代学生写给澳移民部长的信：反对“两年政策”（律师专题）

The Hon. Mr. Philip Ruddock MP
Suite MF 40
Parliament House
Canberra ACT 2600

Tel: (02) 6277 7860
Fax: (02) 6273 4144

OUR Ref: Skilled Migration

30 April 2003

Dear Hon. Mr. Philip Ruddock MP,

We have been requested by a number of overseas students who are currently enrolled in educational institutions in Australia to write this letter on their behalf in relation to Changes to Skills Migration from 1 July 2003 ("Two Year Policy") as announced by you on DIMIA website on 31st March 2003 notwithstanding such changes were published without endorsement of amendments to the Migration Regulations then and now in effect.

On 11th June 2002 we wrote to you on the very same issue in response to the possible change of general skilled migration as referred to in Attachment 5 to the Minister Announces 2002-2003 Migration (Non-Humanitarian) Program dated 7th May 2002. The Hon Gary Hardgrave MP replied on your behalf stating "before any changes are made to the Migration Regulations, there will be considerable consultation with a wide range of stakeholders, who will be provided with opportunity to submit comments and suggestions. The Migration Institute of Australia (MIA) have [sic has], for example, been briefed on this issue at variety of fora over the past few months."

After being notified of the Two Year Policy, we had an opportunity to talk to Ms Laurette Chao, National President of MIA, who informed us that notwithstanding strong opposition by MIA, you decided to make the Two Year Policy a part of Migration Regulations.

We hereby submit concerns of overseas students who are direct victims of the Two Year Policy. By and large, the overseas students, at least those who have talked to us and urged us to voice their opinions to you, are in a strong opposition to the Two Year Policy. We submit, with respect, that their opposition to the Two year Policy is only reasonable. Please consider what they have done so far. They had planned many years before for their study in Australia. They had to raise enough funds required for their mostly postgraduate study. They had to wait for a lengthy period to be granted a student visa. They had to study very hard to improve their English proficiency. They had to concentrate on their study in order to satisfy the required academic performance. They did all these with the assured expectation on the basis of the general skills migration scheme on foot that they will be eligible to apply for a permanent residence upon their graduation and be granted a visa as such. Most of them knew your announcement on the "possible changes" on 7th May 2002, but were of the view and also of the hidden expectation that because it was only possible changes, the Two Year Policy would not come into the effect without your giving a notice of ample time to them, or alternatively, a satisfactory transitional regime so that they would be shielded from its draconian effect, as they nearly reached their destination after an assiduous long march. As a matter of fact, they will be either graduated immediately after 1 July 2003 or shortly thereafter. They were astounded, furious and bewildered when they were notified of the Two Year Policy in early April when they were already in the position not to be able to change anything including their study plans. They are still very much puzzled as to why they had to be affected by the new policy. They know that they are not constituents in Australia. Hence their objection, however forceful, persuasive and coherent, might not be paid enough attentions it deserves. They found us, Lin Tang & Co. Lawyers, a small law firm in Sydney, to have their voice heard, hopefully by you in person. We are, on the other hand, quite delighted and willing to take this pro bono work on their behalf as we also regard that the Two Year Policy is unjustifiable to the extent to be discussed below.

The objections to the Two Year Policy are threefold: Transitional Regime needs to be really transitional, the requirement of relevance of the two year studies to the nominated occupation is flawed, and the so-called "two year full-time studies" must be clarified before students undertake further studies.

Transitional Regime Needs to Be Reconsidered and Redefined

Pursuant to the announcement made on DIMIA website on 31 March 2003, the only transitional regime available is that those applicants who lodged their 497 visa prior to 1 July 2003 will not be affected by the Two Year Policy. This transitional regime virtually means there is no transitional regime. That is because in order to apply for a general skills migration visa including a 497 visa, an applicant has to complete an award. The 497 visa only enables an applicant who has not undertaken skilled occupation assessment to have time to complete this essential requirement. However, the dominant majority of students, if not all of them, will only be able to complete their studies for an award after 1 July 2003. Consequently, they are by no means beneficiaries of the proposed transitional regime as they will not be able to complete their studies before 1st July 2003 and therefore will not be eligible to apply for the 497 visa. A number of universities have ruled out any possibility to accelerate the marking process so that the letter of completion can be issued to a student prior to 1 July 2003. As a result, very few, if any, students are in the position to enjoy the transitional regime having so far designed. One may wonder whether there is any role for the current transitional regime to play if there are only few applicants can enjoy it.

The proposed transitional regime should be reconsidered and indeed redefined to the extent to render it a real transitional regime. Here are three proposals, each being an alternate for another, for you to kindly consider:

1. The Two Year Policy will start on 1st March 2004;
2. Alternatively, the Two Year Policy will commence on 1 August
   2003; or
3. Alternatively, the Two Year Policy will NOT be applicable to
   those students who are already enrolled in a course leading
   to an award.

We submit that one of the above three proposals or something similar is more justifiable to be the new transitional regime for the reasons articulated above. In particular, those who are currently enrolled only had three month notice in relation to the new policy. By the time they knew it, they had no way to change their plan or adapt themselves to the new policy in time. Despite our understanding of the enactment of a regulation that you are not bound by natural justice or procedural fairness but only bound by the Migration Act 1958, we petition you to implement a more reasonable transitional regime as the amendments to the Migration Regulations are yet to be proclaimed. Even if they had been so, you still have power to change it. In this regard, we also petition you to take into our proposal to be submitted below.

The Issue of Relevance Should Be Removed from the Forthcoming Regime.
When the Two Year Policy was first announced in your Media Release in Attachment 5 to the Minister Announces 2002-2003 Migration (Non-Humanitarian) Program dated 7th May 2002 as "possible changes" to be effective from 1 July 2003, it contained only the following brief message:
"increasing the period of time students are required to attend a tertiary institution in Australia to be exempt from the work experience requirement from 12 months to 2 years; "
It appeared to us that you did not then have any intention to substantially restructure the general skills migration scheme on foot.

However, in the announcement made on 31st March 2003, the notion that two year full-time studies has to be related to the nominated occupation was introduced generally for the general skills migration regime for the first time whereas in the current regime, there is no such a requirement whatsoever except for Subclass 497 visa, "the applicant holds, or has completed, a degree, diploma or trade qualification (Note: NOT the 12 months studies leading to an award) that is appropriate for the nominated skilled occupation" (See The Migration Regulations Schedule 1 Item 1212A(3)(h)(iii)). In other words, in the current general skills migration regime, it is not a requirement for the 12 month full-time study in Australia to be relevant to the nominated occupation for all general skills migration visas including even subclass 497 visa. Indeed, the phrase "appropriate for the nominated skilled occupation", presumably the origin of the notion that the two year full-time studies have to be related to the nominated skilled occupation, does not appear to be a requirement for a general skilled migration visa. In other words, it is not a requirement for subclasses 134 to 139 visas. Neither is it a requirement for subclasses 880, 881 and 882 visas and subclasses 861, 862 and 863 visas.

The requirement that the two year full-time study in Australia leading to one or two awards must be related to the nominated skilled occupation is completely at odds with the current general skills migration regime. It will substantially change the general skills migration regime. To illustrate, please let us first have a look of the two following hypothetical examples.

Example 1: A student who completed a bachelor of accounting overseas and has the qualification assessed by CPA to be suitable for migration can apply for subclasses 497, 880 and 136 visas now if she completes one year studies in Australia leading to an award regardless of what she studied in Australia. However, after 1 July 2003, it seems even though she studies in Australia for two years leading to an award, she may still be able to apply for subclass 497 visa if subclass 497 does not change accordingly, but she will not be eligible to apply for 880 or 136 visa if what she studied in Australia is not relevant to the nominated occupation namely Accountant.

Example 2: A student who completed one year full-time study in Australia and obtained Master of International Business. Within 6 months of completion of his studies, he sat for and passed NAATI level 3 translator test. He has applied for and been granted a subclass 880 visa notwithstanding he might not be eligible to apply for a 497 visa as he does not hold, or has completed an award that is appropriate for the nominated skilled occupation Translator. However, under the proposed forthcoming regime, not only he will not be eligible to apply for 497 visa, but also he will not be eligible to apply for any general skills migration visas until and unless he has completed either translation course with duration of at least two year or a course contained in two year full-time studies which is related to translation. As a result, notwithstanding that he has been assessed by a relevant and competent authority for translators namely NAATI to be suitable for migration purpose as a translator, in order to migrate to Australia under the incoming general skills migration scheme, he has to undertake at least a course which is recognised assumingly by your delegate who is presumably not trained in relation to skills of assessing translation skills, to be related to translation. With respect, we are of the opinion that the situation like this is as paradoxical as, if not more than, Catch 22. Not only should he not be assessed again by DIMIA officer as to whether what he had studied was related to translation, but also more importantly, he should not be required to undertake a translation course in the first place as he has already possessed translation skills as recognized by NAATI. The absurdity of this case is that a translator is required to undertake a translation course which makes him a translator.

As far as we are able to recall, the current general skills migration regulations were introduced on 1st July 1999. The rationale that an applicant has to pass the nominated skills assessment by a competent authority as gazetted before lodging a visa application is that only the relevant assessing authority possesses knowledge and skills to perform the requested assessment in the relevant profession or occupation. It was not envisaged that your delegates should reassess the assessment made by a relevant assessing authority. Rather, DIMIA officer should stay away from any element of skills assessment and focus on whether an applicant has satisfied other legal requirements.

On the other hand, an applicant is required to have minimum period of experience of working in an occupation on the skilled occupation list (note not in the nominated occupation) to satisfy one of the basic requirements for the general skills migration. Exemption was granted to those who have studied for 12 months and obtained an award in Australia, as applicants who have obtained an Australian qualification are apparently more employable than those who have not. It was against this context that the minimum 12 month full-time studies were introduced. There has never been a requirement that these 12 month full-time studies in Australia must be related to the nominated occupation.

The core to the Two Year Policy is to extend these 12 month full-time studies in Australia to 24 month or two years, nothing further was contemplated. The possible rationale behind this extension of study period, we suspect, was that one year full-time studies in Australia were too short to justify granting a visa of permanent residence in Australia. A student should study in Australia a bit longer in order to be eligible to apply for a general skills migration visa.

However, extension of studies from one year to two years is one thing. It is entirely a different thing to require these extended studies to be related to the nominated occupation. Imposition of this requirement is completely new to the general skills migration scheme and has substantially altered this scheme as a result. It will make the general skills migration scheme notoriously ambiguous and exceptionally hard to follow by prospective applicants as well as by immigration lawyers and migration agents.

Indeed we fail to see the rationale behind the requirement that the two year full-time studies have to be related to the nominated skilled occupation to claim the work experience exemption and therefore to make a valid onshore general skills migration visa applications. The issue of relevance has always been a difficult one. In the law of evidence, the issue of relevance is often a ground for an appeal. Even well-trained judiciary may still have difficulties to adjudicate whether one thing is related to the issue on trial, there is no assurance that public servants in your Department will judge better.

We assume that DIMIA will issue policy on the issue of relevance on 1st July 2003. However, regardless of how comprehensive the policy is, it will not be able to exhaust all scenarios.

On the one extreme, it can be reasonable and flexible and treats most courses to be relevant to the nominated occupation, however far-fetched. If this is the case, one may wonder why the issue of relevance was introduced in the first place.

On the other extreme, it may take a narrow, rigid and restrictive approach and regards that a two year course is only related to the nominated skilled occupation provided that as a result of completion of the course per se, the relevant assessing authority will give positive assessment on the nominated occupation. If this is the case, one may wonder why the work exemption concession requirement was set up in the first place.

The middle ground is no easy part. This is particularly so when an applicant has finished the two year full-time studies by completing not one award but two awards. This could be a norm as a great number of Australian postgraduate awards are either one year course or one and half year course. The issue of relevance then becomes whether two awards are related to the nominated occupation. A Diploma of Accounting plus a Master of Accounting is on the one side. A Master of Arts plus a Master of Science may be on the other side. In between, we have A Diploma of Information Technology plus a Master of Law, and so forth. One may wonder what the rationale is to design the policy for these sorts of situations no matter what the real policy is. The reason is simple: the question of whether two educational awards are related to a particular occupation is simply too artificial to demand an even plausible answer.

Furthermore, as mentioned above, the issue of relevance goes to the decision of whether an onshore application is valid, which is not a MRT-reviewable decision. It will therefore pose a great danger to those applicants who submitted their applications without realising that they were running a risk of not being able to lodge new applications again if their previous applications were returned after 6 months of their completion of an award, provided they have a valid application afterwards. It may open a floodgate to litigations to the Federal Court seeking declaration that an application is validly made due to different interpretation of the meaning of relevance. The inherent ambiguity in the issue of relevance also poses a great risk for students who have completed one year or one and half year of studies in Australia to choose a second course to study in anticipation of having the work experience requirement be exempt from.

More importantly, as illustrated in the above two examples, the introduction of the requirement that the two year studies have to be related to the nominated occupation will render a situation where the applicant had his/her skills assessed by relevant assessing authority as suitable for migration purpose but nevertheless be required, in order to be exempt from the work experience requirement, to be enrolled into a course or courses the completion of which will confer him/her nothing but an educational qualification evidencing, as far as skills assessment is concerned, that he has skills which he has already been assessed to possess.

Another concern we have is that when a DIMIA officer is conferred to have discretion on deciding whether two year studies are related to the nominated occupation, the DIMIA officer, who is not a relevant assessing authority, may become an ultimate skills de facto assessor.

We oppose to the introduction of the requirement that the two year full-time studies have to be related or appropriate to the nominated skilled occupation is also grounded upon our failure to see any benefits, express, implied or apparent, to be gained from such heavily problematic imposition.

To conclude, the requirement that the two year full-time studies have to be related or appropriate to the nominated skilled occupation is hardly justifiable. Its rationale is not well-thought and could not be warranted even theoretically. The introduction of this requirement will lead to a situation where a skilled person is forced to learn the same skills s/he has for the purpose of being exempt from required work experience. Its consequence will not be an intended one. Its definition could be anything but clear and easy to follow. It will pose risks to prospective applicants. It will confer too much discretion to a DIMIA officer to the extent it may become a de facto paramount skills assessor. Therefore, it departs substantially from the current general skills migration regime which has so far been well-received. Consequently, we sincerely petition you to reconsider this unnecessary requirement and remove it from the forthcoming general skills migration regime.

The Concept of "Two Years Full-Time Studies" Must Be Clearly Defined

Apart from the transitional regime and the requirement of relevance, overseas students are also enthusiastic to know what constitutes "Two Year Full-time Studies" so that they can direct and arrange their studies in Australia, in particular, the second award upon the completion of which they will be able to satisfy the requirement of "Two Year Full-time Studies". For the time being, policy dictates the following in relation to 12 months full-time studies:

1. Full-time studies is defined by the National Code;
2. Overseas students are only permitted to study full-time; and
3. Concession is given part-time studies which are to complete
an award, whether they are for studying remaining subjects
or repeating failed subjects in the final term.

We assume that above policy will stay beyond 1st July 2003. Yet due to extension of study from one year to two years, the following situations are still begging for clarification:

1. A student obtained an award after 1.5 half year full-time
   studies. Whether are further half year full-time studies
   without satisfying requirements of an award sufficient to
   enable the student to be exempt from the required work
   experience?
2. It was announced that if a student studied in two
   educational institutions, the student had to obtain an
   award before transferring to the other institution. In
   this circumstance, whether the student is required to
   complete an award in the second institution?
3. The current ACS guidelines stipulate that its assessment
   is only valid 6 months from the date of completion of an
   award. If IT qualification is the first award, ACS
   assessment will be invalid after the second award is
   completed. Hence, guidelines of some assessing authorities
   need to be amended accordingly in order to match "the Two
   Year Policy".
4. When does the 6 month period, during which one is able to
   lodge a valid onshore application, start to run? From the
   date of the first award or second award or from the date of
   competing skills assessment?
5. Whether some bridging courses such as Graduate Certificate
   but excluding English courses leading to eligibility to
   commence, say Master degree studies will be included in "the
   two year full-time studies"?
6. If a student studies in one educational institution, whether
   the student is allowed to upgrade his/her studies by
   transferring some credits from the unfinished courses but
   nevertheless be able to count the time spent on the
   unfinished course into "the two years"?
7. Whether the deliberate failure of a subject for the purpose
   of extending the studies to two years is permitted?
8. Whether part-time studies are only permitted in the studies
   for the second award or they are conceded for all awards
   obtained during "the two year"?

The above are concerns that we and the overseas students we represent have. Before the "Two Year Policy" becomes a part of amendments to the Migration Regulations, we wish you and your colleagues in DIMIA have a second thought on it by taking into considerations of demand of the affected students.

Thanks for your attention.

We are looking forward to hearing from you.

Yours faithfully,
LIN TANG & CO. Lawyers

I, __________________(name), agree and support the above submission.

Dated: ______________________

Signature: ___________________