migration_changes_2010
Published January 12, 2010
Minister for Immigration & Citizenship
Parliament house
Canberra, ACT 2600
Australia
&
Commonwealth Ombudsman
GPO Box 442
CANBERRA
ACT 2601
Dear Sir/Madam,
RE: Changes of 1/01/2010 affecting the GSM Program
We are writing to express our extreme concerns relating to the recent Legislative changes to the General Skills Migration Programme that have taken place.
This letter has been prepared on behalf of all of the Migration Agents who support this submission as well as all of our clients.
We are requesting your consideration for the following –
1. Postponement of the legislative changes until such time as they are amended to reflect the other visa classes that will be affected such as the ENS category visa;
2. Implementation of Transitional arrangements to protect current student visa holders who have completed the 2 years of study and who have already applied to TRA for assessment of their Education qualifications or who have worked in their occupation towards the one year full time on subclass 485 but their employer was not registered with TRA.
Since the changes have taken effect many of our clients have been placed in a position of extreme disadvantage. Examples of this include the following –
Scenario 1
Client X has applied for a subclass 485 visa in May 2009 which is still in process. The purpose of this application was to enable him to complete the 12 months of Australian employment experience which he started to accumulate on his student visa.
Client X has now completed all of the necessary requirements and is ready to lodge his application under the subclass 885 on 25 December 2009 and his application was being prepared for submission immediately after the Christmas vacation. However, the changes effective 1/1/2010 now prevent him from doing so. Furthermore according to the TRA guidelines he is also unable to use the 12 months of employment experience gained because the employed was not registered with TRA. The period of work client X gained from graduation was of 38 hours per week as according to all the migration requirements.
This greatly disadvantages Client X in the following way –
1. He now needs to spend a further $4500 on a new TRA assessment;
2. He will need to complete a further 12 months of employment experience as his experience gained so far cannot be counted while this experience was done under the guidelines and legislation of the DIAC in relation to skilled employment in Australia;
3. His Medicals, IELTS AFP and OPC are going to expire in this time and he will need to apply for these again further adding additional processes and expense to his detriment;
I (Limor Grinberg) have been in touch with Client X regularly over the last few days to state he is shock would be a grave understatement. He feels as though he applied for the subclass 485 visa in good faith with the knowledge that once he completed the one year of skilled work as instructed by the DIAC that he would be able to apply for a subclass 885 and gain his Permanent Residency.
Client X feels that the changes implemented should not affect him because there should be some duty of care to protect applicants in his situation. This is simply because of the fact that his application is already in process; he has already undergone the legislative requirements in good faith as he was led to believe by formal legislation that if he followed these steps he would be able to apply for a subclass 885 visa and that his work would contribute to his stay in Australia, work of full time, over 1 year, under prescribed regulations, which is now being altogether disregarded as invalid for the purpose of the application.
As there were not any previous indications that the employment must be registered client X followed the DIAC instructions and now he is devastated for the fact that a year of his life has been disregarded by the stroke of a pen without any thought to the fact that he complied entirely to the DIAC instructions for his visa type.
Scenario 2
Client Y client has completed his course and has applied for a TRA assessment pre 1/1/2010.
The applicants include the spouse and 2 children who are a family living in a regional area in Western Australia. They are intending to lodge a subclass 886 application and are at present preparing the application for State sponsorship as Cook is an occupation in demand for this regional area.
The changes to the TRA requirements pose the following problem for them.
1. They have already applied for a TRA assessment and will now need to endure the process again.
2. The employment requirement for 12 months full-time employment is a problem because there is not always full time hours available in regional areas and even if they apply for the assessment there is a strong possibility that they will be unable to meet the requirement for TRA and this would effectively mean that they will need to apply for a Provisional subclass 485 and move to a different area. To date the client was able to work approximately 30 hours per week
3. This family has already undergone the medicals and spent approximately $800 and now will need to do these as well as the character checks again.
These changes will have immediate disadvantaging effects on the regional areas which defeats the purpose of the regional migration scheme.
In the case of client Y and his family, who are passionate for life in the regional Australia, since there are no concessions for regional area work under the new policy this and the fact that the full time employment must be of at least 38 weekly hours, this means that they will have to move out of the regional into the metropolitan area seeking for new work opportunities and leaving 2 workplaces behind as client Y was only able to obtain a contract for 30 weekly hours.
Scenario 3
ENS Visa Category
The Legislation does not require that the applicant undergo the Job ready program however it is contradictory for the following reasons –
1. The Legislation allows for recent graduates to apply for a subclass 856 and for a waiver of the 3 year employment requirement; however a skills assessment by TRA is required. TRA require an IELTS score of 6 so effectively this washes out the option of applying for a waiver under exceptional circumstances and in terms of a skills assessment TRA only provides for 2 options.
- Apply for assessment under the Job ready program which there is no possibility of passing given that they would need to undergo all 4 stages and stage 2 would require 12 months of full time employment experience & this is not going to be an option given that the applicant holds a student visa that more than likely will expire shortly after the course completion.
- Apply for an offshore assessment. This option is only available to offshore applicants and under the pathway for Australian qualifications they would be required to demonstrate that they have 4 years of additional employment experience.
2. In case of onshore applicants who are not holders of a student visa, such as skilled people who arrived in Australia, found that they would like to stay in the country, such applicants had the option to apply for RPL in Australia followed by their skills recognition through pathway E of TRA. Such applicants could than have applied for an onshore ENS. The TRA changes do not allow for any onshore skills assessment other than through the job ready, which means that skilled trade people can not longer apply for onshore ENS.
It appears that given the TRA changes, the ENS category visa will not be available to onshore applicants or student graduates other than those who already held a subclass 457 visa for 2 years and avoided having their skills assessed. They would also no longer be able to apply for a waiver of the English language requirements.
We wish to submit for your consideration the vast inconsistencies between TRA and DIAC in terms of the changes. When calling to speak to these Departments in order to receive further clarification it appears that the information provided is not consistent.
During one phone conversation with TRA where we inquired in to the assessment criteria for applicants applying under the ENS category we were advised that the new job ready programme is the assessment to be used for all applicants. Nevertheless when we both spoke to the DIAC about the exact same issue on 2 different conversations, we were told that ENS applicants do not need to undergo the Job ready Program. However a second phone call to TRA following that information and the information we read on the web site, proving that the information received earlier by the DIAC was in fact not correct or reflective of the information available online on the DIAC website. We were advised by Craig of the TRA (who seemed extremely up to speed in relation to the changes) that the only assessment available onshore was the Job Ready assessment and that all 4 stages needed to be completed if the applicant is make an application for Permanent Residency. All the telephone numbers and names of personnel are recorded in my diary. We fail to see the logic behind the implementation of the new changes.
In the view of employers, we represent a landscape employer who was employing client Z, a recent landscape graduate for over 7 months. Both client Z and his employer feel extremely disadvantaged from the recent changes. The employer has been trying to register under TRA since Monday 4 January 2010 but was unsuccessful as none of the forms or related information is available.
The employer has communicated with TRA and specifically with one of the assessors with hope to receive some information about the nature of the practical test and the requirements for registration as an employer.
The employer received a reply that at this stage the TRA officer has not been informed of the criteria for registration of employers and he is aware that no information exists on their website. There are no forms available on the TRA website and this stands today, 12 January 2010, nearly 2 weeks after implementation of the changes. The employer requested to communicate with an assessor (Chris) who was unable to elaborate on the nature of assessment as these details are not yet available.
The assessor (Chris) presumed that in some stage when information will be available, than: “potentially it is quite reasonable that employers may get access to information relating to the practical assessment, but at the moment none of this information is available, nor the method of assessment is are known yet”.
Since the departments are not yet prepared to implement the new instrument, we consider that this period should have been given as a short notice from the departments which would have prevented much grief for many clients who would have been able to lodge their subclass 855 at this period, such as client X. We consider that a long notice would have been more appropriate, taking into consideration the scope of the major changes, but we at least request that the change will be postponed reflective of the time of delayed departmental implementation.
Since the changes have taken place we have little time to do anything construction because we are inundated with calls from concerned students who are at their wit ends. On the other hand we have not been able to answer many questions and when we contacted the DIAC and TRA contradicting information reflected on the fact that legislation was implemented far too soon without the authorities can answer to the changes. Emailed questions to the DIAC, posted on Thursday 7 January 2010 are still unanswered. Nevertheless we are looking very unprofessional by not be able to give our clients the right answers.
 
The feedback from clients, employers and students has been that most are outraged, cannot believe that there has been no transitional arrangement put in place to protect them and want to know where Australia’s commitment to them is.
These students could have chosen to study in any number of countries however they chose Australia. Many of these students have already undertaken the skills assessment and have undertaken the health and character check and have more or less established a pathway for them knowing what the criteria they must satisfy is. Although many of these were preparing for changes and a job ready test, none could imagine the extremes to which these changes now affect them and the fact that stroke all is that months of skilled work undertaken in Australia has now absolutely no value as their employer was not registered with TRA. The general objection is not to the physical skills job test which is a logical step but for the fact that the DIAC instructed applicants to work for one year as skilled persons in Australia and with the stroke of the pen without any preliminary advice this work has been disregarded with our any transitional arrangements.
This letter is now being circulated around migration agents and onshore skills applicants so that the capacity of people supporting these thoughts and feelings could be brought forward to support the request for a provisional arrangement AND postponing the implementation of the new instruments.
Sincerely yours,
Shelly Bengiat, JP & Limor Grinberg, JP
Senior Migration Agent Senior Migration Agent
MARN Reg No. 0532932 MARN Reg No. 9793031
Parliament house
Canberra, ACT 2600
Australia
&
Commonwealth Ombudsman
GPO Box 442
CANBERRA
ACT 2601
Dear Sir/Madam,
RE: Changes of 1/01/2010 affecting the GSM Program
We are writing to express our extreme concerns relating to the recent Legislative changes to the General Skills Migration Programme that have taken place.
This letter has been prepared on behalf of all of the Migration Agents who support this submission as well as all of our clients.
We are requesting your consideration for the following –
1. Postponement of the legislative changes until such time as they are amended to reflect the other visa classes that will be affected such as the ENS category visa;
2. Implementation of Transitional arrangements to protect current student visa holders who have completed the 2 years of study and who have already applied to TRA for assessment of their Education qualifications or who have worked in their occupation towards the one year full time on subclass 485 but their employer was not registered with TRA.
Since the changes have taken effect many of our clients have been placed in a position of extreme disadvantage. Examples of this include the following –
Scenario 1
Client X has applied for a subclass 485 visa in May 2009 which is still in process. The purpose of this application was to enable him to complete the 12 months of Australian employment experience which he started to accumulate on his student visa.
Client X has now completed all of the necessary requirements and is ready to lodge his application under the subclass 885 on 25 December 2009 and his application was being prepared for submission immediately after the Christmas vacation. However, the changes effective 1/1/2010 now prevent him from doing so. Furthermore according to the TRA guidelines he is also unable to use the 12 months of employment experience gained because the employed was not registered with TRA. The period of work client X gained from graduation was of 38 hours per week as according to all the migration requirements.
This greatly disadvantages Client X in the following way –
1. He now needs to spend a further $4500 on a new TRA assessment;
2. He will need to complete a further 12 months of employment experience as his experience gained so far cannot be counted while this experience was done under the guidelines and legislation of the DIAC in relation to skilled employment in Australia;
3. His Medicals, IELTS AFP and OPC are going to expire in this time and he will need to apply for these again further adding additional processes and expense to his detriment;
I (Limor Grinberg) have been in touch with Client X regularly over the last few days to state he is shock would be a grave understatement. He feels as though he applied for the subclass 485 visa in good faith with the knowledge that once he completed the one year of skilled work as instructed by the DIAC that he would be able to apply for a subclass 885 and gain his Permanent Residency.
Client X feels that the changes implemented should not affect him because there should be some duty of care to protect applicants in his situation. This is simply because of the fact that his application is already in process; he has already undergone the legislative requirements in good faith as he was led to believe by formal legislation that if he followed these steps he would be able to apply for a subclass 885 visa and that his work would contribute to his stay in Australia, work of full time, over 1 year, under prescribed regulations, which is now being altogether disregarded as invalid for the purpose of the application.
As there were not any previous indications that the employment must be registered client X followed the DIAC instructions and now he is devastated for the fact that a year of his life has been disregarded by the stroke of a pen without any thought to the fact that he complied entirely to the DIAC instructions for his visa type.
Scenario 2
Client Y client has completed his course and has applied for a TRA assessment pre 1/1/2010.
The applicants include the spouse and 2 children who are a family living in a regional area in Western Australia. They are intending to lodge a subclass 886 application and are at present preparing the application for State sponsorship as Cook is an occupation in demand for this regional area.
The changes to the TRA requirements pose the following problem for them.
1. They have already applied for a TRA assessment and will now need to endure the process again.
2. The employment requirement for 12 months full-time employment is a problem because there is not always full time hours available in regional areas and even if they apply for the assessment there is a strong possibility that they will be unable to meet the requirement for TRA and this would effectively mean that they will need to apply for a Provisional subclass 485 and move to a different area. To date the client was able to work approximately 30 hours per week
3. This family has already undergone the medicals and spent approximately $800 and now will need to do these as well as the character checks again.
These changes will have immediate disadvantaging effects on the regional areas which defeats the purpose of the regional migration scheme.
In the case of client Y and his family, who are passionate for life in the regional Australia, since there are no concessions for regional area work under the new policy this and the fact that the full time employment must be of at least 38 weekly hours, this means that they will have to move out of the regional into the metropolitan area seeking for new work opportunities and leaving 2 workplaces behind as client Y was only able to obtain a contract for 30 weekly hours.
Scenario 3
ENS Visa Category
The Legislation does not require that the applicant undergo the Job ready program however it is contradictory for the following reasons –
1. The Legislation allows for recent graduates to apply for a subclass 856 and for a waiver of the 3 year employment requirement; however a skills assessment by TRA is required. TRA require an IELTS score of 6 so effectively this washes out the option of applying for a waiver under exceptional circumstances and in terms of a skills assessment TRA only provides for 2 options.
- Apply for assessment under the Job ready program which there is no possibility of passing given that they would need to undergo all 4 stages and stage 2 would require 12 months of full time employment experience & this is not going to be an option given that the applicant holds a student visa that more than likely will expire shortly after the course completion.
- Apply for an offshore assessment. This option is only available to offshore applicants and under the pathway for Australian qualifications they would be required to demonstrate that they have 4 years of additional employment experience.
2. In case of onshore applicants who are not holders of a student visa, such as skilled people who arrived in Australia, found that they would like to stay in the country, such applicants had the option to apply for RPL in Australia followed by their skills recognition through pathway E of TRA. Such applicants could than have applied for an onshore ENS. The TRA changes do not allow for any onshore skills assessment other than through the job ready, which means that skilled trade people can not longer apply for onshore ENS.
It appears that given the TRA changes, the ENS category visa will not be available to onshore applicants or student graduates other than those who already held a subclass 457 visa for 2 years and avoided having their skills assessed. They would also no longer be able to apply for a waiver of the English language requirements.
We wish to submit for your consideration the vast inconsistencies between TRA and DIAC in terms of the changes. When calling to speak to these Departments in order to receive further clarification it appears that the information provided is not consistent.
During one phone conversation with TRA where we inquired in to the assessment criteria for applicants applying under the ENS category we were advised that the new job ready programme is the assessment to be used for all applicants. Nevertheless when we both spoke to the DIAC about the exact same issue on 2 different conversations, we were told that ENS applicants do not need to undergo the Job ready Program. However a second phone call to TRA following that information and the information we read on the web site, proving that the information received earlier by the DIAC was in fact not correct or reflective of the information available online on the DIAC website. We were advised by Craig of the TRA (who seemed extremely up to speed in relation to the changes) that the only assessment available onshore was the Job Ready assessment and that all 4 stages needed to be completed if the applicant is make an application for Permanent Residency. All the telephone numbers and names of personnel are recorded in my diary. We fail to see the logic behind the implementation of the new changes.
In the view of employers, we represent a landscape employer who was employing client Z, a recent landscape graduate for over 7 months. Both client Z and his employer feel extremely disadvantaged from the recent changes. The employer has been trying to register under TRA since Monday 4 January 2010 but was unsuccessful as none of the forms or related information is available.
The employer has communicated with TRA and specifically with one of the assessors with hope to receive some information about the nature of the practical test and the requirements for registration as an employer.
The employer received a reply that at this stage the TRA officer has not been informed of the criteria for registration of employers and he is aware that no information exists on their website. There are no forms available on the TRA website and this stands today, 12 January 2010, nearly 2 weeks after implementation of the changes. The employer requested to communicate with an assessor (Chris) who was unable to elaborate on the nature of assessment as these details are not yet available.
The assessor (Chris) presumed that in some stage when information will be available, than: “potentially it is quite reasonable that employers may get access to information relating to the practical assessment, but at the moment none of this information is available, nor the method of assessment is are known yet”.
Since the departments are not yet prepared to implement the new instrument, we consider that this period should have been given as a short notice from the departments which would have prevented much grief for many clients who would have been able to lodge their subclass 855 at this period, such as client X. We consider that a long notice would have been more appropriate, taking into consideration the scope of the major changes, but we at least request that the change will be postponed reflective of the time of delayed departmental implementation.
Since the changes have taken place we have little time to do anything construction because we are inundated with calls from concerned students who are at their wit ends. On the other hand we have not been able to answer many questions and when we contacted the DIAC and TRA contradicting information reflected on the fact that legislation was implemented far too soon without the authorities can answer to the changes. Emailed questions to the DIAC, posted on Thursday 7 January 2010 are still unanswered. Nevertheless we are looking very unprofessional by not be able to give our clients the right answers.
 
The feedback from clients, employers and students has been that most are outraged, cannot believe that there has been no transitional arrangement put in place to protect them and want to know where Australia’s commitment to them is.
These students could have chosen to study in any number of countries however they chose Australia. Many of these students have already undertaken the skills assessment and have undertaken the health and character check and have more or less established a pathway for them knowing what the criteria they must satisfy is. Although many of these were preparing for changes and a job ready test, none could imagine the extremes to which these changes now affect them and the fact that stroke all is that months of skilled work undertaken in Australia has now absolutely no value as their employer was not registered with TRA. The general objection is not to the physical skills job test which is a logical step but for the fact that the DIAC instructed applicants to work for one year as skilled persons in Australia and with the stroke of the pen without any preliminary advice this work has been disregarded with our any transitional arrangements.
This letter is now being circulated around migration agents and onshore skills applicants so that the capacity of people supporting these thoughts and feelings could be brought forward to support the request for a provisional arrangement AND postponing the implementation of the new instruments.
Sincerely yours,
Shelly Bengiat, JP & Limor Grinberg, JP
Senior Migration Agent Senior Migration Agent
MARN Reg No. 0532932 MARN Reg No. 9793031
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