The moral high ground

[Alan Collett]

A couple of questions that are often asked on this forum are:

 

> Can I apply to one State Government for sponsorship of my subclass 190 or 489 visa, and then live and work in another State?

 

> Can I travel to Australia on a visitor visa and then apply for an onshore visa, such as an onshore Partner visa, or an 804 Aged Parent visa?

 

There is a spectrum of thought on these issues, which is often framed in the context of a moral obligation to "do the right thing".

 

Following the Department of Immigration's decision in the last 10 days to cap and cease skilled visa applications lodged in good faith several years ago under subclasses 175, 176, and 475 (the so called Priority 5 applications) - with little or no financial compensation to applicants - it occurs to me that the Department has forfeited the moral high ground, and are in no position to object or complain if visa applicants do whatever is lawfully permissible to secure a positive visa outcome.

 

There are also a number of (IMHO) questionable procedures going on in the 457 visa processing area at the moment, particularly in the context of the "genuine nature" of the position being nominated by Australian employers.

 

I wonder what forum members who are or have been visa applicants - particularly those who are contemplating one of the moral questions - think about this.

 

Have your perspectives changed over time? Are you more or less likely to push the proverbial envelope with your visa application?

 

Best regards.

[VERYSTORMY]

I think there are a number of separate issues Alan

 

I think the Cat 5 people have been treated shockingly for a long time. The latest debacle is just the latest in a long line of poor treatment.

 

The 457 I think needs a big review. It is clearly failing both Australia and the applicants. Personally, I would suspend the 457 for reasons mainly to do with the economy and the fact that I do see some significant rorting going on. We have posts on here recently of people being offered 457 for boiler makers in Kalgoorlie, when as someone who spends a lot of time in Kal knows, there are lots of unemployed boiler makers looking for work there. This is just one example of many.

 

I came on a 457 back in 2008. I then gained a 186 PR and then citizenship. So, been through things, including a change of employer on 457.

 

The other issue is skilled migration generally. The SOL and the CSOL need to be culled significantly. I would say by at least 60%. They bear no reality to the jobs market - heck my own occupation is still on the CSOL, despite us having massive unemployment (30% for general geologists and 40% for exploration geologists). This is abhorrent to both Australian citizens, residents and even potential applicants who believe that a role on the lists means there is actually demand for that role. It exposes the migration system as a giant con designed to leach money from prospective applicants while potentially damaging people already here.

[ramot]

My son was caught up with all the retrospective changes to the (885) ? Visa. Studied for 3 years, then when everything was lodged, paid for, because of the changes was on a bridging visa for 3 years, was determined to stick it out, educated to MBA level, took a year to get a proper job, finally got PR, and now 10 years after arriving citizenship.

 

Appreciate that governments can change the rules, but it seems so dishonest to take applicants money, change them retrospectively and sit on that money for years, and then say we have capped and ceased your visa.

 

I know it certainly changed our mind set, when our next one was going through the visa process, wouldn't have felt guilty at all of playing the game to our benefit.

 

Feel so so sorry for everyone who has lost out on the changes.

Edited September 26, 2015 by ramot

[MaggieMay24]

I agree that the category 5 visa applicants have been treated poorly. IMO, if you apply under the rules of the day, then the visa should be processed based on those rules. It would not have been difficult to rearrange the allocations to ensure these were all processed by now - they could have fit within the overall skilled migration umbers.

 

Regarding people applying under one visa with full intent to come and apply for another (e.g. visitor visa to 820), I do think this is misusing the system. I realise people do it to avoid the long processing times, but I still think it's wrong. Same with applying for a 190 with no intent to live in the state that's sponsored you. I think there should be a more formal way to require them to ask for release from the state, including some evidence that they've made a reasonable effort to find work. I also don't think you should qualify for Medicare until after your PR has been granted. Taxpayers may pay for medicare for people who submit fraudulent visa applications, which isn't right as far as I'm concerned.

[Freckleface]

I feel sorry for people who have had their dreams squashed. However I think people sometimes forget that the Department of Immigrations primary responsibility is to the people of Australia rather than those who wish to move here.

[Addy]

We came on a 475 to South Australia nearly 7 years ago. While we were applying we suffered several delays due to both Federal and State rule changes. During this time there were also people badly affected by the sudden closure of the financial deposit route which was a disgrace.

 

We followed the rules of the visa to the letter and stayed in SA for the required 2 years. During this time my husband could not find work despite being the visa holder and being on the skills in demand list. There simply weren't the jobs in SA for him to apply for. The heartbreaking thing was as he had registered with several agencies to try and get work, he would get calls asking him to apply for roles in Melbourne, Sydney and Brisbane which he couldn't do. We had decided that as soon as our PR was granted that we would move to another state but just before then my husband finally found work. I swear he is in the only job in SA for which he is qualified as no other roles like it have been advertised in the last 5 years to our knowledge!

 

We are happy and settled in SA and will stay here for the forseeable future but I wish we had not taken the moral highground and had moved early on to another state where there is more work as we will never recover from the financial hit we took. I don't blame people who do it, it is morally wrong to condemn people to struggle to live without any support and not allow them to move to where the work is. We were lucky that we had enough equity from our house sale to cover us but a lot of people aren't as lucky.

[wrussell]

Posted on another forum:

 

Originally Posted by xxx

 

Ho do you interpret the word "need" in Reg 5.19(3) and Reg 5.19(4). I am interpreting it mean that it is an occupation that is needed by that business. So it very much related to the activities of the occupation as described in the ANZSCO, the business and what it does.

 

Recently I had a rather torid MRT session where the Member was using the terms Need and Vancancy interchangably. I think he was wrong in doing that. What is your take on this.

*******************************************************************************

Thank heavens I have never had to take a 457 to review, but I have taken lots of others across the range of sub classes.

 

Need and Genuine Need.

 

I defer to Through the Looking Glass, by Lewis Carroll

 

'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'

 

'The question is,' said Alice, 'whether you can make words mean so many different things.'

 

You are pretty well stuffed if you front the beak and try to make a case that a general manager with a PhD in quantum electrodynamics is needed for a fish and chip shop.

 

This is worth a try:

 

On the other hand, a service garage might well need a mechanic, but is the need 'genuine'? Well, is the boss working 48 hours a day and having to refuse work, has s/he lost staff? Prove it.

 

Can you persuade a cunning accountant to amalgamate several service garages and call the resulting entity - the ABC Motor Group? They will need six mechanics, a general manager and a cunning accountant. Of course any RMA who pulls this sort of stunt should face the OMARA immediately, to be thoroughly castigated, present company excepted.

 

It is sometimes a matter of carefully selecting the most likely occupation.

 

Worth looking at:

If possible get the prospective employee/s here on a 417 and working in the alleged position (for a qualifying salary) and need/genuine need are pretty well covered, unless the visa applicant is related to a principal of the nominating entity.

 

 

Genuine? Brings back memories:

 

Next time we visit, my husband will present Mr M.

with a DO NOT DISTURB sign. Mr M. will be able sit there

quietly and contemplate the possibility of asking your

operator to let callers know that the phones are genuinely (a

favourite embassy word) out of order. Had we been able to

contact the monkey we would have let him know that his

letter was here and we had a transport problem. We? Well,

yes. I have been brushed-off by counter staff many times,

because I had no appointment. To stand a fighting chance of

being seen I have to drag my husband to Manila. He is harder to be rid of, I can tell you.

Edited September 27, 2015 by wrussell

[wrussell]

it occurs to me that the Department has forfeited the moral high ground, and are in no position to object or complain if visa applicants do whatever is lawfully permissible to secure a positive visa outcome.

 

Years ago I took exactly this position.

 

When I found myself in circumstances where a client satisfied all the applicable criteria except (for one example) the work experience criterion, I advised that I could not be involved in assisting to 'modify' an employment reference to satisfy the requirements which were ..... There was nothing illegitimate about this. The - PEOPLE OUR BUSINESS - mob published employment notification exemplars and quoting ANZSCO was not improper, nor was advice not to follow the same sequencing or language, when they had completed the required work experience. From time to time I have wondered whether some of these applicants went elsewhere with manufactured evidence; or acted DIY.

[wrussell]

I feel sorry for people who have had their dreams squashed. However I think people sometimes forget that the Department of Immigrations primary responsibility is to the people of Australia rather than those who wish to move here.

 

What about the Australian family members who sponsored many of these applicants and who are now (in many cases) permanently separated from them? The department of racialism has outdone itself this time.

[Freckleface]

What about the Australian family members who sponsored many of these applicants and who are now (in many cases) permanently separated from them? The department of racialism has outdone itself this time.

 

 

Australia doesn't hold citizens hostage so families are only separated by the choices they themselves make. Your final sentence is petulant.

[VERYSTORMY]

Years ago I took exactly this position.

 

When I found myself in circumstances where a client satisfied all the applicable criteria except (for one example) the work experience criterion, I advised that I could not be involved in assisting to 'modify' an employment reference to satisfy the requirements which were ..... There was nothing illegitimate about this. The - PEOPLE OUR BUSINESS - mob published employment notification exemplars and quoting ANZSCO was not improper, nor was advice not to follow the same sequencing or language, when they had completed the required work experience. From time to time I have wondered whether some of these applicants went elsewhere with manufactured evidence; or acted DIY.

 

From my experience, there is no shortage of people with made up experience - very simple to do. I have even seen some businesses (one of Australias biggest) make up roles by making them sound much more skilled than they are in order to hire a 457. I had a neighbour who is a blast hole driller - this is a role you can train someone to do in a couple of days. The job is one that is not on either of the lists. But drillers are - a much more technical job that takes a number of years to learn. They made the nomination sound like he was a driller and even doctored his CV in order to get the sponsorship - this was a VERY well known mining company

[Freckleface]

From my experience, there is no shortage of people with made up experience - very simple to do. I have even seen some businesses (one of Australias biggest) make up roles by making them sound much more skilled than they are in order to hire a 457. I had a neighbour who is a blast hole driller - this is a role you can train someone to do in a couple of days. The job is one that is not on either of the lists. But drillers are - a much more technical job that takes a number of years to learn. They made the nomination sound like he was a driller and even doctored his CV in order to get the sponsorship - this was a VERY well known mining company

 

Did you report the fraud?

[Quinkla]

The principal issue with the 457 is that it is intended for one purpose (filling a vacant position on a short term/interim basis); is used by companies for another purpose (filling roles on an ongoing basis), and therefore perceived by visa holders as serving yet another purpose (foot in the door towards permanence). If there were the political will, this could be solved by setting a maximum job duration for a 457 (e.g. two years) and expressly prohibiting 457 visa holders from making an onshore application for another visa. The fact that these steps have not been taken indicates to me that the Govt. is actually not heartbroken about the way the 457s are being used, even if it is politically expedient to pretend that they are.

[Raul Senise]

The truth about the 457 program is rarely reported.

 

It is an easy political target and thus always shown in a bad light in the media.

 

Yes, there are rorts, but they are minimal. Yet it is the rorts that are always highlighted and paraded by the media, unions and political parties when required.

 

The truth of the matter is that it is a very successful program and there are many industries in Australia that would not survive if not for the 457 program, as the skills are simply not available locally.

[Peach]

many industries in Australia that would not survive if not for the 457 program, as the skills are simply not available locally.

 

Care to name one?

[Raul Senise]

Care to name one?

 

Sure, why not start with Hospitality.

 

If you were to stop the 457 program as some have suggested, many of the restaurants in the capital cities will close overnight. We simply do not have enough local talent to fill key roles and there are too few apprentices to fill the void.

 

This situation is well know, researched and documented.

[Peach]

Sure, why not start with Hospitality.

 

If you were to stop the 457 program as some have suggested, many of the restaurants in the capital cities will close overnight. We simply do not have enough local talent to fill key roles and there are too few apprentices to fill the void.

 

This situation is well know, researched and documented.

 

So we're talking about Asian restaurants here? You are seriously telling me there is a lack of cooks and table staff?

[Raul Senise]

So we're talking about Asian restaurants here?

 

No, not at all.

 

 

You are seriously telling me there is a lack of cooks and table staff?

 

Chefs, Cooks, Restaurant Managers.

 

Table staff can not be sponsored under a 457 but yes, if not for working holiday makers and student visa holders, there would be a critical shortage of table staff too.

[MaggieMay24]

Since Australia has also chosen to grow its population through migration, I don't have an issue with using a variety of visa programs in order to do this. I came on a 457 visa and work in an occupation that could have been filled with a local citizen/PR holder. The fact that I was an intra-company transfer made it easier for my employer to fill the role with someone who is already familiar with company policies and programs that would have taken 6 months for a local to be adequately familiar with which, in my occupation is not unusual or overly problematic.

 

You could say that I therefore shouldn't have been considered for the role. But there was no breach in the visa criteria (labour market testing wasn't in place at the time and I'm in a role that's exempt from it anyway), my employer benefited from having someone immediately able to perform 80-90% of the role (needed to learn local legislation and practices) and Australia benefits from a tax-paying worker 3 days after I arrived. Yes, there is obviously a local Australian citizen/PR holder who therefore didn't get the role, but with enough new tax-payers that keep the economy going it means other businesses stay in business that can employ them.

 

If the visa rules are being followed, I have no complaints. It's when people don't follow the rules (i.e. not meeting the genuine temporary entrant criteria) that I object.

[VERYSTORMY]

Sure, why not start with Hospitality.

 

If you were to stop the 457 program as some have suggested, many of the restaurants in the capital cities will close overnight. We simply do not have enough local talent to fill key roles and there are too few apprentices to fill the void.

 

This situation is well know, researched and documented.

 

I agree there is a shortage at the junior end - this is well documented and effects Australia and a number of other countries. However, the 457 is not the answer. The reason there is a shortage is the appalling pay and conditions. Bringing in more people on 457's is not the answer. The industry needs to sort itself out and start offering young people a career that is viable in terms of salary and working conditions. Using the 457 instead is like trying to stop the bursting dam with a plug.

 

Restaurants want to pay young trainees a pittance and expect them to work 70-90 hours a week. That is the problem. So, even when they do recruit, understandably people don't stay long and it becomes a revolving door. What is also well documented is that the restaurants that have acted to do something about this and impose reasonable hours, conditions and decent pay, don't have the same issue in attracting staff.

[Alan Collett]

Taking a step back from the specifics of the merits of the 457 program, there is a wider question of whether employers should be at liberty to employ whoever is considered most appropriate for a position, whether that person is an Australia or a skilled person from overseas.

 

Personally, I question how any Government Department (or RCB in the case of RSMS/subclass 187 applications) can tell me who I should or shouldn't employ. If I decide who is most appropriate for a position and I'm paying that person a market rate of pay that should be the end of it.

 

After all, people in Governments typically have little or no experience of the commercial world - and are notoriously bad at picking winners.

 

I appreciate though that those who are left of centre politically like to see a more interventionist approach to these things.

 

Best regards.

[VERYSTORMY]

Taking a step back from the specifics of the merits of the 457 program, there is a wider question of whether employers should be at liberty to employ whoever is considered most appropriate for a position, whether that person is an Australia or a skilled person from overseas.

 

Personally, I question how any Government Department (or RCB in the case of RSMS/subclass 187 applications) can tell me who I should or shouldn't employ. If I decide who is most appropriate for a position and I'm paying that person a market rate of pay that should be the end of it.

 

After all, people in Governments typically have little or no experience of the commercial world - and are notoriously bad at picking winners.

 

I appreciate though that those who are left of centre politically like to see a more interventionist approach to these things.

 

Best regards.

 

On that basis then Alan, let me run the following:

 

I might need to recruit an exploration geologist later this year. Now, I know a number of excellent people currently in the UK and encourage them to apply. However, I also know that we have 40% unemployment of exploration geologists in Australia.

 

I run the advert as normal in the industry press and go through the applications. I find, that the best candidate is a person in the UK - though plenty of people who could do the job locally. So, I hire them and arrange 457 sponsorship.

 

Now, this means of course that an Australian geologist is going to continue languishing on the dole. The government are going to have to pay a lot of money for. The productivity of the country is reduced as yet another Australian stays out of work. His children may, if he stays long term unemployed grow up disadvantaged. He may lose his home and result in all of the social issues that causes.

 

All because I want to have the best person for the job?

 

In my opinion, if business want that option, fine, but they need to pay for it. Not the little fees for a 457. But for all of the potential ills that it may have resulted in mentioned above. I would say a even $20 million should be reasonable!

[Alan Collett]

On that basis then Alan, let me run the following:

 

I might need to recruit an exploration geologist later this year. Now, I know a number of excellent people currently in the UK and encourage them to apply. However, I also know that we have 40% unemployment of exploration geologists in Australia.

 

I run the advert as normal in the industry press and go through the applications. I find, that the best candidate is a person in the UK - though plenty of people who could do the job locally. So, I hire them and arrange 457 sponsorship.

 

Now, this means of course that an Australian geologist is going to continue languishing on the dole. The government are going to have to pay a lot of money for. The productivity of the country is reduced as yet another Australian stays out of work. His children may, if he stays long term unemployed grow up disadvantaged. He may lose his home and result in all of the social issues that causes.

 

All because I want to have the best person for the job?

 

In my opinion, if business want that option, fine, but they need to pay for it. Not the little fees for a 457. But for all of the potential ills that it may have resulted in mentioned above. I would say a even $20 million should be reasonable!

 

 

I understand what you are saying, but IMO it is not the business of a commercial enterprise to be picking up the social consequences of decisions made by others (eg Unis turning out too many graduates with qualifications who can't find employment in Australia).

 

The way you are suggesting takes your employer down the pathway of mediocrity - ultimately an overseas business with more able employees will simply come in to do the work that your business can't do because it has taken the "socially responsible" option and has less competent staff.

 

You must do what is right for your company. IMHO.

 

Best regards.

[VERYSTORMY]

But it is the responsibility of business to pay for its own negative choices. If it choses to go down a path that has causes social issues, it is that businesses responsibility to pay for them issues.

 

From my experience here Alan, the major deficiency in being able to find the right people is the lack of training provided to staff to develop them and particularly young people. Businesses complain that they can not find the staff they want, but then don't provide the training.

 

So business, like everything in life, reaps what it sows. The current conditions in mining is a classic example. We are in a massive downturn - a predictable downturn - a lot of mines have let lots of people go and areas such as training have been slashed. A lot of mines have fired there apprentices and young graduate geos and engineers have lost their jobs and a lot of retrained now into other careers. But, when the industry turns around and wants to start hiring, they will complain there aren't the people and demand 457's. It is pathetic. The downturn was clearly going to come. During the boom, I asked a lot of directors in the industry what there plans were when we all woke up one morning to find metal prices had collapsed. Without fail, every single one looked at me like I was mad. Yet the very definition of a boom is that it will come to an end. But, business simply doesn't plan. They are not now planning for when things do come back. It is not for society to pick up the pieces for businesses failure to plan.

[Raul Senise]

The problem is that every industry is different but the 457 program is judged as a whole, with no regard or differentiation between industries, business size, etc.

 

There is a small portion who rort the system but the whole system is judged as bad, even though the vast majority are doing the right thing.

 

The ones doing the right thing and the many success stories are never reported. I have countless clients who because of a few key positions filled by 457 visa holders, have built successful businesses which employ many Australians.

 

There are some industry sectors that do not do adequate training, so all Australian business is deemed as not adequately training their Australian staff, when this is not the case.

 

A common theme I have personally experienced countless times in the Hospitality industry is the lack of apprentices entering the industry. Almost all of the hospitality client I represent want to hire more apprentices, but they cannot find any. Most apprentices last less than a month, when they see that the reality of a commercial kitchen is nothing like Master Chef.