Refugees v Asylum Seekers

It's been a while since my last post... sorry about that.

I've been slowly digesting the current debate about boat people and asylum seekers. It's a tough one, that's for sure.

At the outset, I should let you know I don't subscribe to certain politicians' views that Labor has "gone soft" and that encourages people to come to Australia by boat. That's a little simplistic and fails to take into account worldwide patterns in refugees. This article, if a little complex, might be of interest to you: http://bit.ly/4ESmPo

On the other hand, I appreciate for political reasons that a complete open door policy is unlikely to be sustainable.

What concerns me, though, is this idea that we must lock up refugees until we find out whether or not they are refugees. As far as I'm concerned, it doesn't matter if they are on Christmas Island (what a let down it must be for children when they realise there is nothing remotely "Christmas" about that island!), on the mainland, or in Indonesia. It worries me that the government is being so secretive over its plans with Indonesia.

I can see the potential for a cooperative approach to detect boats of asylum seekers, take them safely to mainland, and process them as quickly as possible - but by involving Indonesia are we setting up a system that enables us to close our doors (after all, if these people haven't arrived in Australia, our obligations under the Refugee Convention don't necessarily apply to them).

At this stage, the jury is still out, but let me ask a favour of all my readers: don't believe all the propaganda that is fed through our media: "asylum seeker" is not a French word for "terrorist", Australia is not the centre of the universe, and like it or not, we do have a duty to help the less fortunate around the world... now, if only our government would take a decisive and leading role in this debate...

The Return of the Resident

Resident Return Visas ("RRV") are not the sexiest topic in the migration world, but worth a quick look.

For those who don't know, this visa is for permanent residents overseas who are close to the expiry of their five-year return facility and thus, need another five years (or in some cases three months) to return to Australia.

There are two RRVs - the 157 (three month validity) and the 155 (5 year validity). The criteria vary but are, for obvious reasons, more strenuous on the 155.

Essentially, where a client is overseas and has not spent a required period in Australia they need to establish that they have substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia.

In a recent application, I have seen a very strict approach to what are considered "substantial" ties and whether or not they are of "benefit to Australia". The DIAC Policy document for this visa supports this view, saying the purposes of the visas are, “to facilitate the re-entry to Australia of non-citizen permanent residents and ensure that only those people who have a genuine commitment to residing in Australia, or are contributing to Australia’s well-being, retain the right to return to Australia and remain permanently.”

Where an applicant offshore is unsuccessful, their review rights are severely limited (they generally need relatives in Australia to be able to apply for review).

For this reason, it is vital to pay very close attention to the criteria and associated policy documentation. Don't assume that an RRV is a "given" because, depending on the case officer, you may be quite unpleasantly surprised!

Whither the 457?

In a recent press release (http://bit.ly/46Mt0Q) Minister Evans announced a "big drop in temporary overseas workers".

I'm not 100% sure, but it looks as though he is happy about that fact. This leads me to ask a very obvious question: why?

I'm concerned that there's a general feeling that 457 visas (the visa for temporary overseas workers) are a bad thing. I'm not sure if this is unionism ("foreigners shouldn't be taking our jobs") or a reaction to terrorism ("close our borders to the jihadists") or what... but I'm almost certain it is not economism (is that a word?).

I've said it before and I'll say it again - our country needs migrants. Our economy is built on the backbone of migrants, and it will only continue to prosper if we keep supplementing it with overseas skilled (and unskilled) workers.

Every day I see clients (Australian businesses who, contrary to the popular belief, do employ Australians as well) who want to supplement their workforce, build their business and otherwise prosper, through the introduction of foreign workers. These workers have a number of useful benefits: they bring foreign skills (sometimes very different to Aussie skills), they plug gaps in a workplace, they bring a multicultural dimension to the workplace, and with the minimum salary level climbing, they are also pushing up the average wage.

So why is our government heralding this news that 457 visas grants have gone down? Is it because they are bowing to uninformed public pressure? Trying to be seen to be making a difference? I'm not sure, but it certainly doesn't get my approval!

And now I've just finished reading the explanatory memorandum of the September 14 changes to the 457 visa (http://bit.ly/14gukH). Wow, let's make it even harder!

Don't get me wrong, I don't want to open the borders and shut down control, but I don't think Australia can afford to make it too difficult for people to come and work here. The world is increasingly competitive for skilled labour so why scare people off with overly complex and unnecessarily harsh regulations - effectively we're simply doing Canada, the UK and others a big favour by sending skilled workers their way.

So what should we do? Well I think we need to strip back the 457 and focus on addressing the needs of employers and the ability of applicants to fill those needs. Keep it simple...

What do you think?

DIAC Prosecutes Unregistered Agent

I was pleased to read this news on DIAC's website:
http://www.newsroom.immi.gov.au/media_releases/741

I have serious concerns about DIAC's reluctance to pursue unregistered agents. This case, sadly, seems to be the exception to the rule.

It is illegal to operate as an unregistered agent in Australia. All lawfully operating migration agents are registered through the Migration Agents Registration Authority and anyone using an agent should make sure they see their agent's Migration Agents Registration Number.

Migration agents are bound by a code of conduct and by other legislative and professional duties, the effect of which is to preserve the interests of the client (though I accept the odd unscrupulous dealer does get through).

Unfortunately, from the small number of actual cases against unregistered agents, I have perceived a reluctance by DIAC to actually prosecute those who are breaking the law. The result is that these criminals get lumped together with registered migration agents when the media and politicians start talking about "agents" generally. Clearly, this is not good for business!

I hope you'll join me in calling for more vigilance by DIAC and a more aggressive approach towards unregistered agents.

Migrants = Terrorists??

I have to admit I was incredibly disturbed to read this article today:
http://www.abc.net.au/news/stories/2009/08/07/2649618.htm

There is no better fuel for the racism fire than for a Federal MP (let alone a Government one) to claim that more migration increases our risk of terrorism.

Why do I say that? Well, let's examine the proposition - at first glance it makes a bit of sense: the more people who enter our country, the greater the risk that one of them will be a terrorist. Unfortunately, I fear that this is where most people will stop.

But I'd ask Mr Thompson whether, when all of the factors are weighed up, that sensational statement should be the basis of government policy. Let's think for a second about the crucial benefit that migrants bring to Australia. Our economy would stall if we shut the doors to skilled migrants. Our culture would fail if we closed our hearts to those from overseas who's vibrant backgrounds bring colour, life and excitement to society. Our international relations would suffer if we suddenly refused to meet our obligations under the Refugees Convention.

On its face, a migration policy that simply opens the floodgates without vetting has potential for disaster. But we don't have that kind of system in Australia. Migrants are vetted for character, health and their commitment to Australian values.

Perhaps this can be strengthened - it certainly has been in the last twelve months - and I am completely behind close scrutiny of potential migrants. We obviously don't want terrorists and other criminals in our country.

But the two are not synonymous: more migrants does not have to equal more terrorists, so long as ASIO, DIAC and DFAT continue their current programme of close scrutiny.

Most importantly, I am concerned that sweeping statements such as Mr Thompson's will scare the public at large and, without a properly informed debate, has the potential to create a political backlash the kind that Pauline Hanson could only have dreamed of.

I strongly urge Mr Rudd to distance the Government from Mr Thompson's statements... before some serious damage is done!

Exploitation of Migrants

This is an issue that takes a back seat to questions of skills shortage, asylum seekers and the like in our media and politics, but we can't ignore the plight of people the world over who are being exploited across borders.

Sexual exploitation is a common way in which this is manifested, and UNICEF have teamed up with US rock band The Killers to release a song on this issue. Check it out here:
http://www.youtube.com/watch?v=IoTBclI22Dk&feature=player_embedded

I think it is time for a national debate on how to protect this vulnerable group, so as to come up with a relationship which benefits not just Australia, but the hundreds of thousands of people who seek out our shores to start their "new lives"

Nick

Refugees = good for our country

Today’s Canberra Times tells us that there have been 16 boats of asylum seekers intercepted in Australian waters this year (see Today’s Forum, p3).

This is, I accept, a serious issue. There are many schools of thought about whether current government policy is somehow inviting these numbers of boats or not. I have to say I’m not convinced that is the case, or even if it is, if that is such a bad thing. Previous government policy on asylum seekers arriving by boat was draconian and completely misplaced.

More on this issue later, but for now I wanted you to check out an insightful article published by the UNHCR: http://www.unhcr.org/pages/49c3646c74.html?gclid=CKXB6dTp3psCFQkwpAodWEBu-w

Refugees are, at the end of the day, just another source of potential workers, families, communities… maybe even prosperity and success.

So why be so quick to turn them away?

Nick

Why are Students in Detention?

It seems that policy can sometimes make an ass of our immigration system.

The Australian reported this week that 36 overseas students were in detention for breaching conditions on their visas. The more shocking statistic is that some 2646 students in total have been detained since January 2001. Check out the article here: http://www.theaustralian.news.com.au/story/0,25197,25784268-601,00.html

Why? Put simply, a student visa has various conditions, including the requirement to attend classes, meet course requirements, etc. These conditions make sense - we don't want people applying for student visas unless they are genuine students.

But the way those conditions are enforced is absurd. Anyone who has been to University knows fails are all too common. As an agent, I've assisted numerous clients who have, following faliures, had their visas cancelled and have had to show that they have "compelling circumstances outside of their control" to blame for that failure. This is too much, really.

A recent client had failed a couple of courses through his own reluctance to own up to the fact that the degree he was studying was too difficult. With the help of his Uni, he changed into a more appropriate degree in which he was getting much better grades. By then though, it was too late - the cancellation process was underway and now he has to leave the country. Goodbye to a future highly-skilled tax payer!

It becomes patently clear how absurd this is when that student then faces potential detention for having failed their courses if they don't depart the country on time. Not even the strictest regimes of the last two-thousand years locked people up just for being bad students!

If you want to have a system for enforcing the "genuineness" of a student, go for it, but think carefully about the consequences and the hurdles you make people jump through!

Why use an agent?

Often as agents we get asked - why should I pay for your services when I can do it myself? And that's a fair enough question. There are plenty of visas out there that don't require an agent's input into the application process.

However, I wanted to share three incidents that have happened recently. These all point to why an agent can be crucial. Today, I'll share part 1.

1)

I am assisting a local restaurant to bring in a chef from overseas on a 457 visa. This is not as easy as it used to be and DIAC are closely scrutinising the "benefit to Australia" test to make sure Australian jobs aren't being filled by foreign workers. The politics is rich here and I won't go into it now.

It is hard enough as it is, but add to that a letter received from the Department this week requesting my client meet criteria that have long since been removed from the Regulations. In fact, using what appeared to be an outdated form letter, DIAC requested evidence of matters that haven't been required since late 2007.

Luckily, my client didn't have to waste valuable time and resources gathering this information, as I was able to convince DIAC that they had got the law wrong, and they then issued a correct letter. But imagine if the client (as you would be inclined to do) blindly accepted what DIAC requested and went about gathering that information or, even worse, if unable to gather the relevant evidence, withdrew the application.

So to end part one on this issue, let me just say: not everything that DIAC says is gospel - check it against the Regulations and Act and, if in doubt, ask a registered agent for help!

Illegal Workers found in Canberra

This week DIAC in Canberra raided a building site in Belconnen and detained a number of illegal workers: http://www.abc.net.au/news/stories/2009/07/08/2619988.htm

Some were people who had overstayed their visas. Others were working contrary to conditions on their visa.

Some of these people have now been shipped off to immigration detention.

The unions have (unremarkably) weighed into the debate (http://www.abc.net.au/news/stories/2009/07/08/2620522.htm), but what does all this really say about our immigration system? These people are often taken advantage of - indeed, a large percentage of the time, they simply don't understand their rights and obligations as foreign nationals inside Australia.

Don't get me wrong, I'm not trying to excuse the fact that they were working unlawfully, but let's think about this a bit more carefully...

These people (obviously) were working. This is not in itself a bad thing. If paid, legally, this would mean tax dollars into the government's coffers, and have obvious other benefits for the economy in terms of increased productivity, and not to mention the spin-off services required to enable these people to work (housing, food, transport, etc).

Then there's the employer - a cynic will say they were out to take advantage of people who didn't know better. But then there's no denying the ongoing shortage of skilled and unskilled workers and again I repeat the benefits for the economy in improving productivity etc. Maybe the employer genuinely needed those people in order to get the job done?

So why, instead of jailing people who simply want to earn a living, aren't we making more of an effort to address skilled (and unskilled) shortages and filling them with people who actually want to work?

Just a thought.

More 1 July changes to Skilled Visas

Still catching up with the migration changes of 1 July 2009!

Importantly, there are now skill assessments for some 457 Visa applicants including Chefs, Cooks, etc. What next?

I have serious problems with this. If an employer is willing to sponsor someone and take on board the onerous obligations (including a good salary) that that entails, then you would expect that employer to have confirmed the applicant's skills beforehand. Be it on their head if they haven't.

Why then, should there be an obligation to prove that person's skills to DIAC? I know the obvious answer is that employers are sponsoring friends and family members and making up the rest. But surely the sponsorship monitoring obligations (which include the right for DIAC to conduct site visits where they are suspicious) would be a better way to tackle this?

Instead, they've made it harder again (and it was already bloody hard) to bring in good quality workers from overseas. A real shame I think.

What do you think?

A Model Citizen?

The Citizenship Act forms an important part of a Migration Agent's knowledge base.

Sure, we don't get hundreds of citizenship enquiries - I don't think it's a huge money spinner for anyone, but it is still vital that agents possess a good knowledge of how citizenship works.

Today I advised a client about their citizenship options. They have never lived in Australia, are citizens of a South-East Asian nation, and want to send their kids to school here.

So how could they be eligible for citizenship?

It transpired that my client's mother was an Australian citizen back in the mid-Twentieth century and though there is still an issue as to when the mother ceased (or in fact if she did cease) to be a citizen, we have been able to collect evidence that she was definitely a citizen when my client was born.

The result, under s16 of the Citizenship Act 2007, is that my client might just meet the criteria for citizenship. It's not easy though, and there are still a number of hurdles to jump.

So, what did I learn from this? Knowledge of the Citizenship Act is almost as important as knowledge of the Migration Act. It's a complex maze of "ifs" and "buts" so a great outcome for my client, may not have been if they hadn't sought advice...

Success!

There's no feeling like the joy of ringing a client to tell them their visa has been approved. This is especially so when their case was one of high risk or possible hurdles.

Today I finished reporting to a client whose permanent spouse visa was approved - an outcome that appeared to be against the odds but, thanks to some clever submissions and careful application of the Migration Regs, we were able to get her over the line.

What was so special about this case? My client had been unlawfully in Australia for almost a decade - so by all rights, one would think the only visa she'd be eligible for would be one that enables her to leave the country.

The Regs, however, allow for an onshore application despite even a ten year period of unlawfulness in compelling or compassionate circumstances. Of course, it took some arguing to prove those circumstances existed here.

This is why seeking proper advice about a migration application can be so vital - we can't always find the right answer, but when a solution is there, you can be sure we'll help you find your way!

I love this job.

July 1 = changes galore

The visa system has undergone one of its usual tidy-ups overnight with DIAC releasing a raft of legislative changes today.

This includes the usual increase in fees and charges (although quite a steep increase this year I think), changes to forms (waaaay too many changes to forms) and a number of minor tweaks to the legislation.

This effects applicants for remaining relative visas, the balance of family test, some bridging visas and new rights for people of same-sex relationships to be granted visas as secondary applicants.

Check out DIAC's change notification here: http://www.immi.gov.au/legislation/amendments/

Such a hodge-podge of changes leads me to think, as I so often do: why don't we scrap the whole lot and start again? Surely we could make more sense of this beast that is "migration" if we weren't trying to hold the system together with band-aids?

Maybe one day...........

A change in store for Migration Agents

Most people will know by now that the MARA (the regulatory body for Agents) is moving from an independent authority to the DIAC tomorrow.

What exactly this will mean for agents is unclear, and it is likely we'll be waiting a while to see where this leads us.

In the meantime, the Migration Institute of Australia has released a report following a mini-workshop of agents to respond to stakeholder perceptions of agents. Noticeably, clients were not one of the stakeholders whose perceptions were canvassed, but the report is still an interesting read. See it here:
http://mia.org.au/latest-news/Migration-profession-s-opportunity-for-change-Report-released-200.html

I was one of the participants in the workshop which, I think, produced some interesting discussion points for taking the profession forward.

I would welcome any comments or opinions.

Migratory Patterns - launch

Welcome to my latest blogspot.

There is so much happening in Australia right now in relation to migration. Law and policy, as well as the ever-fickle public opinion, are constantly changing.

For that reason, I have decided to start a blog to help you (and me) keep on top of the ever-changing world of Australian migration.

I welcome all feedback and comments!

Cheers,
Nick