The Psychology of Uncertainty – Partner Visa Processing Delays

There was a time when the Department of Immigration granted onshore Partner visas in as little as 30 minutes. Now, onshore partner visa applications are taking as much as 18 months to process, or in some cases, even longer. I have been wondering what impact this processing delay is having on the victims – the visa applicants and their sponsors/partners – of this bureaucratic disaster.

It is important at the start of this article to say this is not the fault of many DIAC staff that process onshore Partner 820/801 visa applications. They continue to do their usual jobs one application at a time and that is all they can do as individuals. Frontline processing case officers temporary and permanent have to do as they are told by their bosses.

Management of the onshore Partner caseload and resource allocation (of staff) to this task is another issue altogether. Decisions made at the higher levels of DIAC management in the onshore Partner stream impact directly on DIAC’s “clients” and this is where I want to focus my attention. What affect is all this having on the victims of this gross blowout in the service standard?

At the micro level in a Registered Migration practice and on my Blog (http:/immigrationptyltd.wordpress.com/) I’m seeing two quite distinct trends developing.

1. A steady stream of relationship breakdowns and

1. A huge volume of emotional distress and confusion, even paranoia stemming from being stuck in Partner application and/or Bridging Visa limbo.

It is difficult not to conclude that there may be a causal relationship between these two factors.

I’m sure the first response from DIAC to this criticism will be – Onshore Partner applicants now get unrestricted Bridging visas, they can stay, work and travel if they want to – What’s the problem?

The problem, I’m beginning to think, is that this view is way too simplistic and that as time unfolds the real effects of gross delay and uncertainty begin to emerge and this issue is just not on the DIAC radar at all.

I think back to the psychological impacts that temporary protection visas were reported as having on Asylum seekers living in our community in seemingly ‘free’ circumstances. I shudder to think we may well revisit this problem again after 14 September 2013 – but that is another issue.

To be fair not every applicant stuck in this long Partner processing queue will be affected by the length and stress of the process – some may just roll with the system. However we can say with total certainty that every single applicant would prefer to have their visa granted sooner rather than later and that there is nothing intrinsically helpful or enjoyable about waiting an indefinite length of time in visa process limbo.

A search of the literature on relationship stress and breakdown identifies many of the prominent factors currently affecting Partner visa applicants.

Primary amongst these is the combination of employment and financial stress – money and work or the lack meaningful work are high on the list of stressors for relationships. DIAC are certainly putting many Partner visa applicants through this grinder. Getting any sort of a meaningful position while on a BVA, let alone a BVC or BVE is a huge challenge. Employers don’t want staff on Bridging visas because they don’t understand the BV system and the uncertainty of employment continuity (What if you don’t get the visa?) is a major business consideration.

Family stress is also high on the reported list of stress factors for relationships. A lack of access to family help and for many an inability to see of visit near family (those on a BVC or BVE cannot travel) combined with a good measure of cultural imperative further exacerbates life and relationship problems for many applicants and sponsors.

Next you only need to throw in the birth of a child or for some couples the decision to postpone starting a family because of the uncertainty and stress of Partner processing and the mixture can become quite volatile.

Many students who move onto Partner visa applications feel the need to stop studying to support their relationship. They often voluntarily cancel their student visa and end up trapped on a BVE for a protracted period which sets off a new cycle of work, money and relationship stress.

I see Partner applicants in waiting who have developed quite serious paranoia. They begin to focus on the miniature of their application and stress that the delay is because they have somehow missed something or not provided that extra document to prove the genuine nature of the relationship. Again this is a vicious cycle that can have toxic relationship impacts.

The point, if you have not yet got it, is that protracted processing delays in such a benign visa area as onshore Partner are creating real relationship stress – it is a classic unintended consequence of a bureaucratic mess in a system that seems to be working on a not our fault or not our problem assumption. Makes you wonder about the DIAC motto…People our Business

10,000 457 Visa Rorts?

I note that the Minister for Immigration & Citizenship Brendan O’Conner has admitted that he made up the 10,000 rorts figure as I suggested in my post last week. He described this as an estimate, his estimate. I also note that there is no proof what so ever to support this assertion.

This is shameful political grandstanding and in the end he simply looks foolish for making such a silly claim (sorry estimate).

A discussion paper on the changes the Minister is considering for the 457 system as also released last week – more on this later in the week.

Minister: 457 visa rorts “I would say it would exceed over 10,000.”

Really?

I do question where Minister O’Conner plucked this charmingly round figure from? At a first guess I’d suspect thin air. Perhaps he will authenticate this number in the next few days.

See: http://www.smh.com.au/opinion/political-news/457-visas-more-than-10000-are-rorting-system-says-minister-20130428-2imcy.html

I do note that the matching Press Release on his Ministerial website conveniently makes no mention of this claim.

See: http://www.minister.immi.gov.au/media/bo/2013/bo202119.htm

Now this may seem an odd thing to say but I’m sitting here in my office feeling really quite sorry for / upset for the staff who work in the various 457 Business Temporary Entry sections of DIAC. I interact with them on a regular basis and I find them to be highly professional and efficient. To have their big boss basically say that they have made 10,000 mistakes in granting 457 visas cannot sit all that well or be a major boost for moral within DIAC.

I also wonder if the Minister was considering the DIAC 457 Monitoring unit staff when he quantified rorting at this level because I have not seen any evidence from ongoing monitoring action to suggest that 457 visas or Standard Business Sponsorships are being cancelled at anything like this level – quite the reverse in fact. So is the Minister suggesting that the staff employed here are not doing their job? What was he thinking?

For a long time now I have felt that the level of 457 monitoring DIAC have been able to accomplish has been hamstrung by a lack of resources. If this is the case then again it’s a bit rich to blame DIAC staff when it is the Government who is responsible for the allocation of funds available to get this important job done.

The problem here is that this is no joke. We have a Minister telling us that we could have a “stock” (his word) of 457 visas holders greater than the population of Wollongong in three years if “demand continues at the current growth rate” The latest 457 Summary Report on which Minister O’Conner is basing his comments does make this point – “However, there has been a general downtrend in visa grants since the peak in August 2012. This downward grant trend continued in March 2013.” Does this mean he will need to find a smaller Australian city to compare the stock of 457 visa holders to soon?

There have been numerous protests at the Minister’s statement from business and employer groups as the government again seems to be rushing to fix something that is not broken. The Minister is anticipating changes to the 457 system without actually articulating them – another Federal government tactic designed for a political sound bite without considering the consequences for any of the relevant stakeholders.

I also feel no confidence whatsoever in the new monitoring system to be put in place by the Minister… ‘We have taken action to stop employers misusing the program, and are giving Fair Work inspectors the powers to act on 457 abuses.’ Fair Work Australia’s recent record is less than impressive and while this may seem like a sensible idea as they are the body dealing with workplace issues you’ve got to wonder how well the synergy between two huge Federal Government departments will work. If the Minister is to be taken at his word a DIAC Unit set up specifically to monitor the 457 is being circumvented by staff with no real experience in this area or immigration. Does this now mean that DIAC and Fair Work Australia staff will be responsible for monitoring 457 Sponsors and visa holders? Sounds like a recipe for bureaucratic red tape and inter-departmental confusion and duplication to me.

New Student Visa Cancellation Framework

One of the recommendations of the Knight Review into the Student visa program was that the system of ‘automatic’ visa cancellations under section 137J of the Migration Act be replaced with a more “targeted and strategic” approach. In other words stop automatic cancellation and look at each case individually.

The s137J automatic cancellation system came into play when a student had been sent a section 20 letter under the ESOS Act. This was a report to DIAC (and the student) that the student had been not complying with their visa conditions. This letter gave the student 28 days to contact DIAC to discuss their situation. If a student did not make contact in this 28 day period their visa was automatically cancelled under s137J. If the student made contact in the 28 day period the s137J provisions were automatically stopped and DIAC then considered their case individually. This of course still led to many student visa cancellations but they took place under one of the other cancellation powers that are in place in the Migration Act.

On 22 March 2013 when the Federal Government introduced the Migration Legislation Amendment (Student Visas) Bill 2012 which they anticipate will, following Executive Council sign off on 11 March 2013, be implemented from 13 April 2013.

See this link: http://www.immi.gov.au/students/whats_new.htm

This is a good thing as for one reason or another many students found their visas automatically cancelled when some part of the process did not go according to plan. This could have been at the Education Provider end or the fault of the student for not keeping their current contact details updated but in the end it was seen as unfair. Students move about from one address to another and for that matter from one course to another and the inflexibility of the automatic process was no allowing for communication faults and failings from all sides.

Now before you think that it is now a safer world for students to do as they please realise that all that has happened is that a breach of student visa conditions will be dealt with under another section of the Migration Act that provides for cancellation if the circumstances warrant it. The important point being that someone at DIAC actually looks at the circumstances. DIAC will now look at the situation in context – fairer for all provided you actually engage with DIAC when notified to do so.

So under the old system the student had to attend the Student Integrity Counter at DIAC. These counters will close 28 days from 13 April 2013 and communication will now move the normal letters and emails when a student has been reported as not complying with their visa conditions.

The vital point here is that Students MUST make sure DIAC know where they are physically and electronically. If DIAC attempt to contact you via your last notified contact details and method you are taken by law to have received this message. If then you do not respond within the time frame specified in this communication DIAC will take action (cancel your visa). So the only difference will be that it has not been automatic but the result will be the same.

So I say again keep your contact details with DIAC current. This is not done by you telling your Education Provider or by ringing up or sending DIAC an email. Your obligation is to tell DIAC yourself using Form 929 which is sent to the Student Section.

457 visa hysteria – Is this policy or publicity?

I must admit that I have been sitting back resisting the urge to comment on the 457 visa rhetoric that has been swirling around since our Prime Minister and then our new Minister for Immigration & Citizenship flagged new measures to control what they both unashamedly painted as wide spread rorting of this visa system.

Immigration is a huge national system. If you get put on hold while waiting to speak to someone at DIAC you will be told that on a typical working day DIAC receives 13,000 visa applications, grants 11,500 temporary visas, 500 permanent residence visas and grants 300 people Australian citizenship. Quite amazing and I would suggest not hard to imagine that in all that activity each working day there must be some ‘rorting’ to use the language of our politicians. Every large system suffers from the actions of individuals who are less than honest. It is not good but it is inevitable be it our taxation system, workplace laws, consumer affairs; really every system that people use. It is therefore no surprise that some employers are misusing temporary work 457 visas.

The point is not does it happen? – of course it does – but how prevalent is it? The answer is not what our Prime Minister and then our new Minister for Immigration & Citizenship want to hear… in reality it’s not all that common. Smart operators, for want of a better or more accurate description, work every system not just immigration and the 457 visa program.

Now let’s have a look at the statistics trotted out by our new Minister for Immigration & Citizenship to justify important changes to this visa system while not really being able to articulate any substantial evidence of this widespread rorting he is so concerned about beyond saying DIAC are investigating a number of cases – DIAC are always doing this in such a huge system and DIAC often cancel sponsorships and visas as a result – it is great news if they catch and punish those who abuse the system!

The Minister is concerned that the growth in 457 visa grants is outstripping overall employment growth. Wow that sounds serious until you spend 5 seconds thinking about it. The inference is that temporary 457 workers are flooding in to take the jobs that unemployed Aussies should be getting. Well no.

• First these things are not comparable statistics or to put it another way you cannot validly compare these two numbers it is statistical nonsense – as has been pointed out by numerous qualified folk who work in this area since these figures were presented as a flashing beacon of concern.
• Second such raw numbers tell us nothing about the breakdown of this “growth” by occupation or location. It is for example nonsense to say a company should not hire a 457 visa holder in Geraldton, WA because there is an unemployed worker with the same qualifications living in Campsie, NSW who refuses to go to live and work in Geraldton, WA.
• Third should we not be considering the percentage of the Australian workforce that 457 visa holders represent? DIAC statistics tell us that at the end of February 2013 there 107,501 primary 457 visa holders in Australia (See this link: http://www.immi.gov.au/media/statistics/statistical-info/temp-entrants/subclass-457.htm) and the Australian Bureau of Statistics (ABS) says that the Australian workforce totals 12,231,000 (11,572,800 employed and 658,200 unemployed with a participation rate of 65.1%.

(See this link: http://www.abs.gov.au/ausstats/abs@.nsf/mf/6202.0).

That means that 457 visa holders represent 0.87% of the total workforce (less than 1 %). How valid, realistic, sensible or statistically valid is it to compare the rate of growth of the total workforce to a 1% segment? It’s not to answer my own question it is using numbers and statistics less than honestly to make a contrived point.

The Minister also said he was concerned that school leavers were not getting jobs. Yes so am I but school leavers have no qualifications and 457 workers are already highly qualified and often have many years of work experience to boot. Our school leavers need training again I say that is a great idea but you can’t hire a school leaver to work as an Accountant or Vascular Surgeon – they need to be trained first and if you need the employee now to fill a vacancy to do those books or repair those heart valves waiting 3 or 10 years respectively does not seem an appealing option while you await the school leaver to get trained or qualified.

Next the our Prime Minister and then our new Minister for Immigration & Citizenship insist that we need to able to show that employers have made efforts to find Australian workers before reverting to a 457 visa applicant. Again this sounds totally reasonable until you look at the government’s own departments who happily explain which occupations are in shortage – there are entire sections and committees who do this for a living. So now we ignore them and start micro managing labour market testing again – a policy ditched by DIAC some years ago now because it did not work, distorted the market and provided totally unreliable results.

Compliance (or lack of it) with 457 sponsorship obligations (that is rorting) is another sore point so we are told – some employers are being naughty so let’s fix this by making all employers jump through new compliance hoops. Punish everyone with more bureaucratic regulations so we can reign in those doing the wrong thing. This is the well-known “shotgun method”. If you shoot 100 people in a room containing 3 criminals you will definitely get the bad guys – shame about the collateral damage. DIAC have wide-ranging 457 Sponsorship monitoring powers. My suggestion – use them rather than punishing everyone – monitor sponsors and kick the back sides of those who do the wrong thing. Kicking the back sides of all sponsors is inefficient and just dumb.

So what is really going on in the world of Australian Standard Business Sponsors and 457 Business Long Stay visas holders? Well nothing at all really except there is a Federal election on the horizon in September 2013 and whipping up some hysteria and a touch of xenophobia about foreign workers plays long and loud in what the Federal government sees as working class Labor heartland electorates where they know they are struggling to hold seats. Politics is a cynical business but when this sort of policy response is driven by political not sound economic motivations it really leaves a bad taste in my mouth. What do you think?

Again we see the government rushing to fix another system that is not broken and that already has in place provisions that can be applied to mitigate the issues they feel so strongly about.

Partner Visa Processing 2013 Expect Delays – Mediocrity in action?

You often hear people refer to the “the good old days” with a note of despair in their tone of voice.  I must admit I’ve come to a new definition of this over used phrase in recent weeks in relation to the processing of Partner visa applications. – I only need to go back to this time in 2010 to get all misty eyed. Way back then you could make an appointment with DIAC to lodge an onshore Partner application and if it was ‘decision ready’ they would give it the once over and grant the visa on the spot.

Much has admittedly changed since then, as it always seems to in the world of Immigration law and visa processing, but the decline in DIAC’s ability to process partner applications in a timely manner stands out like a beacon in what is a fairly depressing processing landscape. This article has been prompted by a call I made to the Sydney Partner Temporary Processing Centre to follow up a ‘Decision Ready’ partner application lodged a few months earlier to get an update at the sponsor’s request. This is what I was told…

• DIAC have been getting a huge number of ‘decision ready’ Partner applications (I said – that’s good)
• DIAC have decided as an “equity issue” to abandon the informal priority processing of  decision ready applications and to place all applications in the one processing queue
• DIAC were concerned that the non-decision ready applicants were being disadvantaged
• The new estimated average processing time was now over 15 months

I’m rarely lost for words, as anyone who knows me will tell you, but this really did leave me speechless and grabbing for my dictionary to look up the word ‘equity’ to find synonyms like fair, just or impartial.

You will have already noticed that the subtitle to this article is – “Mediocrity in action?” and it is really important to say very clearly that I’m not taking a shot at the DIAC staff who process Partner applications day in and day out in an efficient and always pleasant and professional manner – they don’t make DIAC policy decision.

What amazes me is twofold –

First that DIAC have allowed the processing time for these applications to reach such an unsustainable level in such a short time and second that whoever makes these decisions thinks it is fair or just to penalise those who seek to do exactly as DIAC request when lodging their Partner application so as not to unfairly treat those who don’t make this effort to comply as requested. Clearly the view is that impartiality is preferable to an expectation of quality and that is a working definition of mediocrity.

Before I am howled down by applicants who for one reason or another cannot lodge a decision ready application let me say I realise that this can be the case for a variety of reasons. However when I advise clients in such situations I always tell them to ‘expect delays’ as they are the ones who are not able to do what DIAC want and they are always at least resigned to having to face a longer wait than applicants who can tick all the boxes.

DIAC will say I’m sure that they have seen a huge rise in Partner applications and that they have been attempting to cope by making changes but they have been overwhelmed and this is just the end result. In truth this has been a cascading disaster with processing times growing and growing. We have been through an amazing variety of changes ranging from how DIAC accept applications via automated emails asking for updated Forms and Police checks as they have taken so long to consider applications all the way through to a streamlining of 2^nd Stage processing but the one theme that has been present is longer and longer processing times.

These are not complex applications to process and the fact that an experienced officer could do them on the spot in the ‘good old days’ makes me think that much of what is wrong here is the constant process of changes being rolled out and staff being reallocated to other areas of processing disaster; and it is hard to deny that they don’t exist. All these things including the surge in Partner applications were entirely predictable (following the recent GSM changes) and as seems to be the case DIAC have been reactive rather than proactive.

DIAC are obliged by law to process valid visa applications in a timely manner; this has become an almost novel ideal. When one considers the poor old GSM applicants languishing in Priority 5, the disaster that has been the introduction of the new online / Skill Select based ENS/RSMS applications and now the blow to Australians who only want to have their onshore partners able to stay on reasonable terms you’ve got to ask what is going on at the senior levels of DIAC and does the Minister have any idea how many people (and voters) these failings are disenfranchising?

Can I Lodge an Onshore Visa Application? (Part 3 – Section 48)

Why back in August 2012 I said “and then in Part 3 the bar created by Section 48 of the Migration Act for applicant’s who have had a previous onshore visa application refused or a visa cancelled onshore.” Well here it is.

On my Blog (http:/immigrationptyltd.wordpress.com) this is perhaps the second most asked and misunderstood area of immigration law. This is odd as Section 48 is quite blunt once you get past the basic jargon which is perhaps where the confusion is generated. To be clear this article only deals with Section 48 and not Section 48A or 48B which relate specifically to Protection visas.

This is what the relevant (for this article) parts of Section 48 say…

Section 48      Non-citizen refused a visa or whose visa cancelled may only apply for particular visas

48      (1)      A non-citizen in the migration zone who:

(a)      does not hold a substantive visa; and

(b)      either:

(i)      after last entering Australia was refused a visa, other than a refusal of a bridging visa or refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or

(ii)      held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class. 

(3)      For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel.

First S48 only applies to onshore applications. Here it is very important to read about S48 (3) below.

Basically then S48 (1) says if you have had a visa application refused onshore or you have had a visa cancelled onshore you can only make a very limited number of other visa applications onshore. This is the list -

Partner (Temporary) (Class UK); Partner (Residence) (Class BS); Protection (Class XA); Medical Treatment (Visitor) (Class UB); Territorial Asylum (Residence) (Class BE); Border (Temporary) (Class TA); Special Category (Temporary) (Class TY); Bridging A/B/C/D/E/F/R; Resolution of Status (Temporary) (Class UH); Resolution of Status (Class CD); Child (Residence) (Class BT).

Most of these don’t apply to you and I’m not going to explain them. Some like an onshore Partner visa (here there are some restrictions) may be a way forward if you have a qualifying relationship with an Australian. Most people who have had a refusal or visa cancellation are not potential Protection visa applicants (Refugees / asylum seekers).

So basically it is really difficult to make any application once Section 48 (1) applies to you.

Section 48 (3) is basically a provision that is designed to stop people who have a Section 48 (1) onshore application bar from getting a Bridging Visa B and departing Australia temporarily, lodging an application while offshore and then immediately returning. As you can see above it says that such an applicant is taken to have been continuously in the migration zone despite that travel. Such an application will be returned as invalid.

It is possible to depart on a BVB but you must remain offshore until a decision is made on the application.

I note that the same provision (S48 (2)) also applies to an onshore visa applicant who has been removed under S198 and has returned to Australia under S 42 (2A) (d) or (e) – these are people who have been removed from Australia but have been returned because they were not allowed into their destination or have been returned to Australia by Court order – so again probably not you.

This is all again a little bit dense and complicated but this is the nature of this area of Immigration Law and its application to potential onshore visa applicants. Same advice here as last time – if you think this applies to your application get good professional advice before you do anything.