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Wednesday, 24 August 2011
Page: 5336

Senator MARK BISHOP (Western Australia) (12:45): I wish to speak on this matters of public interest discussion to bring to the attention of the Senate and the wider community a matter of significant concern raised by a constituent who came to my office some time ago. The matter goes to the limits of migration legislation, the Migration Review Tribunal and ministerial inter­vention. A young man by the name of Daniel attended my office on 23 May this year, seeking assistance and advice on a serious migration problem. The Department of Immigration and Citizenship, DIAC, on 18 May had informed him that he was illegally present in Australia. He was told he had 28 days to depart and to contact the department of his own volition or they would come and talk to him. As he had initiated regular contact with his migration agent, he was understandably distraught at this advice.

By way of background: realising a longstanding dream, this young man arrived in Australia from the United Kingdom in September 2008 on a working holiday visa. His trade for the past 16 years was that of a solid plasterer, and in Australia he obtained employment in that field immediately. Being impressed with his skills and aptitude, in 2009 his employer encouraged him to obtain an Australian trades certificate. This was with a view to sponsoring him on a business sponsorship 457 visa. Daniel gained his certificate, and his employer lodged a 457 application in February 2009. The employer failed to meet the financial requirements of sponsorship and the application failed. On leaving DIAC's Perth offices, having just received the bad news, Daniel approached a registered migration agency. This agency, EasyMigrate Perth, was in the same complex as DIAC—I would suggest a prime location to attract clientele.

Now, you might say, that was the smart thing to do and I, in times past, might have agreed. Daniel engaged EasyMigrate and paid in excess of $5,000 for their services. His agent advised that they would apply for a skilled regional sponsored 487 visa. This would allow him to stay onshore whilst they applied for a state sponsored 176 visa. At this time, Daniel provided all relevant documentation necessary for his claim. His agent advised that the process could take up to four years and they would contact him when, and if, necessary.

An extremely organised person, Daniel kept copies of all documentation relating to his quest to remain in Australia. In hindsight, this was a very smart move—the smartest move he made, apart from seeking advice from my office. Over the next two years, he received no contact from his agent. Being keen for updates on the progress of his application process, Daniel called them regularly. The answer was always: 'All is in hand and going well.' In January 2011, with a reputation as a tradesman of quality, Daniel sought advice on establishing his own business in Australia. He approached his agent inquiring as to his ability to do so under the criteria of his visa status. He was advised there was no impediment and to go ahead. So he started up his own business in February 2011. In March 2011, with his business booming, he talked to Silver Trowel Trade Training Centre about taking on an apprentice. He also renewed the 12-month lease on his rental property. Daniel was content with his life—all was well, or so he thought.

However, this young man's life was about to be turned upside down. On Wednesday, 18 May, Immigration informed him of his illegal status and his removal order effective within 28 days. Daniel immediately contacted his agent, who denied any knowledge of the order. An appointment was made for the following day. At the meeting with his agent, the advice was: 'Don't panic. This can be fixed. We'll lodge a state Sponsored 176 visa. You'll be granted a Bridging Visa E. We'll lodge an appeal to MRT and buy you some time.' On Friday 20th May, Daniel insisted his agent accompany him to Immigration to find out what went wrong and what could be done. A bridging visa E was granted and he was instructed to produce an airline ticket by the following Friday. What advice did his agent give him? 'Don't worry. Don't buy a ticket. We'll lodge an appeal with MRT.' By Monday, 23 May, Daniel's agent had provided him with a copy of his visa application rejection letter dated 24 March, 2011. An appeal was lodged with MRT in the knowledge that it would fail, but it would buy time. This is the point at which Daniel, in a state of panic, first contacted my office.

My office was about to discover his migration agent had demonstrated complete disregard for their client's best interests. In effect, the agent had failed to advise when the application was rejected due to the lack of supporting documentation, which they held on file; failed to advise of the opportunity to lodge an appeal to MRT within the 21 days of the decision being received; failed to advise that his trades recognition had failed due to lack of supporting evidence, also held on file; failed to lodge the original 176 application; failed to lodge the Federal Police clearance application; failed to advise their client of any of the above; and failed over the previous two years to acknowledge numerous contacts from DIAC seeking additional information. This was despite holding all relevant information on file. Later, they failed to provide their client with the complete visa rejection letter, as it contained damning evidence of their negligence. At this point, my office goes into overdrive in an effort to right the wrongs against this young man. Over the following days advice was sought from the parliamentary liaison unit officer in Perth, Ms Shelley Jenkins; Ms Renelle Forster, Assistant Secretary, Ministerial and Executive Services, DIAC; Minister Bowen's CLO, Nathan Fenech; Mark Bailey, Assistant Director, Stakeholder Engagement Migration Agents Section, Migration and Visa Policy Division, DIAC; Ms Jan Feeby, Branch Manager, Trades Recognition Australia;

and Ms Claire English, Senior Migration Officer, Skilled Migration WA, Department of Training and Workforce Development WA. Daniel also sought the advice of an independent lawyer.

Although I cannot praise highly enough the efforts of all those above, everyone's hands were tied. Why was that? It was that, through no fault of Daniel's, an appeal had not been lodged with the MRT. That must be done within 21 calendar days of the applicant being taken to have received the letter of rejection. If the client has a registered migration agent, they receive the notification and their client is deemed at law to have also received it. Of course, in this case, it never happened—why would it? Why inform their client of this contact when all other contact from the department had been withheld?

The assistance and advice provided by Minister Bowen's CLO was exemplary. Understanding Daniel's predicament, he contacted their legal department for substantive advice. That advice was:

Legislatively there is no basis for the Minister to intervene due to an appeal to MRT not being lodged in time.

You may well think this was the end of it, but there is more. On Friday, 3 June, whilst in my office Daniel contacted the owner of EasyMigrate, who had now become involved in the case. What my staff heard on speaker phone was unbelievable. During the conversation the agent claimed he had an insider within the department and that his insider could fix the problem and fast-track Daniel's state sponsorship. This of course was untrue on both counts; the problem could not be fixed and there was no insider.

But back to the crux of this matter. There is an anomaly in migration law. It allows blameless clients of unscrupulous and negligent migration agents to fall through a legislative crack. Of course they can lodge a complaint to the Migration Agents Registration Authority, but this does not assist their migration status. MRT has no discretion, and a merits based review may not be accepted after the final cut-off date. Legislatively there is no basis for the minister to intervene when an appeal to MRT has not been lodged and considered.

So where did the wronged party go from there? In this case he went back to the UK, where he immediately lodged a new applica­tion. There was some urgency to this, as the 176 application criteria changed on 31 June, complicating an already complex situation. Ms Jane Sancom, principal migration officer, and her staff in the minister's London office ensured Daniel's new application was lodged prior to the cut-off date of 31 June. Fortunately for Daniel this has a happy ending and his visa was granted on 5 August, 2011. This was made possible by the exceptional assistance provided to my office by the aforementioned officers and agencies.

Madam Acting Deputy President, it would be a useful development to have this anomaly in migration law examined. In such extreme and extenuating circumstances, where there is no fault at all on the part of the individual, there should be an alternative pathway to a common-sense resolution, one that does not impact so greatly on the lives and incomes of those exploited by unprincipled migration agents.