A Fair Go: Why Backwards-Looking New Immigration Laws are Unfair to Applicants

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The recent batches of confusing and complex law changes (and proposed law changes, in the case of the Citizenship changes) have generated a lot of press in the last 3 weeks, with gloomy scenarios painted for the “abolished” 457 visa program (actually people will have these for several years to come, and applications are possible until March 2018) and the major changes to the citizenship requirements. And looking deeper at the visa changes, they go way beyond the 457 program and significantly impact the employer sponsored permanent resident visas programs including thesubclass 186 (ENS), subclass 187 (RSMS) visas with additional impact on the skilled visa program (subclass 489, 189, 190). However what concerns me the most about all of this is that it was announced with no advance warning, no phase-in time, the changes were effective immediately upon announcement. That would be concerning enough, but to add to the misery, the changes were also applied to all applications previously lodged but not yet decided as of the day of the announcement. That makes it what we call “retrospective legislation” – that is, changes in the law that affect events that happened under the law at a previous time.

Retrospective legislation is bad news, as it tends to shake people’s confidence in our system of laws – if a person cannot depend on the law as enacted at the time governing what they do at that time.  It’s also considered highly unfair in many cases. In the field of criminal law, the International Covenant on Civil and Political Rights speaks to the problems with retrospective legislation directly:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.”

DIBP has attempted to deal with this by offering those who lodged 457 applications and nominations prior to the 18 April changes whose applications are now unable to be processed because their occupation or terms of their nomination no longer meet the new requirement the right to withdraw their application and receive a refund. While that’s a nice gesture, it doesn’t begin to address the true costs of what these people face – for instance, someone waiting for a 457 visa application whose application is now rendered unable to be processed who is onshore on a bridging visa will be left with the choice of withdrawal (and refund) or refusal. If they withdraw with a refund, their bridging visa will be set to expire in 28 or 35 days (depending on whether the bridging visa was granted before or after 19 November 2016), after which they will have to leave Australia, apply for another visa, or become an unlawful non-citizen in Australia.

Their choices, however, may be severely limited by the fact that they do not hold a substantive visa (a visa other than a bridging visa). Even if they apply for a 457 again under a qualifying occupation, they may be caught by the Schedule 3 criteria for the new 457 application which require jumping through an array of hoops including showing a “compelling” reason for the visa to be granted (compelling is not defined in the law!) and showing that they became the holder of a bridging visa for reasons beyond their control. Not many people apply for 457 visas in situations beyond their control. If the hapless 457 applicant has a relationship with an Australian citizen and decides to lodge a partner visa after their 457 withdrawal, the Schedule 3 criteria also applies to them – DIBP and the AAT Tribunal are overflowing with Schedule 3 partner visa cases these days, with the bar to get a waiver of Schedule 3 for partner visas being very high. And there is no Schedule 3 waiver for a new application for a 457 visa.

Furthermore, what about the thousands of dollars that employers and employees may have spent on applications that were lodged, but are now unable to be processed by DIBP because of retrospective rule changes? Needless to say, DIBP won’t be refunding those costs.

Citizenship applications are a different situation, but just as troubling. While DIBP has, unlike the 457 changes, said they will honour the law in effect for applications made prior to the change announcement (why this for citizenship and not for 457 applications??), new citizenship applications after the 20 April 2017 announcement are now essentially on “hold” and subject to a laundry list of new requirements that have not even been finalised yet. There’s a new English test – but what level of English will be required? IELTS 5? 6? 7? will IELTS even be accepted – if so, will a person’s IELTS test from 2 or 3 years ago be allowed or will it be a 1 year limit like functional english secondary visa applicants are faced with? How is anyone supposed to know if they can or will meet requirements when the important details of those requirements aren’t even finalised as of the date they are announced and effective?

If an applicant lodges a valid application, then that application should be assessed based on the laws and policy in existence at the time the application is lodged. The only exception I believe should be applied to this is if a court establishes a new precedent while an application is being processed. If the idea was to shake employers’ confidence in temporary work visas, I cannot imagine a better way to do so than to drop the hammer on untold numbers of lodged applications with no advance notice and simply “make” them now unable to be processed. How is any employer or applicant supposed to have confidence in an application they lodge if sudden, unannounced law and policy changes can render those applications useless and impossible to grant, with money spent preparing and lodging those applications down the drain leaving applicants facing a 28 day deadline to leave the country?

It’s time for the good people at DIBP to start considering the rights of all stakeholders in the migration system, especially the applicants, and end the current siege mentality attitude which seems to treat the cohort of visa applicants as some sort of an invading army that is to be kept at bay and treated harshly and without mercy. Visa applicants and their families deserve respect and a fair go, and that means not cutting off their lodged visa applications at the knees and leaving them with few choices other than to pack their bags and leave.

Mark Northam

Mark is an immigration lawyer and registered migration agent in Sydney, Australia with a specialty in family, business and employment visas including waivers (exclusion, Schedule 3, 4020), refusal/cancellations, AAT appeals and other complex migration cases.