131 881: Harming the lives of Australian visa applicants one visa at a time

Today, I have three separate examples from three different Registered Migration Agents (RMAs). This is not a new story, or a new problem. This has been going on for a long time. Too long, in fact. There are countless stories which come in from RMAs, who describe their absolute horror and frustration at the information provided to their clients from officers manning the phones at DIBP.

131 881 is literally an immigration death trap.

'Immigration assistance' is defined in section 276 of the Migration Act 1958 (the Act). Generally, immigration assistance is when a person uses knowledge of, or experience in, migration procedures.

I did not have to look far for this information. It is contained here on the DIBP's very own website.

There are limitations on who can provide advice under section 280 of the same Act. These can be found here. Interestingly 'officials' are allowed to give immigration assistance. Section 280, subsection (4) states;

"This section does not prohibit an official from giving immigration assistance in the course of his or her duties as an official."

"Official' is not defined. Would an official be a delegate of the Minister working the phones on 131881, the Department of Immigration and Border Protection's (DIBP's) 'immigration helpline'? We don't know, as most other exempted persons are afforded a precise definition. There is no definition of an 'official'.

Either way, I don't see that a 'delegate of the Minister working at the DIBP within Australia' is named as an exempted person. It would have been very easy to add this type of exempted person to the exhaustive list of exempted persons under 'Restrictions on giving of immigration assistance'.

This brings me to the type of advice being provided on the DIBP's 131881 immigration helpline. Here are today's three examples:

EXAMPLE ONE

A client of a migration agent needs to lodge a Bridging Visa E (BVE) application after the RMA has lodged a Ministerial Intervention Application, and immediately after the client's current visa expires.

Problem: The client calls 131 881 to discuss what to do. The RMA is not representing the client for their BVE. The person on 131 881 proceeds to tell the client that she should lodge her BVE application before the expiry of her current visa. This is the email complaint from the client to her RMA:

"I've called immigration and ....I have also been advised my BVE application has to be submitted much before my current visa expires or I would be unlawful. Your office has told me to submit it a day after my current visa expires. I would think that if my BVE is submitted now with the request for work rights then it may come into force prior to 23/03. Again, work have said they want to help and need me to continue working."

The advice from DIBP on 131 881 is wrong. The BVE needs to be submitted once the applicant is unlawful.

To add insult to injury, the following is the next email received from the same RMAs client:

"I went to the immigration office on Lee Street this morning and it was confirmed the BVE needs to be submitted on 23/03 and cannot be submitted before, so the information given to me on the 131 881 line was incorrect."

EXAMPLE TWO:

This example has been reported in to me by an immigration lawyer:

"My client had his Bridging Visa A cancelled by the Department under section 116(1)(e) on the basis that he has been charged with a drug possession offence. The AAT affirmed the cancellation simply on the evidence that the visa holder had been charged by the police, even though it was inarguably jurisdictional error for the AAT to do so under the clear authority of Judge Smith's decision in the case of Gong v Minister for Immigration & Anor (2016) FCCA 561.

On another front, the Department has declined to grant a BVA to a client who has sought judicial review of a patently erroneous decision of the AAT affirming the refusal of a 457 visa on PIC 4020 grounds. The judicial review application was plainly filed within 28 days after the AAT decision. The client plainly satisfies all the criteria for a BVA. Yet for whatever reason, the Department doesn't understand how to calculate the 28 day period that the BVA granted in association with the 457 application remained in force, and has therefore determined that the client was an "unlawful non-citizen" at the time that the judicial review application was filed. Apparently, the Department has failed to have regard to the provisions of the Acts Interpretation Act concerning the calculation of time!"

1331 881 could not explain why.

EXAMPLE THREE:

This example has been provided to me by a migration lawyer who says he has hundreds of examples throughout his immigration career, which he says is 'sad, really sad'.

"I had a client visit me to discuss why she wasn't unable to lodge a student visa online via ImmiAccount. My client is a UK national, low risk applicant. My client used an education agent to submit a student visa online on her behalf. Unfortunately the education agent could not get past second page of the application due to an error message advising the applicant to contact the Department of Immigration.

My client rang 131881 and explained the error message. She also mentioned specifically that she is a holder of a Bridging Visa A when DIBP staff asked her what visa she was on. The client was advised that she should be able to submit her student visa application in Australia. This in my opinion constitutes as migration advice. There was no advice given to seek migration advice and assistance.

My client knew that something was not right as she was unable to proceed with the application on the subsequent day. Ruling out any IT issues, she booked an appointment with me to discuss her case.

I advised the client that as a holder of a Bridging Visa A, she was unable to lodge her student visa whilst in Australia unless there were compelling or compassionate circumstances. In order to proceed with the application, I advised the client to leave Australia and submit her application from off-shore. Naturally she was shocked and upset and could not understand why the Department of Immigration would give her incorrect advice.

As a result, the client incurred additional costs, she missed her course deadline and not to mention the emotional trauma of having unexpectedly depart Australia."

SUMMARY:

131 881 is a potential disservice to Australian visa applicants, and the information provided on this phone line can, and sometimes will severely impact on people's lives.  RMAs must maintain mandatory professional indemnity insurance to cover the advice they provide. RMAs are trained and have demonstrated, professional, and sound knowledge.

If a person who is not a registered migration agent gives immigration assistance unlawfully, they can be fined up to $6,600.

If the person asks for or receives any fee for giving immigration assistance or making immigration representations, the maximum penalty is imprisonment for 10 years.

If a person falsely represents that they are a registered migration agent, the maximum penalty is imprisonment for two years.

131 881 is the last place a potential visa applicant should go for immigration advice and assistance. None of the people on that phone number are a Registered Migration Agent.

Test the theory. Ring 131 881 three times. Check whether you receive the same advice on each of the three occasions.

Australian visa applicants should be directed to a RMA for advice and assistance.

Author: Liana Allan, http://migrationalliance.com.au

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