DIBP change in Policy for Some Onshore Partner (820/801) visa applicants

If you are lodging an onshore Partner visa application (820/801) and you are either

(i) unlawful or

(ii) hold a bridging visa

You must satisfy Schedule 3 requirements as per Migration Regulation 820.211(2) (d) (ii) which states…

“(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied there are compelling reasons for not applying those criteria.”

The Migration Regulations do not define ‘compelling reasons” and this means that the meaning of this open to interpretation. However DIBP have what is known as the Procedures Advice Manual (PAM) which DIBP officers use as a reference to make this interpretation.

I think it is fair to say that most visa applicants have no idea at all that the PAM even exists and hence they will be totally unaware when DIBP change how they are interpreting such undefined words as ‘compelling reasons”. Hence many applicants make onshore Partner applications when they are affected by Migration Regulation 820.211(2) (d) (ii) having no idea they face a problem and are shocked when DIBP write to them giving them the opportunity to provide compelling reasons. I certainly see a steady stream of applicants clutching such DIBP letters.

Some onshore Partner visa applicants will have heard through various means that if they are affected by the Schedule 3 provisions above (Migration Regulation 820.211(2) (d) (ii)) that if they have been in the relationship for more than 2 years prior to applying or if they have been in the relationship for more than 1 year and they had an Australian Citizen child of the relationship that DIBP would provide a ‘waiver’ of the Schedule 3 criteria. This interpretation was contained in the PAMS. Letters sent out by DIBP case officers in these circumstances normally helpfully quote these as examples of ‘compelling reasons’.

DIBP have now changed their policy interpretation of ‘compelling reasons’. The crucial new wording of the DIBP policy on this matter now states…

“….officers should consider circumstances on a case by case basis.

In doing so, however, officers should be mindful that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status. The provisions are not intended to give, unfair advantage to persons who:

  • fail to comply with their visa conditions or
  • deliberately manipulate their circumstances to give rise to compelling reasons or
  • can leave Australia and apply for a Partner visa outside Australia.”

So be warned what has worked in the past may very well not now work. It seems that the pervious long-term relationship waiver and even the waiver applying where there is an Australian citizen child of the relationship may well no longer be seen by DIBP as a compelling reason to provide the Schedule 3 waiver.

It is my view that potential applicants who are affected by Schedule 3 should seek experienced professional advice before they apply to DIBP. It is an expensive mistake to have an onshore Partner visa application refused. Also be aware there is no guarantee that such a decision will be set aside by an appeal to the Migration Review Tribunal (MRT).

If you have applied and your get a letter asking you to demonstrate compelling reasons to waiver Schedule 3 – don’t do anything without getting immediate experienced professional advice.

This is a major change in the application of Migration Regulation 820.211(2) (d) (ii) – the words of the Migration Regulation are unchanged but the meaning of those words is now very different and everyone affected now needs to proceed with caution. This has been done as DIBP clearly feel that the previous generous interpretation of this waiver was being misused and their reasoning is, I assume, that people are doing the wrong thing intentionally to gain an advantage. Equally it seems they feel that this means that offshore applicants are being disadvantaged.

3 Year Validity for Skills Assessments

From 1 July 2014 all Skills Assessments will have a default expiry date of 3 years. This applies to the following visas…

  • 189 Skilled Independent
  • 190 Skilled Nominated
  • 489 Skilled Regional Provisional
  • 186 Employer nomination Scheme
  • 187 Regional Sponsored Migration Scheme
  • 485 Graduate Work Stream

As a side note it is important to remember that for 189 / 190 / 489 the Skills assessment must be valid at date of invitation to apply for the visa whereas for the 186 / 187 / 485 they must be valid at date of lodging the visa.

Also note that some Skills assessing authorities already specify shorter validity periods. These shorter periods are not changed by this new amendment to the Migration Regulations.

S my first question is…WHY DO THIS?

One ‘reason’ I’m hearing and reading is to align the validity period with that of English tests like IELTS.

Surely that cannot be the reason because if it is it makes less than no sense.

I can understand why some occupations have skills assessments with a specified validity. These are occupations in which the nature of the job or the technology used in the occupation changes very quickly and therefore a person can be out of date quite easily. This premise does not however apply to most occupations. Changes occur in most occupations with changes in laws, regulations, technology etc… but to suggest that all occupations have a 3 year shelf life is just plain crazy.

We are not asking Australians who work in all the occupations on DIBP’s Skilled Occupations List (SOL) & Consolidated Skilled Occupations List (CSOL) to have their qualifications reassessed every 3 years.

If you’re a Skills Assessing Authority this is a great idea – repeat business – but does this new regulation (bought to us by a government whose promise was to cut red tape) really improve the process in any way? Answer: Of course not. Will a Medical Administrator, an Actuary, a Surveyor or perhaps a Stonemason have somehow lost their ability to do these jobs after 3 years?

What of the person who has been working in their occupation for the last 3 years on say a 457 visa and who has had their skills assessed, and now decides to apply for a 189 Skilled Independent visa now that they meet the points test. Why do they need a new skills assessment? They are better qualified and more experienced than before. What does this achieve apart from adding a new layer of red tape and lining the pockets of the skills assessing authority?

Not sure who decided this was a smart move or what they assumed it would achieve. This is a perfect example of dreaming up another pointless layer of bureaucracy and cost just for the sake of it. Generally once a person has achieved a qualification it lasts for their working life.

Why do we now have one rule for visa applicants and another for all the rest of us?

Perhaps someone can explain this to me. Please feel free.

Budget attacks family reunion for migrants

The 2014 Federal Budget announced yet another attack on the family reunion aspirations of migrants to Australia. The government has decided to cease applications for Other Family and Non-Contributory Parent visas.

Applications for the following visas ceased on 2 June 2014

Parent (subclass 103) – the basic offshore parent visa
Aged Parent (subclass 804) – the only remaining onshore parent visa without a huge upfront cost to the applicant
Aged Dependent Relative (114) – offshore
Remaining Relative (115) – offshore
Carer (116) – offshore
Remaining Relative (835) – onshore
Carer (836) – onshore
Aged Dependent Relative (838) – onshore

“Applications can still validly be lodged. All valid applications will remain in the pipeline and be processed in due course. The cessation of new applications under the Other Family and Non-Contributory Parent visas will take place prior to the start of the 2014-15 programme year.” DIBP advice to the Migration Institute of Australia (MIA)

This decision is the culmination of a number of factors –

  • Attempts to garner savings for the Budget
  • Previous decisions to cap and queue most of these visas creating ludicrous waiting times between application and visa grant
  • Internal DIBP beliefs (not publically stated) that many applications in especially the Carer and Remaining Relative categories were not well founded and often misused

Grant’s comments

Parent Visas: The only Parent options that now remain are Contributory Parent visas. Basically only the wealthy are now allowed to sponsor their parents as the cost of these visas is beyond the means of average families. This decision has wide ranging social implications (family relations, childcare, family cohesion and support etc…) and creates two categories of migrant families. It is a decision that completely ignores the enormous benefits extended families yield to Australia and focuses on cost alone.

Carer Visas: DIBP have long had a very low regard for these visas and I have heard the view stated on many occasions that this visa category is misused in attempts to get relatives to Australia who cannot make any other application. I’m sure there must be foundation for these views however there are many genuine cases of frightful need that our social systems simply do not cope with. I really fail to see the social or economic benefit of cutting off this lifeline to needy families. This is a very small part of a large Migration Program. This is a mean spirited decision.

Remaining Relative Visas: There are so few people who can meet the remaining relative test that this just seems crazy. The problem I assume is that hundreds attempt to apply who clearly are not remaining relatives clogging up processing and costing a significant amount of money. This is a sad example of non-genuine applicants spoiling the pathway for the few genuine remaining relatives. Surely it would be better to just tighten the Migration Regulations to weed out none genuine cases.

Aged Dependant Relatives: Another tiny stream of applicants and again too many non-genuine applicants.


Our governments of both political persuasions and the senior policy makers at DIBP have for a long time now had little or no regard to social implications of and the economic and non-economic contributions of family to our economy via the migration program. They have steadily eroded and now basically wiped out the notion of family reunion. I’m not suggesting for a moment that we should have a one in all can come policy but erecting absolute barriers in this way is at best short sighted and shows yet again that we struggle to see the bigger crossover between social and economic policy.

I also feel desperately sorry for those families with truly terrible burdens who now will not be able to access family help in any meaningful way.

Remaining Relative visas (115 offshore & 835 onshore)

I get many questions on my Blog about the “last” Remaining Relative visa and I see many cases that have been refused by DIBP for failing to meet the basic/threshold criteria for the grant of this visa.

Australian visa applications have become a very expensive process and the waiting times for these capped and queued visas is currently quoted by DIBP as of July 2013 as follows…

“It is currently estimated that lodged Remaining Relative visa applications, that have not yet been assessed, are likely to take up to 16 years to be released for final processing.”

It is therefore important to make sure that an applicant is not wasting their money and pinning their hopes over a very long period of time on a visa that cannot be granted by DIBP if it fails to meet the basic criteria when assessed.

There are two permanent visas available in this section of the “Family Stream’ – the 115 offshore and the 835 onshore. The difference is simple – for the offshore 115 application the applicant applies offshore and remains offshore until the visa is granted and for the onshore 835 the applicant is onshore and applies onshore and is eligible for the grant of a Bridging Visa A (BVA) to allow them to remain in Australia until a decision is made on the application.

Both visas require sponsorship from an eligible settled Australian relative and therefore both are eligible for Merits Review by the MRT should the application be refused by DIBP.

There are two basic linked definitions that allow a simple self-assessment of eligibility for these visas.

Remaining relative

Someone who is the brother, sister or child (or step-relative or adopted relative to the same degree) of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, and who, together with their partner (if any) have no near relatives other than those who are usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens.

Near relative

A person who is your or your partner’s parent, brother, sister, adult child or non-dependent minor child (or step equivalents of these relationships).

The most common problem, misunderstanding or mistake made by applicants

Many visas are refused because applicants have a near relative who is not usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens. Applicants make a variety of claims about this near relative if they disclose them in the application – lost contact, no idea where this person is, believe they may have died, has been missing for years, we’ve had no contact for many years and even when DIBP point someone out – didn’t know they existed.

The basic point here is that the person exists and therefore they cannot meet the requirement to have no near relatives.

There is some leeway here in DIBP policy as obviously there are circumstances where someone has genuinely gone missing and is presumed dead. The recent tragic events surrounding the Malaysian Airlines flight 370 would be an example if the plane is never found. However the basic point is that DIBP cannot just ignore a near relative if they exist even if you don’t like them or want anything to do with them.

Attempts by applicants to not disclose a near relative in an application will almost certainly be discovered by DIBP and then the application will be refused and Public Interest Criterion 4020 – the provision of false and misleading information will be applied to the refusal leading to a 3 year exclusion period / ban on further visa applications.

Assurance of Support

These sponsored visas also have a provision requiring that an Assurance of Support be given by a person or organisation. They can be your sponsor or another person. Up to three people can jointly provide an assurance of support for you.

An assurance of support is a legal commitment to provide you with financial support so you do not have to rely on social security payments.

The assurance covers you and the family members included in your application.

An assurer must be prepared to provide a bank guarantee. This will involve the assurer depositing money with the bank to cover the value of the bank guarantee.

The assurer must:

  • lodge a bond for each applicant older than 18 years of age, which is:
    • AUD5000 — for the main applicant
    • AUD2000 — for each adult family member included in your application
  • repay any recoverable social security payments you receive in the first two years of living in Australia.

If the assurer is an organisation, a larger bond is required for each application.

The bond is refunded two years after your visa has been granted. Any debts to the government are deducted from the bond and only the balance is refunded.

IARC – the Immigration Advice & Rights Centre has a very good information / fact sheet on these visas.

See: http://www.iarc.asn.au/Information

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?