The Hon. Mr. Philip Ruddock MP
Suite MF 40
Parliament House
Canberra ACT 2600

Tel: (02) 6277 7860
Fax: (02) 6273 4144

OUR Ref: Skilled Migration

30 April 2003

Dear Hon. Mr. Philip Ruddock MP,

We have been requested by a number of overseas students who are currently enrolled in educational institutions in Australia to write this letter on their behalf in relation to Changes to Skills Migration from 1 July 2003 ("Two Year Policy") as announced by you on DIMIA website on 31st March 2003 notwithstanding such changes were published without endorsement of amendments to the Migration Regulations then and now in effect.

On 11th June 2002 we wrote to you on the very same issue in response to the possible change of general skilled migration as referred to in Attachment 5 to the Minister Announces 2002-2003 Migration (Non-Humanitarian) Program dated 7th May 2002. The Hon Gary Hardgrave MP replied on your behalf stating "before any changes are made to the Migration Regulations, there will be considerable consultation with a wide range of stakeholders, who will be provided with opportunity to submit comments and suggestions. The Migration Institute of Australia (MIA) have [sic has], for example, been briefed on this issue at variety of fora over the past few months."

After being notified of the Two Year Policy, we had an opportunity to talk to Ms Laurette Chao, National President of MIA, who informed us that notwithstanding strong opposition by MIA, you decided to make the Two Year Policy a part of Migration Regulations.

We hereby submit concerns of overseas students who are direct victims of the Two Year Policy. By and large, the overseas students, at least those who have talked to us and urged us to voice their opinions to you, are in a strong opposition to the Two Year Policy. We submit, with respect, that their opposition to the Two year Policy is only reasonable. Please consider what they have done so far. They had planned many years before for their study in Australia. They had to raise enough funds required for their mostly postgraduate study. They had to wait for a lengthy period to be granted a student visa. They had to study very hard to improve their English proficiency. They had to concentrate on their study in order to satisfy the required academic performance. They did all these with the assured expectation on the basis of the general skills migration scheme on foot that they will be eligible to apply for a permanent residence upon their graduation and be granted a visa as such. Most of them knew your announcement on the "possible changes" on 7th May 2002, but were of the view and also of the hidden expectation that because it was only possible changes, the Two Year Policy would not come into the effect without your giving a notice of ample time to them, or alternatively, a satisfactory transitional regime so that they would be shielded from its draconian effect, as they nearly reached their destination after an assiduous long march. As a matter of fact, they will be either graduated immediately after 1 July 2003 or shortly thereafter. They were astounded, furious and bewildered when they were notified of the Two Year Policy in early April when they were already in the position not to be able to change anything including their study plans. They are still very much puzzled as to why they had to be affected by the new policy. They know that they are not constituents in Australia. Hence their objection, however forceful, persuasive and coherent, might not be paid enough attentions it deserves. They found us, Lin Tang & Co. Lawyers, a small law firm in Sydney, to have their voice heard, hopefully by you in person. We are, on the other hand, quite delighted and willing to take this pro bono work on their behalf as we also regard that the Two Year Policy is unjustifiable to the extent to be discussed below.

The objections to the Two Year Policy are threefold: Transitional Regime needs to be really transitional, the requirement of relevance of the two year studies to the nominated occupation is flawed, and the so-called "two year full-time studies" must be clarified before students undertake further studies.

Transitional Regime Needs to Be Reconsidered and Redefined

Pursuant to the announcement made on DIMIA website on 31 March 2003, the only transitional regime available is that those applicants who lodged their 497 visa prior to 1 July 2003 will not be affected by the Two Year Policy. This transitional regime virtually means there is no transitional regime. That is because in order to apply for a general skills migration visa including a 497 visa, an applicant has to complete an award. The 497 visa only enables an applicant who has not undertaken skilled occupation assessment to have time to complete this essential requirement. However, the dominant majority of students, if not all of them, will only be able to complete their studies for an award after 1 July 2003. Consequently, they are by no means beneficiaries of the proposed transitional regime as they will not be able to complete their studies before 1st July 2003 and therefore will not be eligible to apply for the 497 visa. A number of universities have ruled out any possibility to accelerate the marking process so that the letter of completion can be issued to a student prior to 1 July 2003. As a result, very few, if any, students are in the position to enjoy the transitional regime having so far designed. One may wonder whether there is any role for the current transitional regime to play if there are only few applicants can enjoy it.

The proposed transitional regime should be reconsidered and indeed redefined to the extent to render it a real transitional regime. Here are three proposals, each being an alternate for another, for you to kindly consider:

1. The Two Year Policy will start on 1st March 2004;
2. Alternatively, the Two Year Policy will commence on 1 August
   2003; or
3. Alternatively, the Two Year Policy will NOT be applicable to
   those students who are already enrolled in a course leading
   to an award.

We submit that one of the above three proposals or something similar is more justifiable to be the new transitional regime for the reasons articulated above. In particular, those who are currently enrolled only had three month notice in relation to the new policy. By the time they knew it, they had no way to change their plan or adapt themselves to the new policy in time. Despite our understanding of the enactment of a regulation that you are not bound by natural justice or procedural fairness but only bound by the Migration Act 1958, we petition you to implement a more reasonable transitional regime as the amendments to the Migration Regulations are yet to be proclaimed. Even if they had been so, you still have power to change it. In this regard, we also petition you to take into our proposal to be submitted below.

The Issue of Relevance Should Be Removed from the Forthcoming Regime.
When the Two Year Policy was first announced in your Media Release in Attachment 5 to the Minister Announces 2002-2003 Migration (Non-Humanitarian) Program dated 7th May 2002 as "possible changes" to be effective from 1 July 2003, it contained only the following brief message:
 "increasing the period of time students are required to attend a tertiary institution in Australia to be exempt from the work experience requirement from 12 months to 2 years; "
It appeared to us that you did not then have any intention to substantially restructure the general skills migration scheme on foot.

However, in the announcement made on 31st March 2003, the notion that two year full-time studies has to be related to the nominated occupation was introduced generally for the general skills migration regime for the