An appetite for risk: Migration, industry and DIBP

Last week I attended the Department of Immigration and Border Protection’s 2015 “Industry Summit”. This event combined a large number of departmental officials with representatives from large businesses, industry groups, migration agents, other bureaucrats and a mixture of interested people. I was pleased to attend and got a fair bit out of the sessions on migration (particularly Bob Gregory’s presentation on migration, the labour force and growth).

I didn’t agree with most of what I heard – particularly from the public officials – however I was impressed with the sincerity of nearly everyone to listen and discuss a range of issues in good faith. Kudos to the Department for hosting such an event and inviting a many different people to participate.

For most of the time however, something was nagging at me. There was an odd tension, particularly between the mix of industry and the Department. I wasn’t able to put my finger on it until halfway through the second day when a senior official posed this question, in a session on migration and the economy:

“What impact has DIBP’s expanded role in law enforcement and national security had on business and industry?”

I commend the official for asking such a question as it shows evidence of serious thought about how to balance competing priorities and interests. From my perspective, it also neatly captured what has become the dominant feature of how migration policy gets made in Australia today.

The discussion that followed clearly demonstrated the massive implications of law enforcement and national security on migration. Despite evidence of consideration, these issues have not been adequately addressed and will hurt migration policy over the medium- and long-term.

While the following would be disputed by many departmental officials, there is an inherent paradox between law enforcement and national security and what businesses and the economy require from migration. In national security policy and program management, a public expectation of zero-tolerance has been created. Whether this is right or wrong is almost irrelevant at this stage. The public service and political system responds to this expectation with ever increasing attention, meaning risk is minimised everywhere, regardless of the outcome or cost. Boats, citizenship, metadata. You name it, the same story plays out.

This is best summed up by a story in Ron Suskind’s fabulous book, “The One Percent Doctrine“:

Dick Cheney: “If there’s a 1% chance that Pakistani scientists are helping al-Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response. It’s not about our analysis … It’s about our response.”

I don’t pretend to have intimate knowledge of what goes on inside national security organisations nor am I comparing al-Qaeda’s attempts to procure nuclear weapons to Australian immigration. Instead I’m highlighting a mindset about national security, one which many people would agree with and support.

Yet this mindset has a massive impact on how business and industry engage on questions of migration. Businesses succeed because they take risks. They innovate by taking a punt on something new. Good business accept failure that is proportional to the pay-off. This explains the churn of failed businesses and the success stories – Facebook, Google, Uber – that litter the collective conversation about innovation.

At the 2015 Industry Summit, one group was enmeshed in a zero-tolerance environment while the other dominant group lives and breathes in a risk-fueled environment.

In the presentation, the senior departmental official used the terms “too risky” and “failure is a significant thing” in response to pertinent questions from industry representatives. This perfectly summed up what I had seen over the previous day and half. The appetite for risk due to the focus on national security and border protection, combined with the history of detention centres and asylum policy, is understandably close to zero in the Department of Immigration and Border Protection.

But at a conference where the primary purpose to was engage with industry and ‘collaborate’ on ‘innovative new thinking’, this was a serious gap in terms of common interests between the bureaucracy and industry.

National security and law enforcement is significantly different for immigration compared to when applied in the traditional domain of Customs: goods and services moving across borders due to trade between countries and businesses. Goods and services are not irrational creatures with personalities. Just as labour markets are not governed by the same rules and conventions around markets for goods and services, immigration and customs are distinct fields. The approach to goods and services in a law enforcement perspective can be rather black and white. There are objective criteria and feelings don’t get hurt.

When this same black and white approach is applied to migration because of national security and law enforcement priorities, the impact on industry is substantial. I’ve heard exactly the same story from over 20 people representing different clients and businesses in the last month:

  • The Department rejected our visa application(s).
  • I don’t know why, as very similar previous applications were approved without question.
  • Now I cannot contact anyone to discuss this and I don’t know what to do.

One industry representative mentioned how they had lodged 5 applications that were exactly the same, with 3 approved and 2 rejected. You can draw a direct line from national security and law enforcement priorities to the impact on businesses and industry in terms of immigration and this is part of that discussion.

There is obviously much at play here. The session and discussion helped clarify for me at least where some of the contention comes from and why the environment for immigration policy and program management is so different today compared to say three years ago.

This also points to different agendas. For industry, there should be more opposition to the drift towards zero-risk tolerance in migration. Should 99 businesses and migrants suffer the consequences of one business or person defined as risky by ever-shifting eligibility criteria? In an environment where 7m people criss-cross our borders each year, what appetite for risk should there be? These questions are difficult and likely have multiple answers. Yet it is critical to question and seek to understand why these trends are occurring and whether the outcome is positive.

The ABF in Melbourne: More than politics

A fundamental mistake was made in the aftermath of the Australian Border Force fiasco in Melbourne two weeks ago. In the days following, attention focused on the Minister and whether a media release had been approved. Since then, many people see the entire episode as a reflection on the government. A government so evil they wanted to profile migrants.

Wrong.

The actions on day had nothing to do with daily politics. This excuse was born of cynicism and partisanship and should be dismissed. The truth is more worrisome.

The type of operation to occur has a long history. They are not new and they are not scary. I take the Commissioner of the ABF at his word as compliance activities are part and parcel of any immigration framework. Immigration officials will hang around in the background and do what they are told by police officers. This is the correct hierarchy as far as I’m concerned.

Of course, the media release flagging the event sounded very different to what actually would have occurred. I thought racial profiling was a proud new addition to standard duties. I was heartened when this was rejected. But it dawned on me later the episode – the process itself – was another signpost along a very uncertain road.

Most people would not have heard about the Australian Border Force until that day. At the time, this new institution was less than two months old, being the combination of parts of the Customs and Immigration bureaucracy. Being new, the cultural environment of the organisation is still taking shape. Those at the top have flagged the desired direction with important speeches (which I have written about here and here). Those who fundamentally disagree have been leaving in droves.

The fact the media release itself was able to clear the internal bureaucracy is the story. This exposes deep gaps within the institution. Critical oversight and administrative controls are missing. When I was at the Department of Immigration and Citizenship, you couldn’t sneeze in public without it being cleared by Sandi Logan who headed up the National Communication Branch. This approach had pros and cons. For example our innovative new migration blog was turned into corporate mush after the comms people got their hands on it but on the whole, it was a functional approach. In a brand new institution, rebadged as a national security enforcement agency, you would have thought these considerations would have been a higher priority.

And this is where we should be worried. If something like this has not attracted the proper attention, what else has been left to junior and mid-level officials, with little experience who are being primed for a focus on national security? From the ABF website:

We have significant service and enforcement functions, including:

  • facilitating the lawful passage of people and goods
  • investigations, compliance and enforcement in relation to illicit goods and immigration malpractice; and
  • onshore detention, removals and support to regional processing arrangements

Significant service and enforcement functions deserve more attention and institutional support. Yet in announcing an internal inquiry into the events leading to the chaos, the Commissioner offloaded at least some of the blame onto the media. This was hardly mentioned in the media (thanks Crikey) and neatly captures how culture can be shaped even when responding to fuckups.

One serious political concern is Ministerial oversight. Scott Morrison is perceived very differently depending on your political background. However no-one should doubt his intelligence or capacity to achieve a desired outcome. He was a Minister who drove the creation of the ABF and had strong direction. Peter Dutton is a former law enforcement official himself however he does not appear to be particularly well-suited to administrative duties associated with massive bureaucratic transformation. This is not politics per se but how government functions in a space where the lines of policy and operations are blurred at best.

Unlike the events in Melbourne, these transformational changes are happening away from the front page. In the long-term, this fiasco might be one of the best things to ever happen as it has focused attention on the ABF. For example, for the first time outside obscure migration blogs, I saw someone critically evaluate the following new definition of the border:

We consider the border not to be a purely physical barrier separating nation states, but a complex continuum stretching offshore and onshore, including the overseas, maritime, physical border and domestic dimensions of the border.

To me, this is an attempt to stretch the power of the institution into many non-customs, non-immigration domains.The ABF want a seat at the big boys table. The statement is also rather crude and ill-considered as they have defined the border as all of Australia.

The idea of the ABF was rejected by the Gillard government. In the wake of ‘stop the boats’, we’ve ended up with an enforcement agency running immigration without anyone noticing. You can blame the government if you want for the events in Melbourne but this would be a mistake. A brand new institution has emerged without some fundamental ground rules in place. Hopefully this will be addressed in the short-term as migration and perceptions about migration are too important to be sacrificed to national security.

Would you work at the Department of Immigration?

Would you work for the Department of Immigration?

Bernard Keane today called the department “utterly morally bankrupt” and “couldn’t see how anyone in good conscience” could work there.

More acutely, today’s First Dog on the Moon cartoon highlighted four prominent real life examples of what many would consider beyond the pale in terms of work duties, prefaced by the following quotes:

“You want to contribute to the glorious defence of our nation’s borders, to protect our wide brown land from tiny boats full of unarmed women and children. Good on you!”

“Simply complete this multiple choice questionnaire and we will determine your suitability for working in what is basically an enormous remorseless bureaucracy tacked on to a sinister program to systematically punish and dehumanise the desperate and the broken.”

Hearing about the sexual abuse allegations on Nauru sickens me. The Australian government and public, no matter how we choose to wipe our hands, has responsibility for people taken to other countries. This responsibility grows inversely to the capacity of those countries to provide adequate care for people. This is the real world result of policy played through a strictly political prism.

Yet.

Good people do work at the Department of Immigration ‘in good conscience’. I know a few and I’ve been told of more.

What happens if these people leave? They are replaced by someone who will perform poorly and without the daily struggle to try and improve the outcomes of people who are stuck in a real life nightmare. It might be something as small as replying to emails in a timely manner to ensure something gets done. It might be something much larger like questioning the why or the how of an operational matter. When the motivation to do that act is lost, when good people leave, the environment descends even further.

I happen to agree in part with Bernard Keane. When I was at the department, I made the personal choice to not work in the detention divisions. I’m not a martyr because of this and I didn’t shout it from the rooftops. But I didn’t feel I could perform those positions, both in a personal capacity and in line with my employment conditions.

Despite this, the people I had the most respect for were those who did take on those positions with clear eyes and a commitment to try and improve things where they could. A case manager who took each initial refugee interview seriously and on their merits despite hearing the a similar story 40 times in that week. A detention centre manager who provided pastoral care for their staff instead of creating a vitriolic environment, that led directly to dangerous conditions for both staff and migrants. An operational support staffer stationed on Nauru not because of the travel allowance but because they care deeply about what is at stake for young children.

These people will never be publicly recognised for doing their job effectively. That’s part of being a public servant.

It’s easy to say everyone should perform that way but the reality is that does not occur. Do not think for a second that there is a limit to bad behaviour. Environments can always be worse and what seemed bad last year quickly recedes into history. Think about how asylum policy has evolved and you can see how this works.

And I haven’t even discussed the majority of staff who work in roles that actively generate positive economic, social and cultural outcomes for Australia. There are over a thousand visa processing officers, greasing the wheels of our skilled, family and humanitarian migration programs. There are people working on the labour market, student visas, research and evaluation and a host of other matters. In this group of people you will likely find some of the strongest opponents of the current asylum policies anywhere in Australia.

Decent people can disagree on these questions. Personal experience and values will shape an individual decision.

I’ll end with this. From my understanding, the Department of Immigration and Border Protection is going to have over 12,000 staff come 1 July 2015. While some have left recently, particularly senior managers, I’d argue the department needs every single good staff member to both mitigate the worst effects of our asylum policies and improve the margins, the space where most public servants do the majority of their work. In addition, the people who create and support Australia’s excellent modern tradition of mass migration need to be there.

(Endnote: Initially I thought “It’s easy to be a journo and throw these quips around” but this is exactly the wrong type of argument people should prosecute, particularly if they work at the department. The media, at its best, provide the single greatest check on security and asylum policy. Perhaps I simply wish more nuance could be had in a public discussion that is largely nuance free.)

On Martin Bowles, departing Secretary of DIBP

I don’t know Martin Bowles but people I know do and I trust their opinion. To a person, they think he is an excellent public servant. He is moving on as Secretary of the Department of Immigration and Border Protection to become the Secretary of the Health Department

The one time I met him was on invitation to his office for our entire section of 11 as a gesture of thanks for some recent work. I’d been in the Department for about four years by that stage and that was the first time I’d been in the Executive suite except for dropping off briefs (or chin-wagging). He was generous with both his words and time that day and left a lasting impression of a very decent person and leader.

Some people will say this is not how we should judge the highest leaders in the Australian Public Service. They are right in the sense this is not the most important role Secretaries play. But it is important to recognise these qualities as public servants avoid the public record like the plague. Senior leaders who know how to encourage and communicate with mid- and lower-level staff are those who can rely on the support of the hierarchy, the benefits of which flow through to nearly everything they do.

Watching Bowles in Senate Estimates could be rather frustrating given his penchant to take nearly everything on notice. However perhaps no other Secretary had to deal with such a combustible mix of policy, politics and personalities. He appeared to be an extremely able manager of both policy and operational matters, implementing government policy in the most difficult environment.

The death of Reza Berati on Manus Island is the event which raises a question to this narrative however I believe the over-riding factor of his death stems from policy decisions made by governments, not implementation of this policy by the bureaucracy. However it is fair to say we will never know exactly how to understand this event given the secrecy the government has created.

He was not a big talker, with no record of big public speeches. This stood in contrast to his predecessor. If Andrew Metcalfe was brought back to Immigration to clean up the mess that the department had become, Martin Bowles role was to stabilise the department after a gruelling period of massive organisational change.

When I left the Department in 2012, he seemed to be on the right track.

Red-tape reduction? A Coalition agenda to simplify visas

When I worked in the Immigration department, I often struggled to imagine solutions to problems. There were simply too many obstacles. This didn’t mean things were stagnant. There was change and activity, often driven by government and senior executive staff decisions. There was also analysis, research, meeting people etc. But the realities of big change – fundamental change – were nearly impossible to comprehend.

Perhaps the most pernicious effect of this was the inability to improve people interacting with visa regulations. We are now at the point where paid representatives of migrants (called migration agents, akin to tax agents for visas) often struggle to weave through the visa application process in some instances. Some migrant agents also grease the system for personal benefit, abusing the trust of tourists, workers, students and other migrants. The costs of this are tremendous yet difficult to measure precisely.

Within this invisible problem is a to-date hidden Coalition agenda for immigration policy. I know the Liberal party should be adverse to radical change but the time has come for one big step to push through a new environment. It’s time to re-write the Migration Act (1958).

While the regulations underpinning this Act are more recent (1994), something as difficult as simplifying visa law needs a catalyst to ensure sufficient attention is devoted to the task. Leaving the Act in place and attempting to work within decades old structures stifles the ability to construct more efficient law and restricts thinking to already drawn boundaries. Announcing this as government policy would also ensure senior bureaucrats are able to gain traction within their respective departments (Immigration mostly, but also the Attorney-General’s).

There is one overriding rationale for why the Coalition should undertake this massive task.

Since 1958 and even 1994, the way the majority of immigration is undertaken has transformed. If you take a visa like the 457 – an employer-sponsored visa – the actual process under the Migration Act for a single company to hire a single worker is incredible. The rules are all over the place, disjointed by the distinction between the employer and the migrant. Things become tacked on and left out. It took me three months before I understood the actual legislation when I was working in the policy team. It would’ve taken longer but for the excellent people in our team who had processed visas in the past and knew the law backwards. Other family, skilled and student visas can be as complex. While difficult, I hold out the hope it does not have to be this way.

This is core Coalition philosophy. Reducing the burden of government on people and businesses who interact with visa regulations. While the ALP undertook a program of “Visa Simplification”, this was playing around the edges by reducing the overall number of visa subclasses. It did very little for the 10-12 major visa subclasses constituting the vast majority of all visas granted. The Coalition should aim to reduce the prevalence of migration agents. Last year I spoke to a senior executive of a massive multinational who said their external legal and migration costs gave them pause when considering hiring a 457 visa holders. Simplification will save money for companies and tension for individuals.

This is also a policy language the Coalition is well versed in and an agenda they can believe in. Past governments have shown how this occurs historically. The ALP typically rewrite social policy acts, such as Social Security in 1991 and Fair Work in 2009. The Coalition rewrote the Corporations Act in 2001 and the Anti-Terrorism Act in 2005. I find it unlikely the ALP will choose to rewrite the Migration Act given the apparent inherent difficulties to deal with asylum policy. There is only so much policy and political capital to be spent in a single portfolio.

This would not be easy. It would chew through resources and face unknown opposition within the bureaucracy. There is also the possibility it might fail to make the change I imagine. Maybe visas will always be complex and so be it. But that road leads down a dark path, a place where the status-quo should be maintained for the sake of it. While I used to think the Liberal Party were conservative in this sense, little has occurred in the past 12 months to convince me this is the case today.

The opportunity to push through substantial efficiency gains via rewriting the Migration Act is one to be tackled. This would provide the chance to entrench a new philosophy in immigration policy and signal the serious of the Coalition to deal with hard problems.

 

 

 

There is a hidden Coalition agenda for immigration policy. This involves radical change to seek out simplicity and efficiency. It would also be bloody difficult and take up a lot of Ministerial time, perhaps the best argument as to why this won’t occur in the near future.

It’s time to re-write the Migration Act.

Visas are so complicated that most substantial subclasses require a qualified migration agent. While the Tax Office has been busy with eTax and MyTax in recent years, stripping down forms and generating accessibility for millions of Australians, we have yet to see a sustained effort on immigration.

 

The ALP may point to their “Visa simplification” program. Not a bad program, it reduced the number of visa classes and attempted a more logical framework. What it didn’t do

Should organisations that use the 457 visa program be publicly named?

tl;dr Yes. Where enough risk lurks, public disclosure can help mitigate.

In the United States, this isn’t a complex question. Engagement with the government is liable to public disclosure. A derivative of freedom of speech, this penetrates across all levels of government. For example, the U.S. public doesn’t only know who sponsors migrants but how many each firm sponsors and at what wage. This public accountability feeds directly into the public debate about skilled migration in the U.S.

In Australia, a default public disclosure culture does not exist. Privacy – even for employers – is often embedded deep within public organisations and governments. This can be seen from our Freedom of Information framework and the lack of open data compared to many other countries.

For many situations, Australian governments of both stripes will go a long way to protect individuals from even a minimal risk of harm. This can be a positive. The abusive ex-lover. A vengeful employer. There is a litany of reasons why privacy is important across government portfolios from an individual point of view. In the U.S., the names of sponsored migrants are not released.

Yet when this privacy is conferred on for-profit organisations, we need to acknowledge the differences. An employer is not a person (with the tricky exception of the self-employed).

There are good reasons for employers not disclosing everything they do. Trade secrets promote innovation. Operational and policy work, particularly for firms which compete internationally, is the bread and butter of revenues and profits.

When interacting with government, employers sometimes have strong foundations for privacy. Procurement is such an example. Employers bid for government contracts and provide a large amount of sensitive commercial information in the process. This becomes ‘commercial-in-confidence’ and the government is obliged to keep it out of the public eye. In most situations, this makes government procurement run more smoothly than it otherwise would (however I would note the government has a large bargaining chip with its procurement and often fails to utilise this effectively).

Away from procurement and matters such as payroll tax, the notion of commercial-in-confidence becomes harder to sustain.

One example is employers using sponsored visas.

At the moment, we know very little about the 457 visa program.

We don’t know which companies hire 457 visa holders but we know over 35,000 do.

We don’t know how many workers each firm hires, except in the aggregate.

We don’t know what jobs they are hired to perform, except in the aggregate.

What we do know – aggregate descriptive statistics and some detailed non-firm specific survey research – speaks about the program but this information is not of the program.

Because of what we do not know, further knowledge is stymied such as how firms operate in labour markets under certain conditions and environments. This stifles policy making, amongst other things.

On this matter of disclosure, I think the question should be: does the benefit of this information being made public outweigh potential costs to the employers? Here is my attempt to outline various positions one could take.

The benefits of disclosure (from strongest arguments to weakest)

Research: Current research on temporary skilled migration in Australia is poor compared to what occurs in the U.S. where disclosure occurs. Some excellent examples are Michael Clemens on wages, Peri, Shih and Sparbar on productivity and Jansen and Piermartini on trade flows. All of these pieces used freely available U.S. temporary skilled visa data to provide valuable insights. In Australia, researchers must pass multiple barriers just to access anything better than basic aggregates. There is no detailed employer-specific information. This hurts analysis on understanding the effects of migration on the labour market and other economic concepts and restricts the ability to undertake qualitative research. The long-term opportunity cost is large for migrants, employers and policy-makers.

Risks to migrants: There is an inherent risk in being a sponsored migrant. Labour market mobility is heavy restricted to achieve policy goals. In the vast majority of cases, this is not a major impediment (approximately 5 per cent of migrants surveyed say their employer does not meet their obligations). However for the small minority of migrants where this causes major employment issues, vulnerability to exploitation is raised by excessive privacy. Publicly disclosing the names of employers mitigates this risk of exploitation by allowing non-government individuals and organisations to better intervene on behalf of migrants.

Cheaper government monitoring: Monitoring visa compliance is expensive and difficult. There is also an argument to be made we are not very good at it. Currently if government is unable to undertake monitoring activity, then it does not occur. By disclosing the names of employers who use the 457 visa program, other actors can generate accountability. The media, migrant support organisations, unions and other employers will use this information to ensure legislative conditions are being met by specific employers. This may only help at the margins but the cost associated with disclosure (in financial terms at least) is near zero meaning any marginal assistance on enforcement is likely beneficial.

Risks to Australian workers: There is a more diffuse risk to Australian workers. While skilled migrants on 457 visas in are beneficial to average Australian wages and probably beneficial to the aggregate number of jobs, it is likely a minority of individual employers will seek to exploit migrants on 457 visas, impacting Australian wages and conditions in that particular workplace and possibly in that local labour market. By publicly releasing the names of employers who use the 457 visa program, this behaviour is less likely to occur at the margins given workers in the labour market have access to more information.

The costs of disclosure (from strongest to weakest)

Public targeting of employers and misinformation: Undoubtedly the largest potential cost is specific employers being targeted because they employ people on 457 visas. Misinformation about how this occurs, combined with a visceral public reaction, will likely lead to individual examples of companies being harassed. The media will chase populist stories. In extreme circumstances, this may lead to tense situations where employers are placed in untenable positions and react to public opinion rashly, thereby hurting migrants and possibly other Australian workers. This may all occur despite employers meeting all their legal obligations.

Impact on employers (I): As an employee, we don’t know the intimate financial details about a firm. We can look up their annual report and similar information shareholders might use (if a public company). We can sniff around if its a local gig. Therefore we shouldn’t have intimate details about a firm’s labour policy, including where their workers come from. In a tight labour market, where employees have choice and more power, individuals may actively seek to avoid companies who employ 457 visa holders (akin to the ‘Buy Australian’ campaigns). In combination with a broader populist campaign, this could result in more negative employment environments where people on 457 visas work.

Impact on employers (II): More public information of any type tilts employment negotiations towards employees. Using publicly available data about migrant workers, workplace negotiators and unions will bargain differently. This may lead to positives for existing employees but as an employer, this would be a negative. Also, one can imagine new bargaining strategies around proportions of Australian workers and stipulations about migrants (in the aggregate) within employment agreements. This is by no means certain and may play out in the background of any negotiations but it is not impossible to imagine how this could work.

(Note: there are other arguments and counter-arguments to those listed above but I think these are the main considerations)

I do not consider the cost arguments strongly, apart from the first. I’m sure others can make them more persuasively than I have.

I also believe as we are discussing a potential public good, the onus for privacy should fall on employers, not on the government. Currently, this is very much not the case.

Thinking about this, I keep coming back to the benefits of open source information. The OECD migration report for 2002 accurately identifies ‘market signals’ being dampened by poor or unreliable information in labour markets, which negatively affects workers, industry, employers and education and training institutions. This benefit is difficult to quantify but undoubtedly it exists.

In conclusion, I see a strong net benefit for the public, migrants and even employers in releasing more detailed information about how sponsors use the 457 visa program. This would need to be done with the necessary privacy controls for migrants and should occur carefully given the potential risks.

“Terror touches down”: My thoughts on claims of visa fraud

Fairfax’s Richard Baker and Nick McKenzie have another scoop. The headline screams: “Terror touches down: visa fraud, migration crime ‘rampant,’ Immigration Department files reveal”.

Leaked files from the Department of Immigration inform their article, where serious claims are aired about the effectiveness of Australia’s immigration operations and policy.

The claims cover a wide range of immigration subject areas but can be categorised as follows:

  • 9 out of 10 General Skilled Migration visas (making up between 40,000 to 75,000 visas per year depending on your definition) possibly contain fraud.
  • 9 out of 10 Afghan visa applicants contained ‘fraud of some type’ (the vast majority from asylum claims).
  • There are serious issues with departmental investigations, particularly in relation to national security matters, primarily because of funding.
  • Loopholes in visa programs restrict the abilities of authorities to redress fraudulent claims.
  • Student visas are being granted to non-genuine students.

While we should not dismiss this article, it is dangerous to label any internal document gospel given the sheer size of the department. The only document author named – Wayne Sievers – is an Assistant Director (EL1), one of 1,655 Assistant Directors working at the department (as at end of June 2013, .pdf). I’m unsure why he is named but it seems unlikely a current staff member at that level who is named would leak such documents (but still possible). It is likely the files are a collection of internal memos (called ‘Minutes’), briefings and reports (Edit: The files are available here). It is also unclear how the Senior Executive Service was involved in authoring such claims (Edit: The Sievers document is addressed to the Secretary however there is no apparent clearance box with signatures of higher-level staff members). This is important as the claims should be taken more seriously the higher up the executive chain they go.

The is one constant theme running through the article is the lack of resources for investigations. This is something I tend to agree with. Politicians can and will argue about various funding levels. However how this is used is more important. In the debate about 457 visas last year, it turned out there were less than 50 officers in the investigations team. Regardless of what this is relative to three or five years ago, it does not appear on face value to be a high number. This is more true when you take into account the growing number of visas issued, from students to temporary work visas and permanent residents.

However, it is incorrect to say more investigators will automatically solve visa fraud. As the article alluded to, one a visa has been granted, it can be difficult to undo. Strong, clear legislation is required to reverse visas obtained by fraud. While the article does mention ‘policy changes’ in the years since, it fails to mentioned Fraud Public Interest Criterion 4020 – a new piece of legislation which came into effect in July 2013 designed explicitly to deal with visa fraud. It is unclear how this new Criterion is affecting visa applicants however its introduction signals that the department is well aware of the possibility of serious fraud.

Should the department have more funding (or allocate more funding) to investigations? Yes. But what we have to realise is that budget cuts and efficiency dividends take their toll on the public service. Operational roles such as visa investigations are easier to cut than other activities and easier not to increase in times of rising austerity. The ALP might not like to admit it but an efficiency dividend of four per cent hurts the public service. This is just one example of where things can potentially go wrong.

To specifically address some of the claims:

General Skilled Migration visa fraud – This claim stems from a 2010 report. Since 2010, the following policy changes have occurred; a wholesale review of the visa classes including massive changes to the points-test, increasing the barriers to proving applicants have the skills claimed and a new method to select visa applicants.

This is not to say visa fraud does not occur. I have no doubt it does. Since the mid-2000s, various legislative decisions and stuff ups left skilled migration in a mess. It’s taken a long time to clean up and the process probably hasn’t finished. But compared to 2010, fraud is less likely to occur in 2014. Further, the claim of 90 per cent in the first place is nearly impossible to fathom (but impossible to comment further on without context).

Afghan visa fraud – This claim stems from a 2012 report. Compared to the claims about skilled migration, it is more difficult to assess. Asylum claims are more complex than other visa classes given international obligations and an ever changing policy environment. I could be persuaded to believe anything in this area. Determining what is and what is not fraud is not simple here and before jumping to conclusions, more substantive evidence should be required. An unanswered question is how policy relating to fraud interacts with an assumed effort to tighten up asylum claims (assumed by government policy, not bureaucratic decision-making).

Student visa fraud – This claim stems from a 2009 report. International students now prop up our education industry which can be seen as a good thing or a bad thing (or both for different reasons). In a program of between 300,000 to 400,000, even a three per cent fraud rate would see 10,000 cases as fraudulent at any one time. Undoubtedly there were massive issues with providing student visas to non-genuine students for a period of time. This was done by small time education providers selling courses as a pathway to permanent residency. This occurred as the Howard government loosened up the rules determining both permanent residency regulations and what counted as an education provider.

Yet its hard to see how this claim is news now. As the article alludes to, a complete overhaul of the student visa program concluded in the wake of these findings. Linking this specific claim from a five year old document seems like a stretch given the other claims in the document.

A couple of things to conclude.

“Fraud” needs to be defined and this is critical how we view success and failure. The term means different things to different people. Particularly in the case of the Afghan’s, this might be relating to documents or processing interviews, both of which are difficult to wedge into how we make policy for asylum. Plastering these claims across the front page without a more detailed understanding of what exactly is occurring is a shame.

Baker and McKenzie’s article is important as these matters don’t get discussed regularly. However overall, the tone struck me as over the top and attempting to link specific issues such as terrorism to immigration which were not proved beyond doubt. Important questions remained unasked, most obviously the links behind how the Department of Immigration engages with national security matters.

To me, asking why the Department of Immigration has failed on an investigation matter into suspected terrorists smacks of asking about the wrong agency. This is not to say the public service should blame shift its problems. But far too often we see claims which are difficult to reconcile with the understanding that immigration policy is complex and nuanced. ‘Terror touching down’ does little to advance this understanding.