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The Devil Is In The Detail

by | Dec 8, 2022 | Migration

A recent media report from SBS News regarding visa problems experienced by a French national highlights the complexity of the Australian immigration system. It also demonstrates how the rules can get in the way of logic, leading to what only can be described as a bad outcome for the individual concerned and the potential loss of opportunity (if not reputation as well) for the country.

The situation involved an individual who arrived in Australia from France prior to the start of the pandemic. At the time she applied for a Temporary Skill Shortage visa (subclass 482). Her occupation as a winemaker was on the ‘medium stream’ list. She understood  this meant that all going well, she had the option to apply for permanent residence after living and working in Australia for a period of three years. This she did, working in her occupation in a regional area.

Unfortunately, at the end of that period, she was informed that as a result of changes to the Migration Regulations, she was no longer eligible for permanent residence.

The important change occurred on 20 March 2019 at which time it was announced that after that date it was no longer possible to apply for permanent residence through the Regional Sponsored Migration Scheme (subclass 187) – the pathway this individual had been hoping to take. Unfortunately, the individual concerned only became aware of this change when she sought legal advice in connection with her proposed permanent application.

The change in rules was not well advertised. Importantly, the individual had commenced work on her application prior to the change date and at that time was informed by the Department that the 492 subcategory was her best option. At the time she eventually applied for the visa, after the date the change took effect, she was not informed that it was no longer a permanent option for her. Further, in what can only be described as a cruel twist, had the applicant applied for the Short Term Stream, which was not previously an option for a permanent resident pathway, she would now be eligible to apply for permanent residence because of changes announced on 1 July 2022 for persons who had stayed in Australia during the pandemic and worked for at least one year.

Clearly our migration system has spectacularly failed the individual concerned in this application.

Our visa system should not be seen as some sort of lottery where outcomes are determined by luck alone. The decision to prevent a pathway to permanent status to persons holding subclass 482 visas living in regional areas with medium stream occupations lacks any logic and seems ill considered when the individual would have been eligible for permanent status if she held that category of visa whilst living and working in a metropolitan area. Further, the failure to take into account the potential impact of a change in rules has a significant impact not only on the individuals affected but also the ability of the country to attract much-needed talent if the rules are not transparent.

This case study is a salutary example of the need to constantly keep up with the rules on a regular basis and not just assume that they will remain static indefinitely.

If you have any questions about any type of visas please feel free to contact our migration lawyers.

Nevett Ford Lawyers Melbourne
Telephone: +61 3 9614 7111
Email: melbourne@nevettford.com.au
Visit our website: www.nevettford.com.au