Immigration Lawyers and Migration Agents

Your Australian Visa Our Focus

Key terms: Visa cancellation – Migration Act 1958, s501 – Migration Act 1958, s116 – character issues – criminal charges – Commonwealth Ombudsman

The Commonwealth Ombudsman is the organisation responsible for handling complaints about Commonwealth Government departments and agencies. The Department of Immigration and Border Protection (DIBP) is one of the Government departments monitored by the Ombudsman.

In December 2016 the Ombudsman published two reports involving the DIBP, namely:

1. Administration of section 501 (hereafter the “section 501 report”)
2. The administration of people in immigration detention who have had their Bridging visa cancelled due to criminal charges or convictions (hereafter the “bridging visa cancellation report”)

Both reports identified shortcomings and issues with the DIBP process of cancelling long term Australian visas and bridging visas.

The section 501 Report

In the section 501 report it was noted that a similar investigation was carried out in 2006, which was critical of the then Department of Immigration and Multicultural Affairs (DIMA) for not “always provide(sic) the minister with all relevant information, especially mitigating information, about long term Australian residents when considering the cancellation of their visa”.

The name for Australia’s immigration department changes every few years and the most recent change was from the “Department of Immigration and Citizenship” (DIAC) to the current “Department of Immigration and Border Protection” (DIBP).

The inclusion of “Border Protection” in the current name gives an impression of “control” and “erecting barriers to entry” to “protect Australian borders”. The impression was also felt by employees at DIBP as a recent internal survey indicated the following:

• there is a "command and control" culture in the Department
• the Department has a "military-style regime"
• there is a “preoccupation with secrecy” and a lack of transparency from the top management
• “a shift to enforcement and a move away from a people and humanitarian focus”

While there were some positives raised in the survey as well with reference to the professionalism, dedication and commitment among staff, the Department is now being perceived as a tough enforcement agency both internally and externally.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

How does this affect ongoing visa applications?

It has been observed that in the pool of applications recently submitted to the Department, the assessing case officer has been diligently combing through the documents submitted. Any lack of information or clarity results in a request from the case officer to provide further evidence to support the claims made in the application.

High risk applications could include the following:

• Employer sponsored visa applications where the applicant does not have the qualifications required and is solely relying on references
• Partner visas where there is insufficient evidence to show a genuine relationship. Just submitting a marriage certificate and some supporting statements are insufficient to meet the Genuine Relationship requirements

While this is excellent in capturing and refusing fraudulent visa applications, there are a few issues that arise from this tough stance:

• overall visa processing times will become slower as Department assessment officers spend more time checking documents in detail, and more time on a given case if more information is requested
• some legitimate applications are being asked to provide more information or disprove certain claims when unnecessary. E.g.: an Italian restaurant was asked to prove that they were not a fast food restaurant, even when a Restaurant License was provided in the application

Echoed by some employees of the Department in the internal survey, it is worth noting that the Department is shifting from a people and humanitarian focus to one of enforcement and control. The old Department tagline, “People Our Business” seems to be no longer the focus of the Department in helping eligible visa applicants obtain Australian visas to visit, live or work in Australia.

If you are submitting a visa application to the Department, you should ensure that you have sufficient evidence to demonstrate your claims in meeting the visa application requirements. You will also need to provide quality scans or certified copies of your documents to the Department, to avoid any potential delays or doubts from the assessment officer. Do not attempt to fabricate documents or provide misleading information as you can be served with a Public Interest Criterion (PIC) 4020 violation which will become a big issue in your future visa applications.

While you might have made a genuine error on your application that does not mean you can avoid having the PIC 4020 violation recorded in your Australian visa/immigration history. As such it is extremely important that you do not provide any conflicting or misleading information in your application.

This information is accurate on 6 June 2016

Source:

1. http://www.theage.com.au/national/public-service/command-and-control-immigration-staff-slam-militaristic-culture-20160511-goskdm.html

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

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