MRT & Ministerial Intervention applications

Migration Review Tribunal (MRT)

One of the features of Australia’s Immigration system is that we have a robust process that allows for the independent review by the MRT of decisions by DIBP to refuse any onshore visa application or any sponsored visa application. The MRT is an independent body that in simple terms takes another look at a visa refusal upon valid application for review.

The Presiding Member of the MRT and their tribunal staff reassesses the entire application and if they cannot make a favourable decision for an applicant on the papers provided invite the applicant to a hearing to allow them to make submissions and answer questions. This process is a low stress as anything of this sort can be; so it is stressful.

My point here is not to detail the MRT processes. My concern is that many people use this MRT system as a way to buy time and temporarily avoid having to depart. Now it is a basic right within the system to apply for review but where the application is essentially vexatious or has no prospect whatsoever of success the impact on genuine applicants can be quite significant. MRT waiting times for many classes of visa are significant and often these waiting times are substantially created by applications that have no merit.

Genuine couples waiting in the Partner/Family queue at the MRT suffer enormous stress and pain, Carers or those in urgent need of care go without and businesses cannot secure essential staff as many people just mess with the MRT system.

On my Blog many people begin with the words “I am on an MRT visa or I’ve applied to the MRT” and then go on to explain that they are buying time while they try to figure out what else they can do to be able to stay. Most know they cannot possibly win at the MRT and eventually find they have not further options onshore. In the end this is an ethical question for applicants and for that matter for migration agents and lawyers. For my part I feel very sorry when I see people suffering and waiting for much longer than necessary as applications with no merit get processed before they can have their day before the MRT.

To be fair many MRT applicants are quite poorly informed and may believe that their applications have some hope of success. What everyone needs to appreciate is that the MRT is bound by exactly the same Migration Act & Migration Regulations as DIBP. The MRT cannot in anyway disregard the law as it is written because they feel sorrow for an applicant for example.

Ministerial Intervention

I am tempted here to say ‘rinse and repeat’ as this system receives similar abuse to that outlined above. However the DIBP section that deals with requests to the Minister (Ministerial Intervention Unit) for a more favourable decision following first a DIBP refusal followed by an MRT/RRT refusal do not have to run with a request if it does not meet the Ministerial Guidelines. Many requests to the Minister do not get very far and as a consequence do not buy the person the time they are may have been led to believe it would. Also conditions faced by those who put a request to the Minister are significantly inferior to those afforded applicants to the MRT. Conditions only improve in this space if the Minister is actively considering the request – that is it seems to meet the Minister’s guidelines.

The basic principle here is that in certain circumstances the Minister has the power to set a decision aside and grant a more favourable decision. This whole very important and beneficial system is put at risk if huge numbers of people who do not meet the Minister’s guidelines abuse the system. It becomes so much harder for a person who meets the Minister’s guidelines to be noticed and dealt with fairly and in a timely manner when the people tasked with processing these requests have to deal with a tsunami of requests that have no merit. The system becomes steadily devalued and I cannot help but think that those who work in it must wonder why it is so easy to work the system in this way.

I guess my appeal, if that is the right word, is to not abuse these systems. Get good advice and only go ahead if there is a real prospect of success. In the end very few people who find themselves making worthless applications or requests succeed in finding that other application they can make onshore and many end up much worse off financially, physically and emotionally.

Labour Market Testing for 457 visas – November 2013

I have been working as a Registered Migration Agent since 1997 (MARNs 9795459  & now 0854799) – so around 16 years and there are times when I wonder if I’m somehow stuck on a slow moving amusement park carousel. Things move around but you inevitably end up right back where you started over and over and over again. On 24 November 2013 the Department of Immigration & Border Protection (DIBP) will reintroduce Labour Market Testing for sponsored Skilled Temporary Work visa – the UC 457 visa.

Previously Labour Market Testing was abolished on 1 July 2003 when the then Federal government deregulated aspects of this visa process. The feeling at the time was that the process used to test the labour market was flawed and that there was a disconnect between the evidence being requested and provided and reality. Having been down this pathway many times I can but agree. The process was a ludicrous bureaucratic waste of time and money. It was an unnecessary cost to Australian businesses that genuinely could not find workers to fill gaps from the local labour market.

So here we go again with all the normal assurances from those in charge. We will keep it simple, it just an ad or two in the paper, a light touch and nothing else required from employers. Really? It is not hard to spot the folk who do not have to survive in the real world of day to day business – politicians and I’m sad to say DIBP policy bureaucrats. In the past (and it will be so again) some/many positions attracted hundreds of unsuitable applications all of which had to be opened, read, responded to, put in schedules, their unsuitability explained, interviews were conducted, submissions sent to Immigration amongst other tasks – none of this of course took any time at all and hence cost nothing. I can vividly remember getting rafts of applications from recently redundant telecommunications workers with no relevant qualifications whatsoever for a position requiring a degree in Medical Science. It was absurd.

Back then (in 2003) the process ground to a halt, it was costly and eventually almost every stakeholder saw it as pointless; so it was abolished.

Today recruitment is a multi-media process – not just an ad in the paper. Employers already have significant costs associated with recruitment in general and the 457 application process and compliance in particular. This ‘new’ labour market testing process must, like all subjective policy, get bogged down in detailed policy and compliance guidelines. Subjective judgements by DIBP staff will then be applied to second-guess the needs of the business that actually needs staff immediately. Immigration staff that have never run a business or worked in a corporate environment will have the power to tell employers with decades of experience running all manner of businesses about whom they can and cannot employ.

Employers, and here I refer to the vast majority (not the unacceptable unethical minority) don’t go to all this cost and trouble of hiring a worker on a 457 visa because it is the easy thing to do. Most employers do it because they have to; they have a need to and most know their market and the labour that supplies it far better than any DIBP case officer can ever hope to. It is the only way they stay in business and pay their existing employees every week.

It never ceases to amaze me how ‘government – elected and employed officials’ have so little grasp of the financial realities of running a real business. So often we are told that changes will have neutral cost impacts or result in minimal time delays – only when you don’t have to pay the bills and see your staff burning up time to meet the whims of those who just don’t appreciate for example how many meals you have to produce and sell just to break even or how many plastic extrusions you have to manufacture, market and sell to be able to pay a single staff member.

Today I read an academic paper on the 457 visa and its history and a Chamber of Commerce response to current policy changes in the 457 visa area; quite different reading. Every day I meet employers who really struggle to find suitable qualified staff. Here I define suitable by the extremely basic criterion of actually turning up for work each day. These employers are not people looking to scam the system. These employers are just normal everyday people trying to make ends meet by running small to medium businesses. They are not setting out not to hire Australian staff. In fact the vast majority have almost exclusively Australian employees. Why do we allow our systems to be manipulated by a few who have specific political agendas, who certainly do not have the responsibility to run businesses and maintain employment of the majority of working Australians? This is not a game, it’s not a simulation, it’s the real world where unless revenue exceeds costs and expenses, businesses go out of business and all their Australian (and foreign) staff end up unemployed.

It’s so easy to form government and bureaucratic committees to dream up new regulations and requirements. Why not spend this time dreaming up ways to crack down on those who offend and abuse the systems and leave the majority of compliant employers alone to actually run their core business. Labour Market Testing will simply add costs and create delays – same old merry-go-round!

The 417/462 Working Holiday Visas

Recent times have seen a huge amount of angst; political, trade union, business, employer and I’m sorry to say personal surrounding the role of 457 Business Long Stay visas in our economy and community. Talk of rorts, misuse of the system, foreign workers taking skilled jobs from unemployed Australians and quite a lot of scams running around in the various ethnic communities in Australia. DIAC have cracked down on various occupations that they feel are being exploited and there is a good deal of misinformation and misunderstanding out there in the wider community. Many people come on my Blog for example and vent their personal anger and say that there are sectors of our economy where the 457 visa is causing significant problems.

All of this abuse (as many choose to use me as a target to express their displeasure) has got me thinking that it is possible that the real culprit in the visas taking Australian jobs debate is the good old 417/462 Working Holiday visa. 457 visa holders must have relevant skills and qualifications but the Working Holiday Visa holder can take any job – skilled or unskilled. There is no oversight, no sponsorship or nomination approval system, wages and salaries are not monitored, employers are not checked – basically it is a free for all with the only minor restriction being the visa holder can only work for a maximum of 6 months for the one employer.

Also important to know that it is possible to extend this visa into a second year under certain conditions and many then make further visa applications onshore when their working holiday period expires.

See: http://www.immi.gov.au/visitors/working-holiday/417/eligibility-second.htm

Working Holiday visa holders can come from the following countries –

Belgium, Canada, Cyprus Republic of,  Denmark, Estonia, Finland, France, Germany, Hong Kong SAR, Ireland Republic of, Italy, Japan, Korea Republic of, Malta, Netherlands, Norway, Sweden, Taiwan, United Kingdom (all 417) and from the USA (462)

How many of these young folk (you have to be less than 30 years of age) are there in Australia at any one time? What jobs are they actually doing? Where are they? What impact are they having on the ability of young Australians to get jobs? Are they being exploited by less than ethical employers?

I suspect of these 5 questions the Federal Government and DIBP can only answer the first one. Is that good enough?

Do you need a migration agent to lodge a visa application? Rowena Prasad

The answer to this question varies from person to person.

If you ask the Department of Immigration and Citizenship (now Department of Immigration and Border Protection), their answer is ‘no’, according to the information on its website.

If you ask a friend that suffered the agony of removal, visa cancellation, visa refusal, or anything else related to migration that seemed out of their control, your friend will always tell you ‘yes’.

If you ask a friend who was recently bamboozled by the amount of information required to lodge a partner visa application, the answer is ‘yes’.

If you ask a migration agent, obviously, the answer is ‘yes’.

Whether you choose to use the services of a migration agent is entirely up to you.

When it comes to migration agents and visa applications, there are some things you should know.

All visa applications and anything related to migrating to Australia, either permanently or temporarily, is actually a legal criterion.

Each visa application and related item such as sponsorship, nomination, certification etcetera is subject to legal criteria and immigration policy.

Everything related to migration is subject to legislation. Legislation is subject to interpretation, argument, representation, and debate.

Immigration policy is dictated by the government of the day, administered by the Department of Immigration and Border Protection, upon advice and direction from the Minister for Immigration and Border Protection, to meet the government of the day’s political objectives.

Keep this in mind the next time you prepare a visa application on your own.

When answering questions on the visa application form, paying the visa application charge, providing documentation, additional information, supporting letters and so on…ask yourself:

“What legal criteria are you being asked to satisfy and are you doing your best to meet the requirement?”

All migration agents in Australia must be registered with the Office of the Migration Agents’ Registration Authority (OMARA) and abide by a Code of Conduct (the Code).

Lawyers practice or specialise in any combination of legislation, such as corporation, criminal, humanitarian, and taxation to name a few.

Migration agents specialise and practice only in migration law. Migration agents deal with migration law and policy on a daily basis.

If we don’t know anything else, we know migration law, or at least that is the expectation.

A migration agent cannot represent you at court but they usually brief lawyers if their clients need legal representation in a court of law.

A migration agent can represent you in front of Immigration, the Migration Review Tribunal (MRT) and the Administrative Appeals Tribunal of Australia (AATA). Migration agents that are lawyers can also represent you beyond the AATA in a court of law.

Even lawyers practising in migration law must be registered with OMARA. You must always check your migration agent is registered by searching here: www.mara.gov.au.

The Code of Conduct (the Code) regulates the conduct of all registered migration agents in Australia. The Code aims to establish proper conduct of a registered migration agent, and sets out the minimum attributes and abilities of a migration agent, including, but not limited to:

  1. Being a fit and proper person to give immigration assistance,
  2. Being a person of integrity and good character,
  3. Knowing the provisions of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, in sufficient depth to offer sound and comprehensive advice to a client, including advice on completing and lodging visa applications forms.

The Code is comprehensive, covering almost all areas of migration law practice including standards of professional conduct, obligations to clients, relations between other migration agents, fees and charges, record keeping and management, financial duties, duties of registered migration agents to employees, complaints, termination of services, and client awareness of the Code.

If you don’t trust your agent or doubt their competence, I would urge you to seek the assistance of another registered migration agent to ensure your case is dealt with competently.

Apart from visa applications, forms, and documents, remember it is your life you are presenting to Immigration, hoping to satisfy the legal criteria and policy intentions at the end of the day.

Whether you want to achieve a dream of living in Australia, live with your partner, to work in your chosen occupation, or to simply study or live with your family, we encourage you to seek out the best possible advice and assistance that can ultimately change your life.

Rowena Prasad joins the Australian Immigration Blog

Over the last five years our readership has grown and grown with thousands of subscribers and we are nearing 1 million hits. On some days the Blog receives close to 100 questions from readers seeking help.  It is with great pleasure that I introduce Rowena Prasad (MARN: 1279309) to all the readers of the Australian Immigration Blog. Rowena and I work together in our Sydney CBD offices and she has kindly agreed to begin sharing the load of writing new posts for the Blog and taking on the often daunting task of responding to the many many requests for answers we get each and every day.

Rowena is particularly adept at reading and interpreting the often dry and complex migration legislation. Rowena comes from a migrant family herself, having lived in Australia for over 20 years now. Before dedicating a career to helping others migrate to Australia, Rowena worked in political communication and media services. Rowena has also lived and worked in the UK while travelling around Europe. In April 2010, Rowena completed a trek to Mt Everest Base Camp and will be attempting to complete another epic trek in 2014.

As a new addition to this blog, you will find Rowena posting on topics of interest and of course responding to some of your questions.

The Australian Immigration Blog is a unique resource for those interested in or subject to Australia’s complex Immigration Act, Regulations and Policy. I appreciate the support that many of you express when posting comments and questions and I trust you will all welcome Rowena and appreciate her efforts to share information and opportunity.

Grant Williams MARN 9795459 & 0854799

DIAC no more – welcome to the Department of Immigration and Boarder Protection (DIBP)

For those of you with an interest in trivia here is a list of the names that have graced the various versions of the Federal Government Immigration Department since the end of World War II.

DI – Department of Immigration (1945 – 1974)

DLI – Department of Labour and Immigration (1974 – 1975)

DIEA – Department of Immigration and Ethnic Affairs (1976 – 1987)

DILGEA – Department of Immigration, Local Government and Ethnic Affairs (1987 – 1993)

DIEA – Department of Immigration and Ethnic Affairs (1993 – 1996)

DIMA – Department of Immigration and Multicultural Affairs (1996 – 2001)

DIMIA – Department of Immigration and Multicultural and Indigenous Affairs (2001 – 2006)

DIMA – Department of Immigration and Multicultural Affairs (2006 – 2007)

DIAC – Department of Immigration and Citizenship (2007 – 2013)

DIBP – Department of Immigration and Border Protection (2013 – current)

The changing names give an interesting snapshot of the themes that have swirled around Australia’s immigration program over the years. Really all these changes are just a giant waste of taxpayer’s money. We could have just stuck with the original and bought a few extra hospitals, aircraft carriers or perhaps kept University/HECS and TAFE fees lower to promote the training of the workforce. Alas our politicians really can’t be trusted with our money!

What’s the latest cost for rebranding a Federal Government Department? Anyone know?

DIAC – World Record for Price Increases

Can anyone anywhere point out to me any organisation (private or any level of government) who has managed to increase its fees at a rate equal to or greater that the Department of Immigration & Citizenship? Can you even point out someone who would rate a close second to DIAC?

It is really hard to know where to start when looking at the truly amazing escalation in DIAC fees over the last decade so I’ll start with some simple summary facts.

The average rate of inflation in Australia over the last decade has been 2.7% (Lowest of 1.7% highest of 4.4%)

If we take the Partner visa category as a sample where an Australian citizen or permanent resident sponsors a spouse / life partner either married or de facto the increase in the DIAC visa application charge (VAC) from November 2004 to June 2013 is 115%.

In January 2013 DIAC increased the VAC for the Partner by 30% (between November 2012 and January 2013)

On 1 September 2013 the base VAC will go up again by 15.1% to a staggering $4575 for the onshore 820/801 Partner subclasses.

It is also worth pointing out that DIAC have just changed their pricing strategy from a single fee which covered all applicants (primary and secondary) to a system that charges per person applying. So if your onshore Partner has a small child (under 18 years) this fee increases to $5720. If they have a dependent child over 18 it is much more at $6865.

It is not just Partner visas that are affected in this way it is all applications for sponsored permanent residence. The figures do vary from visa subclass to subclass but the theme remains the same; massive fee increases.

Increased costs for businesses an example

Let’s say a Sydney business (a Restaurant) wanted to sponsor a temporary foreign worker as a Cook. This person is married and has one young primary school aged child. The application fees for Sponsorship, Nomination and the visa application charge which must be entirely met by the sponsoring business on 30 June 2013 would have been $960. Under the new DIAC pricing model this fee now rises to $2775 if our Cook is applying from offshore and $3475 they are onshore from say a Student 572 or Graduate Skilled 485 visa. That is an increase of 189% offshore and 262% onshore.

Soft Targets

Our Federal Government and DIAC clearly see migrants, their Australian sponsors, temporary workers and Australian businesses as soft targets. It is impossible to come close to finding any justification for these fee increases beyond raising revenue. If this exercise in transparent greed was only affecting people who were not Australian Citizens or Permanent Residents and they could vote with their feet by choosing not to pay or to try somewhere else it would still be hard to justify but it would be a matter of simple choice. This is of course not the case at all – Partner visa applicants have Australian spouses who pay these fees; Australian business, desperately trying to stay afloat in difficult economic times and unable to find skilled staff domestically, get to pay these fees not the visa applicants.

DIAC fees go up faster than Sydney property prices. It is sad to say but this massive increase in fees has been accompanied by a collapse in DIAC service standards over a wide range of sponsored visas subclasses. Onshore Partner visas now take 15 to 18 months to process in Sydney, a little longer than on the spot (30 minutes) or at worst a couple of weeks for a decision ready application not all that long ago. Employer Nomination applications now take at least 5 to 6 months when not long ago it was 3 to 4 weeks at most.

It is an amazing business model, where you can vastly increase prices while lowering service standards to levels that are actually causing physical, psychological and financial hardship and not have the ACCC dragging you to court and imposing huge fines.

For me it is really very difficult to see young couples who cannot lodge a Partner application simply because the fees involved are prohibitive. Are DIAC senior staff and their political masters so out of touch that they cannot see that treating Australians in this way is wrong, unacceptable and destructive to our social fabric?  Is money the only arbiter in their decision making?