The new points test and "credentialled community languages"

The new financial year has started and so has the new points test for General Skilled Migration to Australia. I have looked at the details of the new test on my website.

One of the peculiarities of the new test that deserves special comment is the 5 points awarded for a "credentialled community language". Under the old test, points were available for anyone who was competent in a designated foreign language, with competency demonstrated by having completed a Bachelors degree in any subject that was taught in that language, or alternatively having a professional level translating or interpreting accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI).

The new category drops the university qualification entirely and replaces it with a paraprofessional NAATI accreditation. So what?

In the greater scheme of things, I suppose 5 points is not a large component of a test which has a pass mark of 65. For some people of course it could be make or break, and it will certainly be of greater significance from July next year when the new "SkillSelect" model will not have a fixed pass mark and applicants will need to try to maximise their points in any way they can.

As someone who has a long personal history in the translating and interpreting field over 30 years, with professional qualifications in four languages other than English, I feel the need to make a few comments all the same.

Do these people have any idea of what they are doing? Did anyone ask a professional linguist (that is, someone who has studied the science of language called linguistics, not someone who speaks several languages)?


Using a translating or interpreting test as a measure of a person's ability to communicate in a given language is a nonsense. The skill sets involved are totally different. Particularly when the level is reduced to what NAATI calls paraprofessional, formerly known as level 2, which is about the standard you can get from a good computer program, what is happening is that you are using a criterion from one discipline to measure competency in another.

But using the wrong test is only one of the problems with this new criterion. A test is a test, but not if you can't actually sit for it. NAATI conducts paraprofessional translating tests in only a few specific languages (like Swahili and Nuer), so for most people the only option is an interpreting test. No such tests are not available outside Australia, and according to my investigations with NAATI, nor do they have any intention of offering them overseas. It is not clear how long the waiting period for testing in Australia will be once the applications start hitting the desk at the NAATI head office.

The boys and girls at Belconnen (DIAC HQ) should make the trip to Deakin (NAATI HQ), via the School of Languages at the ANU, to get a bit of basic education in linguistics, and then have a second go at this one.

July 2011 fee increases exceed CPI

Fee increases for most visa and other applications take effect from 1 July. Visa application charges (VACs) have been increased by around 15%, well above the inflation rate.

A particular concern is the fee for an application for review in the Migration Review Tribunal (MRT). The fee is increased from $1,400 to $1,540 (10%). The same applies to the Refugee Review Tribunal (RRT), where the fee is only charged if the application is unsuccessful. However, while the MRT fee was previously refunded in full if the appeal was successful, under the new rules successful applicants will only get back 50%.

The previous provision to allow for waiver of the fee in cases of financial hardship has also been changed, limiting the waiver to 50%.

Fees for the MRT are already substantially higher than in the Administrative Appeals Tribunal (AAT), which charges $777 and refunds $677 on success. In cases of hardship, the fee is reduced to $100.

Most cases in the MRT take about 2 to 3 hours to be heard. Cases in the AAT, which include complex appeals concerning tax, customs, veteran's entitlements and other matters, often run for 1 to 2 weeks.

Since the MRT overturns 45% of decisions that are appealed to it, according to its annual report for 2009-10, there does not appear to be any basis for the government to seek to deter applications for being mostly frivolous or unfounded.

Is the "Malaysian solution" illegal?
The internationally recognised legal status of a refugee is not something granted to a person by any particular country or authority. It is not like a licence, or a visa, or a title. According to the legal definition, a refugee is a person who has a well-founded fear of persecution in their country of nationality or residence because of their race, religion, nationality, membership of a particular social group or political opinion. The key word here is "is".

As a signatory to the Convention and Protocol on the Status of Refugees, Australia has well-established legal obligations towards any person who, according to the above definition, is a refugee. Australia recognises in its domestic legislation that it has these obligations, referring to them in the Migration Act as "protection obligations". They include the obligation not to send the refugee to a place where they would suffer persecution. This is not to be done "in any manner whatsoever" (Article 33). Sending a refugee to a country that is not a signatory, and of which they are not a citizen and where they have no right to remain, obviously constitutes a serious risk that they will either face persecution there or be sent on from there to face persecution elsewhere.

An asylum seeker is someone who claims to be a refugee. As with anything, some claims are genuine, some are not. But the individual asylum seeker does not become a refugee only after their claims have been accepted as genuine by the Australian government. They are refugees as soon as they have that well-founded fear of persecution.

So how does the Australian government know whether it has legal protection obligations in respect of any asylum seeker before it listens to the person's claims and makes an assessment? It doesn't. If it sends the person back without making that assessment, it risks sending back a genuine refugee and therefore being in breach of international law.

Official government figures show that around 90% of asylum seekers arriving by boat turn out to be genuine refugees: http://www.aph.gov.au/library/pubs/bn/sp/AsylumFacts.pdf

That means that, of the 800 asylum seekers sent back to Malaysia, which is not a signatory to the Convention, Australia is likely to breach its obligations under international law in 9 out of 10 cases.

Get them off the boats -- put them on planes

Here are some interesting statistics. In 2009-10 some 5609 people arrived in Australia as "boat people" asylum seekers:

http://www.aph.gov.au/library/pubs/bn/sp/boatarrivals.htm

In the same financial year, 5978 people who had not arrived on boats applied for asylum (protection visas) in Australia:

http://www.immi.gov.au/media/publications/statistics/asylum/_files/asylum-stats-2010-11-section1.pdf

The figure for boat arrivals was a significant increase on the previous year's figure of 1033, while the non-boat number for 2008-09 was 5074.

Hardly anyone mentions the non-boat arrivals. They come in with visitor, student or other temporary visas and are allowed to live freely in the community, usually with permission to work, while their cases are considered. The boat arrivals are the hottest potato in Australian politics.

So here's an idea. Why not give the boat people visas and let them fly in? No more boats, no more detention centres, no more tragedies like SIEV 221 at Christmas Island (this is the real attraction, as far as I'm concerned), no more headlines, no more ranting and raving by shock jocks (ok, that might be a bit optimistic).

If the only difference between "illegal" and "legal" asylum seekers is having a visa, then why not create an Asylum Seeker visa? It would certainly achieve the government's stated objective of smashing the people smugglers' business model.

Reply from DIAC about anti-discrimination protections

I have received a reply from Immigration to the enquiry that I mentioned in my last posting:

While what information and the form in which that information will be made available to employers is yet to be finalised, it is envisaged that only generic information would be visible to employers. In addition to this, clients submitting and expression of interest will be asked if they wish to make this generic information available to potential employer sponsors. It is also anticipated that the process will be an 'opt in' one for clients whereby employers will indicate in the database which clients they are interested in contacting. Clients will then be given the opportunity to contact the employer thus an employer will only be provided with contact details of a client by a client.

This is encouraging, since it shows that DIAC is aware of the possible anti-discrimination issues with the SkillSelect model. Now we must wait and see whether the employers are willing to participate.

New points test, new selection model

We are now a month away from the start of the new points test for General Skilled Migration visas, and we have already been told that it will only be in place for a year before an entirely "new" system for selecting migrants to Australia comes into effect on 1 July 2012.

I put the word "new" in quotes because it isn't really a new idea at all, but more about that later.

The 2011 points test will apply to all applications lodged from that day on for visas in subclasses 175, 176, 475, 885, 886 and 487. Applications lodged before that date will continue to be processed under the existing points test.

I have included some more information about the 2011 test on my website. It appears to favour qualifications and experience over youth, which is probably a good thing. One thing that I think is a big mistake however is that family sponsorship has been completely done away with for the permanent visa subclasses. I have always believed that the migrant family was a major reason for the historic success of immigration in Australia, due to its contribution to the long-term settlement prospects of migrants.

From 1 July 2012, the new Skilled Migration Selection Model, or "SkillsSelect", takes over. Anyone who has been watching the development of Australian immigration programs over recent years will notice some striking similarities between the "new" SkillsSelect and the old Skills-Matching Database. That idea didn't work last time, though of course that doesn't necessarily mean that Mark II will also be a flop.

The plan is that you won't be able to apply for a skilled migration visa straight up. You will have to first lodge an "EoI" (Expression of Interest) and you will then go into a database. Depending on your preferences, your EoI will be available for scrutiny by the Department of Immigration, State and Territory governments and certain employers. If any of those find you interesting, you will then be invited to lodge a visa application. After two years, if you haven't been picked you will drop out of the database.

The basis on which the Department will select applicants will be the points test, presumably the same one that comes into effect this July, but there won't be simple pass mark. Immigration will decide what occupations it is looking for, and will choose the applicants that have nominated those occupations and have the highest overall scores. So instead of knowing what that the pass mark is, say, 65 points, when you put in your EoI, you won't know until the Department looks at what is available and decides who to take.

I attended an information session given by the Department last week to explain the new system. I wanted to ask a question about how the government intended to protect the integrity of its anti-discrimination legislation if it made information about gender, age, nationality, marital status etc. available to prospective employers. I wasn't able to get my question up at the session, so I sent it in an email to the Department. Specifically, I asked "if an employer wants to sponsor a particular applicant of, say, male Anglo-saxon background, will DIAC ask why the employer chose that candidate and not another one on the list with higher qualifications but a different profile?" So far I haven't received a reply.

That concern aside, I was interested to see that nobody really tried to explain how we got into the mess that, apparently, we are in now. You know, all those cooks and hairdressers (and accountants, or not, depending on who you are listening to) jostling each other on that huge queue, how did that happen? The old points test had available to it a mechanism which could have been used to avoid such a problem: at any time it wanted the government could have varied the points to be awarded for any given occupation. But this tool was never used. Cooks and hairdressers remained at 60 points, the top ranking. Interestingly, the 2011 test does not give points for occupations, so the tool that was never used has now been discarded.

Finally, at the same information session the person in charge of skilled migration processing announced that, over the course of 2011-12, he expected to clear all waiting priority 3 cases (ie independent and family-sponsored applicants with occupations on the current Skilled Occupations List -- see my website for details) and "some" priority 4 cases (independent and family-sponsored applicants with occupations on the old SOL).

As for the dreaded visa capping powers, the government apparently has no plans to use them again, but will not commit to not using them again.

The only way to get the truth

Read this: http://www.abc.net.au/news/stories/2011/05/18/3219866.htm

Make sure you read the "Editor's note" at the bottom of the report. The only time I ever hear public officials talking about "privacy" is when they are trying to keep the public from knowing what is going on.

Who holds the stakes in the student visa program?

The government has commissioned a Discussion Paper entitled Strategic Review of the Student Visa Program, and called for submissions: http://www.immi.gov.au/students/student-submissions/

It contains a few gems, like: "Unsurprisingly discussions with regulators, providers and other stakeholders including students, suggest that not all education providers are the same". Hidden within that dreadful consultant-speak term "stakeholders" is the root of the problem, since amongst those holding a stake in this goldmine are precisely those education providers who only exist, could only exist, because of the fast-buck mentality on which the student visa program was built.

The paper discovers that "there now appears" to be a view that "some providers, and their agents, did manipulate the system primarily for migration outcomes rather than educational outcomes".

The term manipulate suggests that the system was somehow distorted, that those "migration outcomes" were not what was intended. This view appears again in what the paper calls "migration risk", defined as an absence of "willingness to study and return to their home country upon completion of study".

Apparently those wily providers, and their agents, somehow managed to sneak into the Governor-General's office and issue regulations under the Migration Act creating visa classes like 885 and 886, which were specifically, uniquely, entirely designed to create "migration outcomes" for overseas students.

The government, of course, bears no responsibility for all of this. In the end, the easiest group to blame are the students themselves, some of whom, the paper tells us, "came to Australia to undertake an education in order to gain permanent residence without any intention of undertaking employment related to their course of study".

Of course they did, that was the product they were sold, with the full blessing of the Australian government. No, it wasn't those corrupt agents who created the 885 and 886 visas, it was the Australian government. They allowed the fast-buck stakeholders to grow into the country's third largest export industry, fuelled by the savings and borrowings of aspirational families in India, China, Nepal, Vietnam.

The shame of this episode in Australian immigration history, and the damage it has done to the reputation of Australian education, will take a long time to fade. A bit of willingness to accept blame on the part of the government would help a bit, though.

Rights depend on which side of the line you are on

I got a call from a colleague the other day who told me that a client of his arriving at Sydney airport had seen "about 200" returning overseas students being taken aside at the immigration desk for questioning about their visa status. My informant admitted it was probably an exaggeration, but from my own experience I can confirm that the practice of cancelling the visas of returning students before they are immigration cleared into the country is on the increase. In fact, I can quote verbatim from the transcript of an actual interview between a student and an immigration officer last November: "Immigration has started to interview people on arrival now OK. The people that are in your situation". And what situation was that? The student's college had cancelled his enrolment due to a fee dispute. They had done that in August, and notified Immigration on the computer system that DIAC shares with the Department of Education. Not being enrolled is of course a breach of student visa conditions, but despite the record being placed on the system in August no action was taken by Immigration at the time. The student went overseas in October and flew back several weeks later. On arrival he was taken aside in immigration clearance and, after a brief interview and ten minute opportunity to prepare a reply, his visa was cancelled.

Apparently the computer system is now capable of picking up visa numbers when people check in overseas and "flagging" anyone with a potential breach to the airport authorities who can then take them out of the arrivals line and cancel their visa on the spot.

Well, sure, he had breached a condition of the visa. But he had breached it in August, and Immigration had done nothing about it until his return from overseas in November. What difference does that make? Just this: when a student visa is cancelled in Australia the holder has the opportunity to apply for merits review in the Migration Review Tribunal, unless the cancellation occurs before the student gets across the line at the airport. If the visa is cancelled in immigration clearance, there is no appeal. Unless there is some legal irregularity which the student can get a Court to pick up on, they are on the next flight out.

According to the Tribunal's annual report for 2009-10, 41% of appeals against student visa cancellations were successful in that year. Taking away the right to appeal by cancelling the visa before the student gets across the clearance line, in effect, significantly disadvantages the student by comparison with someone whose visa is cancelled after clearance.

It is no surprise that the rate of successful appeals in these cases is so high. Anyone reading the published decisions would be appalled at the level of incompetency, negligence and plain dishonesty on the part of some education providers. Yet it seems that Immigration's main concern is to save time and expense by punishing the weakest element, the students who have been the victims of this appalling mess right from the start.

Catching up

It's been a few months since my last post. I will make it my New Year's resolution to be more attentive to keeping up the blog during 2011.

As far as the media was concerned, the only immigration related issue worth mentioning in the second half of 2010 was "the boats". I will follow their lead in this first post for the new year.

Certainly the horrible events of the morning of 15 December at Christmas Island confirm the urgency of the need for a solution to this problem. The actual number of people who have died in Australian waters or en route to this country is unknown. The Christmas Island disaster showed that even the last few metres of this journey can be deadly. With the deaths of so many adults and children in mind, no one can seriously claim that the only issue is how we treat asylum seekers once they make it onto the beach.

For the politicians a good way to avoid having to come up with an answer is to divert attention onto the "people smugglers". No epithet is too lurid, no hyperbole too extreme, no mandatory sentence too draconian.

When pressed for a real solution, the Liberals fall back on deterrence. The Howard government stopped the boats, they say, by two measures: temporary protection visas (TPVs) and the "Pacific Solution". Sending all boat arrivals for processing in Nauru of course could never be as effective a second time around, both due to the fact that most asylum seekers sent there eventually made it to Australia or New Zealand and the impact of the High Court decision in December about processing ruses (see below). As for TPVs, besides the misery and injustice of not allowing recognised refugees to bring their families here or even visit them overseas in flagrant breach of Australia's obligations under international law, there is a strong case that the policy was a direct cause of the deaths of many of those family members who had no alternative but to risk their lives on the high seas: see http://sievx.com/articles/challenging/2006/20060206SueHoffman.html.

Deterrence will always work if the punishment is sufficiently graphic. Deliberately sinking any asylum seeker boat that entered Australian water and leaving its passengers to drown would pretty quickly end the flow, for example. The nefarious people smugglers on board could be summarily hanged drawn and quartered on the decks of the naval interceptors for good measure.

The deterrence approach is based on the assumption that the only problem is the boats. If you can stop them coming, the problem is solved. The asylum seekers themselves, if we can keep them away from our shores, then become someone else's problem.

Labor explicitly rejected both TPVs and Nauru in its campaign for the 2007 election, and is now stuck with those laudable policies like it or not. Gillard's brainstorm idea of a regional processing centre in East Timor has still not made it off the drawing board however.

In the end, the key to the succes of any regional processing centre, wherever located, will lie in the meaning of the word "processing". If the outcome of a genuine assessment based on international law is that an asylum seeker is a genuine refugee, what happens next? If the end result of the processing is not immediate resettlement in Australia for anyone recognised as a genuine refugee, the boats will remain the only option.

And any assessment would have to be genuine, or at least in accordance with the principles of natural justice, as the High Court has ruled in the case known as M61. The practice of denying boat arrivals the right to make a formal application for a visa, followed by a "non-compellable" Ministerial decision to grant a visa after an informal assessment and appeal, was held by the Court not to be a loophole that allowed for denial of natural justice in the assessment process. The fact that the Australian government was in charge of the procedure from start to finish, as it would be in any offshore processing arrangement, meant that the principles of Australian law were applicable.

Meanwhile, the asylum seekers who do make it here have to be "housed" (ie, locked up). Building new detention facilities almost seems to be propping up the construction sector single-handedly. Cries of "not in my backyard" are being heard all through the land. It is tempting to label these objections as racist, xenophobic, etc. But when you think about it, the reasoning behind them is not hard to follow. For nearly 20 years Australian governments from both sides have insisted that asylum seekers must be locked up. It has been done for so long now that a generation of Australians has grown up with it. Normally in a free country people are locked up in order to protect society from them, because they are dangerous. So asylum seekers must be dangerous, in which case we don't want them in our neighbourhood.

When mandatory detention was introduced in 1992, the responsible Minister Gerry Hand (ALP) gave the following explanation in the second reading speech: "I believe it is crucial that all persons who come to Australia without prior authorisation not be released into the community. Their release would undermine the Government's strategy for determining their refugee status or entry claims. Indeed, I believe it is vital to Australia that this be prevented as far as possible. The Government is determined that a clear signal be sent that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community."

Then as now, the majority of asylum seekers arrived in Australia with visas and were allowed to remain in the community while their claims were assessed, so the reasoning behind the first justification is hard to follow. As for sending that clear signal, after nearly two decades it must be admitted that it is not getting through. It must be time to rethink the whole idea.

What was that all about?

The election is over. Labor has clearly lost. The Coalition has clearly not won. What does that say about the policy issues debated during the campaign?

Sorry, what policy issues? Immigration? Labor says: not so many, stop the boats, send them to East Timor. Liberal says: not so many, stop the boats, send them to Nauru.

Foreign policy? Tragically, on election day we heard of two more Australian soldiers killed in Aghanistan, plus two more injured (and a couple more the next day). So who won the foreign policy debate? Er, what debate? The only mention of anything going on outside Australia was, as above, East Timor vs Nauru.

Some might suggest there is an underlying connection between what is happening in Afghanistan and the flow of refugees. Too complicated for "real" Julia and "honest" Tony.

An old saying goes that, in a democracy, a country gets the government it deserves. What did we do to deserve this?

Fewer people, more helicopters

I've been watching Dick Smith's diatribe against immigration on the ABC. Like the majestic equality of the law, which Anatole France identified as punishing rich and poor alike for sleeping under bridges, we have a majestic equality of freedom of speech in this country, allowing rich and poor alike to make their own one hour TV programs to put their views.

Mr Smith, who lives in a mansion and flies a private helicopter, is perfectly entitled to worry about the impact of humans on the planet. It bothers me too. But it also bothers me to hear reasoning such as the following (I think I am quoting correctly): "We are currently about 22 million sharing the wealth of this country. If we grow to 44 million, we will all be half as wealthy."

That means that in about 1963, when our population was around 11 million, we must have been twice as wealthy as we are now.

Issues like global warming, wealth distribution, water usage, education expenditure, soil degradation, urban sprawl, etc. are in fact far too important to be turned over to this sort of simplistic argument.

Sustainability, the new weasel word

The economic historian Niall Ferguson has described Australia's current "population debate" as asinine.

Ferguson is far from being a radical. The fact that he was invited to talk in Australia by the Centre for Independent Studies, a conservative think-tank, confirms this.

Everyone politician in the country seems to think that the only word they need to use to describe their views on population, immigration, climate change and the environment is "sustainable". A word that is used to mean just about anything ends up being totally meaningless, and that is precisely what is happening here.

When it comes to population issues, what they are really saying is their program is to convince anti-immigration voters that they are against opening the floodgates, and at the same time convince business interests that they don't want to cut back on the supply of cheap skilled labour that immigration has been bringing in. In fact, they have no policy at all.

To tell the truth, I rather prefer them to have no policy. Like most things, they usually work out better when the politicians don't interfere.

Telling it like it is

Watching the ABC program The Making of Modern Australia tonight I heard a woman of Vietnamese origin sum up her parents' experience with a powerful metaphor: "a whole generation laid down its body as a bridge for the next to pass over".

I don't think anything more needs to be said.

East Timor or Nauru? What's the difference?

There are of course lots of differences between East Timor and Nauru. Geography, size, history, language, politics, economy, etc. Then there are two differences which, according to the Government and the Opposition, make all the difference (though for different reasons).

The first is that East Timor is a signatory to the International Convention Relation to the Status of Refugees, and Nauru is not (or not yet). This is what the Government says makes all the difference.

The second is that Nauru has an Australian-built detention centre which it is happy to fill, at a price, with asylum seekers delivered there by the Australian Navy, while East Timor does not and does not appear to want one, either. This is the difference that the Oppostion says is the one that matters.

Exactly what difference it would make if the country where the camp was located was a signatory to the Convention is not entirely clear. Arguably, an inmate of such a camp could call upon the host country to honour its obligations, which include Article 26: "Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances." But that would make it a disadvantage (from Australia's point of view at least) if the camp was in a signatory State, because the detainees could then petition the Court's of the country to release them. The signatory State would, in fact, find itself compelled by its own laws to accept the asylum seekers for resettlement. Hardly an attractive prospect for a poor country struggling to feed and house its own population.

The one big difference between and unwilling East Timor and a more-than-eager Nauru, as far as the Government is concerned at least, is that it is politically unacceptable for them to adopt the exact same policy they were so critical of in Oppostion.

It is not possible to understand whether either of these differences really makes a difference without looking first at what the issue is. Why would Australia want a processing centre for asylum seekers in either country?

To stop them coming here? To stop them being seen on the evening news coming here, more likely, since the Nauru experience showed that most of them ended up here anyway.

To stop them jumping the queue? Please explain just where that queue starts. In fact, even the Minister accepts that there is no queue.

To protect our borders? Against what?

There is however one legitimate argument for trying to stop people getting into overcrowded, unseaworthy boats with insufficient food, water and fuel and no navigational gear -- to stop them drowning on the way as many hundreds have already done.

Did Howard's use of the non-signatory Republic of Nauru stop the boats coming? Almost certainly it did. Sure there may have been some coincidental decrease in the push factors, but there can be no doubt that Howard's policy knocked the wheels off the boat trade out of Indonesia. Why wouldn't it? The prospect of indefinite detention on a pile of dry bird droppings was even less attractive than indefinite abandonment in the squalor of Indonesia's camps and doss houses from where the boats departed. The fact that a large majority of the Nauru detainees eventually made it to Australia may have somewhat spoiled the effect for the next time round, however.

If you think that stopping the boats means the asylum seeker problem is solved, then deterrence is the simple answer. Make it clear that they will either be towed out to sea or sent to a concentration camp somewhere, and before long they will stop coming.

If you think that there is a bit more to it than that, then what about providing genuine, fast, objective processing in Indonesia and then bringing those found to be genuine refugees straight here by plane?

It would probably keep them off the evening news, too.

The population bugbear returns
Our new Prime Minister has chosen to make one of her first policy announcements on the subject of population, saying she is not in favour of a "Big Australia" and adding the word "sustainable" to the portfolio of the Minister for Population.

When the Australian Bureau of Statistics released a forward projection of around 36 million for the total Australian population in 2050, then Prime Minister Rudd made the (rationally) unremarkable but (politically) suicidal comment that he was in favour of a "Big Australia". Once deposed, the hapless ex-leader's naive remark was made into a "target" by those who deposed him, and having set up this straw man they proceeded to knock it down for political effect. Decrying "political correctness", Gillard has told us that there is nothing intolerant or racist about worrying about who is coming to this country and how, or how many for that matter.

But what is the issue? Should we really have any sort of target number for the country's total population 40 years from now? Could we if we wanted to?

Having a population policy that consists of a target number for a given date is nonsense. For one thing, a country's population isn't just a single number. Malawi has roughly the same total number of people as the Netherlands, for example. What does that tell us about either country? Not much. For these numbers to make sense you need to know things like age and geographic distribution of the population, the country's resources and access to technology, levels of income and education, wealth distribution, and many other things.

Most single-figure arguments are based on the idea that humans are indistinguishable from cattle. A cow can only behave in one way. It eats a certain amount of grass and produces a certain amount of greenhouse gas emissions. Humans are the opposite. There is a virtually inexhaustible number of ways we humans can interact with each other and the environment we live in.

Try thinking back 40 years. Could the McMahon government of 1970, which still considered Taipei to be the capital of China, have had any chance of predicting what the economy, technology and geopolitics of 2010 would be like? All of these things are relevant to population policy.

Of course government policy must have regard to the future, but 40 years is far too long to be a meaningful limit, and as mentioned above putting all the emphasis on a single figure is a gross over-simplification. A more reasonable approach to population policy would be to look at trends in the various factors that go into the makeup of the country's population profile to determine what impact those policies are likely to have on the sort of population we have over time, rather than worrying about an arbitrary number at an arbitrary date.

Hard to fit into a sound bite, though.

Immigration and "sovereign risk"

The ongoing chatter about the Resources Super Profits Tax keeps referring to a term called "sovereign risk". Not being an economist, I had to look this up. Apparently it refers to a calculation made by foreign investors about the likelihood that the government of the country they are investing in will suddenly change the law in such a way that they will lose all or part of their investment. Obviously, a country deemed to have high sovereign risk is one where investors will be wary of putting their money.

For people thinking of investing their lives in Australia the sovereign risk factor has gone through the roof in the past weeks. Back in February the government decided to simply throw out all offshore skilled migration applications lodged before 1 September 2007. Then it changed the criteria for onshore applications so that students who had put all of their family's savings into a well-advertised and government-promoted plan to qualify for permanent residence through study were told they had never been promised any such thing and the best they could hope for was 18 months to try to find a job and an employer willing to sponsor them.

Now we have the Migration Amendment (Visa Capping) Bill 2010. This allows the government to throw out validly made applications based on any characteristic they choose - occupation, age, even nationality. Despite suggestions to the contrary by the Minister in an interview on the ABC, the Racial Discrimination Act does not prevent discriminatory laws based on a person's current nationality, only on their "national origin" -- see Macabenta v Minister for Immigration [1998] FCA 1643.

Applying for migration to Australia is becoming an increasingly risky business.

Indian lawn bowlers refused entry by the the majestic equality of Australian immigration law

The Indian lawn bowls team has been refused entry to Australia based on an assessment that they did not have sufficient finances or "incentive to return to India". See article.

An Australian immigration official in New Delhi, apparently with a straight face, is reported to have said: "People from all countries have the same right and opportunity to enter our country".

The French writer Anatole France said it better: "The majestic equality of the law, which punishes rich and poor alike for sleeping under bridges, begging in the streets and stealing bread".

On migrants and bean counters

The following is a direct quote from a Ministerial press release of 17 May 2010: "Australia's migration program cannot be determined by the courses studied by international students".

Think about that. According to the Minister, it was the choices of overseas students to study courses like cooking and hairdressing that was keeping those occupations on the Skilled Occupations List (SOL).

Once again, in the face of all the evidence to the contrary, the government chooses to blame to victims of this fiasco. First they pretend that they never encouraged anyone to think that there was a pathway from student visa to permanent residence (see earlier posting), now they say it was all the students' fault anyway for wanting to study those courses.

The Minister was of course announcing the belated arrival of the new SOL. As everyone expected, hairdressers and cooks are off the list. Curiously, though, that other much-maligned occupation -- accountants -- remains. And despite the Minister's oft-quoted lament that "Harvard-educated environmental scientists" wouldn't get in under the old program, they aren't on the new list either.

The new list will apply to all visa applications lodged on or after 1 July 2010, unless the applicant held or had applied for a subclass 485 visa on 8 February 2010, in which case the old SOL will continue in effect for onshore applications until 31 December 2012. The old SOL will also continue to apply to subclass 485 visa applications lodged up to 31 December 2012 if the applicant held a subclass 572, 573 or 574 visa on 8 February 2010. Subclass 485 visas are only valid for 18 months, so the holders will have no longer than that to find an employer to sponsor them to stay either temporarily or permanently.

The intention of the changes, we are told, is to "attract skilled migrants of the highest calibre and deliver people with real skills to meet real need in our economy". This is exactly what we have been told for the past 20 years. It is the metaphor of immigration as economic irrigation -- turn it on, turn it off, direct the flow where it is needed. The bean counters love it because they can measure it, or think they can. Come to think of it, weren't they the ones who kept saying cooks and hairdressers were in short supply?

For a country in which immigration is so fundamental to our national identity, you would think we could come up with a better justification than "real skills to meet real need in our economy". Are skills all the economy needs? and is the economy all that matters?

Reducing the immigrant to his or her "skills" (for which read "qualifications", since they are easier to measure) is the triumph of short-term accounting over long-term social development. It justifies any unfairness, such as cancelling 20,000 applications waiting in the queue, discriminating against tax-paying migrants who can't bring their parents to live with them here, and with the latest program changes, dumping thousands of overseas students whose only crime was to believe previous government promises into a dead-end visa category that will give them 18 months to desperately try to find a job in their "chosen" occupation or else be sent packing.

Federal Court rules automatic cancellations of student visas invalid

On 2 March 2010 the Federal Court of Australia handed down two decisions that have created a potential nightmare for the Department of Immigration.

The background:  since 2000 the Migration Act has contained a provision (section 137J) for the "automatic" cancellation of visas held by overseas students who were reported by their colleges for unsatisfactory attendance or performance and who failed to report as directed to the Department of Immigration within 28 days to explain themselves. By a technical amendment effective 1 July 2007, the circumstances leading to cancellation were to be prescribed in Regulations (a common method of giving the executive flexibility to determine the details of the law without having to go through the complicated procedures of amending an Act of Parliament).

But the drafters got it wrong. They left out a crucial reference to a particular section of the legislation which meant that the legal mechanism just didn't work. At first, nobody noticed. I didn't pick up on it for over a year, but when I first raised it with government lawyers in about September 2008, expecting a quick amendment to correct the error, they went into denial instead. For two and half years the official position of the government was that the error everyone else could see (once it was pointed out to them) just wasn't there. In December 2009 they finally corrected it, but they still kept saying the correction wasn't really necessary until Justice Buchanan of the Federal Court put the matter to rest in two cases handed down on 2 March 2010: Hossain v MIAC [2010] FCA 161 and Mo v MIAC [2010] FCA 162.

The result: all "automatic" student visa cancellations under s 137J based on notices to students dated between 1 July 2007 and 16 December 2009 simply didn't happen. I have no idea how many cases this covers, but every one of them is someone who was told their visa had been cancelled when, as a matter of law, it hadn't. Some would have left the country, others would have been overseas and couldn't get back. Some would have given up their studies. Some would have spent thousands of dollars on appeals.

Just a technicality, you might say. Just another example of the massive unpardonable bureaucratic bungling that has characterised the 15 billion dollar cash cow that the student visa industry has become.