Visa Capping Bill - Comments following Minister's Interview on ABC Radio

by Mark Webster, Acacia Immigration Australia 8 June 2010

The Minister for Immigration, Chris Evans, was interviewed by Peter Mares on radio last Friday on the proposed Visa Capping Bill. Listen to the interview here. You can read our initial commentary on the matter here.

The Minister was critical of the hysterical and inflammatory reception the Bill has received. In my opinion, there are valid reasons to be concerned about the Bill.

However, there is no immediate reason for panic as the Bill has not yet been passed by Parliament. It is currently being reviewed by the Senate Standing Committee on Legal and Constitutional Affairs. It is unlikely that the Committee will complete its review before August, so the Bill may not come into effect for some months and might well be amended substantially before being passed.

Will the Power to Cap be Used?

The Minister made a number of comments intended to reassure people that the new powers would only be used sparingly. He mentioned that the power to cap and terminate would be used only rarely and that he anticipated that the backlog in General Skilled Migration (GSM) applications could be managed by other means.

Minister Evans indicated that the power would only be used if he saw too many applications being lodged in certain occupations, and where people would otherwise have no chance of being granted visas.

Whilst these comments are somewhat reassuring, the Minister did not clearly answer questions put to him in the interview about whether he would actually use the new power to cap onshore or offshore GSM applications.

It was of some concern that when asked about whether the power to cap and terminate would be used in relation to international students who had applied onshore for skilled migration, the Minister started discussing the various pathways for international students which he announced on 8 February 2010. These pathways only apply to people who have not already applied for skilled migration - the powers given under the Bill affect people already in the pipeline.

Clearly, the Minister would not be seeking these powers if he did not intend to use them. Capping onshore applicants would be a political nightmare - think 40,000 international students protesting on the streets and being deported en masse. In my opinion the high risk categories would be offshore GSM applications - there are over 100,000 of those - and possibly the family categories (eg parents, remaining relatives).

Why is the Bill Unfair?

The Bill is fundamentally unfair because the Minister will be able to change the goal posts after someone has applied for their visa. Sure, migration rules change regularly, but once you apply you are generally protected from future changes to the rules.

Given that the capping might occur well after the application has been lodged, the Bill violates the principle of the Rule of Law which requires that laws be transparent and not be changed after the event.

Many people spend a lot of money getting to a stage where they can apply for a skilled visa - for instance:

  • Course fees
  • Skills Assessment
  • Health checks
  • Migration agent fees
Refunding the Department of Immigration fees is not an adequate compensation given the real costs of the application process.

In addition, the situation is particularly harsh for people who have settled in Australia and who have jobs, partners, children and even property in Australia. After possibly waiting 2 years or more for their applications to be processed, they may be asked to leave Australia within 28 days of being capped.

Application to other Visa Types

Whilst the Bill has arisen in the context of GSM, the power to cap could be used on any type of visa application, apart from refugee visas. The Bill seems to specifically contemplate the use of capping in the partner stream. The Bill specifically states that if a person holds a temporary visa which ceases on notification of a decision on a permanent visa, then the temporary visa will cease within 28 days. The only situation I am aware of where this happens is for partner visas.

In this case, a person is generally granted a temporary partner visa to allow them to move to Australia with their Australian partner. After 2 years, the Department of Immigration processes their permanent partner application, and when a decision is made on that application, their temporary partner visa ceases. Imagine that - migrating to Australia with your partner, only to be capped a year or more after arrival and having to leave within 28 days!

Integrity Issues

The issue is not so much whether the Minister currently intends to cap certain applications or not. The issue is that the Bill gives the Minister a huge amount of power to decide not to grant visa applications based on criteria of his choosing. This causes serious integrity issues within Australia's migration program, as well as a huge amount of uncertainty for visa applicants.

There are no limitations in the Bill about the criteria which can be used to select applicants. There is nothing in the Bill even saying that applications can be capped based on a person's nationality. The Minister may have advice that this would be a breach of the Racial Discrimination Act, but previous court cases have left this issue open. The Minister has himself recently decided to suspend processing of refugee visa applications from Sri Lankan and Afghani nationals.

The Bill also subverts the current process of creating immigration law. Currently, for the Minister to change the criteria for a visa subclass, he must obtain Royal Assent, and the regulations are open to being disallowed by Parliament. Under the proposed legislation, the Minister could set criteria for applications to be capped, with none of the usual checks and balances.

The applicants cannot even appeal a decision to terminate their applications, as the applications are taken never to have been made.

Not the Only Solution

The Minister has many other options for managing the GSM backlog open to him. For instance, he could devote a certain percentage of the program to "non-priority" applications, and give people some level of certainty over how long their application is going to take. This is similar to the system already in place for parent visas.

There are a number of levers which can be used to limit the inflow of applications for GSM, and the Minister has only used a few of these. These can also be changed by issuing a legislative instrument and examples include:

  • Increasing the pass mark: not done
  • Changing the Skilled Occupations List: to happen in July 2010
  • Changing the Migration Occupations in Demand List: essentially abolished in Feb 2010
These levers have, until now, served us well. There seems to be no reason to pursue such a radical solution as the Visa Capping Bill.

What Can I Do if I Have Concerns?

You may wish to lodge a submission with the Senate Committee before 18 June so that you can have your say as part of the process.

You might also like to write to the Minister for Immigration:

Senator Chris Evans
Minister for Immigration and Citizenship
Parliament House
Canberra ACT 2600


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