Inside Story

A blockage in the skilled migration pipeline

A dramatic rule change has left many would-be migrants in limbo. Peter Mares reports on the indefinite delays facing tens of thousands of applicants for permanent residency

Peter Mares 3 November 2009 4323 words

ZULEIKA ARASHIRO is an intelligent young woman with a bright future – but it probably won’t be a future lived in Australia. Having applied for permanent residency at the beginning of this year, a process she was told would take up to nine months, she now finds herself in a bureaucratic limbo. The immigration department can’t tell her exactly when her case will be decided, but it’s clear that she’s in a queue that’s more than two years long and still growing. Under current arrangements, Dr Arashiro could wait indefinitely in Melbourne, where she has completed a PhD at La Trobe University, and yet see her goal of permanent residence in Australia recede ever further into the distance as more recent applicants are given priority processing and, in effect, allowed to jump the queue.

Dr Arashiro’s case is not an isolated one: tens of thousands of other would-be migrants living in Australia and overseas are in similar circumstances. Having lodged valid applications for permanent residence and shelled out thousands of dollars in application fees and associated costs, they now find that their lives are on hold. The issue is not one of qualifications: Australia hasn’t altered its criteria for selecting skilled migrants. What has been adjusted is the order in which applications are considered.

The changes flow from an announcement made late last year by immigration minister Senator Chris Evans, which he presented as a re-positioning of Australia’s migration program in response to the global economic crisis. Taking effect from the start of 2009, the most important change was the introduction of a “critical skills list,” on which the Department of Immigration and Citizenship identified a range of professions and qualifications in very high demand in the Australian economy. Since the start of this year, the department is giving priority to processing visa applications from migrants with these critical skills, especially if they are sponsored by an employer or by a state or territory government.

Three months later, Senator Evans trimmed the new list, removing building and manufacturing trades (such as bricklayers, plumbers, welders, carpenters and metal fitters) so that it is now mainly made up of health and medical, engineering and IT professions. Simultaneously, he reduced the number of migration places on offer, cutting Australia’s permanent skilled intake for 2008–09 by 14 per cent, from 133,500 to 115,000 places (with a further reduction to 108,100 places this financial year). In September the minister announced yet more changes to the priority processing of visa applications, which make it clear that independent applicants for general skilled migration – those who have no employer sponsorship and are not on the critical skills list – will remain at the bottom of the queue. This has led to a raging debate on migration chat sites, where confused and disillusioned applicants voice their dismay and uncertainty.

“Everybody on the critical skills list gets processed before anybody else,” says registered migration agent Mark Webster, a board member of the peak industry body, the Migration Institute of Australia. “So you could have your application in – and it might have been in there for twelve or eighteen months – but you won’t be allocated [a visa] until everybody on the critical skills list has been processed and granted.” Mr Webster says he likes to tell clients clearly what to expect from their visa application. But, he says, “At the moment I feel very uncomfortable, because I just can’t tell people what to expect in terms of processing times.”

The critical skills list trumps a pre-existing and much longer list – the “migration occupations in demand list,” or MODL, which is put together by the Department of Education, Employment and Workplace Relations. MODL identifies “occupations” that are “in national demand” in Australia and have “sustained employment prospects.” If a migrant has an occupation on the MODL then they are assured of “occupation in demand/job offer” points under the general skilled migration points test. MODL is still in operation; in essence, if you have at least twelve months’ work experience in an occupation listed on the MODL, and you meet other basic criteria relating to age (you are less than forty-five years old) and language skills (English language fluency), then you should be able to pass the 120-point threshold for a general skilled migration visa.

In other words, you can submit a valid application for permanent residency in Australia that has a high chance of success – if your application is ever considered, that is. The question facing Zuleika Arashiro and others in her situation is how long they should wait for the bureaucratic cogs to turn under the new processing priorities.

A LAWYER and political scientist, Zuleika Arashiro has expertise in international trade negotiations. She is fluent in English, Portuguese and Spanish and has a law degree from the University of Sao Paulo and two masters degrees: one in Latin American studies from Georgetown University in Washington DC, the other in public administration and government from Brazil’s Getúlio Vargas Foundation (rated by Foreign Policy magazine as one of the top five “policymaker think-tanks” worldwide).

She didn’t come to Australia with the aim of becoming a resident, but her experience of study here was positive. So in February this year, having successfully completed her PhD, she decided to apply to stay permanently. “I've also received Australian scholarships – one from La Trobe and one from the Australian government,” she says, “so I am thankful for that and even considered that teaching here for two or three years was a means to give something back.” She is not motivated by money: “In fact, if I decide to prepare for a public career in the federal government in Brazil, I can actually make more money than I would do teaching here,” she says. “There are people who do appreciate certain things in this country beyond ‘the economy,’ who connect to the power of its landscape and aspire for more than a wage by the end of the month.”

Dr Arashiro has spent about $4000 so far on her application. The bulk of the money went to pay the upfront lodgement fee to the immigration department (currently $2525); the rest covered the cost of medical and language tests and acquiring police clearances and other necessary documents. Most applicants also spend at least $2000 more to engage a migration agent to assist them with their application.

When she lodged her application Dr Arashiro was told by the department that a decision would be made in “six to nine months.” Based on the experiences of friends, Dr Arashiro anticipated that the process might take up to a year. It was only by chance – when she was checking for other information on the department’s website in late September – that she discovered that processing priorities had changed and her application was unlikely to be considered until the end of 2011 at the earliest. This left her with two choices. She could opt to wait out the department. While her migration application is pending she can stay in Australia indefinitely on a Bridging Visa A, which grants her work rights. But the chances of landing a satisfying job in her chosen profession are limited under these conditions. “I’ve been lucky to get casual research but I’ve basically being doing casual research for the whole year, like three weeks, a month, two months, and that’s it,” she says. “It’s hard, especially because in my field some positions would be government related positions and they require at least permanent residency, so without that it’s very hard. I can’t even apply.”

If Dr Arashiro decides on the other option, withdrawing her application, then her investment of time and money will have been wasted. Visa application fees and other costs are not refundable. Nor can she return home to Brazil to await the department’s decision: if she leaves Australia then she will be deemed to have abandoned her application and it will most likely be refused. (It is possible to leave Australia for short term travel, but only after securing another visa called a Bridging Visa B, for which applicants must demonstrate that they have “substantial reasons for wishing to leave and re-enter Australia.”)

According to the department’s report on migration program outcomes for the last financial year, 133,601 “clients” remained “in the pipeline” of the skilled migration program on 30 June 2009. The department told me it was unable to break this figure down to indicate the proportion of applications that qualify for top priority processing categories under the minister’s new rules (in other words, applicants with professions on the critical skills list or with sponsorship by an employer). The department did provide me with information on the average processing times for visas issued in the six months to 30 June 2009, but only for the top five priority processing categories (times varied between eighty-eight and 399 days). It could provide no data on processing times for visa applications that fall outside these priority groups, and it may be that this is because no such applications were decided during that period.

But in a document on its website explaining the impact of the changes announced by the minister on 23 September the government advises that if the nominated occupation is not on the critical skills list then an application submitted onshore is “unlikely” to be finalised “before the end of 2011” and an application submitted offshore is “unlikely” to be finalised “before the end of 2012.” Even applications that were in “the final stages of processing” prior to the changes “cannot be processed further until those in higher priority groups are finalised.” In other words all non-priority applications are on indefinite hold.

The current backlog of migration applications is roughly half “offshore” and half “onshore” (the latter mostly being international students like Dr Arashiro who have graduated from Australian universities and colleges). Either way, the distress caused by the new processing priorities can be acute. Not surprisingly, the most upset applicants are those who had visa applications in the final stages of processing just as the rule changes took affect.

WHEN I BEGAN researching this issue for ABC Radio National’s The National Interest, word quickly spread. Within days we had received detailed accounts from applicants whose credentials would have guaranteed them more or less certain success under the old rules, but who were now languishing in a seeming limbo.

One of them was Rob, a British plumber, who has been in the process of applying to migrate to Australia for two years and has invested thousands of dollars in migration advice and fees. He has been through the cumbersome and expensive process of having his trade skills verified by Australian authorities (both a paper and a practical assessment), he secured sponsorship from a state government for his application (required after the changes announced in December 2008) and he has received “positive feedback from potential employers in Australia.” Earlier this year, at the request of the immigration department, the family obtained the necessary medical and police checks (total cost of $1600). Then, with every indication that their application was on track and that visas would be issued by the end of the year, Rob sold the family’s home in Britain out of concern that property prices would fall further if they waited.

Things still seemed to be moving smoothly on 22 September, when Rob was told by staff at the department’s Adelaide visa processing centre that a “case officer would review/finalise” his application “within two weeks.” But the very next day Minister Evans announced the latest changes to processing priorities and released a list showing the revised order in which the department would process different categories of application. There are seven categories on the list and Rob’s application had fallen to number five (“Applications from people who are nominated by a state/territory government whose nominated occupation is not listed on the Critical Skills List”). Rob is distraught: “As a direct result of these changes all applicants in our position have now been left in limbo, facing further financial burdens and stress,” he writes.

Another person who contacted The National Interest is Valerie, a Swiss economist who has also spent two years on an application to come to Australia with her husband and three children (aged eight, five and three). Both she and her husband originally applied as economists, and by December 2008 they were “getting to the front of the queue,” she writes. But the first round of priority processing changes sent them “back to square one.” Valerie and her husband revised their application and obtained state sponsorship from the Victorian government to migrate as statisticians. (The department treated this as a new application so the family had to pay a second application fee of $2525.) “On the eleventh of September we got a case officer asking for work references, new police checks and a new passport for our youngest because it had expired,” writes Valerie, who understood that once a case officer was assigned to a file it would only be “a matter of weeks” before a visa would be issued. “So we put the house for sale (had buyers in two weeks), sold the kids’ toys, the furniture was booked by neighbours, we had an agent appointed to look at houses for us in Melbourne... the school in Switzerland knew the kids were leaving, the youngest is on waiting list for five kindergartens in Melbourne.”

Valerie and her husband both have masters degrees and PhDs from Sydney University and each scored 145 points on the migration test, well above the 100 points needed for state sponsored migration. But like Rob and his family, their application was suddenly moved down the processing queue as a result of the changes announced by the minister. “We were committed. Now we feel cheated. Our kids are disoriented, they don't understand what is happening, they were supposed to leave...” And now the department was telling them it might take another two to three years.

Tracey is in a similar position. Her eldest child was fourteen when she took the initial steps to migrate to Australia from Lancashire. “This new timeline has devastated us,” she writes. “We were never informed of the changes by our case officer, until I emailed him to find out if they were going to process my visa, considering they had requested the medicals and police checks be done. The reply I received was an automated response, outlining the new priority changes.” Valerie says that by the time a visa is issued her daughter will be more than eighteen years old, which means she will no longer qualify as a dependant and “will not be able to migrate with us unless she is in full time education. If we had been given these timelines when we were first investigating the possibility of emigration to Australia, we would have never pursued it, as we would never leave a child behind.”

If offshore applicants like Rob, Valerie and Tracey wish to remain in the pipeline in the hope that current blockages will eventually be overcome, then they must continue throwing more money at the dream of moving to Australia, since police and medical clearances must be renewed every twelve months. (The average cost of the necessary medical tests is around $300 per person or $1200 for a family of four.)

In theory, the prospect of such a long wait and spiralling costs should deter new applicants from seeking a visa and help reduce the backlog of applications. But in October a senior official told a major migration conference in Melbourne that the department expects to receive 120,000 new applications for permanent skilled migration this financial year. Given that there are only 108,100 places in the skilled program, the wait for applicants not on the priority list is going to lengthen as the blockage continues to swell.

Despite the fact that their applications will sit in a lengthening queue, migrants will continue to apply for permanent visas for two main reasons. First, as Mark Webster points out, this never-ending waiting list can itself create perverse incentives. It can encourage foreign student graduates with relatively poor chances of achieving permanent migration to apply anyway, simply in order to remain longer in Australia and make use of temporary work rights. They will be able to work legally in Australia as long as their application for permanent status is stuck in the system – on current indications for at least two years. “We’ll see a lot of applicants who might be tempted to do that because that’s a good outcome,” says Mr Webster. “They can work, and they’ll be earning better money than they would back home, sending it back to the family.” If they are rejected, they may be able to extend their stay in Australia (and their work rights) further by lodging an appeal with the already overburdened Migration Review Tribunal.

Second, unscrupulous operators (such as offshore education recruiters) might continue to encourage applications and drum up business with false promises. Zuleika Arashiro has evidence that this is happening. She says that agents in South America “are still sending emails to promote immigration to Australia and that’s really a concern because I’m not sure that people are being told about the current situation.” Mark Webster says agents can make big promises without having to worry too much about the consequences in the short term. “You may see some unscrupulous operators making promises that can’t be kept and saying, ‘I’ll get you work visas, I’ll get you permanent residence.’” They can lodge the application “knowing that it’s not going to succeed and they won’t have the fallout from that situation for another two or three years.”

The longer the blockage in the processing pipeline remains, the more the problem will spill over into other areas, particularly the workplace. One way of moving your visa application up the migration queue, of qualifying for priority processing, is to get sponsorship from an employer. But, as has been evident from the problems with the visa 457 temporary skilled worker program, this can put workers in a vulnerable position with bosses who make unreasonable demands. “I think the government knows and everyone knows that this is happening,” says Dr Arashiro. “There has been a lot of exploitation of students and people who are working underpaid and over hours just to get the sponsorship. That’s a reality. I don’t think it is a secret at all.”

IT IS ENTIRELY within the powers of the minister to deal with visa applications in any order or priority he considers appropriate. And the minister would not be doing his job if he did not adjust the annual quota for skilled migration or revise the list of sought-after skills and qualifications in line with Australia’s changing social and economic circumstances. As a political scientist Dr Arashiro acknowledges that the minister has a responsibility to adjust the migration program in line with Australia's national interests; what she objects to is the retrospective nature of the changes, “which hits those who trusted Australian institutions and rules.”

Mark Webster warns that attempting to micro-manage the migration program can have unintended consequences. “The more that you try to cherry pick the migration program, the more distorted it becomes. A lot of the problems we’ve arrived at have been because of cherry picking,” he says.

A glaring example is the use of migration in the marketing of Australian education overseas. In 2001 the Coalition government introduced changes that enabled international students to apply for migration onshore within six months of completing their course. Previously they’d had to return home before lodging an application. The changes had two purposes. On the one hand, they were designed to help fill the skills gaps that had opened up in the Australian labour force during the boom years; on the other, they would help give Australian universities a competitive advantage over their rivals in the international education market. It looked like a win-win policy.

But we now know that the decision had unintended consequences. When combined with the liberalisation of the vocational education sector, the dangled carrot of permanent residence resulted in an explosion in the number of private colleges, many of dubious quality, offering training places to overseas students. (In Victoria alone, forty-one colleges are now under review by state authorities belatedly checking whether they can actually deliver the courses they promise.) Linking education marketing with migration outcomes encouraged a rapid growth in the number of international students coming to Australia, particularly students from India undertaking vocational training.

As Mark Webster points out, because hairdressers and professional cooks were listed as being in short supply in Australia, applicants with qualifications in these trades received extra points in the skilled migration points test. “And so what you found was that all these colleges started springing up in Australia offering – you guessed it – hairdressing and commercial cookery courses, and so thousands and thousands of international students ended up doing these courses.” In just four years, between 2005 and 2008, the number of Indian students commencing study in Australia more than quadrupled from 13,000 to 60,000. The proportion of those Indian students taking vocational courses jumped from around 20 per cent to more than 50 per cent.

Mark Webster sees Chris Evans’s recent changes – the introduction of the critical skills list and revised processing priorities – less as a response to the global economic downturn than an attempt to correct distortions in the migration program, particularly the distortions created by that 2001 decision. There is no doubt that the minister did need to tackle those problems, but his actions to date have not resolved any of the underlying issues. Effectively, all he has done is put thousands of migration applications on hold, perhaps hoping the problem will go away as migrants get sick of waiting.

The result threatens to bring a new set of unintended consequences. Some international student graduates will apply for permanent residency purely in order to obtain the work rights associated with a bridging visa. Some employers will exploit student graduates reliant on employer sponsorship to lift their visa applications up the processing queue. And Australia’s reputation as a destination for tertiary study could be further damaged when students realise the anticipated outcome of permanent residency won’t necessarily materialise.

The federal government could have acted more decisively to fix the skilled migration program, and perhaps it might do so once former Liberal MP Bruce Baird delivers his review of international education in Australia. One option is to increase the threshold on the skilled migration points test to make it harder to qualify for migration to Australia. Another option is to scrap the MODL and make it clear that only applicants on the critical skills list, or those sponsored by an employer or by a state or territory government, have any chance of qualifying for skilled migration to Australia.

The government could take even more radical action and break the link between international education and migration, as recommended by Labor backbencher Kelvin Thomson in a recent speech in parliament. The education industry would scream blue murder and the resulting drop in fee-paying international students would expose the truly parlous state of higher education funding in Australia, but as Mr Thomson argues persuasively, breaking the link with migration would sound the death knell for dodgy training colleges and low-quality courses.

These changes could be made swiftly and brutally, simply by refusing all existing migration applications that do not meet the revised criteria. Or it could be done more gently, by agreeing to process applications already in the pipeline under current rules but refusing to accept any new applications that do not meet the higher threshold. Another less abrupt option would be to offer to refund the application fees of all those who wish to withdraw their applications because of the long delays or because their applications were retrospectively disqualified. These are the options that are likely to confront the minister in the months ahead as disquiet over the current mess intensifies.

As things stand, the government is still accepting new lodgements, and still cashing in millions of dollars in lodgement fees from skilled migrants who have very little chance of having their visa applications considered before 2012, at the earliest. This will only change if Australia suddenly decides to increase its permanent skilled migration intake dramatically and reduce the barriers to permanent entry. In the current uncertain economic climate such a decision is unlikely, particularly now that business and government can turn to temporary migration as a fast way of filling critical skills shortages.

Meanwhile, Zuleika Arashiro has better things to do than wait for the Australian government to sort out the mess. If she cannot find an ongoing professional job in the next two months, then she will return home to Brazil and write off the $4000 spent on her visa application as a bad investment. •