By Anne O’Donoghue, Jenny Nguyen, May Liao & Palwasha Nawabi, Immigration Solutions Lawyers
Australia’s immigration law is governed by the Migration Act 1958 (Cth) (the Migration Act) and the Migration Regulations 1994 (Cth) (the Migration Regulations). These governing federal statutes are administered by the Department of Home Affairs (Home Affairs), which includes the entirety of the former Department of Immigration and Border Protection. Home Affairs administers Australian law and policies in relation to immigration, citizenship and border control, with functions including policy review and change, visa processing and decision-making. Australia’s rich migration history has led to the development of a legislative framework which arguably is the most complex in the world and is subject to frequent amendment and reform in order to respond to contemporary economic, political and cultural influences in Australia.
The Australian corporate immigration law framework has experienced substantial reforms in recent years. Ultimately, the reforms seek to strengthen the integrity and quality of Australia’s skilled migration programme while providing anti-discriminatory and anti-modern slavery safeguards for workers. The abolishment of the subclass 457 visa and the introduction of the new Temporary Skill Shortage programme continue to have a significant impact on current and future skilled migration landscape, in which the removal of occupations and frequent amendments to the skilled occupation lists have brought dynamics and more complexity to the Australian skilled migration.
On 18 March 2018, the subclass 457 visa was abolished and replaced by the completely new TSS visa. Under this programme, eligible applicants are able to apply for temporary working visa via two distinct streams. The short-term stream grants sponsored applicants up to two years of work in an occupation on the Short-term Skilled Occupation List (STSOL), and the medium-term stream grants sponsored applicants up to four years of work in an occupation that appears on the Medium and Long-term Strategic Skills List (MLTSSL). Under these reforms, the occupation lists that underpin a range of skilled working visas dramatically contracted, with approximately 200 occupations having been excluded. The TSS visa enables employers to address labour shortages by bringing in genuinely skilled workers where they cannot source appropriate equivalents in the local labour market. It facilitates the targeted use of overseas workers to address temporary skills shortages, which ensures that Australian workers get priority.
There are now 508 eligible occupations for a TSS visa. An overseas worker must be nominated by a sponsoring business and obtain a TSS visa to enter and commence working in Australia. There are three streams for the TSS programme:
The short-term stream allows employers to source overseas workers in occupations that fall on the STSOL for a maximum of two years (or four years, if an international trade obligation applies). Visa holders under the short-term stream will be eligible to renew this visa at least once while they are in Australia. Any further renewal(s) of a 482 short-term visa would require the applicant to demonstrate that he or she is a genuine temporary entrant.
The medium-term stream allows employers to source overseas workers for occupations on the MLTSSL for up to four years. Visa holders under the medium-term stream will be eligible to apply for permanent residency via the subclass 186 programme, after three years’ work for the nominator on TSS if they meet the requisite criteria.
The labour agreement stream allows employers to source skilled overseas workers in accordance with a labour agreement with the Commonwealth, where there is a demonstrated need that cannot be met in the Australia labour market and standard visa programmes are not available.
There are three stages to the TSS visa:
The three steps must be completed in order; however there is no need to wait for each application to be approved before proceeding with the next.
There is no age limit on this visa. However, applicants wishing to obtain permanent residency through the subclass 186 visa should note that there is an upper age limit of 45 at the time of application for this visa, unless the applicant is using the “grandfathered” transitional pathway.
All applicants are required to demonstrate that they have at least two years’ work experience in their nominated occupation or a closely related field. If the applicant has not been working in precisely their nominated occupation, they must have been performing tasks at the same skill level in a related field. The work experience should have been undertaken on a full-time basis within the past five years. Part-time work will be calculated on a pro rata basis and the applicants’ experience and skills must be relevant and current. However, casual employment will not count.
Certain applicants are required to provide skills assessments as part of the primary criteria for the TSS visa. Applicants who are required to provide a skills assessment must have commenced the skills assessment process prior to the application. To avoid delays, Home Affairs has advised that skills assessments should preferably be completed and finalised prior to application.
You can apply for this visa either outside or within Australia. If you are applying for the visa when you are in Australia, you must hold either a substantive visa or a bridging A (subclass 010), bridging B (subclass 020) or bridging C (subclass 030) visa.
Home Affairs has announced that transitional arrangements are in place to facilitate individuals who have previously held or applied for subclass 457 visas, prior to the changes.
Those who held 457 visas prior to 18 April 2017, or those who applied for the 457 visa prior to 18 April 2017 and were subsequently approved, are still able to access permanent residency under the previous legislation thanks to the grandfather schemes that were brought in to assist existing 457 visa holders. A 457 visa holder who has worked for their Australian sponsoring employer, or its associated entity, for at least two years may be eligible to apply for permanent residency under the subclass 186 Temporary Residence Transition stream. Time spent on an eligible 457 visa or TSS visa and/or any time spent on an associated bridging visa with entitlement to work can be counted towards the two-year qualifying period for a subclass 186 visa. These transitional arrangements are only in place from 18 March 2018 to 18 March 2022.
Modern Slavery Act 2018 (Cth)
The sponsoring companies need to be aware of the risk of modern slavery in their operations and supply chains. Sponsors must know whether the entity falls within the scope of the Modern Slavery Act 2018 (Cth) (the Act) and what actions are required to address those risks, especially for the purpose of sponsorship approval. Focused areas for risk compliance would be domestic workers, restaurant and hotel workers, agricultural workers and fashion production workers.
The key provisions under the Act include:
The minister of home affairs will publish an annual report regarding implementation of the Act, including an overview of compliance by entities and best-practice modern slavery reporting under the Act.
Home Affairs is taking a strict approach to implementing requirements to respond to the issue of modern slavery and human trafficking. Currently, the Modern Slavery Act is the only focused legislative framework designed to combat or report modern slavery, apart from some specific sections in the Crimes Act.
The covid-19 crisis will challenge how businesses globally combat modern slavery as they face major disruption and address how to best protect and manage their employees.
The domino effect of the economic downturn resulting from the government’s lockdown can threaten to hurt modern slavery victims even more than before. Many people have already experienced redundancy and loss of employment, making them more susceptible and vulnerable to labour exploitation and modern slavery abuses.
It can be argued that the impact of covid-19 can not only worsen the risks for those already exploited but also increase the risks of exploitation. Those people are now at greater risk as they become vulnerable to barriers to basic healthcare, restriction of movement due to border closures, and travel bans and discrimination by politics. The International Labour Organization estimates that the economic and labour crises created by the covid-19 may see global unemployment increase by almost 25 million. The rise of job insecurity can leave people in desperation and searching for more precarious and exploitative employment. In this risky environment, working conditions may often be undermined, resulting in modern slavery instances including forced labour and human trafficking.
In recognising the impact of the covid-19 pandemic on exposing modern slavery, the Australian Border Force has released guidance on ways entities can reduce the risk of vulnerable workers in their operations and supply. The guidance outlines the following:
To assist reporting entities impacted by covid-19 to meet their responsibilities under the Modern Slavery Act, the Australian government has announced an extension to the legislated deadline for reporting by an additional three months for entities whose reporting periods end on or before 30 June 2020. The government’s extension recognises the effect of covid-19 on modern slavery and seeks to give entities additional time to assess changing modern slavery risks related to covid-19 and prepare their MSS. For reporting periods ending after 30 June 2020, the six-month deadline remains unchanged.
On 1 June 2020, the Australian government released the scoping paper for the Commonwealth MSS. The scoping paper summarises how the government will approach preparing its initial Commonwealth Statement. This Commonwealth Statement will cover the 2019-2020 Australian financial year and must be published by 31 December 2020. It will focus on essential areas of modern slavery risks, and various Commonwealth government procurements and investments. The Commonwealth Statement will cover the seven mandatory criteria:
The purpose of the advisory group is to provide strategic advice to the government to support the effective implementation of the Modern Slavery Act. On 25 May 2020, the government announced the appointment of 10 Australian experts to the its Modern Slavery Expert Advisory Group.
The first meeting of the advisory group was held on 10 June 2020, and the second on 28 July. A third meeting is scheduled for September 2020.
The first meeting focused on the following issues:
The second meeting focused on the following issues:
On 18 June 2020, the Australian government released its annual report to Parliament on the implementation of the Act. This report details the government’s actions to implement the Act in 2019 (the reporting period) while focusing on the key work streams:
The Modern Slavery Act 2018 (NSW) (NSW Act) passed in Parliament in June 2018 but has not yet taken effect. Professor Jennifer Burn is the interim anti-slavery commissioner of NSW with responsibility for driving the execution of the NSW Modern Slavery Act in preparation for the commencement.
Similar to the federal legislation, it seeks to tackle modern slavery and afford victims assistance and support. However, there are several key distinctions of the NSW Act, including penalties of up to A$1.1 million for non-compliance and a reporting threshold of A$50 million turnover in a financial year.
NSW was the first Australian jurisdiction to introduce this specific legislation, which highlights NSW’s commitment to confronting modern slavery practices. In June 2019, the NSW Act was referred to the legislation review committee for review. The committee’s report makes 17 recommendations, including the following:
The committee’s report and its recommendations are now to be considered by the NSW government. The committee has recommended that the NSW Act take effect on or before 1 January 2021 in order to address the modern slavery risk.
In 2019, Alan Tudge MP expressed a shift in focus towards attracting global talent and businesses to Australia. The Global Talent Independent (GTI) programme launched in November 2019 with the aim of attracting the world’s best talents to Australia each year with a fast-tracked permanent visa. It is understood that more than 4,000 applications were approved in the last financial year. This offers a priority visa pathway for highly talented individuals to obtain permanent residency in Australia. The purpose of this visa is to identify people who will drive innovation and support the creation of local jobs.
The GTI scheme is made available to migrants who are able to earn the Fair Work high-income threshold (currently A$153,600) and who are highly skilled and internationally recognised in one of seven target sectors, namely: agricultural technology; fintech; medtech; cybersecurity; space and advanced manufacturing; energy and mining technology; and quantum information, advanced digital, data science and ICT services.
It should be noted that the GTI applicant is not required to demonstrate that he/she is currently receiving an income at or above the Fair Work high-income threshold. Rather, the focus is on whether the applicant is likely to earn such an income in Australia. In determining whether the applicant is likely to meet the income threshold, Home Affairs will take the following factors into account:
GTI Applicants are prioritised by being given a Global Talent identifier, and will be guided by a Home Affairs contact to receive the most efficient service. Applicants will still be subject to the normal requirements, including character, security and integrity checks.The applications must be supported by a nominator of national reputation. In July 2020, Alan Tudge MP announced that the programme would be considered as a priority pathway for visa extensions to holders of a Hong Kong passport who fear political persecution.
The introduction of the new regional visas is a government incentive to encourage migrants to move to Australia’s regional areas and support local development. This is in response to the increasingly large number of immigrants moving to Australia’s most populated cities. It is reported that almost 90 per cent of Australia’s permanent migrants live in Australia’s busiest cities, with the majority settling in Sydney and Melbourne.
On 26 October 2019, the Australian government expanded the classification of regional areas eligible for regional skilled migration. The expansion of what is defined as “regional” will help divert attention away from Australia’s busiest cities. The Department introduced over 450 new eligible occupations and expanded the definition of regional Australia. Notably, Newcastle, Wollongong and the NSW Central Coast, which are all close to Sydney, were introduced as “regional” areas of Australia. All areas of Australia were considered regional except Sydney, Melbourne and Brisbane. The government has already increased the number of places available for regional visas from 23,000 to 25,000 places in the 2019-2020 Skilled Migration programme. It is prioritising the promotion and processing of new regional visas.
To further support the continued focus on improving regional migration setting and greater distribution of migrants across Australia, Home Affairs introduced two new skilled regional provisional visas: subclass 491 and subclass 494, effective from 16 November 2019. These visas provide a pathway to permanent residence after three years under the Permanent Residence (Skilled Regional) subclass 191 visa which will be available from 16 November 2022.
The Skilled Regional (Provisional) subclass 489 visa has been replaced by the new Skilled Work Regional (Provisional) subclass 491 visa. This visa has many of the same features as the current 489 subclass visa. However, the differences include a visa validity period of five years; and the imposition of visa conditions enforcing the government’s intentions that visa holders live, work and study in regional areas only. Breach of such conditions will potentially trigger a visa cancellation.
The permanent Regional Sponsored Migration Scheme subclass 187 visa has been abolished, except for people covered by the transitional arrangements. The 187 visa has been replaced by its counterpart, the provisional Skilled Employer Sponsored Regional (Provisional) subclass 494 visa.
The MINT programme is an initiative owned by the Darwin Innovation Hub and Paspalis Asset Management, and supported by the Northern Territory (NT) government. It helps overseas nationals to obtain permanent residency in Australia where they demonstrate a commitment to investing in the NT venture capital fund. The MINT programme currently allows overseas nationals access to one of the following:
The applicant must apply to invest a minimum of A$515,000 to the Paspalis Innovation Investment Fund 2.
The advantages of the MINT programme include priority processing; a wide range of occupations on the eligible NT occupation list; no age requirement; and minimal or no English-language requirements. The investment requirements are significantly less burdensome than for other Australian states. Importantly, one of the criteria for nomination is that the applicant must not have strong links to other regions of Australia (being exclusively committed to NT), unless they also have strong links to the NT.
Overall, the introduction of these new regional visas is intended to have a positive impact on local regional economies and to ensure that regional areas also have an opportunity for growth. Employers are also given the opportunity to identify labour shortages within the region and sponsor eligible skilled migrant workers accordingly.
At the Australian British Chamber of Commerce on 22 June 2020, the Australian trade, tourism and investment minister Simon Birmingham stated that despite high levels of mobility between the UK and Australia, there remains room for improvement. There are expectations that both the UK and Australia might look into plans to further streamline the visa regime between the countries.
The Australian government has implemented several changes to temporary visa-holder arrangements in response to the covid-19 pandemic, with the purpose of protecting the health and livelihoods of Australians, supporting critical industries, and assisting in a quick economic recovery post-covid-19.
These changes are aimed at allowing temporary visa-holders to continue working in key industries, such as health; elderly and disability care; agriculture; and food processing. Notably, in April 2020, Home Affairs introduced the Australian Government Endorsed Events (Covid-19 Pandemic Event) stream. This stream is being used to manage the extraordinary circumstances that have arisen due to the covid-19 pandemic. It is a temporary measure available to people working in critical sectors such as agriculture; food processing; healthcare; care for the elderly and/or disabled; and childcare. It is also offered as a visa of last resort where there is no other visa option and it is not possible to leave Australia due to the covid-19 pandemic.
Australia has also implemented strict border measures to protect the health of the Australian community during covid-19. Since 20 March 2020, Australia closed its borders to all non-citizens and non-residents subject to limited exemptions. In order to have the restriction lifted, an applicant must satisfy at least one of the following criteria:
Australia has continued to place emphasis on post-covid recovery by approving travel exemptions to individuals with critical skills to contribute to the country’s economic recovery. These include:
The Australian Border Force is also allowing inbound and outbound travel for those in compelling and compassionate circumstances. The government has provided brief guidance on what constitutes “compelling and compassionate”; they are said to “include, but are not limited to, needing to travel due to the death or critical illness of a close family member”. The Australian Border Force will provide more detailed guideline to define each criterion and clarify the administration of such power.
Statistics released through Freedom of Information, detailing inbound travel between 2 February 2020 and 22 June 2020, indicated that 1,740 foreign nationals were permitted to travel to Australia on compassionate grounds and 1,195 were permitted to travel on the basis of critical skills (medical and others). Overall, 10,440 travellers were permitted into Australia, including business leaders, diplomatic, medical evacuation patients, students, TPV/SHEV holders, and travellers in transit.
The largest category of travel exemption granted to Australian citizens and permanent residents for outbound travel was on compassionate grounds, with 5,438 exemptions granted. The second largest, where 2,738 exemptions were granted, was due to personal business; and 1,455 exemptions were granted for those in the critical industry and business category. The total number of exemptions granted between 25 March 2020 and 22 June 2020 was 10,004, with a small number being granted on the grounds of covid-19, medical treatment and national interests.
Although specific requirements in assessing travel exemption applications have not been released, it is speculated that further guidance will be provided soon. Despite the lack of guidance, our firm has lodged many successful travel exemptions on the basis of both critical skills, and compassionate and compelling circumstances. In line with the post-covid pandemic recovery, the government has made changes to student visa arrangements. This is aimed at ensuring Australia remains a priority destination for international students. The acting minister for immigration, citizenship, migrant services and multicultural affairs reported that international students contribute $40 billion annually to our economy as well as support 250,000 jobs.
The government made five changes in relation to international students:
Migration in Australia has contributed 58 per cent to the country’s population growth over the past decade, making it a vital consideration when planning on the basis of population. It is reported that, currently, around 29 per cent of Australia’s residents were born overseas. Following the challenges around sponsored workers, it is expected that sponsorship compliance will remain at the forefront of the immigration agenda.
The recent and extensive reforms to the Regional Skilled Migration programme highlight the government’s shift towards strengthening its commitment to regional Australia by ensuring the immigration system encourages skilled migrants to live and work in smaller cities and regions. Prime Minister Scott Morrison has stated:
We are using our migration programme to back our regions to grow to take the population pressure off our major capital cities and by supporting strong regions we’re creating an even stronger economy for Australia.
In light of these remarks, it is reasonable to conclude that this trend for helping migrants to settle in regional areas is likely to continue over the next few years.
The pandemic has not only impacted immigration and travel; it has also challenged how businesses globally combat modern slavery as they face major disruptions to their supply chains. The domino effect of the economic downturn from the government’s lockdown can threaten to hurt modern slavery victims even more than before. It is essential to turn our minds not only to the risks for businesses during these times, but also the risks that businesses may pose to others. This pandemic has stressed the need for stronger protection of the most vulnerable in our community. It is important for companies to engage and cooperate with others such as suppliers and workers, and for the community to work out how to best respond to these risks. The Australian Human Rights Commission (AHRC) and KPMG Australia have collaborated on a new guide on responding to modern slavery risks in the property and construction sector, using a rights-based approach. (See “Property, construction and modern slavery: practical responses for managing risk to people”, a report by KPMG Australia in collaboration with the AHRC, released on 14 August 2020 by Emeritus Professor Rosalind Croucher, AHRC president). The pandemic is a challenge and a test for the enforcement of the federal and state statutes in modern slavery, and poses higher requirements for the relevant body of the executive power the Australian Border Force to lead a reduction in the risk of vulnerable workers falling victims to modern slavery.
The covid-19 pandemic compelled government agencies to make an immediate response in order to protect Australia’s borders. Although there are no legislative provisions in determining travel exemption applications, it appears that applications with the most critical and compelling evidence of a need to travel have been approved. The release of further guidelines is expected soon.