Category Archives: Immigration in General

Overviews and commentaries on general immigration matters

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.

Reforms to the Permanent Employer Sponsored Visa Program

From 1 July 2012 the Australian government has moved to reinforce its preferred Employer Sponsored (ENS/RSMS) pathway to permanent residence. These changes to will coincide with the introduction of the new SkillSelect, Expressions of Interest system for General Skilled Migration (GSM). They bring the ENS/RSMS & GSM visa application criteria broadly into line with each other and seek to simplify the ENS/RSMS application system.

My first comment is that these are sensible reforms as we should have broadly similar requirements for skilled workers seeking permanent entry to Australia in these two programs. Second, while this reform has at its core a simplification, this does not mean the changes make it easier for ENS/RSMS applicants. For some the way forward is essentially the same however for others the bar has now been set higher.

The changes and my comments:

  1. Two new visas Classes/Subclasses are created EN 186 & RN 187. They replace the current 6 visas (119, 120, 121, 855, 856, and 857). Simpler is generally better so this seems like a good idea
  2. There will no longer be a distinction between onshore and offshore applications. Simpler again.
  3. The upper age limit has been raised to less than 50 years. Sensible and in line with the new GSM Skill Select system.
  4. One new consolidated occupations list replaces the old 457 occupations list and the ENSOL and the State Territory Sponsored Occupations List. This is a good idea – having separate lists was silly and confusing.
  5. ENS/RSMS & GSM criteria broadly integrated. Consistent is always good.
  6. Introduction of a “streamlined and simplified pathway” to PR for eligible 457 visa holders. Not quite as good a deal as it is being sold as however it’s pointless to be too critical of this change compared to the current 2 years and at least the last year with the nominating employer.
  7. Directing all Permanent Employer Sponsored applications into one of three streams

(a)    Temporary Residence Transition (for those currently on 457 visas and sponsored by their employer)

(b)   Direct Entry (for applicants not applying from a 457 visa)

(c)    Agreements Stream (for applicants sponsored through a Labour or Regional Migration Agreement)

Important things to know and note:

  1. For Direct Entry applicants the English language requirement is now Competent English -  6.0 IELTS in each band (it was 5.0). The bar is now set higher but this change has been anticipated for a long time and it’s fair enough and consistent.
  2. Nominating Businesses must now pay applicants the Market Salary (this replaces the Minimum Salary Level / MSL currently $49330). This just makes sense.
  3. Nominating Business must now meet the DEEWR Training Benchmark levels (this is a much higher and hence more difficult requirement). These Benchmarks are odd and artificial and rule out significant areas of staff training that actually happen in the real world. So applying them to all ‘work’ visas is consistent (good) but applying a flawed notion to more visas is not a wonderful idea.
  4. 457 applicants must now have worked for the nominating employer for two years (previously they had to have been on a 457 visa for 2 years and the last year prior to application with the nominating employer- this is harder!)
  5. Vocational English (IELTS 5.0) remains the level for Temporary Residence Stream applicants.
  6. RSMS continues to be slightly easier than ENS
  7. Exceptional circumstances options that currently exist have been replaced by a series of more tightly focused ‘exemptions’.

This summary does not cover all the changes in detail and it certainly does not go into any detail about RSMS. It’s important to note that in our office RSMS applications are very rare so it’s not my area of focus. I have not covered the Agreements Scheme at all for applicnats on Labour Agreements and Regional Migration Agreements.

There is a world of detail available on all of this from the DIAC website and the link to this is below.

http://www.immi.gov.au//skilled/skilled-workers/permanent-employer-sponsored-visa-whats-new.htm

Decision Ready Applications

The first thing that needs to be said is that where possible the aim should always be to lodge an application with DIAC that is as complete as possible. This makes the processing of the application as simple as a complicated process can be for all concerned. DIAC have no wish to write one letter after another to an applicant asking for forms and/or supporting documents that have not been supplied.

DIAC’s best case scenario is be able to be able to triage an application, confirm that everything required is there, do the necessary processing checks and make a decision. Needless to say that also works for every genuine applicant. It’s a ‘win win’ as they say in game theory.

Having said that the majority of applications (I suspect the vast majority) received by DIAC are incomplete in one or more areas. This is usually caused by the applicant but there are certainly plenty of situations where the DIAC process results in an application not containing every necessary document. The obvious example is offshore applications and medicals. The new system now is for DIAC or the Immigration section in an overseas post to send out a medical letter which the applicant takes to the panel doctors with their medical forms. The medical then proceeds and the panel doctors upload the results which DIAC can then view online – eHealth. Is it better? Faster at the DIAC processing end if you forget about having to send out the request letter but generally slower for the applicant who was able to simply include a sealed medical with the application. Perhaps less paper flying around but I’m not really sure about that one.

DIAC have a document checklist for every application well most of them anyway. You can find these by digging through the multiple layers on their website or simply going to the Search and typing the visa subclass number + Checklist (eg. 820 Checklist). These are very wordy documents full of hyperlinks and it’s not hard to see how applicants can get lost in the DIAC website as they jump from one to the other. The hyperlinks don’t work so well if you have printed out the checklist!

I hate to say it but there are often subsequent DIAC requests for additional forms. My favourite is the 1221 (Additional personal particulars information). Does anyone know what this form is for? It is just the same information which applicants have already filled out many times in a slightly less logical or rational order. I’ve taken to always putting it in as it still alludes as to when it’s required (& why). The good old 886 Settlement form was also fun although to be fair this sometimes came after visa grant (sometimes).

One of the troubles of course with the aspiration to lodge a decision ready application is that some areas are subjective – for example in Partner applications ‘evidence of a genuine and continuing relationship’. How much is enough? How do you figure that out? In the end it depends on the assessment of an individual, your case officer and while they are guided by the DIAC Procedures Advice Manuals (PAMS) the humanity of the process leads to a wide spectrum of requests in this area. In addition to proof of relationship varies greatly between relationships and visa applications. A partner application can be a short novel while to prove an ENS applicant has a partner may be a Marriage Certificate and a few cheesy photos.

Generally we have to accept that every application ends up on a desk in a DIAC office with a case officer. In my experience DIAC officers work through their work load methodically. There are of course variations from person to person but the process is fundamentally impersonal. Applicants are assessed against the Migration Regulations; where necessary there are interactions / requests / submissions and eventually an outcome. From my perspective it’s the annoying things that stand out – what seem unreasonable requests, requests for documents that have already been provided, stuff ups and errors but they are few and far between and always simply human error. It’s instructive to tell yourself, as I often do, that we all make mistakes and hence we all need to be understanding within reason. Additionally you tend to remember the odd events and all the smoothly processed applications slide away into hazy memories.

Some applications allow for “Agent Decision Ready Checklists”. These can be used by Registered Migration Agents (and I assume specialist lawyers). These live in the Employer Nomination Scheme (ENS) pathway to permanent residence. They are great – simple, manual, and easy to use (and good for business from my perspective). There are still areas where you might wonder what’s needed and how much but experience solves that problem.

It’s also important to remember that there are times when it’s simply not possible to make a perfect or decision ready application. Some documents are very difficult to obtain and some countries do not give up documents without a fight. Then of course all visas have expiry dates and it’s always better to lodge an incomplete application than no application at all or to lodge it after a visa has expired. Being unlawful is never helpful and always best avoided. If you’re stuck in this situation make it clear in the cover letter to your application. List out what you have not been able to provide at time of application, say why briefly and give DIAC an idea of when you’ll be able to provide the document(s) – communication.

So what can you do to lodge the “perfect” application?

  1. Read all the available DIAC information
  2. Get the checklist
  3. Create your own checklist from the DIAC one and all your other reading (keep it simple)
  4. Be methodical and always attach a list of everything your submitting (a table of contents / list of documents)
  5. If your uncertain find an expert to look over your application (you’ll have to pay for this)
  6. If you need it get the application done professionally. Remember some applications are more complex – examples: any Business Skills application, any 457 Business Long Stay or ENS application, and Remaining Relative or Carer applications.

Immigration applications are not rocket science but they do require a significant ability to get all the details correct and consistent. Most applicants do not have access to or the ability to read and interpret, The Migration Act, The Migration Regulations, DIAC’s Procedures Advice Manuals (PAMS) and Ministerial Instructions and Guidelines. If you’re uncertain get help.

Update: The Hidden Costs of Being on Bridging Visa

Thanks to all those readers who sent me examples of the problems they have experienced while living in Australia on a Bridging Visa while waiting for their visa application to be processed.

Those who have been languishing in the Priority 5 queue mostly entered into the visa application process with one expectation (that their application would be processed in a reasonable time) and ended up living a quite different reality as the Minister’s Priority Processing decisions were announced. Many have now been on Bridging visas for more than 3 years.

Life on a Bridging visa is set to become the normal state of being for quite a few Other Family stream applicants – Parents, Carers, Remaining Relatives – all face waits that range between 20 and 10 years. It is difficult to understand how any system, let alone one that boasts “People our Business” as its creed, could generate this type of spectacular political and bureaucratic insensitivity.

Stress comes out as the most reported outcome of Bridging visa limbo. This is stress inherent from the uncertainty of undefined status and from the myriad of galling inequities that BV status delivers to the visa holder. We see a raft of law suits from those held in  immigration detention who have suffered a variety of stress related illnesses; I wonder when the first BV holder is going to try a court case on for size?

Next comes access to permanent career oriented employment. For many in the P5 queue – they came, got qualified at great expense and now can’t get work in their occupation as employers have an aversion to BV holders. Then of course there are those who get exploited by less than scrupulous employers who see them as cheap labour – they need work to survive and hence they are vulnerable in our labour market.

Travel is another issue. If you’re on a BVA at least you can apply for a BVB but then a) you’ve got to ask DIAC for permission, b) they charge (now$125) to be ever so magnanimous on each occasion and c) you must have a ‘substantial reason for travel’ – a great subjective bat that I’ve seen wielded by some DIAC officers for no other reason than they can. For those who must travel for work this system becomes a major headache the rest of us just don’t have to put up with. If you don’t have a BVA well you cannot travel at all no matter what disasters may happen in your country of origin. This no travel sentence lasts as long as the BV with no way out. This is punishment that in the vast majority of cases is way beyond the offence of being unlawful for as little as a single day.

Accommodation is also placed under stress. It’s harder to rent or get a lease on a BV. Getting a home loan – well I don’t think so. Given a choice between a BV holder and someone else many landlords don’t take what they see as the risk.

Loans or any form of credit becomes more difficult, so BV holders often end up in the areas of the financial market that are unregulated and open to all types of abuse from marginal lenders. Getting something as simple as a mobile phone contact becomes a problem. Many relate how difficult it is to get signed up to a phone plan.

It has been said by many who work on BV that they pay tax as a full-time employee but get none of the tax breaks open to residents or citizens. This is fair enough in the short term as a person waits to get a visa application processed (in transition) but when it goes on tax year to tax year the lack of fairness and access are again a punishment rather than a transition period.

Applicants for visas often do their best to get all the required documents into their applications – medical, police certificates and IELTS for example as DIAC suggest – none of these are free, and then they get punished again by having to pay to get them again as time on the BV has allowed these items to lose currency and DIAC say give us a new one. This makes little sense; how for example do DIAC think a person’s English will have deteriorated by living and working in Australian?

Medicare starts hassling BV holders after a couple of years asking for letters from DIAC to prove they are still eligible for their Medicare card. DIAC of course say no that’s not necessary, give them the old letter we gave you. Medicare say, no that won’t do we want a new one and so on… until the BV holder has to get a letter from Medicare saying to DIAC they want a letter. The BV holder then has to go into DIAC, wasting hours and convince someone to give them a new letter. Inter federal government department ping pong – silly unless you just happen to be the BV holder ball.

Relationships become different for BV holders. If a BV holder marries while sitting in the BV queue they cannot bring their new spouse to Australia to wait with them. For many cultural groups this poses major problems and creates totally unnecessary inter-family tensions.

School fees are of course a special bonus for BV holders with children at school. Full foreign student fees apply in this user pays system. Money is hard enough for BV holders to earn but this system ensures that they don’t get to hold onto it for too long. If you have a couple of kids at school this could be $20000 pa. This is quite a healthy percentage of the average wage if the BV holder is lucky enough to get paid that much. In addition these fees vary quite a bit from state to state as well if you have to move for work making budgeting a nightmare.

OK by now you’re beginning to get the picture. Many of you are of course living this dream. None of these consequences are intentional. However that does not absolve the federal government from blame. Something needs to be done and simply saying we’re processing applications as fast as we can is NOT an answer. Is there anyone in the Immigration Minister’s office who’d like to live like this?