Luke Simpkins (Cowan, Liberal Party) Share this | Hansard source

When I looked at the Migration Legislation Amendment Bill (No. 1) 2008 I decided to concentrate on aspects of the Migration Review Tribunal and the visa provisions. The thrust of what I was going to say—and I will say it later—relates to a case I intend to raise and the judgement of the Department of Immigration and Citizenship about a visa application based on the 2008 rules as opposed to the conditions, rules, forms and applications that applied in 2007. It is very interesting that the member for Moreton should talk about mandatory detention from what I perceive is a very 2008 perspective. There was a time in our history when people in some parts of the world would decide to leave their home country and cross a border, hop on a plane and fly to Kuala Lumpur or maybe Jakarta. From there they would go to a place where they could pay, perhaps hundreds or thousands of dollars, to jump on a leaky boat. In so doing, they put their children in circumstances of such danger that their lives were at risk. I do not think anyone would say that that was a great situation. It is now 2008 and we do not have a stack of boats carrying such people arriving on our doorstep from other parts of the world. For whatever reason, we do not have people taking those sorts of risks with their lives and the lives of their children.

It is important to realise why we no longer have that situation. It is a result of the strong and unequivocal message that former Prime Minister John Howard sent to the world. I will never back away from that past and those decisions. They were hard and unpopular, but sometimes these things just need to be done. I pay tribute to former Prime Minister John Howard for his leadership and for the efforts that he and the former coalition government made to stop people-trafficking, this boat trade, by sending clear messages. They may have saved the lives of people who eventually realised there was no point in taking those risks with their lives or the lives of their children. We are going through a historical revisionist period in which certain persons in this place are applying 2008 circumstances to more difficult times and are judging the former government on that basis.

It is important to move on and I would like to speak about this bill as it relates to a migration application that I am aware of. There are often quite great periods between an appeal being lodged with the Migration Review Tribunal and the matter being heard. Given the significant workload of the MRT, I think it is desirable that cases not go there unless they truly need to. I am concerned that there are times when flexibility and a full consideration of the facts and circumstances of an immigration matter may come second to a rigid and narrow application of the migration regulations. I would never advocate that the law should ever be put aside or that the rules should be bent, but the facts and circumstances should be considered against the situation at the time of the application, not just against the situation at the time of the hearing.

I will offer an example of this and the sort of problem that impacts on the areas dealt with by the MRT. I have recently become aware, through a constituent of mine, of a case where a South African family appear to have been unfairly treated by the department with their visa application. This is the case of Mr Steven Patrick, an electrical engineer in Durban. His wife, Lisa, has a Bachelor of Arts which actually includes three top subjects in English. They have three daughters: Hannah, 9; Robyn, 13; and Kerry, 17. I have read their skilled independent migrant visa subclass 175 application and I believe all the information is there. It is an outstanding application. The family have skills. They have qualifications. They definitely have the English language. The couple have children—always good for the future of this great country—and, ultimately, a very clear commitment to Australia, should they be allowed to come here. I have no doubt that this is a family who would add great value to this country.

Unfortunately, their application was rejected. I have written to the State Director of the Department of Immigration and Citizenship on this specific issue and I hope to have a reply soon. The Patrick family’s visa application was rejected basically because the goalposts were moved after their application was submitted and because the departmental official did not take that into consideration. I will get into the detail of the reason they were rejected. The date that they lodged their visa application was 9 October 2007, but at that time they had not submitted evidence of their English language ability. They had indicated on their visa application that they had a test booked for 1 December 2007, about two months after the application was lodged. Once Mr Patrick had undertaken that test on 1 December, the result was forwarded. The result was an 8.5 on the overall band score, which I understand is pretty good and more than satisfies the requirement. Unfortunately, in a letter dated 8 July 2008 from an official at the General Skilled Migration Processing Centre, their application was rejected. A portion of the letter reads:

... you must submit evidence of your English ability at the time you apply. As the results of your IELTS test dated 1 December 2007 indicates that you do not have the IELTS test result before the day on which your application was lodged on 9 October 2007.

So they are saying: ‘You did not prove that you can speak English to the required level at the time you applied on 9 October and your test dated 1 December is proof that you did not apply and that you did not have the ability tested at that point.’ They go on to say:

As you did not provide evidence of your English ability at time of application as specified in Migration Regulation 175.213 and 1.15C you consequently do not satisfy the requirements of clause 175.213 ...

Some would say that such a decision was inflexible, yet if the rules are there, if these clauses say that, maybe there is no room for flexibility and common sense. Maybe we do not actually need electrical engineers, just for the sake of maintaining the strict parameters of these regulation clauses.

I will make no further comment on the inflexibility of the department in this case. The important point is that the application forms for these visas have actually changed in the last 11 months. When the Patrick family filled in the form in October 2007, the question regarding language requirements was question 30; now it is question 29. That is no big deal unless the words and layout of the question also changed with the number. This then becomes the point: the skilled migration centre knocked back the Patrick family based on the rules now, not on the rules that applied when they filled out the visa application. I call that unfair.

The difference in the questions is very important. The original form required you to have booked a test and to provide evidence of that booking, and the results then had to be sent on later. That, of course, was all done by the Patrick family; it was all complied with. I have seen the forms. They say that the family had booked the test; there is a printout with the date of the booking. It is all there. Unfortunately, the 2008 form, upon which the department has judged this application, has a note on it which says, ‘If you are applying for a subclass’—including 175—‘you must provide evidence of your English ability at the time you apply.’ That is what I call goalpost shifting. A 2007 application was submitted and complied with to the letter of the law. In 2008, this family, and this opportunity for our future and theirs, has been judged on a new set of rules. To just reject the application is pretty inflexible.

The point here is that the goalposts have shifted. The rules have changed and no flexibility was employed to delineate between the two different sets of rules. This seems a very bureaucratic decision, and I would hate to think that this country will miss out on the contribution of the Patrick family because of the ridiculous application of 2008 rules to a 2007 application.

Today I have provided just one example of inflexible and counterproductive decision making. It is my hope that the state director of the department of immigration will remedy the situation, that he will see reason and that he will help out. However, what this situation shows us is that when the rules change there can be great disadvantage for real people. I wonder, then, how much of the MRT’s time is taken up with cases where regulation changes may have been applied in such a way. It is in our national interest to seek to improve this country by allowing skilled migration. The rules are not there just to be blindly followed without due regard for such highly relevant information, as the Patrick case shows. Indeed, perhaps the MRT would have fewer cases to work through and could move through them more quickly if the department’s officials were more careful with such cases as the Patricks’ visa application and, no doubt, other cases that directly involve the MRT.

I welcome this bill to fix up the problems identified in the Migration Act, the two citizenship acts and the Customs Act. But I urge the department to be very careful in the manner in which it prosecutes the legislative and regulatory changes. Attention to detail is required, as is a consideration of the circumstances at the time of the application being lodged. They need to be fair and balanced—that should always be a consideration when dealing with the lives and futures of people. I look forward to the response from the WA state director of the department, the reconsideration of this matter and the right and appropriate response that will see the Patrick family granted their visas.

I would like to finish by going back to an aspect raised by the previous speaker, the member for Moreton. I am sure that all members of parliament are familiar with going door to door pre- or post election. Sometimes you encounter people who want to tell you their views on immigration policy. It is one of those things that, let’s face it, everyone has a view on in various ways. Sometimes people can make disparaging comments or can air their views with regard to the race or religion of people that they would particularly like to see not come to this country. Picking up from what the member for Moreton said, race should never be a part of politics. I do not really see the things that happened in the last six or seven years as being a matter of race. The good thing about this country is that, if someone wants to come here, make a positive contribution and work for a living, then they are welcome. But they must do those things and they must have respect for the traditions and the institutions of this society. The good thing about Australia is that the colour of your skin or the religion that you do or do not practice does not matter. If you want to come here, work hard and respect the institutions and traditions of our society then you are welcome. That is a great thing about Australia. I do not think it is anything to do with race; I think it is something to do with attitude. I support this bill and I look forward to its implementation. I thank the House for the opportunity to speak today.

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