Australia’s Corporate Immigration Review 2020

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.

TEMPORARY SKILL SHORTAGE (TSS) VISA – SUBCLASS 482

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;
• the medium-term stream; and
• the labour agreement stream.

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:

• step 1: sponsorship application by the employer;
• step 2: nomination application for a skilled position by the employer; and
• step 3: visa application by the proposed nominee.

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.

ELIGIBILITY REQUIREMENTS FOR THE TSS VISA

• There must be an eligible Australian or overseas business that is a valid standard business sponsor, and that can nominate the visa applicant. Sponsorship and nomination applications must have been lodged before any TSS visa application can be made.
• The visa applicant must demonstrate that they have undertaken at least two years of full-time work experience related to their nominated occupation within the last five years.
• Certain visa applicants may be required to provide a compliant skills-assessment outcome to confirm that their skills have been recognised by the designated authority. This depends on their occupation and the country in which they hold a passport.
• The visa applicant must meet the English-language requirement for the stream, unless exemptions apply.
• The visa applicant must meet the specific health requirements for this visa, as must any accompanying family members, unless a health waiver can be applied.
• The visa applicant must meet the character requirements for this visa. It is important to note that an accredited sponsor may to vouch for the good character of the visa applicant and his/her accompanying family members, which exempts the applicant from the requirement to provide police certificates from overseas jurisdictions; this could significantly shorten the processing time. However, an Australian police check is still required. The accredited sponsor may have its accredited status revoked should the Department find at least one of the applicants it vouched for has a criminal conviction from countries other than Australia.

Age limit

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.

Work experience criteria

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.

Mandatory skills assessment criteria

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.

Where to apply

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.

Transitionary arrangements for subclass 457 visa holders: grandfather schemes

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.

KEY PROVISIONS UNDER THE ACT

The key provisions under the Act include:

• Australian entities with a minimum annual consolidated revenue of A$100 million will be required to report under the Commonwealth Act.
• Reporting entities will need to prepare an annual modern slavery statement (MSS) addressing mandatory criteria, including: the potential modern slavery risks in the entity’s operations and supply chains; and the actions the entity has taken to assess and address those risks.
• Power is granted to the minister of home affairs to establish a publicly available register of MSSs to promote transparency, and allow consumers and others to make informed decisions about products.
• The minister of home affairs is to make written requests to an entity that has failed to give an MSS, asking them to provide an explanation as to why they have not complied, or to undertake specific remedial action to address the non-compliance.

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 IMPACT OF COVID-19 ON MODERN SLAVERY ISSUES

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:

• maintaining supplier relationships and fostering an open community with suppliers about covid-19 risks;
• collaborating with suppliers, workers, business peers, investors, civil society and peak bodies; and
• reviewing key international resources and, where applicable, implementing guidance to support ethical work in supply chains.

TEMPORARY EXTENSION OF REPORTING DEADLINES UNDER THE MODERN SLAVERY ACT

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.

SCOPING PAPER: COMMONWEALTH MSS

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:

• mandatory criteria 1 and 2: identify the reporting the reporting entity and describe its structure, operations and supply chains;
• mandatory criterion 3: describe the risks of modern slavery practices in the operations and supply chains of the reporting entity;
• mandatory criterion 4: describe the actions taken by the reporting entity to assess and address modern slavery risks;
• mandatory criterion 5: describe how the reporting entity assesses the effectiveness of these actions;
• mandatory criterion 6: describe the process of consultation with any entities the reporting entity owns or controls; and
• mandatory criteria 7: provide any other relevant information.

MODERN SLAVERY EXPERT ADVISORY GROUP

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 impact of the covid-19 pandemic on modern slavery risks;
• development of a modern slavery recognition scheme;
• development of the Commonwealth’s MSS; and
• outreach and engagement strategies.

The second meeting focused on the following issues:

• Australian businesses’ responses to modern slavery risks in overseas supply chains;
• finalising a model for a modern slavery recognition scheme; and
• the structure and content of the Commonwealth’s MSS, including assessing the effectiveness of government’s response.

ANNUAL REPORT TO PARLIAMENT ON IMPLEMENTATION OF THE MODERN SLAVERY ACT

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:

• advising and supporting reporting entities;
• awareness-raising and promoting best practice;
• developing an online modern slavery statement register; and
• combating modern slavery risks in public sector procurement.

NSW Modern Slavery Act

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:

• amending the reporting threshold terminology of the Modern Slavery Act 2018 to replace the term “turnover” with “consolidated revenue” (recommendation 3);
• aligning the reporting threshold between the NSW Act and the Modern Slavery Act 2018, which would ideally be placed at A$50 million consolidated revenue (recommendation 5);
• introduction of a voluntary reporting mechanism for businesses falling under the A$50 million reporting threshold (recommendation 10); and
• introduction of reporting obligations for local councils, equivalent to those imposed on NSW government agencies (recommendation 11).

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.