In the realm of Australian immigration, understanding the distinction between law and policy is crucial. This distinction not only affects how immigration applications are assessed but also highlights the challenges faced by applicants and their representatives.
Kris, as the founder and principal lawyer at Kris Ahn Lawyers and an Accredited Specialist Immigration Lawyer, brings a wealth of knowledge and a nuanced perspective to every aspect of this article.
Law vs. Policy: The Basics
Law refers to the legal framework established by the government, which in the case of Australian immigration, includes the Migration Act 1958 and the Migration Regulations 1994. These laws are binding and enforceable by the courts. They set out the legal requirements for entering and staying in Australia, including visa categories, eligibility criteria, and the rights and obligations of visa holders.
Policy, on the other hand, consists of guidelines and procedures developed by the Department of Home Affairs to interpret and implement these laws. Policies are not legally binding but serve as a practical tool for decision-makers, such as case officers, to ensure consistency and fairness in the application process.
The Role of Case Officers
Case officers at the Department of Home Affairs rely heavily on policy to make decisions on visa applications. These policies provide detailed instructions on how to apply the law to specific situations, helping to streamline the decision-making process and maintain uniformity across cases. However, it is important to note that while policies guide case officers, they do not have the force of law.
When Policy and Law Diverge
There are instances where policy may differ from the actual law. This divergence can create challenges, particularly when preparing cases for submission. For example, a policy might suggest a certain interpretation of a legal requirement that is more restrictive or lenient than the law itself. In such cases, applicants and their representatives must navigate these discrepancies carefully to ensure compliance with the law while addressing the policy guidelines.
Implications for Applicants
The reliance on policy-driven assessments means that applicants must be aware of both the legal requirements and the relevant policies. Misunderstanding or overlooking policy guidelines can lead to unfavourable outcomes, even if the legal criteria are met. Therefore, it is essential for applicants to stay informed about both the laws and the policies that may affect their applications.
Real life examples of the Law vs Policy
TSS visa – 2-year work experience requirement.
For both Short-term and Medium-term stream of the TSS visa has a common legal criterion, the 2 years’ work experience.
The law specifically only states this “The applicant has worked in the nominated occupation or a related field for at least 2 years.”
However, the Department’s policy on the above law expands so much and creates further elements such as the following:
- 1. It should be full-time equivalent, and casual employment does not count;
- 2. Must have occurred in the last 5 years;
- 3. Experience must be in the occupation or at the same skill level in a related field
The Department’s policy is vastly different to the legal requirement that it the applicant must show that they worked in the occupation or related field for at least 2 years.
The Law does NOT specify that it must be full-time, or that it must have happened in the last 5 years, or that it must be at the same skills level.
We have brought up this issue with the Administrative Appeals Tribunal – although not a court of law, but still a tribunal where we expect a higher standard of legal processing. The case involved an applicant who has applied for a 482 visa as a chef (skill level 2), but with some casual experience as a cook (skill level 3), and the Tribunal made the following statements:
The Tribunal is satisfied that working as a casual cook for the period claimed from November 2015 until October 2018 is relevant experience in a ‘related occupation’…
Notably, the regulation does not define ‘employment’ in terms of full-time or part-time. …
The Tribunal has noted departmental policy where it is generally expected that the applicant’s work experience should have been undertaken on a full-time basis (though not continuously) in the five years preceding the application. In so far as this suggests that the work experience must be recent, this would appear to conflict with cl 482.221, which does not indicate any temporal element for the criterion. The Tribunal also notes that the regulation itself does not explicitly require the work to be undertaken on a full-time basis.
In this application, the Tribunal takes account of the totality of the available employment history and the context, which includes the applicant’s qualifications and the fact he has worked consistently in the occupation and related roles since January 2015 and continues to do so while he waits for the visa outcome… the Tribunal finds it is satisfied that it constitutes significant experience primarily as a chef and as required to meet the criterion of having worked in the nominated occupation or a related field for at least 2 years.
This highlights the Tribunal’s distinction of the policy and the law, and its decision-making process solely reliant on the actual law and not the Department’s policy.
Conclusion
In summary, while laws provide the foundational legal framework for Australian immigration, policies serve as essential tools for interpreting and implementing these laws. Case officers use policies to guide their decisions, but these policies cannot replace the actual laws and regulations. Understanding the difference between law and policy, and recognising when they diverge, is key to successfully navigating the Australian immigration system.
As a law firm, we value and consider the actual wordings of the law as primary consideration, but this does not mean that we ignore the Department’s policy.
By being aware of these distinctions, we help our clients better prepare their cases customised to the ‘audience’ – if the Department, then policy focused, but if the Tribunal or the Courts, then the law is our fundamental consideration.
Disclaimer: Not Legal Advice
The information provided in this blog post/article is for general informational purposes only. It does not constitute legal advice or create a representative-client relationship. While we strive to provide accurate and up-to-date information, the content may not reflect the most current legal developments or specific circumstances.
Do not rely solely on the information presented here – but please book in a consultation with us to see how you this information applies to you and may benefit you. Any reliance on the material in this post is at your own risk.
Australian immigration law is arguably one of the most complex laws in Australia. Seek professional legal advice tailored to your individual needs before making any decisions based on the content of this post.
