Category Archives: Immigration in General

Overviews and commentaries on general immigration matters

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.

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.

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.

DIAC Processing Times –“If it ain’t broke don’t fix it”

It’s a well-worn saying but “If it ain’t broke don’t fix it” is certainly one that DIAC ought to be reflecting on right now.

On 1 July 2012 they made a huge raft of changes to a variety of areas of the migration program. The fallout from these sweeping changes has been a processing disaster.

The primary focus of all the changes was the General Skilled Migration (GSM) program. It was broken and it needed fixing and I’m sure the new Skill Select Expressions of Interest system will deliver exactly what DIAC wanted – no unmanageable pipeline of unprocessed applications and thousands of applicants wanting to know what on earth is happening to their application. The fact that in the process of the introduction of this new system they seem to have managed to still not fix the old Priority 5 processing problem seems, well daft. It would have been so easy to process those applicants and then open up the new system – but what would I know.

ENS & RSMS

The real disaster has been the Employer Sponsored Entry system (ENS & RSMS) which was “simplified” to less visas subclasses (186 & 187) and moved to a new online application system. This section was one of the models of DIAC processing efficiency prior to 1 July 2012 – they were doing a great job much like the highly successful 457 sections. The ENS 856 & RSMS 857 system was not broken. It was paper based, with a decision ready processing option and much loved and appreciated by agents, lawyers, businesses and visa applicants. It worked and the minor changes that have been introduced – and they are sensible changes – could have been amendments to the existing visa subclasses.

So DIAC fixed it creating first a huge surge in pre June 30 2012 applications that they could not deal with resulting in stacks of applications that got left sitting until a whole group of applicants became unlawful – a real legal mess. Next the new online system was a dud. I’m sure a hugely expensive dud for taxpayers. Why they did not use the successful 457 platform is anyone’s guess but the new off-shoot of the Skill Select system was a disaster. It did not validate applications and hence ensure Bridging Visas. Supporting documents were almost impossible to attach – it seems it like Firefox only. The platform would just stop working and you got to “begin again”. Lots of ‘Oh we are so sorry’ from DIAC but it took months to fix and I’m sure the fallout for many decision ready applications lodged in this period where documents were impossible to attach is only just about to start.

PARTNER

Another area of significant concern has been the collapse of the service standard for onshore Partner applications. Not long ago it was possible to get an appointment to lodge a Decision Ready onshore Partner 820 application and actually have the visa granted that day – basically on the spot. Now there are applications, and this is just my sample as of today that have not been allocated after 15 months. One day to 15 months is an impressive processing time blowout. Since then we have seen a series of frankly bizarre changes to accepting and processing applications. Post it / Put it in the Drop Box / No you can’t put it in the Drop Box / the reintroduction of appointments without rapid assessments / an informal decision ready process that seems to work most of the time but with much slower processing times. From one visit to the next at DIAC Sydney the rules of engagement change and this can be over a few days. There is no system in place to notify these changes and I must admit that I approach the counter queue at Sydney now wondering what, if anything will happen this time and I’m rarely disappointed.

Over the years I’ve seen the same systems introduced, withdrawn and reintroduced many times. Always with the explanation that it is more efficient or simpler; continuous crazy unheralded change is never more efficient and is the enemy of simplicity. Too many meetings to solve imagined problems methinks when just getting on with the job would be the best advice. To be fair there has been a surge in Partner applications and that is always difficult to cope with given limited resources. This surge is a by-product of all the other changes in the system as those who can no longer engage with GSM/ENS/RSMS opt to follow the relationship pathway as their option of last resort. Did anyone see this coming?

Every time I look at the DIAC management structure charts when they are periodically released I’m left wondering if there are not too many chiefs – it’s certainly not a model that could hope to survive in the world of business.

Just to finish I think the real award for making things amazingly bureaucratic and completely opposed to the stated aim of the government they serve goes to the NSW Department of Trade & Investment. They have introduced an assessment process to get NSW sponsorship approval for a temporary business investor (all long before anyone makes a DIAC visa application) that would even leave Sir Humphrey from Yes Minister / Prime Minister speechless. Clearly NSW is making every attempt to ensure that other States & Territories are the destination of new foreign business investors. My question is why? Has our Premier actually signed off on all of this?

Can I Lodge an Onshore Visa Application? (Part 2)

An inability to meet the requirements of Schedule 3 of the Migration Regulations is a very common and it would seem little known barrier to lodging a successful onshore visa application.

Most of what follows is a little ‘dense’ and perhaps difficult to read. If you are in any doubt and for all those who are on Bridging Visas the beat advice is to make sure either you check this out thoroughly before you apply or that you ensure your representative (agent or lawyer) checks if you meet any Schedule 3 conditions before you apply.

SCHEDULE 3 — ADDITIONAL CRITERIA APPLICABLE TO UNLAWFUL NON-CITIZENS AND CERTAIN BRIDGING VISA HOLDERS

As can be seen from this title from the Migration Regulations these criteria (3001/3002/3003/3004/3005) relate specifically to onshore prospective visa applicants who are on a Bridging Visa at the time of application or prospective onshore applicants who have entered unlawfully or who are unlawful.

The “PROVISIONS WITH RESPECT TO THE GRANT OF SUBCLASSES OF VISAS” are set out in Schedule 2 of the Migration Regulations and any prospective applicant who is either an unlawful entrant or on a Bridging Visa at the time of applications needs to check which if any of the Schedule 3 criteria apply to the visa subclass they intend to apply for to ensure that the Schedule 3 criteria do not create a bar to a successful application.

Many applications are refused on this basis and generally DIAC will accept an application, take the fee which leads applicants to believe their application is fine and then when it is assessed DIAC refuse the visa if the Schedule 3 criteria are not met. This process usually involves a letter sent by DIAC giving the applicant an opportunity to make a submission as to why the Schedule 3 criteria should not be applied.

Put simply the Schedule 3 criteria are these…

For the vast majority of visa subclasses to which Schedule 3 criteria apply the application must be made within 28 days of the ‘relevant day’. The relevant day (again simply) is last day the applicant either held a substantive visa or became an illegal entrant.

To be in a position to allow the Minister or his delegate to not apply Schedule 3 criteria an applicant must be able to meet or convince DIAC of the following conditions…

  1. They have found themselves in this position due to factors beyond their control.
  2. There are compelling reasons for granting the visa.
  3. The applicant has complied substantially with the conditions of their last entry permit or subsequent Bridging Visa.
  4. The applicant would have been entitled to the grant of the visa on the last day they either last held a substantive visa or entered unlawfully or became unlawful.
  5. The applicant intends to comply with the conditions of the visa if granted
  6. The last visa held by the applicant did not have a condition that restricted / prevented an onshore visa application (See Part 1 of this 3 part series).

3005 Finally, and this is a very important one, you only get to seek these concessions to waive Schedule 3 conditions under the above circumstances once. That is you cannot be granted waiver a second time.

As we currently have many former visa holders who have had their visas cancelled by DIAC in Australia who are at the MRT – the definition below of the ‘relevant day’ relating to applicants who have had their visa cancellation overturned by an MRT decision is also very important.

3001

(d)      if the last substantive visa held by the applicant was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation — the later of:

(i)      the day when that last substantive visa ceased to be in effect; and

(ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.

Simply this means you have 28 days from the latter of when your last substantive visa would have ceased or from when you were notified of the MRT decision.

So all really complicated and confusing.

Bottom line: If any of this applies to you and you think you can apply for a waiver of these conditions (note some cannot be waived – 3005) you really need to get professional assistance to make the submission.

Can I Lodge an Onshore Visa Application? (Part 1)

Perhaps the title of this article ought to be…

What will prevent me from lodging an onshore visa application?

This will the first in a three part series. This article will look at restrictive Schedule 8 visa conditions – the next two parts will briefly examine the barrier that Schedule 3 conditions in the Migration Regulations create for certain onshore applicants and the possibilities to obtain a waiver of these conditions 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.

On my Blog (http:/immigrationptyltd.wordpress.com) I get literally hundreds of questions or comments from people who are unsure whether they can lodge a further visa application while they are in Australia (onshore) or from people who had tried to lodge an application an been told that their application was invalid (DIAC won’t accept it) or they lodge the application and it is refused.

In fact as I was typing the paragraph above I’ve just had a call from a man on a BVE who has just won his case at the MRT to reverse a DIAC cancellation of his Student visa, he was then told by DIAC to lodge a valid application and when he tried they told him his application was invalid and there was no visa he could lodge. So his visa was cancelled incorrectly, he then waited on a BVE, won his MRT case and now DIAC are telling him tough there is nothing you can do. As it turns out that’s not correct.

Generally if you are in Australia on a visa that does not have any restrictive condition relating to lodging a further application onshore you can apply for another visa if you do so while your current visa is still valid. It is also possible to apply once your visa has expired if you do so within 28 days of the visa expiry (not a great idea as there are major potential disadvantages) and even if you have overstayed for more than 28 days there are options in certain circumstances.

I find DIAC basically tell people that they cannot apply where a visa has expired or they have overstayed but for some depending on the application it may be possible. So it is always wise to get advice before rushing into the nearest DIAC office.

Some visas have restrictive Schedule 8 conditions – 8503 / 8534 /8535

I’ve copied these actual conditions below from the Migration Regulations.

8503 is a blanket ban whereas 8534 & 8535 only allow certain visa applications.

8503

The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

8534

The holder will not be entitled to be granted a substantive visa, other than:

(a)      a protection visa; or

(b)      a student visa the application for which must be made on form 157P or 157P (Internet); or

(c)      a Subclass 497 (Graduate — Skilled) visa; or

(d)      a Subclass 580 (Student Guardian) visa; while the holder remains in Australia.

8535

The holder will not be entitled to be granted a substantive visa, other than:

(a)      a protection visa; or

(b)      a student visa the application for which must be made on form 157P or 157P (Internet); or

(c)      a Student (Temporary) (Class TU) visa that is granted to an applicant who satisfies the criterion in clause 570.230, 571.229, 572.229, 573.229, 574.229, 575.229, 576.227 or 580.229 of Schedule 2; while the holder remains in Australia.

I’m only going to deal with 8503 briefly here as 8534 & 8535 are designed to allow certain applications rather than being a complete barrier – It is important to know that under specific circumstances it may be possible to obtain a waiver of this visa condition.  It is not easy and it is not a common thing for DIAC to waive this condition but it can and does happen.

The request (for which no Bridging Visa can be granted) must be –

  • In writing
  • The applicant must have made no previous waiver request
  • There must have been a major change in the applicant’s circumstances
  • The change in circumstances must be beyond the applicant’s control
  • There must be compelling & compassionate circumstances affecting the application (note both compelling & compassionate)

So these criteria are not easy to meet and it is a complete waste of time to make this request if you cannot meet all these criteria – near enough is not good enough.

Processing of Priority Group 5 GSM a Depressing Update

Somewhere in this mess of information below Priority 5 GSM applicants can discover when and if their validly lodged applications will be processed. It is becoming increasingly difficult to justify why the government is stalling on the processing of these applications. The most telling sentence in the third link below states – Many Priority Group 5 applicants still face a considerable wait until their application is allocated to a case officer for processing and may want to consider other options available.”

‘Considerable wait’ like many terms in immigration is not defined and for want of a better definition we can assume this will be an open ended period. I’m sure they are correct when they say applicants caught in this political and bureaucratic nightmare would like to consider other available options. It’s a throwaway line that runs so easily off lips of DIAC and the Federal government. Are they attempting to starve these applicants out in some modern version of a medieval siege? If we make them wait long enough they’ll just go away and it won’t be a problem anymore. Not every applicant in this group has a viable option! Many have an enormous amount of time, money and emotional capital invested in their applications and to be so blithely fobbed off by the government and DIAC in this manner is shameful.

When the system creates a problem (and it is not possible to deny that the system actively created this problem) it is morally obliged to solve it rather than bury it in increasingly difficult to follow and understand levels of fact sheets, service charters, processing priorities and estimated allocation times that have no estimated time.

It seemed to me that the introduction of the new Skill Select Expressions of Interest system presented the ideal opportunity to sort this mess out. Clear the backlog of applications and then move into the new system but alas this seems not to be the case.

The Minister’s new Processing Priorities…

http://www.immi.gov.au/media/fact-sheets/24apriority_skilled.htm

Skilled Migration Visa Processing Times

http://www.immi.gov.au/about/charters/client-services-charter/visas/8.0.htm

Processing of Priority 5 GSM Applications

http://www.immi.gov.au/skilled/general-skilled-migration/gsm-priority5-processing.htm

DIAC allocation dates

http://www.immi.gov.au/skilled/general-skilled-migration/estimated-allocation-times.htm

1 July 2012 – The Day Migration to Australia Changed

On 1 July 2012 sweeping changes to much more than 50% of the regulations governing Australia’s intake of skilled migrants and workers came into force.  This level of change is unprecedented.

General Skilled Migration (GSM) now operates via an Expressions of Interest (EOI) system and an online platform called SkillSelect. Applicants express their interest online, they are sorted via a computer program and then they sit in a queue hoping for an invitation to apply. This is all new.

Business Migration has also been refocused, the number of visas reduced and as with GSM this program will operate visa the online SkillSlect platform as above with the difference that potential business migrants must obtain the support of the State or Territory where they propose to begin their business operations. This stream is similar to the previous system but both the quantum of the financial demands and determination to deliver applicants who actually meet the program’s goals have been ramped up.

The Employer Nomination Scheme (ENS) & the Regional Sponsored Migration Scheme (RSMS) have been transformed from 6 visa subclasses to 2 with altered regulations and a new Consolidated Occupations List (SOL & CSOL) and like the very successful 457 visa program ENS & RSMS also move to an online platform. Broadly however these programs are still largely recognisable from their pre 1 July 2012 days. It’s easier for some, harder for others more open from the perspective of available occupations with some 642 occupations on the new CSOL.

This is a vast change and the legislation behind all this change runs to many hundreds of pages. There are multiple new Legislative Instruments which, for the most part, specify the infrastructure required to support the new visa classes, subclasses, changes to the Migration Act and Migration Regulations. There will of course over the weeks and months to come be changes in DIAC Policy documents (PAMS) which all need to be absorbed.

Every DIAC officer and every Registered Migration Agent or specialist Migration Lawyer is currently head down trying to come to grips with all these changes. Training I’m sure is the current mode of operation and buzz word in most DIAC officers and it’s certainly the main focus in our office right now.

So what does all this mean for you the visa applicant?

  1. There will be a period (a short one I hope) when a degree of confusion will reign supreme.
  2. Most people who do what I do will be getting a flood of questions we may or may not be able to answer immediately.
  3. You will find a mass of new material on the DIAC website and it will confuse you.
  4. Unless you absolutely have to lodge an application in the next couple of weeks – don’t.
  5. Some people who could do things before 1 July 2012 won’t now be able to and quite a few who could not before 1 July 2012 may now have new options open to them.
  6. Like all major changes then this is a combination as business analysts might put it of threats and opportunities. You need to move cautiously into this new environment.
  7. You need to take a breath before calling and asking to have all of this explained to you. Some may foolishly feel that they know what’s what from the get go but prudence tells me to exercise caution and to assess

a)      How all these individual changes are actually operating and how the new platforms are functioning and more importantly

b)      How all these changes interact – more often than I can count applicants have come to see me with an aspiration to do one thing and then when we’ve discussed the options found a better way forward.

As things settle down and settle in and actually start working I will expand on each of the major changes in separate articles. Until then try to do a little reading yourself rather than calling me as I’m busy reading.

GSM Update: DIAC extends time for Onshore applications

Below is advice that I have received from the two Professional Associations that represent Registered Migration Agents – The Migration Alliance & The Migration Institute of Australia.

Bottom line is that DIAC are advising that eligible applicants will be able to lodge applications up to 31 December 2012. In other words the opening of SkillSelect on 1 July 2012 will not be the cut off date for eligible GSM (885, 886 & 487) applicants. You have a period of overlap between the new and the old system.

GOOD NEWS!

Migration Alliance advice…

Please see below response from Ben Coates, Policy Officer from Points Based Skilled Migration Policy Migration & Visa Policy Division in relation to question raised by Migration Alliance:

Question from Migration Alliance:

Can all students who finish study at the end of this year and occupation on SOL, and achieve 65 points, apply for a 885 visa?
I thought only students in transitional arrangement (applied TR 485 before 8 Feb 2010) could apply for an 885 before 1 Jan 2013!

Please clarify ?

Response from DIAC:

While the new visas (189, 190 and 489) will be introduced from 1 July 2012, there will be a period of overlap where people in Australia can continue to apply for the existing points-tested skilled migration visas. The 885, 886 and 487 visas will stay open for applications for six months until 1 January 2013.  People already in Australia who want to apply for a skilled migration visa during this period, including those eligible for transitional arrangements, can apply for a 885, 886 or 487 visa and/or submit an EOI for one of the new visas in this period if they wish.

Migration Institute of Australia advice…

GSM Update: Clarification of Applications Open Until 31/12/2012

There has been some confusion about the information on the DIAC website that onshore GSM applications for Subclasses 885, 886 and 487 will remain open until 31 December 2012, as reported in MIA Notice: 2012.26: GSM Update: Onshore SC885/886/487 Applications Open Until 31/12/12, DIAC WA TSC on Monday 30 April.
DIAC’s David Stewart, Program Director, General Skilled Migration, has informed the MIA that GSM Subclasses 885, 886 and 487 will remain open until 31 December 2012 to all eligible applicants, not just to people who are covered by GSM transitional arrangements.

English / IELTS for General Skilled Migration (GSM) applications

I’ve had quite a few questions recently relating to when English results can be provided for GSM applications.

The simple answer is that the test with the result must be taken in the two years immediately before the day on which the application is lodged.

GSM has English requirements at

a)      Time of application where the requirement is Competent English (6.0 min in each band of IELTS) and

b)      Time of Decision if you are seeking to claim points in the Points Test for English language skills (Proficient or Superior). It’s also worth noting that if you are hoping to claim Partner Points there is a Competent English requirement in this set of criteria.

Applicants will find it difficult to see where this is contained in the Migration Regulations as this requirement is contained in Migration Regulation 1.15 C, D, E & EA. This is again to keep it simple where some of the definitions of requirements are set out. It’s confusing and it’s not really fair to say it’s hidden here but for all practical purposes it is hard to find for the applicant.

On the DIAC website at

http://www.immi.gov.au/skilled/general-skilled-migration/pdf/points-test.pdf

it does say…

“The test must be completed before the visa application is lodged.”

However the confusion comes because one requirement is at time of application and the other (the Points Test) is at time of decision.

The Migration Regulations however move all English requirements to was conducted in the 2 years immediately before the day on which the application was made”.

The relevant Migration Regulations are quoted below.

Reg 1.15C      Competent English

[1.15C substituted by SLI 2011, 74 with effect from 01/07/2011 - LEGEND note]

If a person applies for a General Skilled Migration visa, the person has competent English if the person:

(a)      satisfies the Minister that:

(i)      the person undertook a language test, specified by the Minister in an instrument in writing for this subparagraph; and

(ii)      the test was conducted in the 2 years immediately before the day on which the application was made; and

(iii)      the person achieved a score specified in the instrument; or

(b)      satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

Reg 1.15D      Proficient English

[1.15D substituted by SLI 2011, 74 with effect from 01/07/2011 - LEGEND note]

If a person applies for a General Skilled Migration visa, the person has proficient English if the person satisfies the Minister that:

(a)      the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

(b)      the test was conducted in the 2 years immediately before the day on which the application was made; and

(c)      the person achieved a score specified in the instrument.

Reg 1.15EA      Superior English

[1.15EA inserted by SLI 2011, 74 with effect from 01/07/2011 - LEGEND note]

If a person applies for a General Skilled Migration visa, the person has superior English if the person satisfies the Minister that:

(a)      the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

(b)      the test was conducted in the 2 years immediately before the day on which the application was made; and

(c)      the person achieved a score specified in the instrument.