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25 July 2011
Volume 195
In This Issue
A Question of Competence - Part 1
Dear students, 

 

Welcome to the latest edition of IMMIGRATION NEWS and to the new subscribers. This free service is brought to you by Australian Immigration Law Services. You can subscribe by using the link on the right hand side or by visiting our web site. Please feel free to forward this email to any of your friends.
  
Toady we expose DAIC's inaccurate Form 1276 which will lead some students to fail in their PR and TR applications.
  

 

A Question of Competence - Part 1  

If individuals can be judged on their competency why cant DIAC?
 

 

There is no doubt DIAC is a large and complex organisation but that alone cannot be held as an excuse for allowing information to be presented to the public that is either not accurate, misleading or in some cases grossly incorrect. 

 

In reality this information is not read by Australians, it's designed to be absorbed and used by overseas nationals. The vast majority of these overseas visitors use English as their second language and the Australian government should bear this in mind as this makes it even more important that the information provided does not need a degree in law to interpret. Clear simple English should be used.


Recently we have discovered areas of concern that could possibly lead to an applicant for a GSM visa to fail in their application. This is not acceptable! DIAC may be a large organisation but it is structured with levels of accountability and responsibility to ensure each section should produce a high level of professionalism.

 

Currently the DIAC Form 1276 is a hazard to international students and should be immediately amended.

 

This form is the principle method for lodging a paper application for General Skilled Migration to Australia. It is also used for the temporary residency applications along with the permanent residency visa classes. You can find this form on DIAC's web site using the following link:

  

http://www.immi.gov.au/allforms/pdf/1276.pdf

  

You will notice at the bottom of each page there is a design date of all of DIAC's forms. This one is designed in July 2011, after the new laws came into effect on the 1st July 2011. Let's now have a look at the bottom of page 3, Evidence of English Language. It reads;

 

You have up until the time of decision to provide evidence that you have competent English. However, applicants should not delay in providing their evidence of English language ability. The department will not delay finalising applications where English language test results have not been provided at time of application. Applicants will have 28 days from the date of application to provide their English language results if they did not provide them at time of application. At this point in time, if evidence has not been provided the application may be refused.

  

To make matters worse, have a look at Q29, Language Requirements. 

 

There is a box there to tick, You have booked an English language test - provide details

 

This is misleading students to believe they can apply for their GSM visas by just showing they have booked their IELTS examination but as yet do not have the results. This links in to the information provided on page 3.

 

The information on the current Form 1276 relates to this DIAC media release on the 23 April 2010;

 

Changes to the time of provision of evidence of English language ability - 2010

 

There are new arrangements for the provision of evidence for English language ability. Applicants for the following GSM subclasses have until the time of decision to provide evidence of their English language ability.

 

 Skilled - Independent (Residence) visa (subclass 885)

 Skilled - Sponsored (Residence) visa (subclass 886)

 Skilled - Independent (Migrant) visa (subclass 175)

 Skilled - Sponsored (Migrant) visa (subclass 176)

 Skilled - Provisional (Regional Sponsored) visa (subclass 475)

 Skilled - Provisional (Recognised Graduate) visa (subclass 476)

 Skilled - Provisional (Graduate) visa (subclass 485)

Skilled - Provisional (Regional Sponsored) visa (subclass 487).

 

Applicants should not delay in providing their evidence of English language ability. The department will not delay finalising applications where English language test results have not been provided at time of application. Applicants will have 28 days from the date of application to provide their English language results if they did not provide them at time of application. At this point in time, if evidence has not been provided the application will be refused.

  

Looks familiar? Yes it's the same information on the current form.

 

The High Court action involving Mr.Berenguel challenging the Minister's decision was an embarrassment to DIAC, for not only did they lose and taxpayers had to foot the bill, it also forced them to depart from their intention of forcing people to have IELTS results before they apply. They produced this information above in April 2010 under pressure they should publicly admit thier defeat and inform international students.

  

We covered this issue in our newsletter on the 16th April 2010;

  

  

IMPORTANT!!!!!!!

 

The Current Definition of Competent English 

 

The current definition of Competent English is defined as follows;

 

If a person applies for a General Skilled Migration visa, the person has competent English if the person:

 

a) Satifies the Minister that:

 

   

i) the person undertook a language test, specified by the Minister in an instrument in writing for this subparagraph; and

 

   ii) the test was conducted in the 2 years immediately before the day on which the application was made; and

 

   iii) the person achieved a score specified in the instrument; or

 

b) satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

  

The new definitions of Proficient and Superior English have the same issue as in part ii, that is the results must be there before you lodge and in a test not more than 2 years old.

  

It is very likely, despite our best efforts in sending out these newsletters, many students may not be aware that on the 1st July 2011 the law was amended to ensure applicants for GSM visas met the minimum English Language requirement,


Competent,

 

The case forced DIAC to accept an IELTS result right up until the time the DIAC case officer was assigned to the file. This also meant applicants were allowed to lodged their applications without the IELTS result if they had to. DIAC has moved to correct thier mistake by introducing the new laws relating to English ability.

  

However the real issue is that the current Form 1276 is now grossly incorrect and will result in students still lodging their GSM applications without the required IELTS level they need. They will believe, as the form states, you have until the time of decision to provide evidence that you have competent English. 

 

Is DIAC going to refund application fees to those students who use this form in good faith? No. Is DIAC going to compensate international students for their course fees and living expenses when they learn they have been rejected for permanent residency? No.

 

Sadly this story of DIAC's incompetence is not going to reach the national newspapers. However I am sure that if the public did know they would be appalled as we are.

 

On a second issue, one which would not reach the public eye but does reach DIAC case officers, The Procedural Advice Manual (PAM) has a glaring fault in its instructions to case officers. This advice was discovered in the new PAM policy on the new points test Schedule 6C and is reproduced below;

 

14 Changing the nominated occupation 

 

An applicant cannot change their nominated skilled occupation.

 

For their application to be valid, all main applicants for a GSM visa are required to nominate a skilled occupation. Applicants for an offshore GSM visa must also satisfy a Schedule 2 time of application criterion that their skills have been assessed as suitable for that nominated occupation.

Onshore GSM visa applicants must have applied for a skills assessment in their nominated skilled occupation at the time of application and have a suitable assessment by the time of decision.

 

It was disappointing to read this given the law changed on the 1st January 2010 requiring all GSM applicants (except the TR 485 visa) to have a positive skill assessment at the time they lodge their applications, not at the time of decision, when a case officer is allocated.

 

Schedule 1 which dictates how a valid application must be made

was altered to the following since 1st January; 

 

(b) Applicant must be in Australia but not in immigration clearance. 

 

(ba) If the applicant:

 

(i) if not seeking to satisfy the criteria for the grant of a Subclass 887 (Skilled- Regional) visa: and

 

(ii) has not nominated a skilled occupation specified by the Minister in an instrument in writing for paragraph (bb);

 

the applicant's skills must have been assessed by the relevant assessing authority as suitable for the applicant's nominated skilled occupation. 

 

(bb) If the applicant:

 

(i) is not seeking to satisfy the criteria for the grant of a Subclass 887 (Skilled- Regional) visa; and

 

(ii) has nominated a skilled occupation specified by the Minister in an instrument in writing for this paragraph;

 

the applicant's skills must have been assessed by the relevant assessing authority, on or after 1 January 2010, as suitable for the applicant's nominated skilled occupation.

  

If the Skilled Migration Policy Section provides such incorrect advice to its own DIAC case officers how can the public feel confident about the advice it disseminates to international students wishing to apply for these GSM visas. Again it's a question of competence

 

Next week we will present a story of how one international student from China was advised incorrectly by a DIAC case office to withdraw her 885 PR application. Unfortunately she took that advice and withdrew. Read how we were able to turn this case around and get her PR granted months after it was withdrawn.
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Kind regards,

Karl Konrad: Managing Director and

Jee Eun HAN, Executive Manager     

Australian Immigration Law Services
Publisher of IMMIGRATION NEWS

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EDITORIAL

 

The story I have written about seems to be a carbon copy of the problems applicants faced when lodging their 485 visa back in 2009 and 2010. Many international students were forced home after their 485 visa was rejected at the Migration Review Tribunal (MRT) after not supplying certain documents on the same day the application is lodged.

 

The problem arose in the design of the DIAC application form which failed to inform applicants there were certain documents which must be provided at time of lodgement. At the time DIAC was not strict about this interpretation but hundreds failed due to not reaching competent English, 6.0 on each section of an IELTS test. When it came to the MRT they were ruthless in applying the law as it was written. Hundreds were sent home even though they obtained the competent level later before the hearing, the fact that they hadn't provided certain documents on the same day e.g., AFP certificate, Medical receipt or booking reference, they failed in their review.

 

Many hopes and dreams were shattered by these events and it all boiled down to the design of DIAC's application forms.

In this current Form 1276 it's even worse. We have no doubt someone is going to come to my office after being rejected by DIAC for not having an suitable IELTS result before they lodged their application.

 

Will DIAC be held accountable for destroying someone's life long dreams? Sadly no they won't. Those in the Skilled Migration Policy Section, have a good think about the consequences of not getting it right.

 

Karl Konrad

Managing Director 

Karl Konrad

 

 

Jee Eun HAN_Executive Manager
Executive Manager

Jee Eun Han

     
Eun Hye KIM

Case Manager

Eun Hye 

                                  
Hae Jung WOO

Finance Officer

Hae   

Jean Kim

Administration Officer 

Jean 


Zoe HE

Customer Service Officer

Zoe

  

Yuka 

 

Yuka

           Customer Service Officer

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