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Friday, 17 November 2017 16:49

The Australian visa system: Time for change?

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The Australian visa system: Time for change?

This blog post discusses the legal basis for applying for an Australian visa and also looks at problems in the administration of the visa program.

Applying for a visa

To apply for an Australian visa is to engage in a formal legal process under the Migration Act 1958.

The Australian Parliament makes the legislation set out in the Act and Migration Regulations 1994, and these rules determine who can enter Australia and the conditions upon which they can enter. The role of the Department of Immigration is to judge which applications fall within the legislative requirements and grant those visas and refuse applications that fall outside the rules.

The visa application is nothing more than the evidence that you meet the legal requirements for the grant of a visa. If you meet the legal requirements and prepare a good application you can be confident you will receive the visa.

This is the theory, the reality is more complex.

Decision making by the Department of Immigration

Every day the Department of Immigration makes thousands of decisions. Most of those decisions are sound, that is, the Case Officer has applied the law correctly to the facts set out in the application. However, not all decisions are correct.

Immigration law is notoriously complex and is forever changing in line with the needs of the nation as interpreted by the Government. The complexity makes it a challenge for the Department to train staff in the art of making legally valid decisions. It also makes it difficult for applicants to understand what needs to be included in a good visa application.

As lawyers working full time in the area of migration we see on a daily basis how patterns of poor decision making and poor administration of the visa program by the Australian Government can affect the chances of making a successful visa application.

In certain cases if you receive a poor decision from the Department you can request the Administrative Review Tribunal to review the decision. However, not all decisions made by the Department are reviewable.

If you are in Australia when you apply or are sponsored by a family member or an Australian employer you can apply for a review of a poor decision. However, in general, if you are outside Australia when you apply or you do not have a sponsor, you cannot request a review no matter how wrong or unfair a decision may be.

Refusal statistics

The extent of poor decision making is revealed in case statistics published by the Administrative Review Tribunal

Of the cases taken to the Administrative Review Tribunal between 1 July 2016 and 31 May 2017, 38% of decisions made by the Department were overturned by the Tribunal because they were not correctly decided.

The statistics are higher for certain visa types

For example, 56% of Visitor visa refusals (Subclass 600) and 54% of Partner visa refusals were overturned by the Tribunal in the same period for being wrongly decided. These statistics are disturbing.

The Federal Court also reviews decisions made by the AAT. While the percentage of AAT decisions overturned by the Federal Court is lower, the Court makes key decisions that influence how the Department decides future visa applications.

No review rights for off-shore decisions

The statistics from the AAT do not tell the full story of visa decision making because decisions made in respect of off-shore applications, being applications made outside Australia, do not generally attract review rights.

This includes Visitor visa, Student visa, and permanent Skilled visa applications.

If you or a family member receives a poor decision in relation to one of these applications you have no right to request a review of the decision. The public also has no way of knowing how many off-shore decisions are made that are incorrect at law.

In some cases the only solution is to make a second application attempting to fix whatever it was the Case Officer found to be wrong with the first application. At this point many people visit their local Member of Parliament to request his or her support with the new application.

In other cases you can seek to have a decision overturned administratively.

In these cases, you better make sure you have a good lawyer on your side

Requests for support with migration matters to Members of Parliament constitute one of the largest areas of support politicians are asked to give to constituents. Requesting support from your MP will not guarantee the visa will be granted but it may ensure the application is looked at properly.

Constant changing of visa rules

The Australian Government regularly makes changes to migration law and policy. Changes to migration legislation happen at a frenetic pace and represent one of the difficulties of working in the area.

While the Government has the right to make the changes to the migration program it sees fit, VisAustralia is concerned with the way it introduces these changes. In particular, many of the changes announced in April and July 2017 affected the rights of people retrospectively.

Changes made to the Skilled visa occupations and state nomination lists meant that people who may have spent 6 months and thousands of dollars in preparing accreditation and nomination applications were no longer able to apply for a visa at that time. It also meant that some international students who had spent years studying in Australia and tens of thousands of dollars on tuition fees could no longer apply for a Skilled visa at the end of the course.

The Australian Government knows there is a pipeline of people in the system who will be affected whenever it changes the law and policy. It is imperative it makes these changes in a way that does not impact unfairly on people already in the system.

Call for the program to be administered in an orderly fashion

VisAustralia is becoming increasingly despairing with the way the program is being administered.

Our view is that decision makers at every level are given too much discretion; policy changes canbe haphazard, retrospective and unfair; policy requirements may be unclear and vague and not fully published; decisions can be inconsistent across time; decisions may not reflect articulated policy; irrelevant considerations may be taken into account and relevant considerations ignored; decision makers do not necessarily give sufficient reasons for decisions; internal review processes are not transparent if they exist; and there is no external review process in all cases.

We all expect the visa and citizenship rules to be clearly defined, we expect the discretion of departmental Case Officers to be limited and well defined, we expect that in case of poor decisions a person can seek the review of an independent umpire, and we expect the Government to manage changes to the program in a way that is not chaotic and unfair to people in the system. These factors are critical to the administration of any legal system.

As lawyers and consumers of Australian visa products, the community has a legitimate expectation that the migration program will be run in an orderly fashion. The migration program is too important to Australia and to the lives of people applying for a visa or citizenship for the system to be administered this way.

VisAustralia calls on the Australian Government to review the process of applying for an Australian visa to ensure the program is managed with integrity and with sufficient respect for visa applicants to allow applicants and professionals working in the field to maintain confidence in the system.

Read 5522 times Last modified on Monday, 20 November 2017 19:07