Australia's Migration Programme: An Increasingly Restrictive and Dynamic Landscape

By Maria JockelBDO Migration Services

In this article, Maria Jockel at BDO Migration Services explores the ever-changing and increasingly stringent nature of Australian immigration regulation and enforcement. 

WWL Corporate Immigration - Maria Jockel

Since the merger of the Department of Immigration and Border Protection (the Department) with the Australian Customs and Border Protection Service and the establishment of the Australian Border Force as the operational enforcement arm, the authority and reach of the Department have continued to expand significantly.

The challenges of mass migration and the focus on maintaining national security, law enforcement and security priorities mean we are dealing with a much more complicated and dynamic political and immigration landscape. There is a push/pull dynamic between the two imperatives of the Department, namely: facilitation of temporary and permanent entry; and monitoring, enforcement and sanctions.

The Department is a global organisation with almost 15,000 people working in more than 52 locations around the globe. It is the second largest revenue collection agency for the Commonwealth. The Department is currently receiving over 25,000 visa applications each day worldwide, and in 2016/2017 is expected to raise in excess of $2 billion from visa fees and fines.

As an integrated immigration and customs agency, the Department continues to forge closer cooperation between the policy and enforcement arms of its border security operations. It continues to significantly heighten the security of its systems through the increased use of biometrics, analysis of metadata/data, a whole-of-government approach, international partnerships, automated gates, trusted trade schemes and such like.

The Australian Border Force, as the Department’s operational enforcement arm, continues to grow its significant work in immigration compliance, enforcement and other operational areas working onshore and offshore in close collaboration with strategic partners, including national security, defence, law enforcement and intelligence partners domestically and overseas.

For the year ending 30 June 2016, the Department granted:

  • 190,000 permanent visas (of which 72,840 were skilled migration visas and 7,500 were refugee and humanitarian visas)’
  • 7.7 million temporary visas;
  • 4.8 million special category visas to New Zealand citizens; and
  • 215,000 working holiday visas.

It also dealt with some 40 million international air and sea passengers travelling through Australia.

The Department and the Australian Border Force continue to grapple with three principal government outcomes:

  • strong national security to protect Australia’s sovereignty, security and safety by managing its borders (including through managing the stay and departure of all non-citizens);
  • a strong economy in the age of globalisation so as to advance Australia’s economic interests; and
  • a prosperous and cohesive society through the effective management of Australia’s migration and citizenship programmes.

In this ever-changing and more restrictive immigration landscape focused on robust regulatory compliance, the Department has continued its significant reforms, including:

  • the Migration Amendment (Charging for Migration Outcome) Act 2015;
  • the Australian Citizenship Amendment (Allegiance to Australia) Act 2015;
  • the introduction of temporary visas for parents; and
  • the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016.

The pace of reform is rapid, far-reaching, ongoing and unpredictable.

The Migration Amendment (Charging for Migration Outcome) Act 2015

This amended the Migration Act 1958 to make it unlawful for a person to give or to receive a benefit in return for a migration outcome in relation to certain skilled visa programmes including the Subclass 457 Temporary Work (skilled programme) and the Subclass 186 Employer Nomination Scheme programme.

It targets unscrupulous employers/sponsors and others who seek to take advantage of prospective employees/visa applicants in their employment by:

  • demanding a fee in return for sponsorship;
  • deducting money from an employee’s pay or requiring that an employee work for free or for very low wages in return for a sponsorship; and/or
  • refusing to provide fair employment benefits such as sick leave, overtime or personal leave while sponsoring an employee.

The Migration Amendment (Charging for Migration Outcome) Act 2015 imposes a strict liability penalty with heavy fines as well as a discretionary power to cancel any visa the applicant holds, irrespective of whether such payment or offer is related to the sponsorship event.

These penalties may apply even if the person is unaware that such conduct is improper or unlawful and includes severe penalties for sponsors of migrant workers who are exploited in their employment.

The Migration Amendment (Charging for Migration Outcome) Act 2015 sets out offences and penalties including civil penalty provisions and visa cancellation for offering to provide or providing a benefit. The term “benefit” is defined broadly under section 245AQ and includes:

  • a payment or other valuable consideration;
  • a deduction of an amount;
  • any kind of real or personal property;
  • an advantage;
  • a service; and
  • a gift.

Cancellation may apply to any visa, even if it was unrelated to the sponsorship event. A visa may also be cancelled whether or not the event actually happened.

A visa holder may be fined and may also be subject to the discretionary power to have their visa(s) cancelled under the Migration Act 1958.

If a benefit was requested and received by the sponsor, the sponsor may also be liable to a significant penalty, whether or not (a) the sponsorship-related event relates to the current visa or any previous visa that the visa holder held, and (b) the sponsorship-related event occurred.

The Migration Amendment (Charging for Migration Outcome) Act 2015 imposes strict liability civil and criminal penalties. It demands a robust corporate culture which requires compliance. Civil and/or criminal liability can be attributed to a company for the act of a high managerial agent if the company cannot prove that it exercised due power to prevent the conduct or the risk of the conduct.

Asking for or receiving a benefit may result in a maximum civil penalty of $43,200 in the case of an individual and $216,000 for a body corporate.

The criminal penalty for an offence is imprisonment for two years and/or a fine of $64,800 for an individual or $324,000 for a body corporate.

With the increasing reliance and personal liability of directors and executive officers, companies need to review how they operate with regard to the recruitment of foreign workers, and ensure they comply with the Migration Amendment (Charging for Migration Outcome) Act 2015.

The Australia Citizenship Amendment (Allegiance to Australia) Act 2015

The Australian Citizenship Amendment (Allegiance to Australia) Act 2015 amended the Australian Citizenship Act 2007 and may apply to a person who is an Australian citizen regardless of how the person became an Australian citizen (including a person who became an Australian citizen upon the person’s birth).

It has greatly expanded the government’s power to revoke Australian citizenship from a dual national found to have engaged in terrorist conduct.

There are several mechanisms for revoking a person’s Australian citizenship. These include renunciation and cessation of citizenship, which applies to a person aged 14 or older who is a national or citizen of a country other than Australia, who renounces their Australian citizenship if the person acts inconsistently with their allegiance to Australia via any of the following conduct:

  • engaging international terrorist activities using explosive or lethal devices;
  • engaging in a terrorist act;
  • providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act;
  • directing the activities of a terrorist organisation;
  • recruiting for a terrorist organisation;
  • financing terrorism;
  • financing a terrorist; and
  • engaging in foreign incursions and recruitment.

Conduct falls into the above-specified categories if the conduct is engaged in:

  • with the intention of advancing a political, religious or ideological cause; and
  • with the intention of coercing or influencing or intimidating the Australian or a state and territory government or the public or a section of the public.

A person is taken to have engaged in the conduct if said person was, at the time of the conduct, either a member of or acting on instruction of, or in cooperation with, a declared terrorist organisation.

When a person renounces their Australian citizenship under these provisions, the renunciation takes effect and the Australian citizenship of the person ceases immediately upon the person engaging in the specified conduct.

The Minister of Immigration also has discretion to strip the citizenship of a person who has been convicted of an offence listed in the new section 35A of the Australian Citizenship Act 2007, and to sentence said person to six or more years in prison.

The revocation of citizenship remains limited to dual citizens. Sole nationals cannot be deprived of their Australian citizenship, as this would leave the person stateless.

The Introduction of Temporary Visas for Parents

Under Australia’s migration programme, there are a number of temporary and permanent parent work visas, namely:

  • Parent (Non-Contributory) visas; and
  • Contributory Parent and Contributory Aged Parent visas.

In the 2016 report titled Migration Intake into Australia, the Productivity Commission noted the fiscal impacts on the Australian community of the claims by immigrant parents on aged care, health and social security systems, which must be met through taxpayer funds. It noted that even the Contributory Parent visa charge met only a fraction of the fiscal costs for the annual intake of parent migrants.

The Productivity Commission concluded that if more flexible temporary parent visa arrangements were introduced, there would be little reason to retain parent migration visas in their current form. In response to the Productivity Commission’s recommendation to considerably raise the visa charge for the contributory parent visa while narrowing the eligibility of the non-contributory parent visas, the discussion paper Introducing a Temporary Visa for Parents proposes a range of measures to address these concerns, while proposing a new temporary parent visa in prescribed circumstances.

The Discussion Paper notes that the changes will come into effect on 1 July 2017.

Migration Amendment (Visa Revalidation and Other Measures) Bill 2016

The Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 proposes amendments to the Migration Act 1958, which would give the minister of immigration power to require a “specified class of persons” to undergo visa re-validation checks if it was in the public interest.

A “specified class of person” could be identified based on whether they hold a particular passport; live in a particular state, province or country; have travelled through a particular area; or applied for a visa during certain dates.

The minister would have the power to refuse to re-validate the visa if there was “adverse information” relating to the person.

The minister could invoke the power if it was “in the public interest”, a broad term that could take into account various factors including public health and safety, national security, Australia’s economic wellbeing, the circumstances in a person’s home country, the risk of overstaying or other factors (or combination of factors) determined to be relevant to the particular circumstances.

The public interest test is intended to be broad and flexible and confer a personal, non-delegable power on the Minister of Immigration that requires the making of a determination by legislative instrument and tabling certain information before each House of Parliament.

Concern has been expressed that the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 could be seen to target people on the basis of their place of birth, passport or religion, as the measures would give the minister significant power to require “a specified class of person” to be subject to extra scrutiny and for the visa to be suspended through the revalidation process.

An Increasingly Restrictive Immigration Landscape

As Australia continues to grapple with the ongoing demand for temporary and permanent entry to Australia, our complex laws and policies continue to be subject to constant and ongoing change.

With the Australian Border Force as the Department’s operational enforcement arm, the Department is increasingly operating as an enforcement agency (and a criminal enforcement agency) and in some instances as a paramilitary organisation.

The Department continues its robust regulatory reforms introducing ever expanding powers and significant penalties and sanctions for breach.

The Department, together with the Australian Border Force, continues to make profound and far-reaching changes to managing Australia’s borders and the movement of goods and people. These are “once in a generation” changes.

The increasingly restrictive immigration landscape coupled with the significant penalties for breach, herald a new era for Australia and pose challenges for both businesses and individuals.

As immigration remains an emotive topic which is at the forefront of both domestic and international politics, the pace of reform will continue to be dynamic.

We will continue to experience a much more complicated political and immigration landscape. The Trump presidency, Brexit and a worldwide move to discriminatory and restrictive immigration programmes are now the new norm.

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