Changes to the 457 Work Visa on the way?

There has been a recent Independent Review into the Integrity of the 457 visa programme. The Government has announced that it will be support at least in principle the majority of the recommendations of the review.

Details on the implementation of the recommendations are yet to be announced of course and it must be said that many a recommendation has disappeared between Government support in principle and implementation in the Immigration space over the years.

The main ideas being mooted as changes are…

  • Training Benchmarks A and B will be replaced with an annual training fund contribution based on the number of 457 sponsored and with the contributions scaled according to the size of the sponsoring organisation. These contributions will be made to the Department of Industry and directed to areas of identified training need.  Comment: This may be better than the current system – I’m yet to be convinced.
  • It will be made unlawful for a sponsor to be paidby a visa holder to be sponsored and a strong penalty and conviction will be applied. Comment: This only works if DIBP can catch people doing this. Sounds good but will it actually work?
  • Labour market testingwill remain however the DIBP will examine ways to reduce the burden to employers and red tape in this process. Comment: Reducing red tape is not something the Government or DIBP are good at. I will believe this when I see it.
  • The English languagelevel will be altered to an IELTS average of 5 overall, with no less than 4.5 in any band. Comment: Sensible
  • Alternate Englishlanguage test providers are likely to be allowed as in other areas. Comment: Sensible
  • The exemption for demonstrating Englishlanguage competency will not be extended to further countries, although the current exemption for 5 years continuous study in English will be changed to 5 years cumulative study. Comment: Cumulative is good but many countries could sensibly be added to the exemption list why are we so silly about this if people are educated in English for example?
  • SBS approvalswill be extended from 3 to 5 years and from 12 to 18 months for start-up businesses.  These new approval time frames will commence from the time of renewal or new applications for SBS. Current approvals will not be extended to these time frames. Comment: Sensible and saves money for both The Government and businesses.
  • The ATO and the Department have signed an MOU which allows information to be shared on 457 visa holder salaries.  The MOU allows the Department to request salary compliance checks across a broader range of the sponsored employees and businesses, without increasing the number of work site visits. Comment: Finally the different bits of the same machine actually talking to each other – sensible in this space.
  • Visa chargesare being reviewed as part of the Joint Review of Border Fees, Charges and Taxes. Comment: Does this mean they think they are charging too much or not enough? Fees rarely fall!
  • Information provided to sponsorswill be reviewed and revised for clarity, but further resources will not be allocated. Comment: Sensible I guess but it really is all quite clear now in my view if sponsors actually read it.
  • General Comment: For me disappointing overall as it seems like a great deal of time and money has been spent to generate only marginal changes to a system that could be greatly simplified and made far less expensive. It is not all bad but really you’ve got to wait to see what actually happens. Words are easy action less so.

Students changing courses – Course hopping

I come into contact almost daily with International Students who want to change courses. Many want to make this change shortly after they have arrived.  DIBP calls this ‘course hopping’.

DIBP have recently cancelled some 750 Student visa for ‘course hopping’ so I think it is perhaps timely to put a warning out there to students who may be contemplating such a course change.

It seems students who course hop fall into two main categories.

  • Higher Education Sector visa (subclass 573) holders granted their visas under the streamlined visa processing provisions who, shortly after arrival in Australia, then applied for and were refused Vocational Education and Training Sector visas (subclass 572);


  • Student visa holders who, upon arrival in Australia, have changed to a course of study that has no correlation to the course of study for which their Student visa was granted. For example, a Student visa holder intends to study for a Bachelor of Engineering, and then changes to a cookery course of study.

In both these cases we see Students who have said one thing to get the visa. Some make an ambit application for a course or package of courses that requiring less scrutiny from DIBP and then arrive and apply for non-streamlined visa processing that requires more scrutiny. Others apply for high end courses and then get here and try to change to much simpler and cheaper courses.

DIBP have also been looking at Student course hoppers who already have an adverse immigration history – so students with some ‘form’ for having already done the wrong thing.

Finally DIBP have been looking at Students who have not acted on advice from the department to abide by the requirements of their Student visas – which seems perfectly reasonable.

These visa cancellations have been for breach of Student visa condition 8516 which simply says…

“The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.”

Students are always given an opportunity to provide an explanation of their circumstances and not all visas get cancelled. This is how DIBP put it…

The Department works under a discretionary framework, and where students have demonstrated a genuine intention to study at the appropriate level for which their visa was granted we have made a decision not to cancel.

So what is the message in all of this?

Do what you say you’re going to do and don’t try to work the system. Obviously from time to time there will be genuine circumstances that lead students to have to change courses mid-visa. DIBP have seen it all before and if you think you will be the one to be so clever that you can fool them and work the system in this way you will get into trouble.

Surely the Federal government and DIBP can only play ostrich with 886 visas for so long

Two and a half years ago I put the following post on my Blog about the plight of Priority Group 5 GSM applications…

In recent weeks I have been contacted by a number of 886 Skilled Sponsored applicants who lodged their applications back in 2008 – yes 2008! – and they are still waiting for DIBP to process their validly lodged and paid for visa applications. So the wait is now, give or take, 7 years. 7 years on a Bridging visa. 7 years in limbo.

Now if you were considering lodging say Remaining Relative visa application and you were told that DIBP were estimating that it would take 56 years to process your application and you still went ahead at least you could say you were told, you made the application knowing what you were facing. For the poor people who lodged 886 Family Sponsored applications no such courtesy was given by any previous iteration of DIBP. Back on 1 July 2012 after years waiting they were finally told that the Minister has set processing priorities and they were now bottom of the pile. One suspects they may have already figured that out as for some they were already 4 years into the odyssey at that stage.

DIBP now say things like this when pressed to respond about this situation or on the DIBP website…

“I note the frustration expressed by some migration agents at the length of time taken to process skilled migration visa applications.  The Australian Government understands that migration is a major life decision and can be emotionally and financially stressful for applicants.”


“Priority processing arrangements ensure that the economy gets the skills it needs now, rather than those of visa applicants who applied first.”


“The Department of Immigration and Border Protection can only grant the number of visas allocated by the Government in the annual migration programme…”


The Government is aware that priority processing impacts on many applicants who will have a longer wait for their visas to be processed.”

& finally my favourite…

“If your application is for a visa subclass that is not currently being allocated do not contact us to enquire about the progress of your application.”


So in summary…

I think 886 applicants are more than “frustrated”.

I am absolutely certain the Australian Government has no idea how much distress they are causing so to say they “understand” or that they are “aware” is way beyond patronising.

DIBP say it’s not their fault it’s the Government’s fault – here we no doubt choose to ignore the simple fact that the Government acts directly on the advice from DIBP – but blame shifting is a standard bureaucratic tool isn’t it.

…and then just to reinforce their deep concern applicants are told bluntly to just stop asking about their applications.

The Government and its Immigration Department created this problem why is it that they are totally incapable of solving it. Cross blaming each other is just feeble as they are for all practical intents and purposes the same body. Sir Humphrey from Yes Minister / Prime Minister sounds more convincing.

In case anybody at ‘The Government or Immigration” has failed to notice ‘we’ already ‘have’ all these people and have had them now for a very long time. Their skills and the notion of whether we need them now or not are no longer the relevant question as they are cemented into our workforce and labour market. Surely the Federal government and DIBP can only play ostrich for so long with these visa applicants. The unwritten policy I am certain is to attempt to ‘frustrate’ them out of existence.

I call on the new Minister for Immigration or the Assistant Minister to do their job and solve this problem by directing DIBP to process these applications and put this sorry disaster behind us once and for all.

Partner Visa fee rise outrage

The Department of Immigration & Border Protection has increased the application fees for partner visa subclasses from 1 January 2015 by 50%.

* Offshore Provisional and permanent partner visas (309/100) – currently $3085 increased to $4627.50

* Offshore Prospective marriage visa (300) – currently $3085 increased to $4627.50

* Onshore Temporary and permanent partner visas (820/801) – currently $4575 increased $6865.50

Yes 50%

Also remember that DIBP increased the fees for these visas by 15% (1 September 2103) & 30% (1 January 2013).

It is also worth remembering that is only the base fee for a primary applicant if you are sponsoring a partner with one dependent child the fees become truly unbelievable – obviously it becomes higher if there is more than 1 child.

Offshore 309/100 with one child <18 years $5785

Offshore 309/100 with one child >18 years $6950

Onshore 820 with one child <18 years $8585

Onshore 820 with one child >18 years $10300

This is all I assume a simple lesson in economics.  DIBP and our Federal government & Treasurer are clearly of the view that Partner visas are an inelastic item. Put simply this means a situation in which the demand for a product does not decrease (or increase) correspondingly with a rise (or fall) in its price.

I say this as the justification for this spectacular 50% increase was that the government needs money and partner sponsors are being asked to share the pain of our Budget problems (again! – even though they have been slugged before as above – but then our political masters surely reasoned these are new sponsors as the vast majority only ever make one application in this visa area so they are fair game). If Partner visas were like TVs and increase in prices by 50% would lead to a substantial fall in demand and the whole exercise (to raise money on sales) would be a dismal failure.

So the basic premise is that love is not price sensitive and the government and DIBP are clearly of the view that sponsors and applicants will just pay up no matter what they decide to charge.

Politically I guess the reasoning is this will have a negligible impact on voters who elect these folks to make decisions like this one. Sponsors are one assumes voters but the hit rate runs to about 50000 on the current number of outstanding Partner applications and they are bound to be spread out amongst electorates all over Australia so they will never represent any sort of lobby group – so no big downside for any one local Federal member of parliament and anyway people have short memories when they are in love.

The Federal government sees Partner visa sponsors as soft targets – essentially chumps. There is no other group in Australian society who has been treated this way. I’m as always happy to be corrected if anyone can find another set of consumers of any good or service that have been treated in this manner.

The human cost of this decision is obviously lost on the people who make such decisions. Sponsors and applicants often save for a very long time to be able to afford the already outrageous DIBP fees. The cost of processing these applications bears no relation to the fees charges – it is a direct fund raising exercise. To be slapped with a new 50% increase is in my view immoral and another example of a relentless attack on families by this and the previous Federal government.

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

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

(i) unlawful or

(ii) hold a bridging visa

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

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

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

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

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

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

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

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

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

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

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

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

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

3 Year Validity for Skills Assessments

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

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

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

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

S my first question is…WHY DO THIS?

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

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

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

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

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

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

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

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

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

Budget attacks family reunion for migrants

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

Applications for the following visas ceased on 2 June 2014

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

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

This decision is the culmination of a number of factors –

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

Grant’s comments

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

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

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

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


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

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