We Won't Just Fight Them On The Beaches


Anyone who has attempted to decipher immigration regulations knows how difficult it is to keep up with the pace of amendments. When the Rudd Government announced a series of "measures" to cope with the global financial crisis, no one was surprised to find that they included changes to immigration policy.

One aspect of the changes has not received a great deal of public attention, namely, the modifications in priority affecting general skilled independent migration. While the situation of asylum seekers and the exploitation of temporary workers is rightly in the spotlight, the impact of the new rules on those who have already applied for skilled independent migration has been largely ignored.

With fears of economic downturn in the air, the Rudd Government has toughened the selection criteria for general skilled migration. The changes include tighter English language requirements and a "JobReady" test, both to be introduced as of January 2010. The Department for Immigration and Citizenship has also set a new priority list for visa processing, which privileges applicants who are already sponsored and those who are qualified in "on demand" professions.

According to the new directive, dated 23 September 2009, independent skilled migrants who do not find a sponsor and whose skills do not match the critical skills list, will be kept on hold until other categories are processed — even if they qualified under the points system previously in place.

It is quite possible that the Australian Government has adopted the right remedy to contain local unemployment and to avoid the policy challenges potentially posed by a mass of unemployed migrants. That is a topic which I will leave to Australian analysts to assess. But for thousands of people who had already applied for skilled migration to Australia, the changes have been a cause of great uncertainty.

The main problem with the changes are their retroactivity. That is, they affect not only future applicants but also those
who submitted visa applications when different rules were in place. Here I use my own experience as a reference. When I applied in February 2009, the fee for onshore application to the skilled independent migration program was $2105 — to which is added around $1500 for the preparation of documents. Those who use a migration agent can accrue costs over $6000.

At the time of my application, the information provided online and by officials over the phone was that onshore applicants should expect to wait from six to nine months for the results of their application. That timeframe was a fundamental factor in my decision to apply onshore rather than offshore, since one of the conditions attached to the onshore status is that you are required to remain in the country during the processing period, and can only go overseas after obtaining prior authorisation from immigration through the bridging B visa. The bridging B visa is usually granted for a maximum of only three months — and also entails a fee. When I asked an immigration officer what would happen if I was not able to return to Australia within that three month period, I was told that it could be assumed that I had no interest in the visa process anymore.

It is worth noting here that the immigration department staff always provided me with friendly and efficient service, and that many of them did not sound very comfortable when communicating the bad news. And to be completely fair, the bureaucratic complexity of Australia’s immigration system is not as challenging as those of some other Western democracies.

Under the new rules, onshore independent skilled migration applications are "unlikely to be finalised by the end of 2011" — at least two years from now. Those who have already committed to the process, not only financially but more importantly, psychologically, are provided with few options. This is what the FAQs about the changes published by the Department of Immigration and Citizenship advise:

"… continue to live and work in Australia (if your visa allows) whilst you await a decision on your visa application … consider your eligibility for an employer sponsored visa, or other substantive visa, or … withdraw your application and return to your home country.

Note: If you choose to withdraw your application you will not be entitled to a refund of your Visa Application Charge (VAC)."

All sorts of bureaucratic and political factors may justify these changes but we should not lose sight of the fact that many skilled foreigners who qualified for the program, trusted the Australian system and built an honest plan based on the best official information available, now find themselves in a gamble situation of high risk and financial loss.

The minimum that the Government could do to reduce the sense of distrust and unfairness that this measure has generated would be to offer those willing to "return to their home country" the right of reimbursement for the VAC.

The Department of Immigration and Citizenship could also allow applicants to wait overseas. The new waiting period for onshore applications has more than doubled the processing time that was previously estimated. Given that the applicants who will be affected by these changes will be looking for work in areas of no skill shortage — with a temporary visa — their chances of finding a non-casual job are effectively reduced.

Financial downturns are characterised by unpredictable conditions and it may be that applicants like me who are affected by these recent changes are simply down on their luck in the lucky country. Yet what has moved me to write about these changes is the support and indignation many Australian colleagues have expressed when I’ve told them about my situation.

These retroactive changes in no way reflects how Australia is seen by many of us. The commitment to a "fair go" and trustworthy institutions remain one of the most praised characteristics of this nation. Now, applicants for general skilled migration visas are being forced to come to terms with the apparent malleability of those qualities.

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