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New pathway to permanent migration encourages gaming of visa system

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Amendments made to Australia's visa system will give temporary entrants an opportunity to exploit it in what seems like a big mistake on the part of the Government, writes Dr Abul Rizvi.

IMMIGRATION MINISTER Alex Hawke has enabled temporary entrants in Australia who have had an onshore visa application refused or cancelled but have still not departed Australia, and are on a standard bridging visa, to apply for a range of skill stream visas.

It is one of the most astonishing regulation changes I can recall in over 30 years.

Is it a genuine attempt at reform or one that will encourage and enable gaming of the visa system?

The Minister himself appears unsure as he has made this change very quietly with no media release or any other form of announcement beyond the regulation change and explanatory memorandum — unusual for any minister in the marketing-oriented Morrison Government.

So exactly what has the Minister done?

Section 48 of the Migration Act severely limits the options of temporary visa holders if they have an application for a further visa refused or their current visa is cancelled while in Australia.

In effect, it prevents temporary entrants from applying for another visa of most types while still in Australia — a key exception being a protection visa unless the applicant has already had an application for a protection visa refused.

This is known as a “section 48 bar” which has been in operation for many decades to discourage people from gaming the visa system by continuing to apply for onshore visas as a way to extend stay.

People subject to a s48 bar are generally required to leave Australia before they can apply for another visa and thus would have been negatively affected by the COVID-19 travel restrictions. But with those restrictions coming to an end, this change now makes very little sense.

The Minister has amended s48 to allow people who have had their visa refused to be able to apply for three types of visas:

  • subclass 190 — state/territory nominated permanent residence;
  • subclass 491 — state/territory nominated provisional residence; and
  • subclass 494 — regional employer sponsored.

It should be noted that it is not possible to formally apply for a subclass 190 or subclass 491 visa without being nominated by a state/territory government and being invited to apply by the Department of Home Affairs (DHA). To be eligible to apply for a subclass 494 visa, the applicant must be sponsored by an approved employer in regional Australia.

Moreover, onshore applicants for these visas must either hold a substantive visa or a bridging visa A, B or C but not a bridging visa E (a visa granted to people making arrangements to depart).

Migration Solutions Australia, a highly reputable migration advice agency based in South Australia, has been strongly promoting this change to enable state/territory governments to be able to nominate from a wider range of potential skilled migrants without those people having to depart Australia but within the quota they have been allocated by DHA.

It is likely state/territory governments may only sparingly nominate people using this pathway. There will, however, be significant unintended consequences and is why the change has to be considered from a wider perspective and in terms of the current visa environment.

Firstly, there is a very large number of students (around 318,000 at end September 2021) and temporary graduates (around 95,000) in Australia who have maintained their lawful status at substantial personal expense. To do so, an increasing portion of temporary graduates have gone back to student visas in order to stay in Australia on a lawful basis whilst seeking a pathway to permanent residence (See Chart 1).

(Source: DHA Students and TGs Reports)

It is also why the number of onshore student visa grants have fallen only marginally since the start of the pandemic with an increasing portion applying for cheaper Vocational Education and Training visas (see Chart 2).

(Source: data.gov, students)

Secondly, there were over 330,000 people in Australia on bridging visas at end September 2021. Most are awaiting a decision on a substantive visa application. Those who are refused a substantive visa but appeal that decision will now be able to also apply for one of the three visa types mentioned above rather than being s48 barred.

Thirdly, as a result of a massive labour trafficking scam, Australia now has over 92,000 asylum seekers living in the community. Over 28,000 of them are living and working on an unlawful basis while another 34,000 are at the Administrative Appeals Tribunal (AAT) and most likely on a standard bridging visa (see Chart 3). The asylum seekers at the AAT will now also be allowed to apply for one of the three skilled visas mentioned above.

(Source: DHA Monthly Asylum Reports)

Finally, DHA has steadily wound back on its efforts to locate people working without work rights even though we have never had more unsuccessful asylum seekers in the country (see Chart 4).

(Source: DHA Annual Report)

DHA has also steadily reduced efforts to warn employers who are employing people without work rights (see Chart 5).

(Source: DHA Annual Report)

The overall message from the Minister is that the Government is not too fussed about temporary entrants in Australia gaming the system or if they are working unlawfully towards the objective of becoming permanent residents — no matter how long that takes or the extent to which temporary entrants are subject to exploitation and abuse.

But the critical question is how students, temporary graduates, asylum seekers and migration lawyers and advisers will interpret and respond to this message and the winding back of the s48 bar?

It is highly likely students and temporary entrants in Australia will question why they should keep paying massive tuition and visa application fees rather than just remain in Australia on a standard bridging visa by applying for cheaper visas.

For these people, the large backlogs at the AAT would be very attractive.

Unscrupulous migration lawyers and agents may advise students and temporary graduates who have completed an initial qualification to use the asylum system to extend their stay in Australia with work rights for two to three years rather than keep applying for student or other temporary entry visas.

This would be in the hope of acquiring enough work experience and English language skills to qualify for a skilled visa.

Moreover, once international borders reopen, the organisers of the biggest labour trafficking scam in our history would have an added way of promoting their product — encouraging a wider range of people to use the asylum system as a pathway to permanent residence even if the asylum application has no chance of success.

The overall impact will be more unmeritorious visa applications and appeals to the AAT at a time Australia’s visa system, including at the AAT, is in gridlock. Something that will get worse once international borders reopen.

It is evident the change to s48, along with the current state of the visa system, is a horrible mistake unless it was to be implemented as part of a comprehensive reform.

But there is no evidence of any such reform.

The original rationale for the change – the COVID-19 international travel restrictions – are now coming down.

Yet the Government is proceeding with the change.

Dr Abul Rizvi is an Independent Australia columnist and a former Deputy Secretary of the Department of Immigration. You can follow Abul on Twitter @RizviAbul.

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