you are a common criminal or something to that effect.

Two days after the press has picked up my cause and amidst the hue and cry from the public that followed, the BI lifted the ban. This is very important to emphasize, because, unfortunately there are misinformed and ill-intentioned kababayan of ours still tittle-tattling, citing my blacklisting issue per se and leaving out the more important LIFTING and the global cause for alarm, concern and outpouring of indignation from the world over which is the positive effect of what happened to me, that is, calling attention to such crying issues of human rights, discrimination, gender and equality, and living with HIV.

3. Have you received any apologies from the Philippine government for the incident?

No, not officially but I’m happy with the immediate action of the Philippine Department of Health and most especially the Philippine Commission on Human Rights headed by the indefatigable champion of the wronged, Madame Etta Rosales who immediately called for a press conference focused on my defense.

I have had a private audience with her before I left and we worked out a continuing arrangement whereby it is hoped that my case will lead the agencies concerned to issue governmental guidelines on blacklisting ultimately ensuring that no human rights are violated. I emphasized the distinction of following the basic procedure of accosting or holding anyone in detention in a humane and compassionate manner which is how it is enforced in Australia but ironically, the exact opposite is what I suffered under that rough, rude, and impolite Duty Officer who accosted me at Immigration upon my arrival – then literally forced me to board the same JETSTAR plane that carried me to NAIA enroute back to Sydney.

Can you imagine? It would have been a patent case of A to A (airport to airport) and what naturally or I should say PROVIDENTIALLY transpired would not have eventuated — all for a Godly reason methinks!

Lastly, I’d like to mention that my fight continues as my lawyers in Australia study the case seeking just precisely what you had asked me for if not even more.

4. What are your plans with regard to your recent experience?

My original intention in going to Manila was to finalize and work out publication of my autobiographical book vis a vis setting up a matching indie film production of my life story as a person living with HIV — rather normally and productively notwithstanding the disease — and using all these as educational tools to be distributed all over the entire archipelago that remains totally un- and mis – informed about it so that stigmas and myths about what it is and what it is not are debunk, demythologized, and demystified alluding to vivid examples such as my case.

With the support of my immediate family and friends, and the courage of my own convictions I bravely put a FACE to HIV in a country that was totally in denial about the perils of this debilitating illness.

Truth to tell, as early as 2006, I decided to come home precisely to come out. Judiciously avoiding media brouhaha, I put up a highly successful tell-it-all confessional and biographical show and confined it to my turf which is the theater – staging it at the Cultural Center and eventually touring it in schools and universities throughout the country. At that time, I thought this one-man theater piece aptly titled PEREGRINATIONS… MARS CAVESTANY: Unmasked, Unbound, and Unzipped was going to be my swan song. Contrarily, it fired me to greater heights and more challenging hurdles.

But the irony of it all is that, I happen to be a professional interpreter helping our kababayan in Australia who are apprehended for being TNT or questioned upon arrival at the airport. Herein lies the world of a difference, because the first thing that a person thrown in such unfortunate situation is informed about is his rights whilst he is treated in the most humane, understanding, and compassionate manner. This is exactly what the Philippines has yet to learn and adopt as matter of policy for the future. Looking back, if my being a guinea pig of sort would set things aright, then I guess what I excruciatingly underwent was well worth it after all.

5. Future plans for your artistic career?

I’m directing Dr Jose Rizal’s play for young people called JUNTO AL PASIG (Beside the Pasig) which, BTW, was my monumental MA Thesis project. I am reviving and contemporanizing this zarsuela most opportunely to celebrate our national hero’s Sesquicentennial (150 years birthday anniversary) this year, auspiced by the Order of the Knights of Rizal Sydney Chapter headed by Mr. Ric de Vera who was recently appointed Regional Commander for Australia, New Zealand and Oceania by the Order’s head office in Manila.

This is an exciting, mammoth, ala-Cecile B. De Mille- production requiring puppetry, masks, pageantry, Filipino indigenous and traditional games, songs, dances and versification – a maiden production of the newly formed theatrical and marketing outfit, Fil-Oz Nation.

Meanwhile, I am finishing my novel “MY LIFE AS AN ARTIST LIVING WITH HIV”. There are also projects that Kate Andres of the IAA has lined up for me such as A Night of Unforgettable Broadway and Well-Loved Filipino OPM and an original contemporary musical, Our Own Little Country in Sydney as well as Alegria Tocalo’s Global Dreams colossal mounting of the Second Search for STAR RECORDS RECORDING ARTIST kicking off with monthly heats in July, August and September and culminating in a pre-finals concert in October and come the big night of championship in mid-November.

So you see, my hands are full as always and my mind is perpetually brimming with creative ideas. The unstoppable me can’t just be pulled down by what I had sadly yet challengingly experienced in Manila recently.

No way… life goes on…and there are many roads to take and “miles to go before I sleep.”

The Filipino Australian wishes Mars Cavestany the best for the future. We hope that his case can truly pave the way for an integrity review of Philippine immigration laws and procedures to align them with international practice and standards.

The laws target those who finance or provide support for people smuggling activities as well as strong penalties that underline the seriousness of people smuggling offences.

The new laws strengthen Australian laws against people smuggling and contain penalties of up to 20 years’ imprisonment if convicted.

The laws also target those who send money overseas that aids people smuggling with a penalty of up to 10 years’ imprisonment if convicted.

Intelligence agencies can now monitor people they believe are involved in or are aiding people smuggling.

“Those considering seeking asylum in Australia must follow lawful channels and pursue ordered methods of migration,” a Department of Immigration and Citizenship (DIAC) spokesman said.

“There are safe and lawful visa options for people wanting to resettle in Australia, including humanitarian resettlement or sponsorship by relatives already here.

“While it may be difficult, those who wait for lawful settlement are following the right path and not risking their lives.

“The tragic and unnecessary loss of five lives at sea on an Australian-bound vessel in May this year is a grim reminder of the realities of making the dangerous trip to Australia at the hands of people smugglers.”

The government has suspended processing Sri Lankan claims for three months and claims from Afghan asylum seekers for six months.

“Asylum seekers will only be granted the right to live in Australia if they are genuinely in need of protection,” the spokesman said. “The desire to seek a better life and more opportunities is not grounds to be granted asylum.”

Source: Department of Immigration and Citizenship

Migration intake expected to be reduced... // TFA Photo

Mr Burke has been tasked to develop within a year the country’s first population plan, including a review of immigration levels.

Australia’s annual migration intake is expected to be reduced as a stop-gap measure to address traffic congestion, housing, hospitals, water and the environment concerns.

Based on the figures from the Australian Bureau of Statistics, the total population of Australia is now 21.9 million and is expected by the government to grow to 35.9 million by 2050. The 2008-09 growth rate of was 2.1% compared to the average annual growth rate of 1.8% for the five years to June 2009.

The world’s population growth rate in 2008 was 1.17% based on World Bank’s World Development Indicators data.

Last financial year, net overseas migration contributed 298,924 to population increase compared to 157,792 from natural birth.

Based on the 2006 census by the Australian Bureau of Statistics, the proportion of people who were born overseas is 22% with England and New Zealand representing the two largest overseas-born groups but the size of the European-born population has decreased.

China is now the third largest birthplace group relegating Italy to the fourth position. Vietnam, India, Scotland, Philippines, Greece and Germany are the other countries in the top 10 countries of birth.

The Department of Immigration and Citizenship (DIAC) recently announced the passage in Senate of the Migration Amendment (Abolishing Detention Debt) Bill 2009.

The Bill abolishes the system of imposing charges on immigration detainees and waives all existing debts for current and former detainees with the exception of convicted people smugglers and illegal foreign fishers who will still be liable for their costs of detention and removal. The liability for costs associated with the removal or deportation of unlawful non-citizens will also remain unchanged.

The Bill, according to DIAC, is in line with the unanimous recommendation of the Joint Standing Committee on Migration in December 2008 that the Government repeal the liability of immigration detention costs and waive existing debts.

‘The detention debt regime has proved to be totally ineffective,’ Minister for Immigration and Citizenship Senator Chris Evans said.

‘Less than three per cent of the detention debt invoiced since 2004-05 has been recovered, with the vast majority of debts incurred under this system either waived or written off because they are uneconomical to pursue.’

In addition, if a person is granted a permanent protection visa or a humanitarian visa, then in keeping with the spirit of Australia’s obligations under the UN Refugees Convention, the debt is written off and no further action is taken to recover it.

‘The detention debt regime has not acted as any form of deterrent nor has it minimised the costs of immigration detention to the Australian community,’ Senator Evans said.

For the 2008-09 financial year, a total of $21 million in immigration detention debt was raised, of which $19.6 million was written off as uneconomical to pursue and $400 000 was waived. Receipts from the repayment of detention debts was $700 000 while it cost nearly $1 million to administer the debts.

During 2006-2007 and 2007-2008, $54.3 million in detention debt was raised of which $1.8 million was recovered. A total of $48.2 million was written off while $4 million was waived.

‘These figures are clear evidence that the detention debt scheme currently costs the taxpayer more than is returned in receipts,’ Senator Evans said.

‘This Bill strikes an appropriate balance by abolishing an ineffective system that unfairly penalises detainees with enormous debt burdens, while ensuring that liability for detention costs remains a deterrent for illegal foreign fishers and convicted people smugglers.

‘The Government considers that fair and effective immigration detention policies and strong border security measures are not incompatible.’

“Checking work entitlements make good business sense,” a DIAC spokesperson said. “The last thing a business owner wants is to lose a worker because they do not have a valid visa to work in Australia.”

DIAC said that employers in the retail and hospitality industries are among those at the highest risks of hiring illegal workers.

Employers convicted of these offences could face fines up to $13,200 and two years’ imprisonment per illegal worker hired. Companies face fines up to $66,000 per illegal worker.

DIAC has an internet-based Visa Entitlement Verification Online (VEVO) facility where employers can check work entitlements.

The Workplace Ombudsman says the treatment of one male and two female 457 visa-holders was nothing short of shabby.

“There were times when these vulnerable workers did not have enough money to put food on the table,” Workplace Ombudsman Executive Director Michael Campbell revealed.

Mr Campbell says the migrant workers were treated unconscionably by a Sydney-based labour hire agency, which deliberately underpaid them more than $15,000.

“When they asked about their wages, they were fobbed off with false promises and threats,” he said.

Mr Campbell said the case highlighted a serious dereliction of duty by Healthcare Recruiting Australia and its sole director Michelle Lloyd.

Lloyd and her company have been fined a total of $48,000 in the Federal Magistrate’s Court for four breaches of the Workplace Relations Act.

Mr Campbell says the company withheld the workers’ entitlements for more than a year after workplace inspectors identified the underpayments.

He says the company unlawfully deducted significant sums of money from their wages for training that was never provided, for rent, agency fees and airfares.

“The workers have told how there were times when they were living on the charity of others and felt ashamed they could not pay their rent,” he said.

“They were upset and frustrated and their treatment was obviously a very difficult time both financially and emotionally.”

HRA placed the three workers at two Sydney nursing/aged care facilities in 2005 and 2006 where they provided residents with personal care and assisted them with showering, dressing and eating.

However, Mr Campbell says HRA failed to pay full wages, casual loadings, penalty rates and holiday pay and made unlawful deductions without the workers’ consent.

He described the case as very serious and said the court penalty should serve as a warning to other recruitment companies bringing in migrant workers.

The Philippine Consulate General in Sydney welcomed the ruling of the Federal Magistrate’s Court.

Consul General Maria Theresa Lazaro said: “We are pleased with the outcome of the case and we are very appreciative of the efforts and the assistance extended by the Workplace Ombudsman to the affected Filipino nurses.”

The Workplace Ombudsman has investigated more than 400 matters relating to 457 visa-holders over the past two years, recovering more than $1.3 million in underpayments for overseas workers. / Workplace Ombudsman
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The Philippine Consulate General in Sydney received reports of individuals posing as recruiters victimizing Filipinos who wish to work in Australia, following news reports in the Philippines in January 2008 that Australia has 120,000 job openings available to foreigners, especially Filipinos.

Filipinos being recruited for Australia must be aware of the type of visa that their recruiter is applying for them. The type of visa commonly issued to Filipinos hired for work in Australia is the “457 Visa”.

Australian companies who wish to recruit skilled workers must be permitted to do so by the Australian Government. The Government issues to these companies a “Temporary Business Long Stay Visa”, which is also known as the “Standard Business Sponsorship Subclass 457 Visa” or the “457 Visa”, which is then provided to the foreigner workers they employ.

These authorized companies can either directly hire Filipino workers or employ a POEA-accredited manpower agency.

A Filipino who is recruited for Australian employment is matched to an Australian company that has been issued a 457 Visa. The Filipino worker receives the 457 Visa through the Australian Embassy in Manila.

The 457 Visa allows a foreigner temporary long stay for work purposes for a period of six months to four years. This visa does not give permanent residency or migration status.

The Philippine Consulate General in Sydney cautions potential workers for Australia against unlicensed manpower agencies or unauthorized Australian companies who illegally recruit Filipino workers. Illegally-hired foreign workers in Australia are exposed to abuses, hazards, and risks. If they are caught, they are deported and blacklisted from future re-entry into Australia.

The following are signs that a job applicant is being recruited illegally:

* If a recruiter offers long-term work but does not apply the candidate for a 457 Visa, then it may be an indication that the work is not legitimate or that the employment arrangements are not in order.

* If a recruiter offers long-term work but applies the applicant for a Short-Stay Business Visa (also called the “456 Visa”), then it may be an indication that the work is not legitimate or that the employment arrangements are not in order. A 456 visa allows entry for business meetings, or conference- or training-related visits and allows a stay of up to three months. Short-term work of up to six weeks is only permitted in strictly limited circumstances.

* If a recruiter offers long-term work but applies the job applicant only for tourist visa, then it is a definite indication that the work arrangement is not legitimate. Illegal recruiters often apply a victim for a tourist or short stay business visa, and instruct the latter to change his visa status to a long stay or even a permanent residency in Australia. However, such status changes are not usually allowed.

* If a recruiter makes the applicant pay for Australian administrative fees and/or air travel to Australia, then the recruiter is violating Australian laws require a company to shoulder all costs of fees and the worker’s air travel to Australia. The worker must not pay for his air travel to Australia.

Any Filipino, who was recruited to work in Australia under a 457 Business Visa program and was compelled to pay processing fees or air travel to Australia by their recruiter or employer, may lodge a complaint with the Department of Immigration and Citizenship (DIAC) through email address nsw.457.integrity@immi.gov.au.

Finally, Philippine Consul General Maria Theresa P. Lazaro emphasized that Australia does not allow the recruitment of domestic maids and farm workers from overseas. Any manpower agency that claims to be recruiting maids and farm workers for Australia is deceiving applicants. #

This is the assessment of a news story that appeared today in the SMH.com.au. The strong support of the Filipino community behind Renato Avendano and his family must be a big factor.

According to the SMH story, the claim that the deportation of the Avendanos was imminent was rejected by an Immigration spokesperson. The Immigration spokesperson, the SMH report added, said that an application for ministerial intervention in the case was being prepared for the minister to consider.

(The latest SMH report on the Avendanos is available at http://www.smh.com.au/articles/2007/11/19/1195321697173.html)

Petition for grant of permanent residence

We have just received a copy of a petition calling for grant of permanent residence to the Avendanos.

Yes, we fully support the petition. May we also request our readers and members to support the case of the Avendanos. You can show your support by signing a petition which will be sent to Minister Kevin Andrews of Immigration.

You can download a copy of petition here > avendano_petition.doc.

Six original signatures are needed on each sheet. You can photocopy as many as you can.

Once completed, kindly contact us at mobile 0432 980 312 so we can have the signed petitions collected.

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