Immigration Advice & Rights Centre Inc.

By Brian Jones

Registered Migration Agent, Mackenzie Migration Services

Let’s begin by acknowledging that the migration program has many pressures to accommodate. The humanitarian, economic, extended family and other elements are all important; however the family units of Australian citizens – partner and child classes – have suffered by inclusion in the mix.

Partner and child visas will always be with us and are the result of members of the Australian community behaving naturally in establishing relationships and families. The only policy decisions to be made are whether such people should be entitled to enter and whether they meet the assessment criteria.

Partners and children of Australian citizens should be granted entry to Australia in a timely way subject to, and in, the national interest and the migration/residence processes for partners and children should achieve this objective. The current management process does not deliver the best outcome in timeliness.

As a consequence of the processing times accepted in the current regime families are separated longer than is desirable; sometimes expatriate Australians must either leave their families behind or wait with them offshore. Onshore applicants have the (often very significant) inconvenience of temporary residence and bridging visas for longer than is necessary. Lengthy processing times have a very real impact on families in establishing their lives in Australia for the long term. Whatever loss they suffer will go forward with them.

Of course similar arguments may be made for other visa classes. However Parliament has distinguished partners and children and how they should be managed when applying for residence or permanent entry (discussed below).

The following discusses the situation in a little detail and then provides a solution to the perceived problem.

Partners and children and Parliament’s position on capping as set out in the Act

As enacted by the Parliament, Section 85 of the Migration Act 1958 (Cth) (the Act) empowers the Minister to determine the maximum number of visas to be allocated in specified classes. Section 86 provides that once a limit is set out under section 85 it may not be exceeded.

Section 87 limits the application of section 86 so that the number of visas available to spouses, de facto partners and dependent children of Australian Citizens, Australian Permanent residents and those who are “usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law” are not limited in this way. The third group generally comprise New Zealanders residing in Australia. This limitation on the operation of section 86 is acknowledged by the Minister in Direction No. 27 issued under section 499 of the Act.

It is therefore apparent that Parliament’s intention was that partners and children should not be subject to the restriction on the maximum numbers of visas issued in any period. Readers may or may not share this opinion but it is a conclusion that is open for discussion.

Planning levels

An examination of the DIAC website (see http://www.immi.gov.au/migrants/family/questions-answers.htm) reveals the following (emphasis added):

“What is the processing time for partner applications?

The service standards published on the website are a general guide to processing times. Actual processing times will vary due to a variety of factors, such as the nature and complexity of the case and the size and composition of the migration program.

Every year the Australian Government sets the overall migration program as part of the Budget process. For the 2011–12 program year, 45 400 program places have been allocated to the partner visa program, an increase of 3,400 places over the 2010-11 program year. The department processes partner visas in the order they are received and with consideration to the program places announced by the Government.”

The underlined portion of the quote above makes it clear that the Department considers that the setting of the planning level makes the partner program subject to numerical control. This is against the spirit of the Act as passed by the Parliament and should not be accepted on principle.

In 2010-2011 planning levels were set at 42,000 partner visas and 3,300 child visas. The numbers actually granted were 41,994 and 3,300 respectively. The close relationship between the planning level and outcome suggests that visa grant outcomes were managed (not ‘capped’) very closely in accordance with the planning numbers.

The Department, on behalf of the Minister, has planned for a higher number of partner and child visas (45,400 and 3,450 respectively) for the year 2011-2012.

Processing times

The current service standards published by DIAC (see here) include the following:

Why are these service standards a matter of concern?

Service standards set on a twelve-month program are not responsive to demand within that time. It is natural for planners to plan for a twelve-month period (or whatever the plan term is) and resource to that plan. In doing so there is an incentive to plan to expend resources evenly over the planning period. Delay is consequently built in and some applications must simply wait until resources become available.

Any service standard set sends a message about acceptability. Why would the Department publish a service standard of six to eight months unless it was acceptable to the Minister and the senior management? A case officer or program manager is thereby encouraged to view performance within the standard as appropriate. What should be acceptable is that decisions on partner and child visas are made as quickly as practicable. If that requires more resources they should be provided. If that requires consideration of additional cost to the applicant it should be considered.

There is also an administrative cost to longer processing times. Progress enquiries, permission to work applications, and bridging visa applications all increase.

The cost to applicants and their family units of extended processing times can be significant in terms of education, career opportunity and the stress of family separation.

Changing the status of the program

The following recommendations reflect an approach that might resolve this issue:

a.     There should be an acknowledgement that it is natural and acceptable that the partner and child visa programs are driven by and should be responsive to demand. This seems an obvious point but there is no other element of Australia’s migration program that is not open for debate as to numbers and purpose. Examples include how many GSM grants are appropriate, what resources to commit to employer nominated classes to give business the opportunities it needs, how many parents can Australia afford to support though their later years, how many humanitarian visas to balance our national willingness and international obligations? All these questions require a policy decision. All that is required for the family units of Australian community members is recognition of the different nature of the program. No genuine spouse or child who meets the genuineness and the public interest criteria should be refused entry.

b.     That the partner and child elements of the migration program be removed from the overall migration year planning process. This step would remove the current competition for visa places between the partner and child programs and the broader program and the competition for resources for implementation.

c.     That the service standard be set at a standard acceptable for the treatment of the family units of Australian citizens and unrestricted residents. Resources should meet the demand for these visas responsively and in short time frames. In effect, a short processing target should set because it is what people should have rather than what can be fit within the available resources over a twelve-month period. Perhaps review of the application rates and resourcing should occur on a monthly basis.

What would this achieve?

As mentioned earlier, the current management process seeks to balance economic considerations (e.g. skilled migration), costs to the tax-payer (e.g. parents and other family), and international obligations (e.g. the humanitarian stream) with varying priorities to create the migration program and the supporting budgetary elements.

Attempts are made to balance the relative importance of these programs and apply resources appropriately. Taking partners and children out of the mix, and resourcing those programs separately should allow the different nature of this element of Australian migration to be dealt with appropriately.

We might even make them feel welcome!