Future of the Australian migration program

An insight in to the past, current policies and possibilities:

Hirosh HEMANTHA GAMAGE Registered Migration Agent

The first recorded Sri Lankan arrivals in Australia go back to late 1800s when the British took Sri Lankans for agriculture (sugarcane farming) in North Queensland.

The irony of it is that while nowadays some Sri Lankans yearn, and a considerable number of Sri Lankans would welcome the chance to live in Australia given the opportunity, it is chronicled that at that time Ceylonese (as Sri Lankans were known then) jumped overboard to escape being shipped to Australia!

Diplomatic relations between the two countries commenced just after Sri Lanka gained independence from the British and by now Sri Lanka High Commission has been serving the Sri Lankan community in Australia for more than 60 years in addition to representing the country in many international matters such as trade, economics, culture, environment, war and peace and human rights.

Australia has become very popular among many Asians and Europeans as it provides a good education system, a multicultural environment, and most importantly, "A safe, quality life".

Australia being a country built up through migrants from its inception, adopted a wide and open migration policy in the late 1970s. There are currently more than 100,000 Sri Lankans in Australia.

A few years back, due to fast growth in the Australian economy, Australia encouraged young skilled workers to Australia under the popular General Skilled Migration (GSM) program.

Over 4,000 applicants from Sri Lanka migrated to Australia during the year 2008/2009.

General Skilled Migration (GSM) Program

In the recent past however, Australia has had to re-think the migration policy in consideration of many factors including changes to the Australian (and global) economy, standards, and Australia's long to short-term labour requirements.

Those Sri Lankans who are, and have been interested in obtaining visas to Australia under such categories as migration, study and visit will probably have heard or learnt that over a period of about twenty four months, there have been many radical changes to the Australian immigration policy, making it more and more difficult to meet the criteria to submit a valid application.

The government had created what is known as the Critical Skills List (CSL), and a Priority Processing Scheme in May 2009, due to various reasons, a backlog had slowly built up in the last two to three years. As far as General Skilled Migration (GSM) is concerned, through these changes the government expects to direct required skills to required places in Australia, in required quantities.

And then, on February 08, 2010, the Immigration and Citizenship Minister announced that all GSM off-shore visa applications lodged before 1st September 2007 would be 'capped' and 'returned', 'as having been never lodged!'

Fate of pre-September 2007 applicants

Under Section 39 of the Migration Act 1958, the Minister for Immigration and Citizenship has power to set a maximum number of visas (generally known as "capping") for any particular class of visas.

This policy change has led to extensive controversy

There has been displeasure at this decision from many migration-related quarters, but a discussion on the ethics and justness of this decision is beyond the scope of this article.

An adequate number of plausible reasons on which this decision had been based has not been offered by the Minister, but it is stated that those applicants enjoyed, among other facilities, benefits such as a lower standard of English than applications that were lodged afterwards, and the fact that a record number of applications were lodged just before September 01, 2007 in order to escape new rules and regulations.

Most of these applicants had started their application process more than 3-4 years from now.

It is a fact that many of them had spent a lot of money and made a lot of sacrifices in favour of the Australian migration programme, Though DIAC says that it will refund their visa application fee (if the application is returned), the Minister has not taken in to consideration, the money spent on other activities that are relevant and necessary within the visa process.

However, the latest development is that the State Director of South Australia, answering on behalf of the Immigration and Citizenship Minister, has confirmed in writing that pre-September 2007 Subclass 496 (sponsored) category will not be affected by this decision.

It is good news indeed for a section of the affected applicants. But, some applications under the 'Independent' category with the same nominated occupation, with same level of experience from the same work place, and with same English proficiency would be returned.

If the criterion for 'capping' and 'ceasing' is based on the level of English, then the question arises - where is fairness in the Minister's statement of February 08, 2010 for the applications that are destined to be returned, when visas for some of those applications with the same level of English have already been granted, and the processing of certain visa categories (such as subclass 496 with Australian blood-relative) is to be continued?

Now it appears that only about 5 percent of the applications are going to be affected by this decision. But the question is, considering the bad publicity, disrepute, and the sense of loss of faith on the government, is it worth capping a mere 5 percent of the applications? In any case, even if these are processed, not all are going to be successful. The government has already spent a hefty sum on processing these applications up to now.

What about the time and cost incurred in taking these decisions, preparations for implementation, documentation, financial commitments towards refund of visa fees? Taken as a whole, is the decision to cap 5 percent of the applications a worthwhile or productive exercise? The general consensus is that it certainly is not a fair exercise.

Election Year and Speculations

This is the election year for the Federal Government and certain state governments.

Though the Minister had announced that consequent to the February 08, announcement 20,000 pre - September 2007 applications would be retuned, at a recent seminar held by Senior DIAC officers in Melbourne on June 02, this year, said that the actual number of affected applications has dropped to 7,500 from its original estimation of 20,000.

Many of the attendees questioned why and how the original number had dropped, and why there is a "flexible" policy for only a Subclass sponsored by Australians (Australian-sponsored) with voting rights.

There is speculation that this number has dropped in a bid to woo the Australian sponsors of these applications in the upcoming election period.

Some are concerned, and some wonder why the Australian skilled migration program should be based on the number of votes rather than required skills and English language proficiency of the applicants.

Many applicants and their agents vowed that they would bring this matter to the attention of the Australian Judiciary and the Commonwealth Ombudsman if they received any unfair decisions by the Minister in the coming weeks.

This is very likely to happen in the near future. At the time of writing, a new Prime Minister, Julia Gillard has taken over the government, and it is expected that she would allow a better deal for the legal migrants.

Student visa program

The strictness imposed upon student visas (including increasing the cost of living requirement to AU$18,000 per year from beginning of this year, and some policies specific for Sri Lankan students such as non-acceptance of funds received from the land sales* and stricter vetting procedures due to provision of 'non-genuine' financial and other documents) has reduced the number of student visa grants from 2378 in 2008/2009 to 1249 in 2009/2010 (a percentage drop of 47.5!).

There is a specific assessment level developed by the DIAC for each country's student applicants depending on past records of non-compliance of visa regulations by students in Australia.

Based on records, Sri Lanka has unfortunately been currently assessed as Assessment Level 4 (the lowest level of assessment any country can be assigned to).

Even today, there is a substantial number of students who breach student visa conditions while in Australia due to lack of funds, lack of part-time job opportunities (to augment funds for studies and living), lack of proper advise from the industry people, and non-respect to visa regulations.

This has in turn resulted in de-classifying Sri Lanka to Assessment Level 4, and has adversely affected even the genuine students who want to have a good and effective education in Australia.

* The writer has a different opinion on 'non-acceptance of funds derived from genuine land sales towards funding a student's education in Australia' as many Sri Lankan parents (and sometimes even affectionate uncles and aunts) who own land through inheritance would genuinely be happy to dispose of the land for a better education of their children.

The writer has already made a request to the Student Policy Section of DIAC, Canberra, and the responsible authorities in the Australian High Commission in Colombo for flexibility in accepting with certain accepted conditions, funds received from land sales.

Doing business in Australia

There are a number of business migration pathways for Sri Lankan entrepreneurs and large Sri Lankan corporations to start and open, buy, or open branches or expand business in Australia, and the number of Sri Lankan applicants has gone up due to the penchant of Sri Lankan for exploring new opportunities in overseas markets.

Many business advocacy services are available in Australia for new business migrants and expansion of corporate entities.

Facilities are also available for business migrants for purchasing property (with special approval).

Even the children of the business community currently studying in Australia can buy property with special approval under certain conditions.

There are many successful recent Sri Lankan business migrants in Australia doing extremely well in their chosen industry or trade.

Though DIAC has tightened a few rules for business migration visa applicants, many Sri Lankan entrepreneurs are still capable of meeting the DIAC regulations easily, such as a turnover of Rs 30 million per annum and Rs 50 million worth of assets.

Visit visas, partner visas, and other visas

The main concern of the DIAC in the case of a visit visa is the likelihood of the visitor remaining in Australia after the visa grant period, in violation of the visa conditions.

In the case of a partner visa, the main concern of the DIAC is the authenticity of the relationship. In both cases, the immigration authorities need to be convinced that the application is genuine as to the intent and purpose.

Many applicants fail to secure a visa due to ignorance of the scope of documents to be submitted to satisfy the visa officer. With correct advice from a qualified agent, the chances of success would be high.

There are several other visa categories such as student dependent, parent visas, distinguished talent visas, Employer Nomination Scheme (ENS), temporary work permit (457) with varying requirements.

Applicants are advised to consult a MARA-registered migration agent with a wide field of knowledge who has experience in handling all kinds of visa applications as well as appeals.

Upcoming changes

As at present, DIAC has suspended accepting all GSM applications until July 01, 2010. However, the Australian Federal Budget recently announced that a total of 168,700 visas have been budgeted for the next financial year 2010/2011 commencing on July 01, 2010, out of which 113,850 is allocated for skilled visas with more than 5,750 places for GSM visas (as a comparison, for 2009/2010, the total was around 108,000).

Apart from the GSM visas, 54,550 places have been allocated to family category, and 300 places for distinguished talent (sports persons, scientists etc.).

Further, DIAC expects to receive over 70,000 visa applications under category 457 (temporary work permits) and partner visas (usually not capped).

In addition, generally, the number of student visas is over 300,000 per financial year. Therefore, the overall figure of immigration visa places is very high. DAIC expects that the new policy will reduce the total number of 'Independent' applications (to around 5 percent), and increase the State/Territory sponsored category.

DIAC has announced a new 'Skilled Occupations List (SOL)' of 181 occupations, and it expects the new SOL to end up with 183 or 184 occupations.

However, DIAC expects a much broader and specific occupations lists from each state/territory under the recently announced new 'State Migration Plan' (none of which is finalized at the time of writing).

DIAC targets the medium and long-term migration intake to be fulfilled through the SOL while the short-term migration demand is expected to be filled by the state/territory migration lists and the Employer Nomination Scheme (ENS).

Apart from the popular 457 temporary visa (short term employment visa), the government has decided to empower the state governments and territories to sponsor GSM applications for occupations if there is a demand for those occupations in the state even if they are not in the SOL.

This way, the DIAC expects to cover around 20 percent of the GSM migration program through state migration lists. Further, it is expected that the total number of applications under the Australian-Sponsored category would reduce to below 5% due to increase in IELTS requirement and tightening in Skills assessment policies for trade level occupations.

DIAC also expects to change the points system for immigration, and certain other changes very soon, and providing better chances to those who have a high level of skills and experience, and with partner qualifications.

DIAC has received more than 1,000 suggestions for amending the points system, and is due to be published very soon. So finally it boils down to finding out what Australia offers: Australia need highly skilled people with better English or people having an Australian Employer who is willing to sponsor applicants from overseas.

In another words, Australian Skilled Migration Program still opens doors for many applicants who have the right skills and sufficient experience.

Obtaining sound migration advice

It is always advisable to obtain professional migration advice from a migration agent registered with the Office of Migration Agents Registration Authority (OMARA) of Australia, where you would get more consumer protection through professional and ethical processing practices.

OMARA-registered migration agents are subject to a code of conduct, and the registration is periodically renewed through success at examinations on Australian Migration Law. When obtaining advice, always go for an agent who has proven results of success, and many years of experience in a wide range of via categories.

However, clients should not expect their migration agents to predict or forecast upcoming changes to rules and regulations for the distant future, as such changes could be brought about by the DIAC/Minister for social, economic and political reasons.

There are instances of lots of applicants having suffered due to not attending quickly to requirements of providing relevant ILETS test scores, and other documents requested by DIAC on time.

Therefore it is a good idea to prepare for an IELTS test in advance if you have enough qualifications, skills, and experience to apply for a particular visa category (especially GSM).

Whether it be GSM, student visa, visit visa, or any other type of visa, one thing is almost certain. Those who have a genuine desire to migrate to, study in, or visit Australia, and who possess the requirements in adequacy, should commence their migration or visa application without delay.

Rules are complex. Rules are changing. Processing pitfalls are in abundance. So, make hay while Australian rules shine for you.

(The writer having migration industry experience for many years, enjoys the distinction of being the first migration agent registered for Sri Lanka in the registry of the Migration Agents Registration Authority (MARA) of Australia, and heads Australian Migration Services and Australian Education Centre, Colombo 7.)