Goddard, Jane --- "Bearing Good & Bad News: Providing Immigration Advice" [1999] ALRCRefJl 22; (1999) 75 Australian Law Reform Commission Reform Journal 20

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Reform Issue 75 Spring 1999

This article appeared on pages 20 – 23 of the original journal.

Bearing good & bad news: providing immigration advice

By Jane Goddard*

In Australia, successive governments have determined the general composition and size of the migration program.

The federal parliament, through the enactment of the Migration Act 1958 (Cth) and Migration Regulations, has established the specific criteria for each of the 150 or so visas available to non-citizens. The Department of Immigration and Multicultural Affairs administers this legislation and its decisions can be the subject of review by tribunals and courts.

Within this highly legalistic administrative system operate the various players - people who wish to obtain the approval of Australia to live or visit here, the decision makers placed with offices of the department in Australia and in many places overseas, and the advisers who are the professional go-betweens.

I have been a migration agent and lawyer for a number of years now – originally as a solicitor with a community legal centre and more recently in private practice. Over this time I have seen many changes to the immigration system and while I have experienced brief periods of fluctuating demand for my services, I have never felt that the need for migration advisers has diminished. In fact, as the restrictions on migration have increased, the demand and need for migration advice has grown.

The area of migration law is a complex and quickly changing one. The Migration Act and Regulations run for several hundred pages and seem to change on an almost weekly basis. In addition, the Federal Court is besieged with review applications and new judgments are handed down every day. At the same time, the department regularly modifies its policy documents and changes the manner in which it chooses to process applications.

People seek professional assistance in migration matters for a variety of reasons. Sometimes it is simply a matter of paying to avoid the time consuming and cumbersome process of filling in forms and compiling the relevant attachments, for others it is to get reassurance that the process on which they have embarked is the correct way of proceeding. Some clients have a sense (often correctly) that their application may be complicated for various reasons and, for some, they are at the final stage in a long line of refused applications and they are hoping that the proverbial rabbit can be pulled out of the hat – a feat that is often touted but rarely delivered.

As a result, migration advisers must be legally astute and have a comprehensive knowledge and understanding of relevant legislation and policy to provide accurate and timely advice about this to clients. Balanced against this is the need to have due regard to the political realities that determine the climate in which certain discretionary decisions will be made, and the ability to be able to factor this into the advice. They must be dutiful clerks; being able to complete often incomprehensible application forms without accidentally misleading the Department, and they must often be social workers and counsellors; able to deliver incredibly bad news in a professional yet caring manner.

These are often not easy things to deliver, especially in a market controlled by outside forces and subject to political whim. The decision to migrate is probably one of the most significant decisions that a person can make in a life time as results can be uncertain, cause emotional upheaval and cost a great deal of money. The forces driving a person to migrate are extremely complex and varied. The decision usually affects others and is emotionally charged. As a result, the stakes are often high and the expectations even higher. I will discuss just a couple of examples to illustrate how hard it can sometimes be.

One of the single biggest categories of migration is for spouses of Australian citizens and permanent residents. As a result, it has been the subject of intense scrutiny by the government and the department, which has resulted in significant changes to both the law and the process. Despite the changes, people just seem to keep wanting to start relationships with foreigners and when the relationship doesn’t quite fit the model laid down by migration law, the results can be devastating.

The first rule to understand is that marrying or being in a relationship with an Australian citizen does not guarantee that a person can remain in Australia. The law lays down many barriers to true love and in some cases even demands that a couple separate in order to be together. I recently saw a couple faced with just such a predicament. The Australian-born sponsor had met her African husband while he was the holder of a temporary visa and had been awaiting the outcome of an application for permanent residence. While this application was being processed, he had fathered two children, obtained three jobs and was the sole financial supporter of his wife and young family. The residence application was refused, and according to various provisions of the Migration Act and Regulations he now has no alternative but to leave Australia and make an application on spouse grounds to return.¹

To add to their difficulties I had to explain that his application would take some time to process as the nearest Australian immigration office to his country of residence has one of the slowest average processing times in the world. Departmental figures estimate that his application will take 63 weeks to process – compared with posts like The Hague where the same application takes an average of five weeks.²

In another case, the husband left Australia believing that his return would be only a matter of time. Unfortunately, the time has turned out to be a little longer than first anticipated. In that case, the Australian embassy refused the visa because they determined that he was of bad character. The finding centered not on any criminal convictions or allegations of criminal conduct, but because while in Australia he had allegedly lied about his past in an application for refugee status. There is no doubt about the genuineness of this relationship or the application, but they now face the very real prospect of having to live overseas if they wish to live together.

Other cases are even more tragic. All migration agents will be familiar with the client who presents with a plastic bag full of tattered papers and a plea to ‘please help’. Their history usually includes some or all of the following elements. Arrival several years ago – maybe with young children or children born shortly after. A string of unsuccessful applications (usually at the cost of their life savings), possibly previous compliance action and a misplaced sense that if they simply pay someone enough money they will ultimately obtain residence. Usually the situation has come to a head because their children are now seeking entry to secondary or tertiary education or need, in some other way, to prove their residence to officially become part of the system. The story that unfolds reveals the lives of people as fugitives of justice – a series of false names, frequent moves and lack of access to services.

Sometimes something can be done. If the children are no longer living with the family and are over 18 then they may be able to regularise their status. Occasionally the parents’ circumstances mean that an application can be made personally to the Minister for Immigration. Most of the time, however, there is nothing that can be done that is likely to result in the granting of a visa. In such cases, I become the bearer of very bad news, news that few clients are willing to accept and, I suspect, is usually completely ignored as they go back to their secretive lives waiting hopefully for the next amnesty for illegal immigrants (again something frequently touted but rarely delivered).

The use of migration agents by people seeking visas is not compulsory, nor is it particularly encouraged by the department. It is now a standard sentence in the introductory material accompanying a visa application form that: “This form is designed so that you can complete it with minimal, if any help. However in the event that you may wish to seek help, a list of registered migration agents is available...” (see, for example, Form 887 Application to remain in Australia). While the form itself may be completed without assistance (provided of course the applicant reads and writes English) the lodgement of the form without supporting documents will seldom result in a successful application.

Often my job is solely to make sure that the documentary evidence is sufficient to demonstrate that a person meets the requirements for the visa. This can be the relatively simple task of assembling documents that are already freely available. In other cases it can involve all the skill of a senior detective.

I once acted for an elderly man who wished to lodge an application in Australia on parent grounds. The requirements for this visa are straight forward enough – at least an equal number of his children must be permanently resident in Australia to those resident overseas and he must be over 65 at the time of making the application. In this case all his children were permanently resident in Australia and he was over the required age. His difficulty was that he had absolutely nothing to prove that he met either of these two criteria. He was a citizen of South Africa, born to a black mother and a white father. As a ‘coloured’ person during the apartheid regime he had great difficulty in working in his chosen profession. In the mid 70s he managed to obtain false identity documents, which indicated he was white, which in turn allowed him to operate a business in a whites only area. His false documents included a false name and a new birth date. Prior to obtaining this documentation his ex-wife and all his children had migrated to Australia. After many years of separation from his children he obtained a passport and visa in the false name and travelled to Australia. The birth date on his passport indicated that he was just under the required 65 years when, in fact, he was in his mid 70s. Having been born in 1921 into a poor area, his birth had never been registered.

Thus began the exercise of trying to locate evidence that he met the requirements for the visa. First of all was proving paternity of his children, which was resolved using DNA testing. More difficult, however, was proving that he was over the required 65 years. There are no tests that can be conducted on someone (either living or dead) that can prove their age. What was needed was a range of secondary evidence that would lead to the conclusion that he was indeed over 65. Eventually we gathered statements from people in South Africa who could remember growing up with him and could recall (just!) that he was born shortly after the 1919 flu epidemic. His marriage certificate indicated that if his newer false date of birth was accepted then he would have been just 15 when he married. He had personal memories of events that a younger man would not have been able to remember. By assembling these fragments of evidence we were able to paint a picture of a man who was significantly older that his passport indicated. Finally, there was the task of convincing the department that he should be excused from having entered Australia on a false passport. This involved a detailed explanation of the reasons why his false identity was necessary in the political environment of the day. I am happy to say that eventually the department accepted his application, and his residence remains one of my most cherished success stories!

One of the things that I find often drives people’s perception that they need to use a migration adviser is the simple fact that accurate information is so difficult to come by. The Department of Immigration and Multicultural Affairs is a vast bureaucracy which, like the general population, contains its fair share of good people, indifferent people and people with a range of prejudices and misplaced values. As a result, the information that bureaucracy provides is similarly haphazard.

Whilst the advent of new technology such as the Internet is helping to disseminate information, the increasing reliance on machines over people, is resulting in the department taking on a less human face. Clients often complain to me about their inability to feel that anyone has really listened to them. I am often asked to act for people who have already lodged applications themselves, simply in the hope that I might be able to find out for them what is going on with it or, I suspect, simply to provide someone to speak to about their situation.

At the heart of all evil are push-button recorded message telephone answering systems. The sole purpose of these unconscionable beasts is obviously to stop people speaking to other people. With their rise has come increased client dissatisfaction with the service they are paying for. Significantly, they seem to have been introduced almost at the same time that the government significantly increased the fees for lodging an application on the basis of user pays. The system makes it almost impossible to actually locate the decision maker on a particular visa application and then even more impossible to speak to them. I have waited for more than 20 minutes negotiating my way through one of these systems only to be brought back to the beginning without actually speaking to a real person.

It is encouraging that in the face of great adversity people are actually still trying to communicate with one another. It is even more encouraging that sometimes we are even succeeding. For example, some sections of the department have recently adopted a policy of sending agents and applicants an initial acknowledgment letter, which includes the name and direct telephone number of the case officer. Such an approach is to be encouraged. At the same time the increasing use of email has heralded a change in ways of communication. As email has a culture of chatty, friendly communication – this has resulted in those decision makers who use email adopting a much more informal manner – something that is also to be encouraged.

Practising in migration is not easy and the victories on difficult cases are scarce, but it must be said that, at the end of the day, there is nothing quite like the feeling of satisfaction when you are able to deliver the golden chalice of residence to someone who really wants it.

* Jane Goddard was the principal solicitor at the Immigration Advice and Rights Centre between 1993 and 1997 and is now in sole practice at Jane Goddard, Solicitors. She is a part-time member of the Social Security Appeals Tribunal and a member of the conduct panel, Migration Agents Registration Authority. She has lectured in immigration law at the University of NSW and the University of Technology, Sydney.

Endnotes

1. See s 48 of the Migration Act, which dictates that once a non-citizen has had a visa application refused they are entitled to apply only for a prescribed class of visa. Spouse visas are not prescribed.

2. See A Client’s Guide to Visa Grant Times – March 1998, released by the Department of Immigration and Multicultural Affairs.