Enquiry into the health requirement

All Australian visas are subject to a health requirement, which simply stated is that applicants will not meet the requirement if

1. they are considered to be a risk to public health or a danger to the community (usually if they have active TB); or

2. they have a disease or condition that would likely result in significant costs to the community or would prejudice access by citizens to health care and community services.Some (but not all) visas have facility for a waiver of this condition.

The health requirement is imposed on a "one fail all fail" basis, so that one family member who does not pass will result in no family members being granted a visa. There was a case which received media coverage last year of a foreign doctor whose visa was refused on the basis that he had a Downes Syndrome child.

Whether the health requirement should be relaxed and/or the circumstances in which a waiver is granted is currently the subject of a parliamentary enquiry. It is interesting to read the various submissions, but one recurring theme is that the current policy is discriminatory because it does not distinguish between a disease on one hand and a disability on the other.There was also an article about the inquiry by Natasha Bita in The Australian on 28 January 2010.

The committee's final report was released this week and is available by clicking the link to the inquiry's home page.

The MIA (in its email bulletin to members) summarised the report in the following way:

"Making 18 recommendations to Government, the Committee supports: modernised and transparent "significant cost thresholds"; a visa waiver process for "social and economic contributions" for those who fail new health requirements; a revision of the so-called "one fails, all fail" rule; a strengthening of compelling and compassionate visa waivers; and the distinguishing of disabilities from public health risks."

It will be interesting to see what changes are actually adopted.

Creative commons attribution for photograph:

http://www.flickr.com/photos/adrianclarkmbbs/ / CC BY-ND 2.0

Capping is coming

Public submissions are currently being sought on the Migration Amendment (Visa Capping) Bill 2010.

This bill is part of the package of reforms that the Australian government is currently implementing to the General Skilled Migration program. One of the problems is that various things are coming to light in a piecemeal fashion and many things seem to have (apparently unforeseen) collateral consequences. This bill would give the Minister power to cap the number of visas granted either by visa class or by other characteristic (such as occupation). In other words if the Minister decided enough visas had been granted to accountants (for example) in a given year, then no further applications from accountants would be allowed.

The draft bill is available and it has already had its first and second reading in parliament.

The bill's homepage (includes explanatory memorandum and speeches) is available by clicking here.

Watch this space as more changes come to light....makes me curious what's going to happen to the points test?!

Creative commons attribution for the photograph:
http://www.flickr.com/photos/thisisbossi/4083776490/

Breaking the link

I have previously blogged about the difference between the "immigration outcome" and the "education outcome" as one of the factors which contributed to the problems being encountered by overseas students. It appears that the government was listening (or they had the same idea).

In a speech to parliament earlier this week in support of changes to the Education Services for Overseas Students Act ("ESOS Act"), labour MP, Kelvin Thomson blamed the uncontrolled growth (and the lack of quality that came with it) on the previous government's policy of facilitating applications for permanent residence by graduating foreign students. So while it's true that:

"Agents overseas have had a field day telling students that all they have to do is sign up for these courses in Australia, pay big fees, and they'll be guaranteed permanent residence here in Australia....and...[that] international students being bashed, and exploited, dodgy colleges ripping them off and going bankrupt"

The proposal is basically for a 2 year cooling off period - so the graduating students would be required to return to their home country (or at least leave Australia) for two years before being eligible to apply for permanent residence. It is argued that this will clean up the sector.

I don't doubt that this will probably stamp out lots of the dodgy operators but I'm not sure what impact it will have on "real" high quality university courses. Our universities have come to depend on the income that students generate. It would not be good for local students if university income was dramatically cut by this change. On the other hand, I can't see why people who have substantially invested in an Australian education shouldn't be given some incentive to stay. Nothing in immigration policy is ever easy!

The full text of Mr Thomson's speech is available on Hansard for 19 October (page 47) - click here.

Photo used under creative commons licence:

http://www.flickr.com/photos/mklingo/ / CC BY-ND 2.0

Processing Priority

The Migration Act allows the Minister to set the priority in which GSM (general skilled migration) visa applications are to be processed. On 23 September 2009, a new ministerial direction came into effect and the following applications are subject to priority processing:

1. employer nominated visa applications
2. regional sponsored visa applications
3. applications where the nominated occupation is on the "critical skills shortage list" (there are a couple of subcategories here, depending on whether it is sponsored or not);
4. MODL applications; and
5. the rest.

So what happens if you are not eligible for priority processing - it appears the answer is you lodge your application now and wait "about 3 years"! - see the following extract from the priority processing direction:

"Q11 My application does not fall into one of the priority categories. When can I expect to have my application finalised? If your nominated occupation is not on the CSL and you have applied for an offshore GSM visa or intend to apply for an offshore GSM before the end of 2009, it is unlikely that your visa will be finalised before the end of 2012. If your nominated occupation is not on the CSL and you applied for an onshore GSM visa or intend to apply for an onshore GSM before the end of 2009, it is unlikely that your visa will be finalised before the end of 2011."

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http://www.flickr.com/photos/redvers/ / CC BY 2.0

Welfare of International Students

All the submissions to the Senate's Inquiry into the Welfare of International Students have been published on the APH website.

The disparate views expressed only highlight what a difficult issue this is. Apart from the submissions made by various professional bodies (including the MIA and various universities and colleges) there are a range of individual submissions from foreign students. Some of those submissions recount stories of racism and bad experiences and others of "happy days". There are also a number of submissions from foreign students studying medicine who are disenchanted with their local career prospects.

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The Immigration two step

"The Immigration two step" was the title of an interview with Immigration Minister, Senator Chris Evans on ABC Radio National on 3 July 2009. I thought it was a very balanced look at the way Australia's migration policy has slowly changed from one where most applicants came from offshore to one where most applications for permanent residence come from onshore applicants.

I set out below an extract from the introduction, but you can read the transcript or download the audio file by clicking on the link above:

"When immigration issues capture headlines, it's usually because another boat carrying asylum seekers has been intercepted off the West Australian coast, as happened earlier this week. But the fixation with border security can cause us to overlook longer term structural changes, such as the gradual shift from permanent to temporary migration that has been under way in Australia for more than a decade now. ... In fact, these days almost every second 'new' migrant to Australia is already living here as a temporary worker or as an international student..."

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July changes to Migration Act

Australia's Migration Act is one of the most amended pieces of legislation in the country - second only to the taxation laws. thankfully most of the changes are made in two "batches" each year. Some of the changes taking place on 1 July 2009 are:

# Increase in fees and charges
# Form changes
# Contributory Parent Visas – removal of "split application" strategy
# Balance of family test – time of application
# Change of sponsor for remaining relative and parent visas
# Removal of work limitation condition on Retirement (Subclass 410) visa
# Extension of entry period for Subclass 462 (Work and Holiday) visa holders
# Bridging visas – including permission to work arrangements
# Subclass 050 Bridging (General) visas added to the list of relevant visas under Regulation 2.43(1)(a)(i)
# Technical Amendments: Gazette Notice
# Approval of electronic forms for Approved Destination Scheme visa applications.
# Changes to the People Trafficking Visa Framework
# Health Waiver – Participating States and Territories
# Same-Sex relationships
# General Skilled Migration (GSM) – English requirements
# Subclass 457 visa update
# Business Skills – Senior Managers Provisions for Subclass 163 – Policy Change

I am grateful to the Migration Institute of Australia (www.mia.org.au) for providing this summary of changes in their news bulletin to members.

Detention Debt Controvesy

Australia's policy of mandatory detention of people found to be unlawfully present here is widely known. However, it is not so well known that people who are detained are required to pay the costs of their own detention at the rate of $125/day. Needless to say (in a slow moving bureacracy) many detainees end up with debts of thousands (or even hundreds of thousands) of dollars.

The government introduced the Migration Amendment (Abolishing Detention Debt) Bill 2009 into parliament in March and it was debated in the lower house this week. It is opposition policy to oppose the bill because it's abolition will be one less deterrent for people smugglers.

Unfortunately for the opposition, there are some dissenters in its ranks with a number of MP's threatening to cross the floor and vote with the government. These are quite extraordinary times with one MP saying the policy was "cruel and contrary to Australia's best values".

Another said he was ashamed of being a member of the parliament that had introduced the policy 17 years ago saying: "God forgive me that I was part of the parliament that did that, that caused so much distress for so many families over such a long period of time" and "it was wrong in the Hawke years, it was wrong in the Howard years and the wrong will be righted today."

Strong comments and some indication that it's not only the government that wants a more compassionate immigration system.

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Worker Protection Legislation

The Migration Legislation (Worker Protection) Act 2008 was proclaimed this week to commence on 14 September 2009.

The purpose of the Act is to preserve the integrity of the local labour market and to ensure that the working conditions of foreign workers (mostly 457 visa holders) meet Australian standards.

There are four broad categories of changes:

1. the sponsorship undertakings will now be legislated (rather than being a promissory undertaking). This means that the undertakings can be changed by amendment;
   
2. there will be tougher sanctions, including civil penalty provisions for non-compliance with the undertakings. These powers will include powers of a Court to order repayment of debts owing to visa holders (currently recourse is through employment laws). The objective is to provide more meaningful penalties for non-compliance;
   
3. there will be greater sharing of information about visa holders between government departments and agencies; and
4. there will be a monitoring regime to promote compliance with sponsorship obligations which provides for the appointment of inspectors with powers to enter premises and require documents or things in relation to a sponsor’s compliance with the sponsorship obligations and other requirements.

These changes won't affect the great number of honest employers who already meet their obligations, but it may help to clamp down on the small rogue element that is always present.

Ministerial Intervention

There are a number of sections of Australia's Migration Act (ss 351, 391, 417, 454, 501J) which allow the Minister for Immigration to substitute a more favourable decision to a visa applicant after the review process is finalised - this is known as "ministerial intervention".


The powers are non-delegable and non-compellable and should only be used where the Minister decides it is in the public interest to do so. This usually arises if there is some compassionate or compelling circumstance or in a situation where there is some unintended consequence in a strict application of the Migration Act.

The current Minister (Senator Evans) was the subject of adverse comment, by the Shadow Minister in parliament on 15 June over his use of this power. In the 18 months that he has been Minister, this intervention power has been used over 100o times. In contrast Minister Ruddock (1996-2003) only used it 1916 times in that whole period. I suspect that Minister Vanstone used it even less!

I am a supporter of the concept of discretion (in all areas of law) and I am not sure if the use of this power is a reflection on a more compassionate Minister or whether there was a backlog from the previous government that is now being cleared. In any event, I'm not sure the criticism is warranted.

If you want to read the whole debate it's in the House of Representatives Hansard (ie the daily transcript of parliament) which is downloadable in PDF format from this link. The relevant part starts at page 116 and is a speech by Dr Stone.

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457 Info Pack

DIAC have very helpfully published on their website a package outlining the recent (and proposed) changes to the 457 visa program.

That package is available by clicking here.

DIAC Strategic Plan

DIAC (the Department of Immigration and Citizenship) has just released its new strategic plan setting out its direction and focus for the next three years.

DIAC's accountability to parliament will now be measured against six performance criteria (instead of two as before). The criteria are:

1. Contribute to Australia’s future through managed migration. Administer our migration programs to ensure long-term social and economic benefits to Australia, while responding to changing economic circumstances.
2. Protect refugees and contribute to humanitarian policy internationally. Uphold Australia’s convention obligations through rigorous assessment of asylum claims against immigration law, and promote the development of innovative and responsive humanitarian policies internationally.
3. Contribute to Australia’s security through border management and traveller facilitation. Establish the identity and facilitate the entry of genuine travellers through a layered approach to border management.
4. Make fair and reasonable decisions for people entering and leaving Australia—ensuring compliance with Australia’s immigration laws and integrity in decision making. Deliver efficient, fair and reasonable services to our clients, using an evidence and risk-based approach to maintain the integrity of our programs and systems.
5. Support migrants and refugees to settle in the community and participate in Australian society. Enrich Australia by creating opportunities for maximum participation in our society and economy through targeted settlement services.
   
6. Promote Australian citizenship and a multicultural Australia. Effectively administer Australia’s citizenship laws, and foster community confidence in the advantages of citizenship and diversity. This includes the development of a new cultural diversity framework built around the concept of social inclusion, civics and social capital.
   

It's too early to tell whether this is "new direction" is just bureaucratic spin or whether there will be an improvement in services for me and my clients (ie visa applicants). I genuinely hope it's the latter.

Photo used under creative commons licence: http://www.flickr.com/photos/klbw/3188339277/sizes/s/

Detention and Alternatives - where is the balance?

Detention of people found to be illegally present in Australia is currently mandatory.

The Joint Standing Committee on Migration tabled its second report entitled Immigration detention in Australia: Community-based alternatives to detention this week. One of the recommendations is an overhaul of the bridging visa system which would see detainees released into the community with support (including health care and assistance with accomodation) and potentially work rights. While on one hand this sounds like a civilised way to treat other human beings, I must admit I have some sympathy with the view expressed by the shadow minister for immigration, Dr Sharman when she says:

“The newly proposed bridging visa for all other detainees does not meet basic public interest and security criteria, nor does it help to deter people smugglers from targeting Australia as a preferred destination. People smugglers would no doubt be delighted to be telling their clients that in the latest Government policy softening, they will not even have to remain in detention while their identity is being established."

This is a very difficult policy area and it's so hard to find a balance!

Another 457 Change

Effective from 15 May 2009 the 457 visa is no longer available to applicants with occupations that fall within ASCO 5-7. In plain terms, this means that the skills threshold has been raised. It used to be possible for employers who wanted to sponsor workers in these categories to do so provided they had approval of a regional certifying body (ie there was a concession where the employee was to work in a regional area). Now the only way to achieve this outcome is to negotiate a labour agreement with the Commonwealth. Click here for more details.

This change comes hot on the heels of the increase in the English threshold and is designed to protect local employment. It also means that employers with large infrastructure projects outside of the metropolitan areas are going to have to have a labour agreement before they can get lesser skilled workers on their construction sites. I appreciate there is a difference between a labour shortage and a skills shortage, but this change doesn't recognise that there may be both in remote areas.

Migration Budget 2009-10

There have been a number of changes to Australia's migration program announced in this week's budget.

The key features are:

1. the number of permanent skilled visas available has been reduced to 108,100. This is the second cut in numbers announced this year is down almost 20% from the initially available number;
2. there has been an increase in the number of family (parents/partners) to 60,300; and
   
3. the english language threshold is going to increase to IELTS 6 for applicants who nominate trade occupations.

For more detail you can link to the 2009-10 skilled migration program fact sheet.

What do I make of this? Well, the decreasing numbers simply reflect local labour market conditions, but the real question is what investment has Australia made in training its own people? In my view "not much". University education is becoming more expensive and apprenticeships are rare. Until local skills are developed there will be a dependence on overseas workers to help fill the gaps. The higher english threshold will exclude applicants from many countries where English is not widely spoken. Language skills are important but it may end up limiting the diversity in the migrant intake that we have seen in recent years.

Forged Document Rackets

Although it seemed to go unnoticed in the mainstream media, there was a DIAC-Australian Federal Police raid on a migration agent's business in Sydney this week. The allegation is that the Australian citizen registered agent is involved in providing falsified documents to mainly the Chinese community.

There was a similar raid in Melbourne in March where it is alleged documents were being prepared for students wishing to apply for permanent residence in various trade occupations.

Both times, the Minister said:

1. Illegal activity by migration agents attacks the heart of Australia's visa programs and will not be tolerated;
   
2. People who obtain permanent visas based on falsified documentation can have their visas cancelled; and
   
3. The operation highlighted the need for a greater level of scrutiny on the migration advice profession.

The problem with these comments is that it is not the mainstream migration profession that is to blame - it is a small group (whether in the profession or not) who are engaging in criminal activity and who are preying on vulnerable people who desperately want to stay in Australia.

It would be unfortunate if tougher requirements are made of all because of the activity of a few, but unfortunately that's the way regulation usually goes.

Trade Occupations

I had an enquiry from a potential client during the week who is an overseas trained tradesperson (in this case a motor mechanic). The body which does the skills assessment for trade applicants is Trades Recognition Australia (TRA). Once upon a time they used to recognise verifiable on the job training as being good enough for a positive skills assessment. Now, apparently because of fraudulent documents being submitted they only recognise formal training. Although there are different pathways unless the client can show the required number of hours in "formal training" then they won't pass. This effectively cuts out a lot of people because many countries simply don't have formal apprenticeships or technical colleges courses...another example of a minority abuse causing problems for everyone!

Photo used under creative commons licence: http://www.flickr.com/photos/docman/36125185/sizes/s/#cc_license

Procedural Fairness

Section 359A of the Migration Act is a statutory procedural fairness provision. It requires disclosure of any information that the Tribunal (ie the MRT) "would be the reason, or a part of the reason, for affirming the decision that is under review".

There has recently been a case before the High Court in which an application for a spouse visa was refused after DIAC received information from an informant that the relationship was not genuine and was only for "migration purposes". The identity of the informant and the precise content of the information were not disclosed to the visa applicant. Ultimately, the High Court said that information of that nature need not be disclosed. The Court relied on a previous decision in VEAL where it found:

"It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations."

I understand the need for confidence, but there is some room for debate on how much disclosure is required before the "substance" is known. This seems to me to be subjective and not necessarily fair at all.

You can read the whole case here: http://www.austlii.edu.au/au/cases/cth/HCA/2009/10.html

Bring back the TPV?

In an interview on radio this morning the opposition leader advocated bringing back the temporary protection visa ("TPV"). TPV's were introduced by the Howard government as a way of deterring asylum seekers arriving by boat - it required refugees to reapply for their visa every three years and had no family reunion rights.

These visas were abolished by the Rudd government (who as I have said previously is taking a more humane policy stance on refugees). Now, the Opposition is saying "we told you so" in relation to the recent boat incidents. If I can quote from Mr Turnbull's interview:

"...between 2002 and the end of 2008, fiscal year 2008, there were around half as many people arriving as have arrived since August last year. So the fact of the matter is since the TPV’s were abolished by the Rudd Government there has been a dramatic increase. Now bear this in mind, the people smugglers are a business. They are charging people big money and they cannot succeed in their business unless they can get people into Australia."

However, he probably does have a point if:

"The objective of our policy should be no unauthorised boats, boat arrivals. We don’t want them. It’s bad in terms of our….the integrity of our borders and it also poses enormous danger to life and limb on the high seas – not just of the passengers but as we’ve seen also of our Navel personnel."

This is a difficult policy issue, but I don't think the TPV is the way to go.

A full transcript of the interview is available on Mr Turnbull's website.

Asylum Seekers Policy Debate

I agree with our PM that people smugglers are the scum of the earth, but the recent fire on the asylum seekers boat and news that there is another boat on the way raises some difficult policy issues. The former government had a very hard line on border protection and the current government has a softer approach. Is the policy change causing boat loads of asylum seekers to come to Australia or is it a sign of the global economic crisis or something else?

In any event, there must be a balance between humane treatment of genuine refugees and the deterrence of people who want to bypass ("jump the queue") migration procedures.

Follow the news in more detail on the ABC News.

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