Want to listen to the full episode and all our other episodes?
Hearsay allows you to fulfill your legal CPD requirements every year.
Our yearly subscription is only $299/year.
With a yearly subscription, you can access all of our episodes AND every episode we release over the next year.
Migration conversation: the impact of COVID-19 on Australia’s migration laws
Substantive Law| What area(s) of law does this episode consider? | Migration Law In this episode, Tamsin Johnston and Shamili Kugathas from Australian Presence Legal discuss the many ways in which the COVID-19 pandemic and emergency amendments have impacted Australian migration law. |
| Why is this topic relevant? | Australia has been called the ‘most successful multicultural society in the world’ – 30% of our population was born overseas, and our economy relies heavily on immigration for both population growth and productivity. But since the closing of international borders in March 2020, Australian citizens, permanent residents, temporary visa holders, international students and other groups both within and outside Australian borders, have had to grapple with travel restrictions, COVID-19 visa concessions and changes, and other changes necessitated by the public health emergency. |
| What legislation is considered in this episode?
| |
| What are the main points? |
|
| What are the practical takeaways? |
|
| Show notes | Australian Government COVID-19 visa concessions Australian Government critical skills and sectors Refugee Council of Australia – Fast tracking and ‘Legacy Caseload’ statistics |
| David Turner:
1:00 | Hello and welcome to Hearsay The Legal Podcast, a podcast by, for and about Australian lawyers, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple. The COVID-19 pandemic has changed our interconnected world in more ways than one. With the imposition of emergency health policies being enacted left, right and centre in order to protect populations from the spread of the coronavirus. In March 2020, the Australian Government shut down international flights and closed our borders to the dismay of many Australians with family and loved ones still overseas trying to get home following the initial outbreak of the virus. Whilst the government has implemented a travel exemption system for people to be able to leave and enter Australia, as at May 2021, forty thousand Australians around the world are registered with the Department of Foreign Affairs as wanting to return home but unable to, whether due to personal circumstances, inflated flight costs or other reasons. The government’s approach to migration and international travel during the pandemic has divided the Australian population, and with over 30% of Australians born overseas, migration law issues have never generated more public interest. The newly released 2021-2022 federal budget has also confirmed that international borders are likely to remain shut until at least mid-next year, suggesting that the pandemic will continue to greatly impact foreign policy and accessibility for migrants. Joining us today on Hearsay to consider how COVID-19 has, and will continue to impact, migration law in Australia is Shamili Kugathas and Tamsin Johnston from Australian Presence Legal. Shamili and Tamsin, thank you so much for joining me today on Hearsay. |
| Tamsin Johnston: | Thank you for having us. |
| DT: 2:00 | Now Shamili and Tamsin, can you share with us how you became interested in immigration law and the kind of work that you do in this space at the moment? Shamili, maybe I’ll start with you. |
| Shamili Kugathas:
3:00 | So for me it was a lot to do with my ethnicity being a Tamil and having that background of having to leave because of persecution. I started visiting immigration detention centers here in Sydney and whilst I was visiting detainees there, they would tell me that they had to come to Australia by boat and be assessed for protection, and that interested me a lot and so I started getting involved in that work. I did a bit of assisting them, communicating with their lawyers. At the time I was a student studying psychology and I just got immersed in it and I was very passionate about assisting these asylum seekers with their claims for protection and I decided that I wanted to do that work. So, I finished my psychology degree and then did a Jr degree, a Juris Doctor degree, and I then touched base with Tamsin and Shanil who were working at a migration film at that time, and they hired me and then the rest, I guess, is history. |
| DT: | Great. And Tamsin how about you? You’re originally from South Africa. |
| TJ:
4:00
5:00 | Yes, so my story is not as, I suppose, as profound as Shamili’s. I was living in South Africa, had a visa through my father that was expiring, so decided to come over, going through the mini midlife crisis. When I arrived in Australia, I ended up working for a migration firm. I hadn’t had any experience in migration law prior to that. In South Africa I was specializing in personal injury and insurance litigation and when I joined this firm in Australia I started to get to know about, you know, the migration policies and asylum seekers and refugees and it’s a worldwide situation. And that’s how I met Shanil, my business partner. Shanil has over 25 years of experience managing law practices and I think he and I, having worked together for about four years in this migration practice, decided we wanted to, I suppose, diversify into a legal practice and be able to assist clients in the way that we felt they deserved to be assisted. I mean with judicial review, helping them past obviously just the application stage, helping them at the court stage, that kind of stuff. And we wanted to provide an all over service and a law firm that kind of helped anyone with immigration issues, employment issues, commercial issues so it was kind of like a one stop shop. And yeah, we’ve been operating at APL for about five years now, and it’s going pretty well. TIP: Now if you don’t practice in the area, you might think that immigration law is just about visa applications and citizenship – but it actually encompasses a range of different legal issues that are impacted by a person’s residency status in Australia. Now Australian Presence Legal works for both private and corporate clients, as well as people seeking asylum. But if you’re interested in learning about advising vulnerable clients in the immigration law context, you should try Episode 7 of Hearsay where we speak with Ali Mojtahedi and Joshua Strutt from the Immigration Advice and Rights Centre (IARC) about how they advise clients facing disadvantage. |
| DT:
| Fantastic. Now you mentioned a couple of the migration law type matters that you deal with at Australian Presence, visa applications and then on to judicial review in the event those applications are denied, tell me a bit more about the migration law matters that you work on. |
| TJ:
6:00
7:00
8:00
9:00 | So I mean initially, obviously we’re trying to assist asylum seekers trying to get refugee status in Australia but we’re also assisting foreigners obtaining employment and sponsorship in Australia. So we deal with a wide range of immigration issues. So it’s either employer sponsored immigration, or independent skilled immigration where someone has skills that are valuable to Australia and they want to come over to Australia. And then asylum seekers who are obviously seeking protection in a country other than their country of origin, which is where Shamili specialises in our asylum seeker space. We deal with a range of things, so effectively what happens if you put in the initial applications and if they’re refused, obviously you try and appeal them to the AAT or the IAA, and if that does not work, then you go to judicial review to see whether there’s been a jurisdictional error in making the decision. So, we basically help clients from every aspect trying to get, ultimately, a decision to stay in Australia. TIP: Let’s talk about merits and judicial review in immigration law. After one has lodged a visa application with the Department of Home Affairs, the applicant receives a decision notification letter informing the applicant of the outcome. Since decisions on visa applications are decisions made under the Migration Act, they’re subject to merits review in the Administrative Appeals Tribunal, except for some visa applications, like applications for temporary protection visas made by applicants falling into the ‘fast track’ category which we’ll talk about later, and judicial review in the Federal Circuit Court or Federal Court. While we’re here let’s also clear up two terms that are sometimes used interchangeably but are substantively different: refusal vs cancellation. A visa refusal means there was an application for a visa that was not granted, but a cancellation means that the person was granted a visa but then it was cancelled due to certain circumstances. Common reasons for visa cancellations include not complying with visa conditions, not meeting character requirements, paying for sponsorship of a visa and giving false information on your application. Under section 501 of the Migration Act 1958 (Cth) the Minister has the power to refuse or cancel a visa if they are not satisfied that the applicant has passed the character test. Mandatory cancellations under this section exist where a person has a substantial criminal record or has been convicted of a sexual offence against a child. Grounds for a visa refusal or cancellation under section 501 also include where a person has been convicted of offences in Australia or overseas, has been associated with a criminal group or organisation, or has been assessed by the Australian Security Intelligence Organisation (ASIO) as a security risk. Both decisions about visa refusal and visa cancellation can be reviewed by the AAT. Now if your merits review is unsuccessful at the AAT, then you may be able to appeal to the Federal Circuit Court or Federal Court for judicial review. Judicial review matters can only be heard on an issue of law, not an issue of fact – these are issues like denial of natural justice, lack of jurisdiction to make a decision, taking into account irrelevant factors or failing to take account of relevant ones, or manifestly unreasonable exercises of power, and the other kinds of errors that you see set out in s 5 of the ADJR Act. The standard timeframe to apply for judicial review is 35 days from the date of the tribunal’s decision but it can be extended through an application for an extension of time. Now in a moment we’ll be discussing temporary protection visas and safe haven entreprise visas and the unique appeals process for the so-called ‘fast-track’ applicants at the Immigration Assessment Authority (IAA) which Shamili has just referred to. |
| DT: | So you really see all kinds of migration in your practice, both humanitarian and professional, but Shamili, you have a particular focus on humanitarian and asylum seeker migration. |
| SK: | Yeah that’s right. |
| DT:
| Now how have those migration matters, both the professional skilled migrant matters you were describing Tamsin, and the asylum seeker migration matters that you specialize in Shamili, how have those been affected by the COVID-19 pandemic? |
| TJ:
10:00 | I mean, I think from the skilled side of things, the employer sponsored visas, once someone is onshore it’s a lot easier for us to advocate for them to remain onshore in a particular position if we can show that there’s justification for them to be in that position. There’s definitely been an increase in processing of employer skilled visas as opposed to someone who’s not sponsored by an employer, but has skills that are in demand, but are coming from offshore. So that’s kind of you know, tampered off a little bit with COVID because it’s difficult for people to come into Australia. I would say partner visas as well are processed pretty fast at the moment because they’re obviously trying to prioritize people that are onshore. And I think asylum seekers as well are having some kind of, I suppose, benefits that they wouldn’t necessarily have prior to COVID, which Sham can probably elaborate on. |
| SK:
11:00
12:00 | With the benefits, I mean they’re getting processed quicker. So I guess in terms of uncertainty they’re now being assessed in a more quicker method. So with an assessment for protection, you first lodge a protection visa application and then you would undergo an interview with a delegate from the Department of Home Affairs and they will assess you on your claims and the reasons why you departed from your country of origin and they will make an assessment as to whether you meet the criteria to be a refugee. So initially the interviews would be face to face, but now because of COVID, it went from being over the telephone and that’s hard in itself because you have an interpreter, you have a case officer, you have a client, you have a lawyer all on telephone. And already it’s difficult for a client to explain in detail why they’ve been persecuted and the reasons why they’ve departed from their country of origin, and to have that barrier of not having the case officer in front of you, that’s a hurdle that I’ve seen. And now instead of phone interviews they’re having video interviews, and a lot of people think that’s a lot easier, but in my experiences it’s more difficult because you’re in a room, and so as a lawyer you’re behind the client and the client has a TV monitor in front of their face and on the screen is a large visual of the case officer. So it’s intimidating, it’s imposing. I wouldn’t be able to do it. I wouldn’t be able to answer a question in that format. So it’s been challenging, and we’ve been trying to request face to face interviews now, especially because in Sydney there aren’t many COVID cases, but the department has an internal policy which means that all interviews now are either over the phone or video and it’s just been a bit challenging. |
| TJ: | And I think body language as well, like it’s very difficult to convey if something’s affected you traumatically over telephone or video as opposed to in person. |
| SK: | Yeah so credibility is one of the main factors that a delegate would rely upon in terms of assessing a client’s claims and not having the client in front of you, not being in the present when they tell that story does make it challenging for a delegate to get a gist of exactly what’s happened to the client. |
| DT: 13:00 | And already, I’ve done a little bit of judicial review work myself for the legacy caseload who arrived by boat in 2010, you know it’s so easy for there to be an inconsistency as a result of the way something is being translated, or the way something has been conveyed by a different translator on a different day… |
| SK: | Absolutely. |
| DT:
14:00
15:00
16:00 | …to interpose more communication media on top of that, I imagine there’s even more credibility issues arising as a result of miscommunication. TIP: Let’s talk now about the so-called ‘legacy caseload’ that I’ve just referred to and the appeals process for their applications. The Immigration Assessment Authority (IAA) is an independent body established under the Migration Act 1958 (Cth) and it reviews decisions of the Minister for Immigration about refusals for fast-track applicants, or ‘legacy caseload’ applicants. The ‘legacy caseload’ refers to a group of approximately 30,000 asylum seekers who arrived in Australia by boat between 13th August 2012 – 1st January 2014. At the time of their arrival, these individuals were statute barred from making an application for protection. But in late 2014, the fast-track assessment process was established to handle this group’s applications for temporary protection visas (TPVs) and safe haven enterprise visas (SHEVs). Fast-track applicants must first wait for the Minister of Immigration to formally invite them to apply for asylum, at which point applicants must submit a written visa application to the Department of Home Affairs. After that, a delegate for the Minister conducts an interview with the applicant and then makes an initial decision. Legacy caseload refugees are restricted to applying for a 3-year TPV or a 5-year SHEV and that has to be periodically renewed in order for them to stay in Australia. As we mentioned before, fast-track visa refusals can be reviewed by the IAA however, they are only able to consider information that was before the Department and will not take into account new evidence in the form of a subsequent hearing or interview, unless there are exceptional circumstances. In May 2017, the Minister announced that any applications not lodged by 1 October 2017 would not be considered, causing a rush of applications before the deadline which are still being determined to this day. In October 2020 the Department of Home Affairs reported that 26,313 or 84% thereabouts of legacy caseload applicants had received an outcome on their application; of that number, just under 18,000 were granted a visa. Around 12,500 of those were granted SHEVs and 5,500 TPVs. The Refugee Council of Australia reported in May 2021 that 4,000 applicants were still waiting for a decision. And they also reported that in the period July 2015 – March 2021, 8,802 fast-track decisions had been reviewed by the IAA. Now in some circumstances, if merits review by the IAA is unsuccessful, an applicant can apply for judicial review in the Federal Circuit Court. If you’re interested in learning more about the legacy caseload, we’ll leave a link to the Refugee Council’s report in our show notes. |
| SK: | Yeah, definitely. I mean there’s no flow on effect. So if a delegate is asking a question, by the time it goes around the interpreter via phone or video call format, you sort of miss the flow in how a client is conveying his story and it does make it hard. |
| TJ:
| I mean, I think even in face to face interviews in the past there was always potentially interpretation issues then. So now you add in video and telephone it makes it so much harder to convey it. |
| DT: | I suppose the thing to remember with those humanitarian cases is that while we’ve been preoccupied with COVID-19 as an extraordinary event affecting the lives of Australians and everyone else around the world, the humanitarian crises that affect your clients, Shamili, don’t go away just because there’s a pandemic and much of that workload is still there. |
| SK: 17:00
18:00 | So it’s interesting because what’s happened is when the department assesses whether a foreign national should enter Australia as a tourist, they make an assessment as to that country of origin whether it’s high risk or not. Because if it’s high risk they think they’re going to come here and continue to stay on. So to be granted a tourist visa you need to be assessed as being a genuine entrant and not someone who’s going to come in and just stay. So countries like Sri Lanka, Iran that have that high persecution background, they don’t get tourist visas granted very easily and because of COVID happening and tourist visas only being allowed to be given to individuals that come onshore to do business or to meet husbands, wives or de facto partners, we’re now seeing applicants from those high-risk countries that just meet that criteria, they’re now being granted tourist visas. So pre-COVID they would not be granted tourist visits. You’d have to first do the partner visa and once that’s granted come on onshore, but because tourist visas, no one else can apply and be granted it, only immediate family members or only business individuals and undergoing business, it’s been great. So that’s the loophole that we’ve sort of tapped into and we’re encouraging a lot of individuals here that are citizens or permanent residents, if they’ve got a partner overseas, to apply for a tourist visa, apply for travel exemptions and come on onshore. |
| TJ: | So I guess that’s the silver lining to COVID. |
| SK: | It’s been excellent for me because I’ve had so many clients that have come here for protection, been granted protection, have now gotten citizenship, but they’ve had their wives overseas and they can’t enter unless they’ve been granted partner visas and processing times for that is like 2-3 years. |
| DT: | And once they’re onshore, does that mean that they can then have a more… |
| SK: 19:00 | So it’s been excellent because the department now has changed how you can be granted your partner visa. So pre-COVID if you apply for a visa offshore you have to be offshore to be granted it. If you applied for it onshore, you have to be onshore. But they changed it in the sense that if you apply for a partner visa offshore you can be granted it onshore. |
| DT: | Right. |
| SK: | So they’ve made that change. |
| DT: | If you’re here for example under a tourist visa. |
| SK:
| Yes. So we’ve tapped into that market and it’s been excellent. Like clients that we wouldn’t take on normally we’ve been like “yeah we’ll do it, we’ll assist you, we’ll help you get that outcome.” |
| DT: | It sounds like that sort of matter where you have an offshore applicant being granted their application onshore is the sort of migration case that you never would have seen until the COVID-19 pandemic. Tamsin, have you seen any other matters that have really been unique to this post pandemic world? The sort of matters that you thought these would never have happened except for this extraordinary environment we’re living in now? |
| TJ: 20:00
21:00
22:00 | Well, I suppose with regards the pandemic the biggest impact for us is trying to justify people being allowed into the country and being allowed to go out of the country, which is not something that you’d usually have to justify. So, we’ve had cases where individuals have family members overseas who are stage four cancer, on their deathbeds and effectively need to apply for permission to leave the country to go and spend their last days with their families and, and that’s effectively being denied. I’ve had that, like last year my mum and dad were seriously ill with COVID. Mum was in ICU effectively, we weren’t sure she was going to make it, and I had to ask for permission to leave, but it was difficult because you’re kind of up against a wall where effectively you’re dealing with an individual case officer’s assessment about a particular situation, and if they say no, you can’t travel. So for me, I suppose that is the hardest thing when you’re trying to be able to connect family members whether it’s in Australia or outside of Australia during really difficult times, we’ve had to try and deal with that. I mean Sham’s done so many applications trying to justify people being allowed into Australia, we’ve helped people going out of Australia overseas, it’s just made it more difficult. And when it comes to compassionate and compelling reasons and family members that you’ll potentially never see again, you kind of take it personally because you really want to help them, but your hands are tied in a way. TIP: Ordinarily in Australia there are two streams of partner visas that one can apply for, onshore and offshore, each of which have a temporary and permanent version. Offshore applicants must be outside of Australia to have their temporary partner visa granted. However, from 27 February 2021, the government provided a concession that allows offshore partner visa applicants to have their temporary visas granted onshore. Further, both onshore and offshore visa holders are exempt from Australia’s international travel ban and can come to Australia. According to the Department of Home Affairs, in the period from 20 March 2020 to 13 September 2020, just under 120,000 requests were received for inwards exemption from Australia’s travel restrictions. Of those, just over 18.000 requests for inwards exemption were approved by the Australian Border Force Commissioner. Just over 4,000 applications were granted on compassionate and compelling grounds, while just over 6,000 applications were approved under the critical skills category in that same period. |
| DT: | It is extraordinary that freedom of movement that we take for granted is now sort of the subject of professional legal work. |
| TJ: | Absolutely. |
| DT: | Are those the criteria for those applications? Compassionate and compelling grounds? |
| TJ:
23:00 | So I mean, even if you have compassionate or compelling grounds, I mean in my mind, someone’s family member is dying overseas, that’s compassionate, but they don’t necessarily view it that way. And you obviously want to help your clients in the same way, you don’t want to look back 10 years from now and say, “I didn’t get to say goodbye to my dad who was on his deathbed or my mother on her deathbed.” It’s a hard situation and it’s something where, as immigration professionals, you want to help your clients, but you’re also, in your mind you’re trying to justify ‘compassionate and compelling’, and it is compelling but again it goes down to what the case officer assesses is, I suppose, required to be able to travel. |
| DT: | And ultimately, such a discretionary exercise isn’t it. |
| TJ:
| Yeah, I think in a sense that is the problem as well because they don’t have, I suppose, the personal connection to it. Saying goodbye to a family member forever is not something you’ll ever get over if you’re never allowed to see them again because of COVID. It’s soul destroying really. |
| DT:
24:00
| I mean it’s the sort of broad discretion that in other areas has been the subject of much judicial commentary, in terms of judicial review and the scope of that discretion, but I imagine no consideration of that from the courts yet. That discussion of the work you’ve been doing Tamsin around simply being allowed to enter or leave the country, is probably a good time to talk about some of the legislative instruments that have been introduced at restricting movement in and out of Australia. Shamili, of course, there’s been some silver linings from your practice, but for the most part those restrictions have hampered movement in and out of the country rather than facilitated it. They’ve also extended visas, waived visa application requirements, varied visa conditions, how effective have those measures been in achieving their aims of restricting movement for quarantine reasons, I suppose, but in terms of the visa extensions, other aims as well? And who’s benefiting and who’s missing out from these measures? |
| TJ: | Well, I would say that people that are onshore that effectively have temporary visas that are on the verge of expiring, or they’re in a critical sector, would probably benefit from the changes that have been implemented. Which Sham will go into more detail. |
| SK: 25:00
26:00 | Practically when COVID hit, we had a lot of clients whose visas were about to expire and because the borders were closed, they couldn’t depart. So in the normal sense, what we would have done is got them on like a bridging visa E, which doesn’t have work rights, which is just a visa that allows you to remain and once you can depart, you depart. But the department then got on top of the game and they introduced a new stream under the temporary activity visa which allowed individuals who couldn’t depart because of COVID to apply for three-month visas. And this allowed them to remain lawful, work, give them those work rights, and it just relieved a lot of anxiety and stress for both the practicing lawyers and the clients. And the department were clever in the sense that because skilled migrants couldn’t enter Australia, what they then did was individuals whose visas were going to expire, if they had a critical skill, so if they worked in for example infrastructure, if they worked in health care, aged care, they can just apply for another 12-month visa and just continue to work in that sector. Normally those clients would just have to pack up and leave, but I guess the department were quick to recognize that OK, we’re lacking skilled workers here, they can’t travel in, so let’s utilize the people that are already here that don’t necessarily have to leave, and that want to stay. And it’s been something that has given us a lot of work. |
| DT:
| It’s a great point. I think it’d be easy to look at it and say, well, it’s just a matter of sheltering in place, keeping everyone where they are and reducing movement around the globe. But as you say, it’s also an economic factor, isn’t it? It allows those skilled workers to remain here, contribute to an Australian economy that needs all the help it can get during this sort of period, and I suppose that is a win not just for those migrants, but for the Australian economy. It sounds like therefore the people who are really losing out are the people who otherwise would have had a very compelling application but are offshore presently. |
| TJ: | And I think as well, individuals onshore that don’t necessarily fall within the critical sector because it’s going to be very hard to justify them staying on because if they don’t fall within those specified categories, then they effectively need to make plans to leave. |
| DT: 27:00 | And for those who need to make plans to leave, how practical is that where their home country might have closed its borders, where there might be very few flights traveling to and from that country? How do the practical aspects of traveling at the moment impact on entitlements to travel? |
| SK:
| So, I mean I think the department has recognized that individuals can’t just get up and leave if the borders have closed or if their country has international travel restrictions. So they have allowed applicants to apply for three-month visas and when you do that application you need to demonstrate/provide evidence that there aren’t any flights operating, or that you get announcements from your government’s DFAT report, or announcements from the immigration website saying that borders are closed and that will ensure that they get another three-month visa, which allows them to be lawful in the country. So I mean, the department were quick in doing that and it’s helped a lot of people. |
| DT: 28:00 | I suppose in March of last year we might have thought three months is plenty of time to see how things develop and then maybe in June of last year we thought, well surely three more months, but it’s a short tenure, isn’t it? For what is a semi-permanent state of affairs. |
| SK: | I mean, I think they’ve practically dealt with that by not having a visa application fee associated with that. So I mean people that couldn’t afford it, it doesn’t cost you anything, you just continually just keep applying and so that’s what some clients are still doing. |
| DT:
| We’ve spoken a bit about how the process of applying for a visa, particularly the humanitarian visas that you work on Shamili, has changed because of telepresence or meeting with delegates remotely. Have you noticed any changes in the way, substantively, applications are being assessed during COVID-19? |
| TJ: 29:00
30:00
31:00
| Well with regards to, I would say prioritizing visas, I would say that the employer skilled visas onshore, such as the temporary skilled shortage visa, the 186 that permits permanent residency after a certain period of time, they’re being processed more quickly. Partner visas where you’re eligible for permanent residency are being prioritized onshore. So certain visas when you’re in Australia are being prioritized, whereas for example independent skills where you don’t have employer sponsorship but you have skills that are relevant to Australia, if you don’t fall within that critical sector that they’re looking for right now, such as health care, aged care, that kind of stuff, there’s a pause on that right now. So anyone that’s looking to effectively stay in Australia or come into Australia on the basis of independent skilled immigration are kind of in limbo at the moment. So I think that’s impacting a lot, because we have a lot of clients from overseas and even onshore, who effectively are on a skill list that doesn’t permit you to stay longer than two, maximum four years, are like, “what do I do after that period of time?” And usually you can advise them and say, “you might have an option if you go down the skilled independent route and you get nominated by state” or something like that, but at the moment those occupations are just being ignored because they need to prioritize getting in the medical profession such as registered nurses, doctors, all that kind of stuff. TIP: The Australian Government has implemented a system of travel exemptions for individuals working in critical industry sectors, or who have critical industry skills, as a response to the economic and healthcare crises brought about by the COVID-19 pandemic. The travel exemptions are unique to the pandemic era because they are a separate and precursory step that immigrants are required to take on top of applying for, or being the holder of, a valid visa to enter Australia. Where the government’s skilled visa programs sought to address work shortages and strategic economic and industry growth areas in the country, the Department of Home Affairs’ ‘Priority Migration Skilled Occupation List’ identifies 41 occupations which fill critical skills needed to support Australia’s economic recovery from the COVID-19 pandemic. The Government has also implemented a system of COVID-19 visa concessions, for those who are on the pathway to being granted a visa but who have been adversely impacted by COVID, border closures, business restrictions or the economic downturn. Some of the temporary concessions include taking disruptions arising from the pandemic into consideration when granting or considering visa applications, granting additional time to complete the necessary requirements for applications and extending the validity periods of certain visas. Links to the Department of Home Affairs’ website containing the information on COVID-19 visa concessions and COVID-19 travel exemptions will be included in the show notes for this episode. So that’s been difficult trying to guide people to be able to stay lawful to either stay in Australia or have options to still come into Australia, but there’s a pause on the options available to them at this point. |
| DT: 32:00 | There has just sort of been this sharp right turn in terms of the priorities. |
| TJ: | Yeah and people get frustrated obviously because the problem we have with the skilled independent visas as well is there’s an age limit. So if you have a client sort of 43, 44 and the age limit is 45 and suddenly there’s this pause on it, then their options are becoming more and more limited. |
| DT: | The clock is ticking for those people. |
| TJ: | It is, absolutely. Yeah. |
| DT: | I imagine that those sorts of health and care professions are in demand around the globe, really. Anecdotally, perhaps, do you know whether Australian workers who are seeking to move and work overseas are facing similar kinds of restrictions and shifted priorities in other countries? |
| TJ:
33:00 | To be honest, I mean I can’t vouch for other countries, but I know with obviously the COVID pandemic there’s a lot of demand for medical professions. I can tell you the medical professionals within Australia are not necessarily aiming to leave Australia, if they can stay they aim to stay. But I could imagine, and this is just my opinion, that it would be pretty similar across the globe, because there is such a demand for people that can provide medical care and aged care. |
| SK: | And like I think Australia is only one of the few nations that a citizen or a PR would have to apply to leave. So you have to get that permission to leave. So I don’t think it’s going to be very likely that a doctor who says “I want to start working overseas” is going to get that approval of exemption. |
| TJ: | But we haven’t actually had anyone ask us to do that either. |
| SK: | We haven’t had anyone ask that. From the department’s perspective, they’re not going to see it as a compelling and compassionate reason for departure. So I mean, it’s strange that as a citizen or a PR, you need to get that permission to leave, but I don’t see professionals saying that “we’re in higher demand in another country, let us leave.” I don’t see that happening, or that being successful. |
| DT: | They don’t want to leave, and the department doesn’t want them to leave either. |
| TJ: | Plus they might not be able to get back. |
| SK:
| Yep. And then they’ll be stranded, because how are they going to get back in ’cause the flights aren’t running as usual and all of that. |
| DT: 34:00 | The number of Australian COVID-19 cases and fatalities is uniquely low for countries of our population density and development. We’re certainly the lucky country in that respect. Have you seen an increase in humanitarian applications for Australia on the basis that conditions arising out of the COVID-19 pandemic are much better here? |
| SK: | I mean, I’ve tried arguing COVID as one of the reasons why clients are seeking protection here. So clients are already onshore in Australia and have put in a SHEV application or a TPV application, I then try and add COVID as another reason why they can’t return back because the conditions there are complementary grounds like inhumane conditions, degrading conditions, all of that – doesn’t work. |
| TJ: | Well it doesn’t even work for their citizens, so… |
| SK: | The department doesn’t recognise COVID to be a reason why protection should be granted in the sense that it’s safer here because we’ve got better facilities. They don’t recognize it. |
| DT: | Do they not recognize it on the basis that it’s almost a kind of uniform problem globally, and therefore it’s… |
| SK: 35:00 | Yeah essentially, essentially that’s why. |
| TJ: | I think it would open up a can of worms if you actually did use it as a way of justifying someone being granted refugee status. |
| SK:
| Yeah, I mean you try to argue that a minority race would not be treated effectively in that country because that’s the race that’s being persecuted, and so their health is not going to be prioritized, tried that. Didn’t really work out too well. |
| TJ: | Yeah we learnt that in the past with mental health issues as well when you don’t get the necessary treatment overseas. Never worked. |
| DT: | Just generally the suggestion that a protected attribute will result in you receiving worse health care is generally not a successful basis. |
| SK: | It’s difficult. It depends on what country you’re arguing it for. |
| TJ: | Yeah, it’s very rare to actually succeed with that argument. I mean, it’s not to say it’s impossible, but it’s not something that you would solely use to justify someone seeking asylum or being granted asylum in Australia. |
| DT: | That’s interesting. Is that because… |
| SK: 36:00 | It’s a universal trait. So there will be people in that country that have those mental issues and are surviving. So it’s hard to distinguish why your client here has that extra… |
| TJ: | I suppose what would give them that extra factor that would allow them to be granted a visa versus someone else in the world that might be experiencing this similar situation. |
| SK: | I mean I still add it in all my applications just in case I get a case officer… |
| TJ: | She’s hopeful one will happen. |
| SK: | I mean it’s just an add on like at the cumulative assessment, one of those contributing factors. |
| DT:
37:00 | As you say, as a complementary ground. I want to ask you now about the India travel ban which as at the time of recording is still in place. It was introduced on Monday, the 3rd of May, and made it an offense punishable by up to five years in jail and a $66,000 fine under the Biosecurity Act for Australian citizens to return to Australia from India. The Department of Foreign Affairs has identified about nine and a half thousand Australians currently stranded in India. Tamsin and Shamili, maybe I’ll start with you Shamili, what are your thoughts on the ban, particularly with regard to its validity and legality? And do you think it’s an appropriate response from the government? |
| SK:
38:00
39:00
40:00 | I mean, to support whether it was an appropriate response, it should have been consistent and it wasn’t. So I mean, COVID cases soared in the UK, soared in many other countries, but the same ban never applied. So that’s where all the uproar has come from, I guess mainstream society in the sense: why India? Why not any of the other countries that had such bad, or worse, conditions at that time? In terms of the legality, I’m going to leave that to Tamsin. TIP: Before we hear from Tamsin on this, let’s consider why this ban was so controversial. First, as we mentioned before, approximately 1/4 of all Australians stranded overseas are located in India. The Indian diaspora community in Australia has steadily been increasing over the past decade, just behind China and the UK, with Indian-born Australians comprising an estimated 2.8% of the population in 2020 according to the Australian Bureau of Statistics. In 2019, there were also 95,000 Indian students studying at Australian universities and colleges. The Health Minister introduced the India travel ban, or as it’s more formally known the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 which banned Australian nationals who had been to India in the past 14 days from returning home. The explanatory statement of the Determination notes that ‘India has been identified as a high-risk country due to the significant increase in COVID-19 positive cases’ and that the Determination measures ‘protect the quarantine and health resources needed to prevent and control the entry, and the emergence, establishment or spread of COVID-19 in Australia.’ These measures, however, weren’t enacted when the USA or European countries had the highest numbers of COVID-19 cases and deaths in the world, which has provoked debate about the double standard. The Determination even attracted comment from the UN High Commissioner for Human Rights who expressed ‘serious concerns’ about the Determination, particularly in relation to article 12(4) of the International Covenant on Civil and Political Rights (to which Australia has of course been a signatory since 18 December 1972), which states that ‘no one shall be arbitrarily deprived of the right to enter [their] own country.’ Gary Newman, a 73-year-old Australian stranded in Bangalore since March 2020, challenged the Determination’s validity in Newman v Minister for Health and Aged Care [2021] FCA 517 which Tamsin will refer to later in this episode. Newman’s lawyers argued before the Federal Court that the Commonwealth was acting outside its constitutional powers and that the Determination breached an implied freedom for citizens to return their home country. In late 2020 the think tank ‘Libertyworks’ similarly filed an application in the Federal Court challenging the same determination, but both applications were dismissed. |
| TJ:
41:00
42:00 | Having reviewed the Biosecurity Act it’s a very far-reaching act that imposes incredible powers on the government to effectively dictate what can and can’t be done provided certain requirements are met. So for example, the section 477, the health minister can determine any requirement that he is satisfied is necessary to prevent or control the entry of the disease into Australia. So effectively, he has the determining power to decide if a restriction or requirement needs to be imposed, and that’s kind of a scary thought because, for example, the India ban, you’re banning citizens from being able to return to their country. But I’ve also seen that there’s certain inclusions in the act that could effectively include mandatory vaccinations. So I feel like it’s a scary act in the sense that it overrides any state or territory legislation if it’s inconsistent, besides obviously the Constitution. But it provides the health minister with so much power and there’s certain requirements that need to be met. So, for example, if you look at the requirements he needs to be satisfied that the imposition or the restriction is likely to be effective, is appropriate and adapted to achieve its purpose, is no more restrictive or intrusive than is required in the circumstances, the manner in which the requirement is to be applied is no more restrictive or intrusive than is required in the circumstances and the period during which the requirement is to apply is only as long as necessary. Those are very generic requirements in my mind, so I feel like if someone personally has the power to say, “I believe it fits into all of these categories,” he can effectively pass anything. I can understand the need to obviously protect the Australian community and you don’t obviously want someone that might necessarily be exposed to COVID in India and potentially harm other Australian members if they come over. But there’s got to be a line. My problem with this is it’s too much power in the government. |
| SK: | Too broad a power. |
| TJ:
43:00 | It’s way too broad! And I feel like even though your right to citizenship implies that you have a right to re-enter your country, even though it’s not codified, it’s in contrast to that. So, I’m not a constitutional expert, but to me it just seems like there’s a lot of issues in play here that really need to be addressed, and it’s got to be assessed appropriately. And I don’t know if in this instance just banning Australian citizens from re-entering Australia from India is the right move. I feel like they’ve had a good more than 12 months to effectively look at improving their quarantine facilities in Australia or coming up with other means to be able to allow your Australian citizens to come back into Australia and help them that way, other than just banning them and leaving them in a country where effectively they’re at risk. It’s a tough one. Based on that act itself, I think if the health minister can show that it fits within those requirements, I think it’s going to be very difficult to show that he didn’t act legally, constitutionally, considering the Constitution and we don’t have a Bill of Rights, it’s very difficult to argue it’s unconstitutional. But I do think it’s difficult because I do believe if you look at anything to do with immigration and citizenship, there’s always that right to be able to re-enter your country. |
| DT: | It’s almost an implication that we… |
| TJ:
44:00 | Yeah, exactly so it’s a very hard one to suss out, but I don’t believe that you just banning an Australian citizen to stay in India during this pandemic is a solution. My problem is what have they actually done to, I suppose, aid the Australian citizens and permanent residents across the world being able to come back into Australia. Because it’s not just India, I mean India has been banned, but there’s about 40,000 Australian citizens still stuck worldwide. They’re still stuck there. What’s actually happening to help these people come back? You can’t just say it’s a ban because it protects the Australian community but they’re also Australians, what are they doing? |
| DT: | How do you anticipate that ban and the circumstances, legal or extralegal, stranding those other people around the globe, how do you anticipate that affecting your practice at Australian Presence? |
| TJ:
45:00 | Well, it’s a difficult one because I feel like it’s more of a constitutional challenge really than something that’s to do with immigration because constitutionally and from a travel perspective, so for example, and India aside, the biggest problem with people being able to get back to Australia is the lack of flights. So it’s not necessarily something from the immigration perspective that we can assist with. It’s about being able to get on a flight to get back into Australia. Obviously, you need to quarantine once you come back in, but there’s a serious lack despite what’s, in my opinion, publicized, a lack of repatriation flights and a lack of commercial flights that people can afford to actually take to get back into Australia. So I don’t think it’s necessarily an immigration issue. I think it’s more of a, I suppose, an Australian issue trying to get our citizens and our permanent residents back into the country in the most efficient and cost-effective way possible. |
| DT: | Let’s talk about the hotel quarantine. |
| TJ: | I’ve done that. That’s not pleasant. |
| DT: | You’ve done it! |
| TJ: | Yeah I did. |
| DT: | How long was the stay? |
| TJ:
46:00
47:00 | It was 14 days. It was horrible because we landed back in Sydney, got taken straight to the hotel, stuck in the hotel for 14 days which was OK, but you’re not allowed to open windows, there’s no going outside. I understand the rationale behind it, but it takes its toll on you mentally like being stuck in a small space for 14 days, I don’t know if that’s necessarily always the best option. And I say that because I don’t know what the best option is. I mean, when I went back to South Africa, I had to quarantine as well, but I had the option of quarantining back at home so effectively I had access to fresh air and a garden and all that kind of stuff. So it’s a difficult one. I just feel like there needs to be more investment into, I suppose, quarantining options in Australia. So for example, if someone that actually resides in New South Wales has a home that they can quarantine in as opposed to being in a hotel from a mental health perspective, that actually might be a better solution, but then obviously you need to make sure that they stay in quarantine so it would come down to being able to monitor that and making sure people don’t breach that. It’s a difficult situation and the government has a difficult task at hand, I’m not denying that. I just think banning your citizens from returning to Australia, especially in situations where they don’t have necessarily a legal right to reside there, they could have overstayed their visa, they might not have the funds to continue to stay there, what is the solution? Just banning them? |
| DT: | Well and from a financial perspective, the hotel quarantine regime does require you to find $3000 to pay for your stay, which is not a small amount of money for many Australians. |
| TJ:
| No, and I mean at least they do offer you payment options, which is, I suppose, a benefit. And I know that for people that are stuck overseas there are certain financial benefits or help that the government does give them if they’ve exhausted all other options. But the problem is that’s alone. So it’s eventually going to accumulate and it’s going to be another debt that you’re going to ultimately have to pay off. So when I say to you when someone is stuck overseas, there are people that were in South Africa when I was there back in August that are still stuck there and can’t get home because one of the easiest options is obviously to pay for business class because there’s a limited number of people allowed on a flight. Business class is super super expensive. People don’t have that money. |
| DT: 48:00 | I mean it’s tricky, isn’t it? It’s expensive, it’s inconvenient, it’s unpleasant, but it has arguably resulted in Australia having the world’s lowest death and transmission rate in the Western world. |
| TJ: | Transmission wise, yes. But I’ve also heard stories of Australians that have been in foreign countries where they’re living in their cars and on the verge of suicide. I mean from a COVID perspective, yes, lowest rate, but from a mental health perspective and, you know, other issues associated with that, I think it’s had a detrimental impact. Not just on Australians, but worldwide. |
| DT: | Well that’s true. I mean, it’s easy to say that within the territorial borders of Australia, Australians are doing very well. |
| SK: | But the ones stuck aren’t. |
| DT:
49:00
50:00
51:00 | Yeah, that’s right. And as many as 1 in 3 Australians believe that the federal government should be doing more to bring stranded Australians back home. TIP: Now that figure I’ve just referred to comes from an early 2021 poll of 2,200 Australians commissioned by the Lowy Institute. Now of the other respondents, 59% said that the government had given an appropriate amount of support to Australians overseas and the remaining respondents said that the government had actually done too much to help those stranded overseas in the pandemic. It’s important to note however that this poll was conducted before the India travel ban was imposed, where 10,000 out of the estimated 35-40,000 Australians overseas are actually located. Now that same poll showed that there is greater division between those who believe we should keep our borders closed (41%) vs those who think vaccinated Australians should be able to leave the country (40%) and the remaining 18% who think that all Australians should be free to leave whether they’re vaccinated or not. International borders were closed in March 2020 in line with a ministerial determination pursuant to s 477 of the Biosecurity Act 2015 (Cth). That section empowers the minister to determine emergency requirements during a human biosecurity emergency period provided they are satisfied that the requirement is necessary to: (a) to prevent or control the entry or spread of a declared disease into Australia; As state borders began closing too in early 2020, several challenges were brought to the High Court on the basis that interstate travel restrictions were unconstitutional, in breach of section 92 of the Australian Constitution. And one of those challenges in the High Court was Palmer v Western Australia [2021] HCA 5, which was of course brought by Clive Palmer, Australian businessman and politician. Section 92 of the Constitution relevantly states that ‘the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.’ But in its decision at [29], the High Court referred to the case of Cole v Whitfield for support that the guarantee in s 92 of interstate trade, commerce and intercourse being “absolutely free” is ‘not to be taken literally’ and ‘should not be construed as precluding an exercise of legislative power which would impose any barrier or restriction.’ The court ultimately determined that the restrictions on the freedoms prescribed by s 92 were justified having regard to the public health emergency. |
| TJ:
52:00 | Well it’s interesting because when I was looking into obviously the Biosecurity Act, and obviously there was a challenge from a guy that was stuck in India for more than a year. So he challenged it at the federal court and it’s difficult because he’s saying as a citizen “I have a right to return,” but the court ruled that effectively the Biosecurity Act trumps that. So then you have people that are stuck in foreign countries that either don’t have the money to survive or have overstayed their visas over there. I mean I was fortunate, the fact that I was staying with my parents so my living arrangements were sorted. But there are people that actually, for example, were on holiday and don’t have money to pay for accommodation for 6, 12 months, however long it’s going to take for them to be able to come back home. It’s a scary thought. I mean it’s not cheap. |
| DT: | I know everyone on the last day or last couple of days of their holiday, thinks “I wish this could last forever.” |
| TJ: | I bet you they regret saying that now. |
| DT:
| That’s right, that’s right. Eventually the bank account runs out. Now we’ll engage in some crystal ball gazing, how do you see this situation playing out over the next 12 months; whether the COVID-19 pandemic begins to abate as a consequence of vaccine rollouts, or whether we’re still in for a long haul of quarantine and travel restrictions, do you think that the migration policies that have been introduced during this period will result in greater restrictions on migration in the long term? Or a more permanent change to migration policy in Australia even after the pandemic? |
| TJ: 53:00
| Well I think it depends on whether the borders ultimately become open because that impacts immigration both to and from Australia. At this point in time, I mean, I don’t know the last time I looked it’s December 2022 next year when they’re looking at opening the borders. So I think that’s definitely going to have an impact on immigration in Australia. I’m hoping obviously things have improved and I know that it you know varies in countries around the world, but I am genuinely hoping that things are going to taper down and society is kind of going to go back to a, I suppose, a semblance of normal. But I guess we’ll have to see how it plays out like my crystal ball cannot tell you. I know what my hopes and my wishes are, whether that happens in reality, who knows. |
| DT: | It’s more like an 8 ball at the moment – all signs point to yes. |
| SK: 54:00 | I mean with the changes that have been implemented to accommodate for the impact of what COVID has had on visas, I don’t think that’s going to be permanent because that would cause a chaotic immigration system. So for example, allowing applicants to just come onshore and then continue making other visa applications would circumvent and cause other genuine applicants more longer processing times. So I don’t see that staying at all. With student visas and having their working hours being increased, I don’t think that should stay either because then you’re not going to be able to complete your education and what’s the point of coming here on a student visa if you’re not going to complete? So, the changes I believe are just going to be temporary. |
| TJ:
55:00 | The problem as well is there’s a lot of families separated from each other due to the restrictions. I mean I haven’t seen my parents in, what is it, like 9 to 10 months. I mean I don’t know how long that’s going to go on and I’m not the only one. It’s literally separation of families and you can’t have this ongoing forever. It’s not sustainable. People are suffering from mental health issues because of it. They’re being separated from their families. They’re just not living a life. I mean, holidays aside, people are obviously impacted by not going on holidays, but I mean, asylum seekers have not had the opportunity of seeing families for many many years and I think people that you know are Australian citizens being separated from their families are actually understanding in a more realistic sense what that means. |
| SK: | Absolutely. |
| TJ: | And it’s a terrible thing. |
| SK: | And the Australian government have prioritized partner reunions, so that’s been great, but what about parents and children? So that’s not compelling at all. |
| TJ: | Yeah and some of these partners aren’t necessarily partners for like an extended period of time, like it’s 12 months I mean versus, like your parents you’ve known your entire life. |
| SK: | So to visit Australia, if you’re visiting a partner, you’re going to be granted travel exemption, but to visit your parents, no. |
| DT: | Wow. |
| SK: | So your parent could be here, they could be ill, they could be on their deathbed, and you can be someone overseas, a foreign national, and you’re not going to be permitted to enter. So they put that distinction between parents and partners. |
| DT: 56:00 | It’s such an interesting distinction to draw, isn’t it? Because of course it has to be drawn somewhere we have. We all acknowledge that there has to be a greater restriction on movement at this time, but it’s interesting to say this kind of relationship, yes. This kind of relationship, no. It’s an interesting distinction for an administrative decision maker to rule. |
| TJ: | I can’t say that there’s one solution that fits everything. I mean, it’s a difficult situation to be in when you’re obviously implementing laws to try and protect the Australian community and obviously, you know, trying to help those outside of Australia. It’s not an easy solution. I think there are certain aspects where personally it could have been done, not necessarily better, but in the 12 months if not longer, that we’ve had to try and sort out quarantine stations within Australia that could have assisted situations overseas. So I think it’s kind of like a situation where as time goes on, you kind of look back and see that things could have been dealt with maybe more efficiently than they were. |
| DT: | Hindsight is always 2020 I suppose. |
| TJ | Exactly. |
| DT: 57:00 | Well we’ll put away the crystal ball for now, take out the magic wand: if you could change anything about the current state of migration law in Australia whether that’s just a general state of migration law, pre and post pandemic, or whether it’s something pandemic specific, what would that one thing you’d change be? |
| SK: | It’s not more pre and post, it’s more ensuring that all decision makers are consistent in their decisions and are held accountable for their decisions. So, we get really bad judgments or bad decisions made by the delegate and it’s not fair because they’re not held accountable for it. Whereas us as solicitors, we’re held accountable for every move that we make. You know something that’s more easy to, I guess, advise clients on. Like you don’t want to tell a client, “you’ve gotten this officer, so you’ve got no chance, but you’ve gotten this officer, so you’ve got a chance.” No one wants to hear that. |
| TJ: | But that’s actually what’s said because it actually boils down to, and this is not just in immigration, it’s also in the courts. |
| SK: | I hate when I have to go to a client and say, “you’ve got this judge, mate we’ve got to put in an appeal.” Like it’s so unfortunate. |
| DT: 58:00 | But it’s ubiquitous in litigation, isn’t it? And you never want to say this, you’re supposed to be engendering faith in the justice system. |
| SK:
| Yeah, especially when you’ve got like vulnerable clients who think “oh my God, we’re in Australia, they’re going to give us a fair go.” But in some instances there’s just no consistency over the board. So, if there was something that allowed all decisions to be published, I think that would make each of the decision makers a bit more accountable to their actions, and that will result in a more fairer system. |
| TJ:
59:00 | Because at this point in time we get decisions where we have either just a first name or just a position number, no contact details, there’s no one that you can actually communicate with directly to clarify issues or anything like that. You literally submit your application. If you’re lucky, you get a request for further information that you can address. If not, you get a decision. That’s it. Like you can’t talk to someone saying “hey, you assessed the wrong area of law. It was a wrong decision to make,” and then discuss that. You don’t get that option. So once a decision is made, you literally have to go to the appeal or the review route. |
| SK: | And that can take months or years to get to the end of it. |
| TJ: | Yeah and it’s also unfair because if it’s the wrong decision, you shouldn’t even have to go down that path. You should be able to, prior to decision, clarify issues that could effectively get your client the result that they deserve. |
| SK: | And then get that decision vacated instead of having to exhaust an appeal system and have to wait 2-3 years to get that simple outcome. |
| DT: | So a greater dialogue with administrative decision makers and greater transparency about the decisions that are being made. |
| TJ:
1:00:00 | And also, like with the decision makers that we’ve dealt with in the past, I mean, I’ve had situations where I’ve had clients that are applying for, let’s say, a resident return visa, where they’re already a permanent resident, they’re trying to extend the travel facility, put in the application, I get a case officer that calls me and then cites the wrong legislation saying they don’t meet these requirements. But that’s not actually requirements that they’re supposed to meet, so. I’m not saying this across the board, I do believe that there are certain case officers that assess applications that don’t necessarily have the experience or the background to be able to assess those applications. So, it’s difficult when you’re dealing with that, they make this bad decision and you know it’s not in line with the legislation, and the only option you have is to spend more money to review or appeal the application. Yeah, so I think the biggest frustration for us as well, like I mean, when I first started out in immigration, we had almost a direct route to speak to someone within the department that we were working with that we could talk to about issues. Somehow over the last, I don’t know. 5, 6 years that’s slowly dissipated. |
| SK: | They’ve dehumanized the whole process. |
| TJ: | And now as even like you know, immigration solicitors, we don’t have a direct line to anyone. We literally have to either do this agent portal when you send in this like generic request, or you have to stay on the line to the general assistance line and deal with people that don’t actually specialize in immigration law. And they say, “well this is my suggestion, but I’m not an immigration lawyer or agent. I’m not accountable.” |
| DT: | It’s interesting when you compare that to liaising with other Commonwealth government departments. |
| TJ: | Yeah exactly. |
| DT: 1:01:00 | For example, tax agents dealing with the ATO have… |
| TJ: | The direct route to their… |
| DT: | …a direct line to their decision maker, and often very good working relationships so that they do have that open channel. |
| SK: | And it leads to quicker outcomes, it’s more efficient. I mean, how do you ensure that the right decisions are being made if the decision maker is not held accountable for their actions or there’s no consistency? There’s too much discretion to begin with. So it’s challenging its practitioners in that sector having to deal with client expectations. It’s challenging. |
| TJ:
1:02:00 | Yeah and I think also we’ve kind of added to our workload in the sense that now with every application that we put in, no matter whether it’s humanitarian, business, skilled, whatever, we compile a comprehensive submission that deals with the legislation, explains exactly why this application meets the legislation. So if it does get refused, it’s going to be very difficult for them to argue against it. So it’s kind of a check and balance. It takes a lot of time from our perspective, but it kind of, it actually helps us get really, really good results because you’re kind of like painting this little picture for them where it’s very hard for them to say no. |
| SK: | We’re spelling out how this application meets every regulation and how it meets the requirements for that visa grant. So, I mean an officer who’s not experienced, or maybe who doesn’t have any idea, after seeing it spelt out… |
| TJ: | It’s going to be very difficult for them to come back with this decision that says ‘no’ without justifying why it doesn’t match up to what you’ve said. |
| DT: | It’s a bit like writing written submissions for court. If you can write something that can be copied and pasted into the judgment, you know you’re doing well. |
| TJ: | Yeah exactly. |
| SK: | Absolutely. |
| DT: | Tamsin, did you have something that you wanted to wave your magic wand at and change? |
| TJ:
1:03:00
1:04:00 | I think for me it’s more about just having that direct line to someone that is in the department that you need to liaise with. I mean, obviously we have work colleagues that you can talk to and you know hash out ideas with, but you don’t have that immigration official that ultimately makes a decision that you can, call up and say “you’ve requisitioned this, you’ve asked for this information, this was provided,” or “I don’t understand why you’re asking for this,” because we don’t have that direct channel of communication. I think it’s really, really important when you’re dealing with any area of law, not just migration, to have that open forum where you can discuss issues. When we apply for state nomination applications. It’s nice to be able to pick up the phone and speak to someone from Western Australia and they’ll say, “you need to do XYZ.” If you don’t understand a particular requirement, or it’s not entirely clear, you can call them and say, “please explain this to me.” That’s fantastic because you can kind of tailor your applications to make sure that it’s a really positive application. But here we’re dealing with the legislation which you interpret one way, which is usually the correct way, but then the case officer might look at it a different way or not actually assess it properly. And it’s difficult to have that rapport with them where you can kind of prevent a negative decision happening by dealing with it up front. That’s my biggest gripe, because in the past I’ve been in situations where you had that direct call, you can call them. And then it’s just tapered it out. Like when we were doing work at Christmas Island at one stage, dealing with asylum seekers and their protection claims we can’t even contact the case officer. We have someone say their name, position number, no contact number, nothing, and there’s no decision happening for six to eight months. So the client’s stuck in detention. Your hands are tied, you’re trying to reach someone who can kind of get you some kind of movement on this or explain why it’s not progressing. You don’t get any feedback. It’s incredibly frustrating. And it’s so unfair to the clients as well, like you’re going through the process that they’ve said you need to do XYZ, you’ve done XYZ, why is it not progressing? |
| DT: | Enormously difficult to explain to a client. |
| TJ: | Yeah I mean the client’s at that stage, I mean they’ve been stuck in detention for God knows how long and they’re mentally affected by it, they’re physically drained, they just want to get out of detention, they don’t understand what’s happening and you can’t explain to them. |
| DT: 1:05:00 | Well Shamili and Tamsin, hopefully someone from the Department of Immigration is listening and can wave that wand on your behalf, but thank you both so much for joining me today on Hearsay. |
| TJ: | Thank you for having us. |
| SK: | Thank you for having us. |
| DT:
1:06:00 | As always, you’ve been listening to Hearsay The Legal Podcast. I’d like to thank my guests today, Tamsin Johnston and Shamili Kugathas from Australian Presence Legal, for coming on the show. For further listening, as I mentioned before, Episode 7 of Hearsay touches on immigration law and applications for asylum as well. Or, if you’d like a more business and commerce focused episode about the effects of the COVID-19 pandemic, you can listen to my interview with Professor Jason Harris and Mark Wellard about the small business restructuring process introduced in the Corporations Act 2001 (Cth) in 2021. If you’re an Australian legal practitioner, you can claim one continuing professional development point for listening to this episode. As you know, whether an activity entitles you to claim a CPD unit is, as you know, self-assessed, but we suggest this episode constitutes a substantive law point. If you’ve claimed five CPD points for audio content already this CPD year, you might need to access our multimedia content to claim further points from listening to Hearsay. More information on claiming and tracking your points on Hearsay can be found on our website. The Hearsay team is Kirti Kumar, Araceli Robledo, Zahra Wilson, Sadhir Shiraj and me, your host, David Turner. Nicola Cosgrove is our executive producer and she keeps us podcasting. Hearsay The Legal Podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex, simple. You can find all of our episodes as well as summary papers, quizzes, transcripts and more on our website, and if you’re a subscriber we’ll let you know by email whenever we release a new episode. Thanks for listening. |
You must be a subscriber to access this content.