A hot topic of discussion amongst Australian visa applicants and migration agents alike has been the Migration Amendment (Visa Capping) Bill 2010. This controversial bill has flown under the radar of most media outlets, but has the potential to be the most unfair and destructive item of legislation ever introduced to the Australian migration system.

You can see more details for yourself by clicking here, but to give a brief explanation, the bill proposes to provide the government with a tool for the post-lodgement management of the current backlog of migration applications. As a result, DIAC will be allowed to cap and terminate an application at any time, regardless of when an applicant has lodged their application.

To elaborate, DIAC could choose to cap the number of visas issued in a given year to applicants with 'specified characteristics'. To explain this term, I'll refer you to the following passage from the bill's proposal:

"Characteristics that may be specified include the occupation nominated by the applicant, or the time at which the applicant made their application. The characteristics will be objective, and relate to information that is provided to the department when an application for a visa is made."

Therefore, DIAC could choose to cap the visas for applicants with the 'specified characteristic' of any given nominated occupation on the Australian SOL (Skilled Occupation List). As a result, all outstanding visa applications with the same characteristics (i.e. the same nominated occupation) would then be terminated. This also makes it very easy for DIAC to close off skilled migration to any occupation of their choosing, as a termination will result in an automatic termination of all further visa applications by migrants who share the same 'specified characteristics', at least until the start of the next financial year.

While any applicants who have had their applications terminated will be refunded the pre-paid visa application charge, this won't cover the costs of skills assessments, medical examinations, language tests and any other associated costs, not to mention the emotional damage of forcing an applicant out of the migration process with no prior warning.

Additionally, unlike a visa refusal, it is not possible to challenge a visa termination before the Migration Review Tribunal or any court. This is because DIAC will have technically not made a decision, and without a decision there is nothing to review or contest.

The most frustrating part of the proposed bill is how it has the potential to punish the people who have followed the rules and jumped through all the hoops that DIAC have set up in the last couple of years, only for the potential to be removed from the process entirely with no prior warning. 

It's always been understood that there are no 'sure things' when it comes to the Australian migration process, but it was at least possible for visa applicants to understand what the eligibility requirements were and have a good idea of their chances of success. However, should the Visa Capping Bill be passed, the opposite will be the case, with it practically impossible for any applicant to know whether they'll be able to have their visa application finalised or if they'll simply be cast aside by the Australian government.

- Tom Blackett for the Australian Visa Bureau.

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