Category Archives: Immigration in General

Overviews and commentaries on general immigration matters

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

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

DI – Department of Immigration (1945 – 1974)

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

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

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

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

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

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

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

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

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

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

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

DIAC – World Record for Price Increases

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

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

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

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

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

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

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

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

Increased costs for businesses an example

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

Soft Targets

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

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

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

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

10,000 457 Visa Rorts?

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

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

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

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

Really?

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

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

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

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

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

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

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

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

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

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

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?