Skilled Applicants in Limbo - 10 Serious Consequences of DIAC's Go Slow Policy

webster By Mark Webster
Friday, 06 November 2009

Since January 2009, most applicants for General Skilled Migration have faced significantly longer waiting times for their applications to be processed. Many are now in limbo with no real idea of when their applications will be finalised.

I was interviewed on this subject on Radio National on the 30th of October and this article expands on some of the points I raised there (Listen to the interview). The General Skilled Migration (GSM) program is the largest single Australian migration program. However, some significant issues are emerging with the program - approximately half of the primary applicants are international students with little or no skilled work experience. Some 80% of applications are from applicants with Migration Occupations in Demand (MODL) occupations, a large majority of which are in a small number of occupations - Accountants, Cooks and Hairdressers. In addition, the pipeline of applicants is growing alarmingly - there are far more applications lodged than can be granted each year.

International students can, in general, apply for skilled migration on completion of 2 years of study in Australia. They can apply onshore for their visas, which means they can stay in Australia on bridging visas during processing of their applications. They also enjoy significant advantages, particularly in trade occupations, in getting their skills assessed for migration purposes. These advantages have been used as a carrot to induce international students to study in Australia, and education is now Australia's 3rd largest export. The link between education and migration has been of concern to the Migration Institute of Australia for some time - in our submission in 2006 on the Birrell Report on the GSM program, we raised this issue. However, the Department of Immigration has not acted on our warnings and is now facing public criticism in the press some three years later.

MODL applicants obtain significantly more points than others, and this has resulted in many colleges introducing short courses in MODL occupations such as hairdressing and commercial cookery. This has resulted in significant growth in enrolments in such vocational courses, at the expense of university studies. Some courses offered are of dubious educational value, and students have a tendency to do whatever course is necessary to qualify for permanent residence, then not continue to work in the occupation in which they study. The pipeline of applications for General Skilled Migration is growing - as of October 2009, there were over 130,000 applicants in the system. With a total GSM program size of 65,000, this means that there are approximately 2 years worth of applications already lodged with the Department of Immigration.

These systemic problems with the General Skilled Program have resulted in introduction of the Critical Skills List (CSL). The CSL is a "band aid" solution which effectively means that if you have an occupation on the CSL, your application will be processed and granted before other applications are processed. Changes to processing priorities introduced in September 2009 were accompanied by a statement from the Department of Immigration that non-CSL applications would not be processed before the end of the 2011 program year. This is despite the fact that many non-CSL applications had been in the system for 18 months or more when the announcement was made.

These delays of 2 years or more in processing have the following inequitable consequences for applicants:

1. Employability on Bridging Visas

Whilst international students obtain a bridging visa with full work rights on lodgement of their GSM applications, they are not likely to get a skilled, permanent position whilst on such a visa. This is because the student's application might be refused, in which case they would need to leave the country within 28 days. As a result, international students are in a very vulnerable position, and may be tempted to take any employment available, even if the conditions are not favourable

2. Medicare

People who apply onshore for permanent residence are in general eligible for Medicare. However, the documentation provided by the Department of Immigration is not always accepted by Medicare for the purposes of coverage. There is no data link between the two departments. The documentation provided by the Department of Immigration confirming lodgement of the visa application is via email in most cases, and does not include all family members. This leads to many applicants trying to access to Medicare simply giving up in frustration.

3. Splitting Families

It is very common for students to get married after completion of their qualifications in Australia. In this case, it is not in general possible to include the new spouse in their GSM applications after lodgement. As the wait for permanent residence can be 2 years or more, they may be unable to sponsor their spouse to join them in Australia for a significant period of time.

4. Overseas Travel

The bridging visa issued to students does not have travel rights - if the student departs Australia, they risk refusal of their application. It is possible to apply for a bridging visa allowing travel (referred to as a Bridging B visa), but this involves extra cost and evidence of the reason for travel. The maximum period of travel is in general 3 months. Even though the Department is not actively processing their applications, and employment prospects in Australia can be bleak, students are effectively forced to stay in Australia to await grant of their visas.

5. Repeat medicals

Most international students, whether CSL or not, must complete health checks prior to lodgement of their application. This is despite the fact that for non-CSL applicants, the medicals will certainly expire well before processing of their file has even commenced. Medicals are not cheap - in general, the cost is about $300 per family member.

Many applicants who have been requested to complete medicals by the Department of Immigration have now been informed that their applications have been put on hold. This is because their applications were state nominated (previously the highest level of priority) and are now lower down in the new priority list. These applicants, whose applications have been 99% finalised, will now most likely need to do their medicals all over again.

6. Lodgement of Frivolous Applications

The long processing times may result in lodgement of more frivolous applications which have no chance of success. This is because onshore applicants can remain in Australia on bridging visas with full work rights during processing of their applications - no matter how long this takes. If their application is refused, they may then appeal to the Migration Review Tribunal (now taking 12 months or more), the Federal Court or the Minister. By the time the appeal process is complete, the applicant may have been in Australia for 5 years or more with work rights.

We are already seeing increased numbers of GSM applications at the Migration Review Tribunal. International students may also be victims of unscrupulous operators who may knowingly lodge applications with no chance of success - as processing times are so long it may be many years before they experience any fallout from their dodgy practices.

7. Loss of "Safety Net" for 457 holders

People who are sponsored for 457 visas by their employers are restricted to working only for their sponsoring employer. Such people are already employed in Australia and in many cases have sufficient points to qualify for General Skilled Migration.

Whilst the employer can sponsor for permanent residence through the ENS program, the GSM program has always been a "safety net" for 457 holders. Many employers are reluctant to sponsor for ENS as it means that the employee is no longer "tied" to the employer. GSM was a way of qualifying for permanent residence even if not supported by an employer. However, 457 holders are not able to lodge an onshore GSM application and are now facing unreasonable delays in processing of their applications. This means that they are forced to stay with employers longer, even if the employment conditions are not favourable.

8. Distortion of Education and Migration Program

Previous attempts at "cherry picking" applicants have been completely unsuccessful. Bear in mind that GSM applicants end up permanent residents, so the program should be pitched at encouraging applications from people who have skills which the Australian education system is unable to supply locally in the long term. To chop and change priorities on a monthly basis is highly inappropriate - it would be preferable to "go back to the drawing board" to design a system which really does meet its objectives, rather than making knee-jerk reactions to current market conditions. The MODL is a classic example of the failure of the cherry picking approach. MODL applicants obtain up to 20 additional points in applying for skilled migration, as well as priority processing. This resulted in massive distortions in the migration program (80% of GSM applicants in MODL occupations) as well as the education system (massive growth in the vocational sector for MODL occupations). We have no reason to expect the CSL will be any more successful.

9. Loss of Quality Applicants

When faced with a delay of 2-3 years in processing of their application, why would a quality applicant persist with their application for migration to Australia when they have other migration options or good employment prospects in their home country?

10. Risk of Retrospective Changes

The Minister has indicated that the GSM program will be reviewed. It is entirely possible that changes could be retrospective (ie affect people whose applications have already been lodged). For instance, if the pass marks are increased, this would in general affect all people whose applications have not yet been assessed. Given the huge number of applications in the system already, any retrospective changes could result in significant hardship and inequity for many people.

This has resulted in a large amount of uncertainty and lack of confidence in the GSM program.

Conclusion:

The introduction of the Critical Skills List and processing priorities seeks to modify the GSM program settings by administrative delay, rather than tackling the issues with the GSM program head on. The CSL is a stop-gap solution which could end up destroying public confidence in Australia's migration program.

It would be reasonable for the Department of Immigration to appropriately address the fate of the 130,000 skilled applicants already in the system - their applications should be dealt with in a fair and timely manner. For instance, if a case is not going to be granted within a reasonable timeframe, offering a refund of application fees may be a helpful way of reducing the backlog.

We also call upon the Minster for Immigration to engage in an open and inclusive public debate on what the objectives and settings for the GSM program should be. The GSM program is clearly broken - so let's fix it. It is after all the largest single Australian migration program and getting it right is critical to the future of Australia.

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