In Summary

Peter Mares, Swinburne University of Technology
This article originally appeared on Inside StoryRead the original article.

Ilaria De Fusco is not an impatient woman, but her tolerance is being sorely tested. “We paid for a service and we are entitled to understand when we are going to get that service,” she says, with a look of disbelief.

At issue is not the alacrity of the staff in this tiny Glebe cafe, where the arrival of the vivacious Italian elicited cheerful greetings and rapid-fire exchanges in her native tongue. De Fusco is frustrated because her attempt to become an Australian is going nowhere. She lodged a valid application for permanent residency more than five years ago, yet neither the immigration department nor the minister can give her any indication of how much longer it will take to get a decision.

When she applied for permanent residency in 2009 she paid thousands of dollars in government visa charges. She spent thousands more getting advice from a registered migration agent to make sure the department had all the information it needed and all the details were correct.

The marketing specialist and her tradesman partner exceeded the relevant score for permanent residency under Australia’s skilled migration points test, ticking all the right boxes in terms of qualifications, work experience, language proficiency, health status and character. Although De Fusco was advised it would take two years at most to get a decision, the Department of Immigration and Border Protection still hasn’t begun looking at her application.

Originally from Milan, De Fusco has been living in Sydney since 2001 and definitely calls Australia home. “I’ve been here almost half my life,” she says. She loves Australia, but doesn’t feel completely welcome. “It’s very sad,” she says. “This is such a great country.”

It is not as if the immigration department has lost her file. Quite the opposite: it has deliberately placed her application at the very bottom of the heap. So she remains in Australia on a bridging visa that grants her the right to work but doesn’t allow her to build a life here.

Ilaria De Fusco and thousands of others like her have been disadvantaged by a system of officially organised queue jumping called priority processing.

Before 2009, skilled migration applications were dealt with in the order in which they were lodged. An application for permanent residency lodged in January, for instance, would take precedence over one lodged in February, regardless of the type of visa.

In 2008, though, the Rudd government faced a massive backlog in valid applications for permanent residency that threatened to overwhelm Australia’s skilled migration program. It had built up after the Howard government unwisely linked permanent residency to a successful course of Australian study, including vocational qualifications such as hairdressing and cookery.

In government, Labor not only weakened the nexus between study and permanent residency but also introduced priority processing to triage the massive build-up of applications. Now, the immigration minister can instruct the department “to consider and finalise visa applications in an order of priority that the minister considers appropriate.” The minister can modify these priorities as industry’s demand for skills or the economic climate changes.

First and second ranking are given, respectively, to applicants nominated by employers under the Regional Sponsored Migration Scheme and the Employer Nomination Scheme. Third priority goes to applicants endorsed by a state or territory government for a Skilled Nominated Visa and fourth in line are applicants who have a qualification on the government’s Skilled Occupation List. All other applications fall into group 5 – the lowest category for processing – which includes people like Ilaria De Fusco.

The immigration department tells applicants in priority groups 1–3 that they can expect their cases to be resolved in less than a year. For group 4 it’s up to eighteen months. Those in priority group 5 receive no guidance on timelines beyond being told that assessments will commence “when all cases in priority groups 1–4 are finalised.”

This means that every new application lodged at any time in any of the four higher priority groups adds to the number ahead of group 5 in the queue.

The last time De Fusco enquired about the progress of her application, the department told her it was too busy to look into individual cases. The same message – effectively, don’t call us, we’ll call you – appears on the department’s website. The blunt instruction to applicants in group 5 is “do not contact us to enquire about the progress of your application.”

“The government has taken their money and not given them anything in return,” says Grant Williams, a Sydney-based migration agent with almost twenty years’ experience. “I don’t know in what other world you could get away with that.”

The money in question is not insignificant. When she adds the cost of skills certification, health checks, police clearances and language tests to the migration agent’s fee and the government’s visa charge, De Fusco calculates that her application set her back close to $15,000. But money is not at the heart of the issue. “This is not just about my application,” she says. “It’s about the whole concept of it. The ethics behind it are just not right.”

Recently De Fusco set up a Facebook site for the forgotten visa applicants of group 5, which quickly gained more than 140 members. Their posts reveal intense feelings of confusion, anguish and anger.

Grant Williams experiences similar responses from group 5 members who read his blog on migration matters. “Sometimes they just need to sound off because they feel like no one is listening to them,” he says. “A lot of these people came to Australia as quite young students and have spent a lot of their formative years here. The government seems to take the attitude that they are sort of collateral damage to changes in policy.”

Williams points out that he has no clients who are in group 5, and so he has no financial interests at stake and no personal axe to grind. He speaks and writes about the issue because he thinks the treatment accorded to the group is immoral.

He wonders whether the government is unaware of the level of distress that the policy is causing, or whether the unstated policy is “to starve them out” – to make them so discouraged that they give up any hope of building a life here and withdraw their applications.

The irony is that the longer applicants like De Fusco wait for an answer, the more invested in staying in Australia they become.

According to immigration department statistics, more than 20,000 people in group 5 have waited more than four years for an answer on their applications for permanent residency. Like Ilaria De Fusco, close to 3000 of them have established lives in Australia and are attempting to build a future here.

The other 17,700 applied for permanent residency from overseas. Generally these people are not yet in Australia, but in many cases they too have put crucial life decisions on hold while they await a decision on their visa applications.

Sometimes the onshore and offshore groups overlap. Julio Martinez and Marta Saldana came to Australia from Colombia to study in 2008. In 2010 they lodged an offshore application for permanent residency while continuing to live in Australia on their student visas.

“We had more than enough points to qualify for permanent residency,” says Saldana. “We were told it would take maximum eight months to one year for the visa to come through.”

When the visa failed to materialise, the couple extended their stay in Australia by applying for other temporary visas. First Martinez got an eighteen-month graduate work visa. When that expired, Saldana returned to study, embarking on a two-year MBA. She has nearly finished her course and her current student visa, which includes Martinez and their two-month-old baby, is due to expire in August.

Because their application for permanent residency was lodged offshore, Saldana and Martinez do not qualify for a bridging visa. So with no apparent progress on their case, Martinez is now considering returning to study once more. While this might benefit his career in the long term, the immediate purpose would be to enable the family to remain in Australia by securing yet another student visa.

The couple could return to Colombia to wait for their permanent visas to come through, but Martinez says they have good reasons not to.

“We’ve been living here for seven and a half years and we are settled here,” he explains. “Most of our productive work life has been here in Australia and all our connections, all our experiences, have been gained here. We feel like going back to Colombia would be almost having to start all over again.”

“We never thought the process was going to take that long,” adds Saldana. “We were always waiting, waiting, waiting, and now it is too late.”

Martinez points out that he and Saldana have been paying Australian taxes for more than seven years yet they don’t have access to Medicare or to any government benefits, such as assistance with the high costs of childcare.

They have paid their way through higher degree courses but find it difficult to advance their careers in line with their qualifications because many companies refuse to hire staff on temporary visas. Saldana has been in the same job for five and a half years but remains a casual employee. “I’m not able to become permanent because I don’t have permanent residency,” she says. “I have been deeply affected by the whole situation.”

Ilaria De Fusco is deeply affected too. She first visited Australia in 2000 when she was nineteen. Having just finished secondary school, she was following a family tradition, begun by older siblings, of coming to Sydney on holiday to stay with her Australian uncle and cousins and improve her English.

She liked Australia so much that after returning to Italy she applied for a student visa. She completed a pre-university preparatory course followed by an undergraduate business degree, and then successfully applied for a graduate work visa that enabled her to live and work full time in Australia for eighteen months. She went on to complete a masters degree. For the past four years she has worked as the marketing manager for a small accounting firm.

De Fusco has settled down with her partner, Antonio Lovisi, who is also Italian. The couple met in Australia, and have been together for eight years, but they feel like their lives are on hold. “You can’t really think bigger,” says De Fusco. “To buy a house, invest, even starting a family would be an issue.”

Lovisi is a master painter and decorator who runs a successful small business and engages four other people as subcontractors. He would like to enlarge the business and take on full-time staff, but with his long-term right to stay in the country so uncertain he doesn’t want the responsibility of being a direct employer or the risk associated with borrowing or investing capital. If Ilaria’s visa application were rejected, she and Lovisi would have to pack up and leave Australia within twenty-eight days.

Life on a bridging visa is full of complications. Some are minor irritations: for example, De Fusco must renew her driving licence every year and she cannot get a mobile phone plan. Other barriers to a full life in Australia are more substantial. She can’t travel overseas, for example, without getting permission from the immigration department.

Four years ago her grandmother turned one hundred and De Fusco wanted to go back to Italy to join in the family celebrations. In order to ensure that she could return to Australia after the trip, she had to apply for another bridging visa, called a Bridging Visa B (for which the current fee is $140). Initially, the immigration department turned her down on the basis that the explanation she gave on her application form did not amount to “substantial reasons for wanting to leave and return to Australia.”

As there is no definition of “substantial reasons” on the immigration department website, the assessment appears to be at the discretion of the officer who handles the file. “Staff at immigration go out of their way to help people generally,” says Grant Williams, “but any subjective system is subject to arbitrary outcomes.”

On immigration chat sites, other bridging visa holders report having had no trouble in getting permission to take overseas holidays. Yet in De Fusco’s case it appears the desk officer refused to take her word for the fact that she had a grandmother turning one hundred. Two weeks before she was due to fly out, with flights booked and paid for, she was required to furnish copies of both her grandmother’s and her mother’s birth certificates to prove the veracity of her claim. Given that her grandmother lives in a remote village in Tuscany with no fax machine, this was no small task. Her family in Italy had to drop everything to get the documents to her in time.

The experience added to an overall sense of being treated unfairly. “You follow the rules, you try to do things the right way, and you just get stuck,” De Fusco says. She is deeply aggrieved at her treatment, but she is concerned not to be seen as a troublemaker. She feels her arguments are reasonable and the government has a case to answer. In her letters to immigration ministers and to other federal parliamentarians, she makes her arguments in polite, moderate language.

De Fusco has heard stories of migrants successfully cheating the system – engaging in fake marriages to get a visa for example. In her work she has come into contact with skilled migrants who have only been in Australia a few years, whose English is poor and who are not integrating well, yet they jumped past her in the queue for residency and have secured a permanent visa.

Adam Gaster, originally from Israel, shares De Fusco’s frustration at being overtaken in this way. “What’s annoying me,” he says, “is that I see all the people around me who are getting their PR [permanent residency] with the new system and they don't work in the skill they applied for. I meet people that came here years after me, accountants, architects and more, that got their PR and work in general jobs, not in their skills.”

Gaster first came to Australia as a student in 2008 and qualified as a pastry chef. Since then he has worked continuously in his trade and feels like he has made a substantial contribution to Australian society. “I was involved in the training of young Australian apprentices that are now great pastry chefs,” he says. “I was involved with charities such as Challenge – helping kids with cancer – using my skills to give back to the community.”

Gaster lodged his application for permanent residency almost five years ago. He understands why changes had to be made to the skilled migration program, but says he feels like he is now being punished for the mistakes of the system.

All the applicants in priority group 5 are skilled migrants sponsored by a family member who is an Australian citizen. This was possible under the 886 and 176 visa sub-classes, which have since been closed to new applicants. De Fusco’s sponsor is her Sydney-based uncle. An Australian cousin sponsored Martinez and Saldana. Gaster is sponsored by his sister.

At the time it made good sense to apply for this visa category because sponsorship earned the applicant additional marks in the points test. Under the conditions of the visa, the sponsor guarantees to help his or her migrant relative for up to two years with such things as accommodation, financial assistance, childcare and advice. In theory, the visa should ensure that new migrants settle more easily in Australia, and have family resources to draw on if things go pear-shaped.

In reality, De Fusco, Martinez, Saldana and Gaster haven’t needed this kind of help. They have established successful careers in their chosen professions and built self-reliant lives. They have been caught out by changes to the system that were totally beyond their control. In some cases, they received poor (and expensive) advice from migration agents. If they had applied under a different category – such as the 885 or 175 skilled independent visa programs – then their applications would almost certainly have been finalised by now.

They could potentially cut their losses and apply for a higher-priority visa – for example by switching to a 457 temporary skilled work visa and then asking their employer to sponsor them for permanent residency under one of the employer nomination schemes. But this option could also take years and would involve spending thousands more dollars on new government visa charges, fresh migration advice, and new health and police checks. None of the money paid to the government for their existing visa applications would be refunded.

Moving from one visa category to another can also be risky, because the rules of the migration program are subject to constant change. “I’ve seen many people who’ve spent large amounts of money trying to transition and then been kicked in the head,” says Grant Williams. “They end up tearing up money, which is great for Joe Hockey but not good for the applicants.”

The migration agent says that since the people in group 5 are not voters “no one really cares whether they just keep getting shuffled to the back of the queue.” But he believes the government is obliged to resolve the issue. “Where a visa application has been assessed as valid, it has to be processed in a timely manner,” he says. “I just feel sorry for these people. A teeny bit of common sense would fix this problem and put it to bed.”

The backlog of visa applications that built up prior to the introduction of priority processing in 2009 has been substantially reduced. But this is of little comfort to the applicants still stuck in group 5 because the government can offer no reassurance that any decision will ever be made in their cases.

A spokesman for assistant immigration minister Michaelia Cash said it was impossible to give an indicative time frame for decisions to be made on group 5 cases because the number of applications that can be processed in a given year “depends on how many higher priority applications are received.” He said that the government “is aware that priority processing arrangements have impacted many applicants waiting for their visa to be processed” but “must also take into account the state of the labour market.”

A specific question as to whether Senator Cash thinks it is fair and reasonable for applicants to wait more than four years for a decision on their cases went unanswered, as did a question about whether the government is hoping that group 5 applicants will simply abandon their applications altogether.

“Surfing is my passion,” says Gaster. “I follow the footy. Most of my friends are Australians. I am updated with Australian politics, history, culture and current affairs. I can say that I feel like this is home for me.”

Yet when he writes to politicians about his situation he rarely gets any acknowledgement or response. “I find it hard not to get cynical,” he tells me.

“We are in oblivion,” says Saldana. “They have forgotten about us.”

“By the look of it we will never get our applications processed,” says Martinez. “They charge the money and offer a service but they are not delivering what they promised. So in my opinion that is fraud.”

“I’m not asking for any favours,” says De Fusco. “I just want an answer. I think I deserve an answer. I want someone to look into my application and say ‘yes you can stay’ or ‘no you can’t stay’.” •

Some names have been changed for privacy reasons.