The most recent addition is 4020.

On 2 April 2011 this criterion was inserted by way of amendments of the Migration Regulations into the following visa subclasses – 119 (Regional Sponsored Migration – Employer Nomination), 121 (Employer Nomination Scheme), 175 (GSM Skilled Independent), 176 (GSM Skilled State Territory Sponsored), 457 (Business Long Stay),476 (Skilled Recognized Graduate) , 485 (Skilled Graduate), 487 (Skilled Regional Sponsored), 495 (Skilled Independent Regional Provisional), 496 (Skilled Designated Area Sponsored Provisional), 856 (Employer Nomination Scheme) , 857 (Regional Sponsored Migration Scheme), 880 (Skilled Independent Overseas Student) , 881 (Skilled Australian Sponsored Overseas Student), 882 (Skilled Designated Area Overseas Student), 883 (Skilled Designated Area Sponsored Residence),885 (Skilled Independent), 886 (Skilled Sponsored) and 887 (Skilled Regional).

Sorry about all that detail but it is very important to know which visa subclasses this PIC applies to. Over recent months I’ve been seeing an increasing number of DIAC letters threatening to invoke 4020 that ask the applicant to “comment” on something that DIAC have a suspicion about and visa refusals on the basis of this PIC.

So we are all on the same page this is what 4020 actually says…

 (1)      There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

(a)      the application for the visa; or

(b)      a visa that the applicant held in the period of 12 months before the application was made.

(2)      The Minister is satisfied that during the period:

(a)      starting 3 years before the application was made; and

(b)      ending when the Minister makes a decision to grant or refuse the application;

the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

(3)      To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

(4)      The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

(a)      compelling circumstances that affect the interests of Australia; or

(b)      compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.

(5)      In this clause:

information that is false or misleading in a material particular means information that is:

(a)      false or misleading at the time it is given; and

(b)      relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

So it’s all about bogus documents and information that is false or misleading.

If you’re not familiar with it the Immigration Advice & Rights Centre Inc. is a source of a mass of first rate reliable immigration information.

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

In relation to this topic (PIC 4020) they have a very interesting publically (I found it via Google) available article by Kerry Murphy an Immigration Law Specialist lawyer and a legend in the migration advice profession that is essential reading – See: http://www.iarc.asn.au/_blog/Immigration_News/post/New_Schedule_4_requirement;_Criterion_4020/

Bottom line here is that DIAC have been finding too many questionable documents and this is their response. PIC 4020 is not asking every applicant to become a forensic expert and verify every document – that is simply impossible. As I read it the intent of PIC 4020 is to assess the intention of the applicant. Did the applicant knowingly submit a bogus document or provide misleading information with the intention of committing fraud or misleading DIAC, the MRT etc… 4020 is not there to catch out the innocent. If you do manage one way or another to fall foul of PIC 4020 get professional advice ASAP!

Grant Williams

Prior to 5 November 2011 to be granted a Student Temporary visa you had to convince a case officer at DIAC that you were a “genuine student”.

Post 5 November 2011 to be granted a Student Temporary visa you have to convince a case officer at DIAC that you are BOTH a “genuine temporary entrant”  & “a genuine student”. (GTE & GS respectively from now on)

If you’re into reading the source material for this article you can find the Ministerial Direction under section 499 of the Migration Act 1958 (Direction 53) here…

http://www.immi.gov.au/gateways/agents/pdf/direction-53-assessing-gte.pdf

The first obvious pair of questions are –

Can you be a GTE while not being a GS?

Can you be a GS while not being a GTE?

The answer to both is YES. You can be a GTE by being, for example, a genuine visitor or a genuine temporary worker with no intention to study in Australia. I’d venture to suggest that the vast majority of recent foreign students have been GS but not GTE, as successful study was seen (and widely sold even by the Federal government) as a pathway to permanent residence in Australia.

Not any more it seems. If you harbour somewhere deep in your heart a desire to remain here permanently as a result of your successful studies, and a case officer, by applying the Direction 53 guidelines can divine this desire they must refuse your student visa application.

OK, that’s rather over dramatic but please consider the poor case officer. As they open your application either physically or electronically for a new student visa or even for a further student visa, running through their head must now be considerations of –

a)      Your potential circumstances in Australia

b)      The value of the course you’ve applied for to your future

c)      Your immigration history

d)     Your circumstances in your home country

e)      If a relative of yours has an ‘immigration history of concern’

f)       Information in statistical, intelligence and analysis reports on immigration fraud and immigration compliance

g)      If you’re a minor – the intentions of a parent, legal guardian or spouse.

h)      Finally they can request any additional information and/or further evidence considered appropriate.

WOW I’m glad all that is running around in my head!

I’m sorry but it is my view that this is a joke. Your therapist, psychologist, psychiatrist or even your life coach does not have this level of concern for your wellbeing. If this Direction is applied as it is written almost no one will be able to get a Student visa.

If we assume that the aim of this exercise is not to completely close down the foreign student market in Australia then case officers must be going to treat these guidelines via some completely subjective set of what can only be wildly inconsistent individual or small group notions, and that’s my problem with the whole GTE / Direction 53 approach. It is not possible to apply these guidelines consistently in single room full of case officers let alone in multiple Australian and foreign venues. However the case officer MUST COMPLY WITH THE DIRECTION. So what that means in Santiago will not be the same as in New Delhi or Shanghai or Melbourne – it cannot be.

Whose brilliant idea was it to create an impossible set of totally subjective criteria ranging over so many fields?  If students keep flowing into Australia case officers MUST be ignoring these guidelines. If they apply these guidelines I really don’t see how the vast majority of potential students can meet them.

Let me know what you think.

On 5 November 2011 the first recommendation of the Knight Review (Strategic Review of the Student Visa Program 2011) came into being – this recommendation was entitled “The Foundation Stone”. In short an applicant for a student visa must now prove to Immigration (DIAC) that they are a ‘genuine temporary entrant’. This seemingly harmless change from the previous requirement to be a ‘genuine student’ also arrived with Ministerial Direction 53 – Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications.

To be complete this change came with a number of other important changes

• Amended English requirements for AL 5 570 (ELICOS) visas for AL4
• Reduced funding requirements for AL4 from 36 to 24 months
• Public interest criterion 4020 applies to all Student visas (more of this in a subsequent post)

Back to the main game; the genuine temporary entrant requirement.

Some background…

1. The Federal government has been strongly focused on making changes to the sectors of the education industry that provide services to foreign students, especially the Vocational Sector (572 visas).
2. The Federal government has been determined to sever the link between study in Australia and permanent residence.
3. A series of policy decisions relating to General Skilled Migration (GSM) – priority processing, especially the Priority 5 classification of many valid GSM applications and more recently the announcement of the new SkillSelect / Expressions of Interest system from 1 July 2012 for prospective GSM has vastly reduced enrolments in the Foreign student market.
4. Many Vocational Colleges have closed and many more have become extremely marginal financially.
5. The University or Higher Education Sector has suffered a significant drop in enrolments and hence recurrent funding due to these policy settings.
6. The University or Higher Education Sector has been lobbying the Federal government very strongly to fix the mess they have intentionally created by targeting the Vocational Sector.
7. The Federal government sets up the Knight Review. Chaired by a good Labor man and, surprise, surprise, out pops the above mentioned Foundation Stone recommendation.

Basically what I’m saying if you haven’t caught on yet is that what we have seen delivered up is a) not an independent review of the student visa program and b) that this foundation recommendation fits hand in glove with all the other moves to sequester students from any aspiration to gain residence beyond their study in Australia.

Now I’m not being a conspiracy theorist here – this is straight out Labor government policy in action. All the bits and pieces of a somewhat convoluted puzzle have been progressively moved into place. Add to this the recent announcement that the ATO will be tracking all the people with temporary visas – student, working holiday and temporary worker / 457 etc… to check they are all paying tax (which is totally fair enough) and you can see a Labor and Trade Union push to squeeze out what they see as the cheap migrant worker. None of this has been announced as policy in this light but the combined outcome is unmistakable. Perhaps it’s just all a big coincidence?

I’m going to come back to the title of this post in more detail in a few days (Part 2) but what I’m seeing and hearing and I’m sure this was the intention (as opposed to the stated intention to make the student system better, fairer, bigger etc…) is that Student applicants are being refused in record numbers as “not genuine temporary entrants”. This is a massive subjective decision making process driven by the Minister’s new Direction 53. This document gives a DIAC decision maker the ability to form a view based on almost anything they can possibly imagine or infer that the applicant is not intending to come here, study, graduate and then depart.

Watch this space as I’ll expand on this in the next post. It’s my view that this, more than anything else in Labor policy so far will dramatically change the immigration landscape in Australia.

First the applicant for a BVE must either be an unlawful non-citizen (a person inside Australia who does not hold a valid Australian visa – what most people refer to as ‘illegal’) or already hold a BVE or hold a BVD (041) (Non-applicant).

You cannot be an eligible non-citizen. This is another quite complex area but for now I’ll just say to be so recognized the Minister for Immigration & Citizenship must make this determination personally and report same to the Parliament. As with the WE 051 I will not discuss this in this post.

The simple summary of the 17 listed requirements at Migration Regulation 050.212 is that this is a BV for -

• unlawful people making arrangements to depart Australia,
• people who are detected by DIAC as being unlawful,
• unlawful people who make an application for a substantive visa or an appeal to a review tribunal or court,
• unlawful people who make a request to the Minister to personally grant them a visa,
• BVE visa holders who make an application for a substantive visa or another BVE.

Rather than try to explain the 17 listed requirements at Migration Regulation 050.212 I’m going to look at the common ways people end up on a BVE (WE 050).

1. Lots of people overstay and become unlawful non-citizens– they arrive on a visa, it expires and they don’t leave. Some are detected by DIAC officers, some come forward voluntarily, of these some just want to leave and others seek to lodge applications.

2. DIAC cancels a non-citizens visa. This instantly makes this person an unlawful non-citizen. There are a dizzying array of ways to get a visa cancelled – some general (not complying with visa conditions) – some automatic (s.137J relating to Student visas) – some specific (on character grounds) – some that relate to particular visa classes (Business visas).

3. It is common for people who already have a BVE to apply for another BVE with changed conditions. The most common circumstance is that they can demonstrate a compelling need to work and they ask to have a no work condition changed to permission to work.

4. Many non-citizens who have had visa applications refused or visas cancelled and who have subsequently applied unsuccessfully for merits review of these decisions, make requests to the Minister to personally grant them a visa. The BV that they held for the review process expires 28 days after the final decision hence they become unlawful and they must apply for a BVE in relation to their Ministerial request.

5. In 1 above I mentioned unlawful non-citizens who seek to lodge applications for a substantive visa. Here you can get a BVE either when you lodge the application or by convincing DIAC Compliance that you are actively attempting to lodge said application. You may for example need to get DIAC to grant a waiver of condition 8503 (Not Further Stay) in order to be able to lodge an application. There are many similar unusual circumstances – too many to list out here.

6. Students applying for Revocation (under s.137K) of a decision to cancel a student visa under s.137J will be granted a BVE.

7. Students who apply for voluntary cancellation of their Student visas as a result of lodging an application for PR (perhaps Partner or GSM) will be granted a BVE (see previous post on this issue).

8. Unlawful non-citizens who are testing validity or eligibility issues relating to applications before the court will be granted a BVE.

Please note that is not an exhaustive list by any means as I’m attempting to keep this relatively simple and understandable. Certain circumstances relating to members of a family unit of BVE applicants, people being released from Immigration detention and involved in criminal proceedings for example can also lead to BVE grants.

I’m sure most will have listened with interest to the Federal government and others discussing the proposed use of Bridging visas in relation to the onshore processing of asylum seekers – these will be BVEs.

How long do BVEs last?

This is a good question and the answer will vary depending on the circumstances of the grant. If the BVE is granted in relation to an application (substantive visa, review or court), the duration is similar to the BVA provisions – until it’s finally decided. If you are seeking to apply for a visa or depart or similar the duration will be quite short and specified. Some BVE grants roll with the circumstances and DIAC will grant say 1 or 3 months at a time and then check how the application or request is proceeding – this is common with Ministerial requests.

It’s also worth noting that DIAC can request a security bond from the applicant when granting a BVE. The bond is forfeit if the conditions of the BVE are not met.

Work

It may be possible to apply for work rights on a BVE – you must demonstrate a compelling need to work.

Travel

You cannot travel on a BVE. It is not possible to change this condition.

In many cases this has no impact on their status as a student as they continue their studies and eventually the next visa is granted or their Student visa expires and they go onto a Bridging Visa A (BVA) and wait for the next visa grant. However for some, often with long running Student visas, this can present a problem as their circumstances may have changed (typically a Partner application) or they have managed to meet an education goal which has allowed them to lodge a GSM application. Many in these circumstances do not wish to continue their studies.

The two most common scenarios I see prompting a wish to voluntarily cancel a Student visa are Partner or GSM based. Remember that while ever a Student visa is valid (unless your studies are complete as originally planned) the visa holder MUST meet the conditions of that Student visa – satisfactory progress and attendance plus the work limitation. A student who has completed their studies is still bound by their visa conditions but DIAC consider that they are ‘out of session’ and this means that these major visa conditions no longer really apply.

Example 1

A Student with a TU visa with more than 12 months to run is sponsored by an Australian partner for (onshore Partner 820/801 applications). With the new relationship status come costs and responsibilities as well as the burden of ongoing tuition fees to their college or university. This often leads to a desire to avoid paying ongoing tuition fees and / or to work for more than 20 hours to be able to pay the bills.

Example 2

This student came to study a package of courses – possibly English + Certificate III & Diploma + Bachelor degree. At the end of the Certificate III they find they are eligible to lodge a GSM application. From their perspective this is ‘job done’ and they can no longer see the point of the further study. They have a good job in their nominated occupation and their career focus has changed from study to work.

So what’s the solution?

Ask DIAC to cancel the Student visa as a result of the lodging of a valid PR application.

This is simple enough but there are a number of very important factors to be considered.

First the process –

1. You go to DIAC Compliance / Student Integrity and say …”I’d like to voluntarily cancel my Student visa under section 116 of the Migration Act 1958. (You don’t need to be that formal)
2. They (DIAC) issue you with a Notice of Intention to Cancel your Student visa under section116. You sign on the dotted line. This comes with a 5 working day cooling off period (really a 5 w/day period to respond to the notice). You don’t respond. You also sign another letter acknowledging the grounds for your request.
3. DIAC cancels your Student visa. This also cancels the BVA for the application you have lodged (Partner or GSM). It cancels all visas granted to you in one hit. You are now unlawful – ouch! They send you a letter of notification + a Decision Record + an MRT pamphlet (just in case you want to apply for a review of this decision).
4. You are told that you need to “attend in person to a DIAC office to apply for and be granted a further Bridging visa”.
5. You attend and apply for a Bridging Visa E (BVE) – a WE 050. They grant you a BVE – they sign / you sign and off you go.

Facts & Implications

1. You now have a BVE which will allow you to stay until DIAC process your application.
2. You have the following conditions – 8101 NO WORK + 8207 NO STUDY – basically the BVE is the bottom of the pile in the world of bridging visas. The first now requires further action the second was the aim of the exercise.
3. You can now apply for a change of conditions on your BVE to allow you to work – here you need to prove ‘financial hardship’. All going well this may take a couple of weeks.
4. You cannot travel – not strictly true – you can leave Australian they just won’t let you back in. No exceptions!

The biggest problem I see here is that potentially you could be on the BVE for a long time, depending on which application you lodged. Employers do not understand bridging visas and especially the BE.  Also the travel bar is a big problem if something urgent comes up in your home country; when it does clients often feel angry and guilty as they can’t be there when they feel that they should. It’s the cost of getting off the Student visa so you need to consider if you’re willing to pay it.

Here of course I mean the significant changes in General Skilled Migration (GSM) program – New smaller Skilled Occupations List (SOL) + New tougher Points Test + multiple changes to Priority Processing + the large group of Priority 5 applicants waiting in limbo + the prospect of the new SkillSelect program (Expressions of Interest) from 1 July 2012. It is also important to see the turmoil that has existed in the International student sector in this light as well – DIAC and the Federal government’s clear policies to cause structural changes in this sector have led to significant falls in enrolments, College closures and a great deal uncertainty for current and potential students. All this leads potential applicants to consider the Partner option if it is available to them.

DIAC have increased the allocation to the Partner visa category by 8% for this year but the surge in applications is running higher than the extra places. This means, other things being equal, slower processing times. Onshore Partner average processing is currently at about 9 months. DIAC in September 2012 were processing cases lodged in November 2010 with 14% of allocated cases being decided in 1 month.

This can all seem confusing and understanding the terminology here is important or rather it’s important not to get confused.

Allocated case – application assigned to a case officer for processing (taken out of the pipeline of lodged applications)

Average processing time – from the date it is allocated to a case officer

The time between lodgement and getting allocated to a case officer – the pipeline of applications

So you lodge the application, wait in the queue, get allocated to a case officer who then assesses the application and makes a decision. So remember there are two time streams running here from when you lodge to when your application is allocated & from when your application is allocated to when a decision is made. The quoted numbers refer to the second time stream.

Rejection rates are at historic highs right now running at 5% for onshore 820 / TR and 7% for onshore 801 / PR. First this is not surprising as there are more applications due to the factors above and some of those will be ‘marginal’ for want of a better word. In addition there has always been a ‘market’ in fraudulent Partner applications but this new rate of refusal is above the long-term average. Second more 801 applications (Second Stage processing) are refused as unfortunately relationships breakdown.

It’s interesting to hear that DIAC have recently made 200 random home visits to applicants for Partner visas – checking to see if the reality matches the paperwork. These visits have led to outcomes that mirror the current higher refusal rates for these visas.

I’m often asked if priority processing is an option for Partner visas. The simple answer is yes and that DIAC will consider requests on a case by case basis. You’re not going to be moved up what is basically a chronological queue just by asking. You’ll need a substantial reason to get processed with priority. This could involve some complex personal or employment circumstance. If you feel you have a case worthy of consideration it does no harm to ask.

The best advice for Partner applications is to do your level best to have every necessary document included when you lodge the application. Make your application DECISION READY. Filling in a few forms, attaching a pile of photos and a relationship registration certificate will guarantee that you’ll be at the long end of the processing timeline. It’s up to you to prove to DIAC that you have a ‘genuine’ relationship!

You end up on a BVC if you are –

• unlawful and you make an application for a substantive visa before you come to the attention of DIAC (before they find you)
• already on a BVC and you make another application
• on a BVA or BVB and you make another application
• on a BVC and your application is refused and you make an application for Merits or Judicial review of a refused substantive visa application

When a BVC is initially granted it MUST have a “no work” condition. This is mandatory.

Can I get work permission is therefore the question most often asked by BVC holders. If DIAC processing times for most applications ran to weeks instead of many months and in some cases years this would not be a huge issue but a visa applicant stuck without the ability to work for a long period has a real problem.

You can apply to DIAC to change the “no work” condition on a BVC but you will need to demonstrate a ‘compelling need to work’. For most applicants this means demonstrating ‘financial hardship’. Some who have applied for work related visas 457, 856 ENS or 857 RSMS with approved Nominations will be given work rights if they apply as policy.

What is meant by ‘financial hardship’?

“You will need to provide evidence that the cost of your reasonable living expenses exceeds your ability to pay for them.” DIAC Factsheet.

There is not template here and every individual case will be different. However you must use DIAC Form 1005 to make the change of visa conditions application and then it’s really common sense providing the supporting evidence of Income vs Expenditure (Evidence of your weekly family income + evidence of savings (money in the bank) + Evidence of your weekly expenses) Make a list for the income & expenses as a cover sheet and do the calculation to show that on average your weekly expenses are greater than your weekly income = Financial Hardship!

You cannot travel on a BVC nor do you have the ability to access a BVB – bridging visas are a one way process from most to least benficial. The only exception is the capacity to have a BVA re-granted if you’ve travelled on a BVB (A BVB is really just a BVA for travel).

It really is way past time that all our politicians stop using vulnerable people for political motives. The thinking behind the Malaysia ‘deal’ exposes the current Minister and the entire Gillard government’s embarrassingly desperate attempts to at first look tougher than the Opposition and then to convince voters of their message with one liners like “in the national interest” and “breaking the people smugglers business model” for the shameless spin merchants they have turned into. Opposition policy in this area is rooted solely in garnering votes, it is equally contemptable – they should not roll over on the Malaysian deal but if they had any moral compass they should accept that processing asylum seeking boat arrivals in the same way we process asylum seeking plane arrivals makes sense in every way from moral to fiscal.

This great SMH article is a perfect evaluation of where our current failed policy on Asylum seekers must be redirected. John Menadue/Arja Keski-Nummi have elegantly pointed out the flaws in the sad current approach and suggested a sensible and sustainable policy platform that should get bipartisan support.

Everyone should read this article.

I learned that …

• 1200 applications are allocated each week
• There are about 80,000 applications pending in the onshore queue
• It is possible, if nothing else changes, that some ‘old’ applications as he put it will get to the top by November 2012
• There are over 750 people (DIAC staff) processing Global Skilled & Family applications (GSM is only a part of this overall group though)
•  Some ‘old’ GSM applications have 2006 lodgement dates (possibly even 2005)
• Demand for GSM places far outstrips the supply of available places
• Applicants are struggling to meet the new points test pass mark of 65 points and this has seem a reduction in application rates
• SkillSelect, (the Skilled Migration Selection Register) the new Expressions of Interest (EOI) system is seen as the savior of GSM as it will allow DIAC to clear up ‘old’ applications
• DIAC hopes to get GSM processing back to their service standard in 2011/12 and this means getting to the Priority 5 applications
• Business Skills visa applicants will be subject to the SkillSelect / EOI system
• SkillSelect initial sorting of applications will be done according to the Points claimed by applicants

OK that’s enough dot points…What does it all mean?

1. The light at the end of the tunnel for Priority 5 applicants may not be a train. Don’t go getting too excited though as Mr. Stewart made all the usual qualifications to his commitment to actually process ‘some’ of these applications – if nothing else changes – subject to the number of applications in higher priority groups.

2. DIAC clearly plan to use the first period of “SkillSelect” to allow them to clear out the pipeline of old applications hence those in Priority 5 have some hope of being allocated to a case officer, but not until next year.

3. There is a plan, in the background to move the emphasis in the Skilled Migration Program away from Independent GSM and towards employment, State/Territory nominations and Regional Engagement Strategies for Migration and Enterprise Migration Agreements (EMA).

4. DIAC are convinced that the Business Skills section of the Skilled Steam is not delivering the anticipated type of applicant hence their decision to require an EOI in this program to allow them to pick and choose applicants.

5. Unless DIAC put in place a robust system for checking out points bids under SkillSelect many (what’s a nice word?) bogus points claims will be filtered to the top and gum up the system that they hope will “minimize processing times”.

6. A side comment by Mr. Stewart about the rate of new applications and a possible need to look at the 65 pass mark was interesting. However I suspect this plays straight into the overall DIAC plan (less GSM) and that we will not see a reduction in the pass mark any time soon.

7. It’s interesting that everywhere one turns and listens ‘people’ are talking skills shortages – this includes business at all levels and DIAC. I get the bad feeling that the system DIAC are developing will not be able to respond in a timely manner and that demand will outstrip supply even though the supply is ready, mostly willing and potentially able to respond. Time will tell.

Generally then some hope here if nothing else happens (has that ever been the case?). When viewed in conjunction with the recently released review of Student visas (Knight Review) it is possible to see pathways to migration for onshore foreign students.

For those who already have onshore GSM applications in the pipeline the waiting game will continue.