The Australian Government is aware of a loophole which allows some New Zealanders to obtain a permanent resident visa in Australia, but that the Government does not publicise this pathway, which for many New Zealanders who are caught in the dilema of being left out of many welfare privileges could be a ‘lifeline’.

Some reports estimate that there are about 185,000 New Zealanders currently living in Australia who have been affected by the 2001 restrictions which cut-off New Zelanders  access to an easy permanent residency pathway to Australian and an array of welfare benefits including those for travel concessions, unemployment, sole parent, youth, sickness and even housing. Earlier this year many of these New Zelanders marched across Australian cites demanding a better deal for the taxes they pay.

But another important date is 1 September 1994. Prior to that date New Zealand citizens who entered Australia were considered permanent residents. Accordingly, under the Resident Return Visa  (RRV) rules they may be eligible for permanent residency now, provided of course they meet additional RRV criteria.

The New Zealand Herald reports that Welington academic Peter Hamer has taken this to a parliamentary committee in New Zealand reporting that New Zealanders who have lived in Australia prior to September 1, 1994, have the right to a permanent visa. 

"That has been quite a breakthrough," Paul Hamer told the New Zealand Herald. The September date was when all non-citizens were required to hold a visa and the "special category visa" was given freely to New Zealanders on arrival giving them the rights of permanent residents. The rules have changed since then and, since February 27, 2001, New Zealanders had to gain a permanent visa to access services they previously got automatically, such as social security and student loans. One of the key reasons for the change was to filter out the influx of New Zealanders moving to Australia solely for the purpose of taking advantage of the welfare benefits.

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Although DIBP succeeded in its appeal to the Federal Court despite the fact that DIBP used inconsistent means of communications to the detriment of the applicant, the court has expressed concerns over a visa refusal for a trivial oversight.

According to the case, on the records, DIBP had the applicant’s old address, current address and email contact details. DIBP was generally corresponding with the applicant by email except when it came to the refusal decision which it sent to the applicant's old address. DIBP was even aware that the applicant did not receive DIBPs decision letter as it was returned undelivered. The applicant only found out about the decision months later and by then too late for an MRT review.

In the applicant's appeal to the Federal Circuit Court, the court found in favour of the applicant stating,“the applicant did not receive notification of the refusal of her visa application until she had asked for it some months after it had originally been sent, even though the Department had corresponded with her by email and was aware that the refusal letter had been returned undelivered. It knew that she had not received notification and knew how to contact her but did not.”

However, DIBP appealed to the the Federal Court and succeeded. Justice Robert Buchanan said he had to apply the law and find for the government, not for student Jung Eun Kim, but he suggested the “clerical shortcoming” affecting her visa could have been fixed without the need for litigation.

“This case has some unsettling features...It is hard to understand why any clerical shortcoming could not be addressed and corrected without the need for legal proceedings... If, in fact, (Ms Kim) satisfied all the requirements for a student visa, save for inadvertently failing to provide the physical evidence of the overseas student health cover which she had obtained from Medibank at a premium of $1073.06, it is difficult to see why some appropriate administrative procedure could not have been found to overcome any administrative or technical difficulty which stood in her way.” ” Justice Buchanan said in his decision last week.

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Australia’s current visa regime is starving the design and construction industries of engineering talent, severely impeding future infrastructure development and adding to the high costs of business in Australia, reports the engineering journal Sourceable.

A leading industry body, Consult Australia, has warned that the country’s current visa regime could hamper infrastructure development by depriving employers of much needed engineering talent.

Consult Australia says changes to outdated visa regulations are urgently needed given the critical role that skilled migration plays in supplying the country with qualified engineers.

“Robust skilled migration programs are essential to the health of engineering-based companies and the Australian economy as a whole,” said Megan Motto, CEO Consult Australia.

Speaking to the industry journal, Sourceable, Ms Motto noted that in addition to “the high cost of doing business” in Australia, there is a “chronic workforce supply issues” arising from the cyclical nature of employment demand as one of the most besetting  problems affecting the country’s infrastructure design sector.

A migration agent whose registration was cancelled by the MARA in 2012 and whose appeal to the AAT recently failed is now working as an education agent, according The Australian, nicely slipping into the loophole festering with unregulated agents and surely and steadily damaging the $15 billion dollar industry.

In cancelling the migration agent’s registration of Jackie Chang in 2012 due to several serious complaints of the breach of the RMAs Code of Conduct, the MARA stated that:“A registered migration agent is required to be a person of integrity, and a fit and proper person to provide immigration assistance. On the basis of its findings in these complaints, the Authority decided that the Agent was not capable of meeting this standard, and subsequently cancelled his registration”

Clearly this does not apply to education agents as Mr Chang has managed to slip back into business telling The Australian that now “he restricted himself to work as an education agent.”

Many of the breaches of the Code by Mr Chang arose from agreements entered into by Mr Chang with, on the one hand, a Chinese agency, Zhaolong Education Consulting Services Co Ltd (Zhaolong) and, on the other hand, Australian educational institutions.

In brief, Zhaolong promoted courses offered by Australian institutions to Chinese students, for example by advertising in Chinese newspapers. Students who were interested in applying to study in Australia could retain Zhaolong to assist them in finding an appropriate course and in making the necessary arrangements to facilitate their study. Zhaolong charged its clients a fee for its services.

A family of three who believed they met the criteria for grant of a permanent visa have had their court appeal rejected for the simple fact that one of the documents in the original application was considered ‘purposely untrue’ and not an ‘innocent error’.

PIC 4020, also known as the “application integrity” criteria because it allows for a visa application to be refused upon the discovery of fraudulent documents in an application, was recently tested and upheld as a valid criteria by the Federal Court. However, while the court held that “it is not necessary to conclude that a visa applicant is aware that information is “purposely untrue” it noted that PIC 4020 is not directed to information or documents which are “innocent errors”.

PIC 4020 was aimed to close loopholes on dodgy documents and responses in visa applications, including the practice whereby applicants could go unpunished after the tactical withdrawal of a dodgy document. Since 2011, PIC 4020 has enabled refusal of a visa if an applicant provides a bogus document or information that is false or misleading in relation to their application.

The applicant in this matter, when queried by DIBP about the incorrect IELTs test certificates submitted with an application, admitted that it was incorrect. She claimed to have submitted it wrongly, due to misguidance by certain agents in India. In statements to the court, “She begged that she be forgiven,” and that in fact she subsequently achieved the required English outcome.

The DIBP, the MRT and the court rejected these arguments, which in the past may have carried some weight, The visa application was refused for herself, her husband and their son for a breach of regulation 886.22 4(d) which in essence states that at the time of decision, “No evidence has become available since the time of application that the information given or used…was false or misleading in a material particular.”