Maria Jockel of Holding Redlich outlines key issues and initiatives in relation to Australia's immigration laws for those who are attempting to come to terms with the country's complex and ever-changing legislation.
It is well known that Australia is a nation of immigrants. Since 1945, Australia’s Department of Immigration has managed the arrival and settlement in Australia of about 7.2 million migrants from 200 countries.
To date, Australia – a vast continent, as large as the United States – has some 23 million people. Only 2 per cent of the continent is populated.
Our immigration laws are exceedingly complex and extensive.
The legislative and regulatory framework consists of over 3,000 pages. It is underpinned by layers of regulation and sub-regulation. There are 97 visa categories and nine bridging visa categories.
Australia’s immigration and citizenship legislation, regulations and policy guidelines, which have developed since 1994, now contain over 400,000 individual pages of information, of which approximately 100,000 pages relate to citizenship.
The Department receives over 13,000 visa applications each day world wide and, in the last financial year, raised revenue from visa fees of about A$1.7 billion.
In this article I outline some of the major issues and initiatives to help navigate this ever-changing and complex area.
The Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1994 (Cth) (the Regulations) regulate the “entry into, and presence in, Australia of aliens and the departure and deportation from Australia of aliens and certain other persons”.
Under the direction of the Minister of Immigration, the Department manages, administers and provides advice on migration and humanitarian policy, border protection and security, Australian citizenship, multi-cultural affairs and settlement services. It manages the temporary and permanent entry of people into Australia. It enforces migration law and policy, which includes regulating entry and departure, preventing unlawful entry and removing persons unlawfully settled in Australia.
While the Department’s mission statement has been “enriching Australia through the well-managed entry and settlement of people”, its focus has increasingly moved towards maintaining the integrity of Australia’s borders and national security.
From 1 July 2015 the Department will merge with the Australian Customs and Border Protection Service and form the Australian Border Force. The minister for immigration, Peter Dutton, recently stated that the Australian Border Force will be “a single front line operational border agency with statutory responsibilities to enforce our customs and immigration laws”. The new Department will lead the policy, regulatory and corporate services for the organisation, including the Australian Border Force.
The creation of the Australian Border Force as the Department’s operational enforcement arm will have a significant role in delivering on national security, law enforcement and security priorities.
The Australian Border Force Commissioner will have significant powers concurrently held by the Secretary of the Department and the same standing as other heads of key national security-related agencies, for example the Commissioner of the Australian Federal Police or the Chief of the Australian Defence Force.
The Australian Border Force as the operational enforcement entity will focus on a range of priorities including border force operations. These include compliance assessment, identity, investigation, surveillance operations, targeted enforcement operations and the like.
The Australian Border Force Bill 2015 and the Customs and Other Legislation Amendment (Australian Border Force) Bill 2015 provide some insight into Australia’s border protection priorities moving forward.
As an intelligence-led, mobile and technologically enabled force working onshore and offshore, including with strategic partners, it will operate under the Strategic Border Command to counter threats ahead of the border, employ sophisticated risk assessments through visa programs, and work with international partners to deliver enforcement outcomes.
The Law Enforcement Integrity Commissioner Act 2006 (Cth) is proposed to be amended, to extend the jurisdiction of the Law Enforcement Integrity Commissioner to the Department on a whole-of-agency basis.
It is also proposed that the Telecommunications (Interception and Access) Act 1979 (Cth) be amended to include the Department as an “enforcement agency that may have access to telecommunications data and as a criminal law enforcement agency that can seek access to prospective telecommunications”.
The Department will heighten the security of its systems through increased use of biometrics, analysis of metadata/data, a whole-of-government approach, international partnerships, automated gates, trusted trade schemes, etc.
CHANGES TO SUBCLASS 457 VISAS
The Subclass 457 visa programme is a temporary entry programme, which aims to address genuine skill shortages in the Australian labour market, without displacing employment and training opportunities for Australian citizens and permanent residents; it also aims to ensure that the employment of overseas workers is not to the detriment of the employment and training opportunities of Australians.
To protect foreign skilled workers from exploitation, approved sponsors are required to meet certain sponsorship obligations, some of which are applied beyond the term of sponsorship approval. The obligations aim to ensure that the Subclass 457 programme is being used to meet genuine skill shortages, and that foreign workers are paid in accordance with Australian standards and conditions of employment.
SUBCLASS 457 SPONSORSHIP OBLIGATIONS
Employers who are approved under the Subclass 457 visa programme to recruit foreign skilled temporary workers must comply with a range of sponsorship obligations. An employer must:
• ensure non-discriminatory employment practices;
• cooperate with inspectors;
• ensure equivalent terms and conditions of employment (namely, to pay the market salary rate however described) to the primary Subclass 457 visa holder;
• pay prescribed costs of the departure of the visa holder (or a former visa holder) from Australia;
• pay prescribed costs to the Commonwealth in relation to locating the former visa holder, and removing the former visa holder from Australia;
• keep records of its compliance with its sponsorship obligations;
• provide records of compliance with its sponsorship obligations and other requested information to the Department;
• notify the Department of prescribed changes in the circumstances of an approved sponsor, a former approved sponsor, a visa holder or a former visa holder;
• ensure that a visa holder works or participates in an occupation, programme or activity nominated by an approved sponsor (including by preventing the on-hire of a visa holder);
• require an approved sponsor or former approved sponsor not to recover, transfer or take actions that would result in another person paying for certain prescribed costs; and
• require an approved sponsor or former approved sponsor to meet prescribed training requirements.
In addition to strengthening the sponsorship obligations, the government recently tightened the requirements to prevent the on-hire of a visa holder to a business that is not associated with the approved sponsor (unless the on-hire arrangements fall within an approved Labour Agreement).
Approved sponsors cannot recover certain costs relating to the Subclass 457 visa applications as these costs must be borne by the sponsor.
TRAINING BENCHMARK REQUIREMENTS
The obligation to provide training to Australian citizens and permanent resident workers and meet the “training benchmark” requirements is an ongoing obligation and must be met throughout the term of the former sponsorship approval, when applying for a new sponsorship or varying the terms of a current sponsorship.
LABOUR MARKET TESTING
The commencement of Labour Market Testing (LMT) in November 2013, in respect of prescribed occupations, adds a further layer of regulatory compliance within the Subclass 457 visa programme.
Aligned with an underpinning objective of the Subclass 457 visa programme to ensure that the employment of foreign workers is not to the detriment of the employment and training opportunities of Australians, and prior to sponsorship approval, the proposed sponsor must provide evidence that the local labour market has been tested, and that the required skills cannot be sourced locally.
Previously, most occupations on the Consolidated Sponsored Occupations List (CSOL) were exempt from the requirement that the Subclass 457 visa applicant demonstrate that they meet the English-language requirements (with the exception of, for example, technicians and trade workers).
Exemptions based on occupations have been removed so that all primary Subclass 457 visa applicants must meet the English language requirement, unless the person has:
• a nominated salary that is over the specified threshold exemption amount (which is currently $96,400 gross per annum for a 38-hour week in addition to superannuation);
• a passport from Canada, the United States, the United Kingdom, the Republic of Ireland and New Zealand; or
• completed at least five consecutive years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English.
SPONSORSHIP OBLIGATIONS AND COMPLIANCE
Over 300 fair work inspectors have been appointed to work with the Department’s inspectors to investigate compliance with the sponsorship obligations and to ensure sponsored workers are working in their nominated position and being paid at market salary rates.
The fair work inspectors are empowered to investigate a sponsor’s use of other temporary visas including, for example, persons on working holiday visas, work and holiday visas, student visas and such like.
The powers of inspectors are extensive and include investigating whether a sponsor who is required to satisfy the sponsorship obligations has committed an offence, or contravened a civil penalty provision, under the Act; this may result in fines of up to $51,000 per breach.
Previously there was no explicit requirement for a visa holder to commence work with their sponsor. Now as part of Condition 8107, a Subclass 457 visa holder must commence work with their sponsor within 90 days of arriving in Australia.
Condition 8107 also requires the primary sponsored person to only work in the occupation listed in the most recently approved nomination.
REVIEW OF TEMPORARY WORK AND BUSINESS SKILLS VISAS
The Department has continued to review the temporary work (short stay activity) programme (Subclass 400) visa, for persons seeking short-term entry to Australia to undertake non-ongoing highly specialised work or to participate in non-ongoing cultural or social activities at the invitation of an organisation lawfully operating in Australia.
From November 2014, Subclass 400 visas can be granted to permit a stay of six months (previously not more than three months).
The government also continues to review the business skills programme. The significant investor visa offers permanent residency after four years following an investment of A$5 million over this period. The new premium investor visa provides for residency in just 12 months following an investment of A$15 million over this period.
The Department recently announced the temporary suspension of the Significant Investor Visa Programme to 30 June 2015 while a new complying investment framework is being finalised.
In response to the ongoing demands for permanent entry to Australia, the government introduced SkillSelect in July 2012. SkillSelect enables it “to manage who is able to apply for skilled migration, when they are able to apply and in what numbers”, and on the basis that the visa applicants have skills that Australia needs.
SkillSelect enables persons “interested in migrating to Australia to record their details to be considered for a skilled visa through an Expression of Interest”.
All potential migrants interested in independent skilled, family-sponsored skilled, state or territory-sponsored skilled, or business skilled programmes are required to submit an expression of interest (EOI) and receive an invitation in order to lodge a visa application.
The introduction of EOI was a significant change to the skilled migration programme. If the Department does not issue an invitation to apply, there is no right to do so.
While the EOI determines who can apply, SkillSelect enables the Department to decide when applicants can apply and in what numbers and to select applicants according to certain attributes and in certain numbers.
SkillSelect is part of the Department’s ongoing reform programme, which includes globally integrated client services and simplification of the visa system. The Department’s SkillSelect is aligned to a broader business operational model, which aims to enhance the efficiency and integrity of visa processing and to make greater use of the Department’s e-systems. These e-systems include online applications and various supporting online services such as online information, online communication, online payments and online visa evidence. The Department’s online systems provide for global e-processing and risk tiering, and aim to “allow assessment rigour to be appropriately scaled to the inherent risk of individual cases, maximising productivity and maintaining integrity”.
The Department is conducting an ongoing revision of business processes to ensure that they are optimised for effectiveness, efficiency and level of risk. It is systematically developing the capacity to identify, access, integrate and use information from a wide variety of sources and across all classification levels. Through the collection, analysis and integration of data, the new National Border Targeting Centre will apply an intelligence-led, risk-based approach to inform strategy, planning, decision-making and resource allocations. Using technology and business processes, it will integrate data; identify threats; and defend visa and citizenship programmes, and border control systems.
Working collaboratively with a range of partners/agencies (including other national security agencies) within Australia and overseas, processes will continue to be developed to share information and expertise. This will enable the further development of the law, policy and programmes that will inform and assist in the assessment and decision-making processes of the Department.
DATA-MATCHING PROGRAMME PROTOCOL
Increasingly the government is amending legislation to enable the use and disclosure of personal information obtained under the Act or the Regulations for the purposes of enforcing Australia’s laws.
The sharing of information across government agencies is reflected in the temporary working visas and data-matching programme protocol (the protocol) between the Department and the Australian Taxation Office (ATO). Under the protocol, more than 1 million temporary visa holders’ records held by the Department are matched with the ATO’s taxation and registration systems annually. The protocol aims to enable the enforcement and recovery of taxation revenue by the ATO and to assist in the maintenance of the integrity of the temporary visa programmes by the Department.
In response to concerns about terrorism and “home-grown” radical fundamentalists, the government introduced significant amendments to the Australian Citizenship Act 2007 (Cth) to extend the good character requirements, and to clarify the circumstances in which a person’s Australian citizenship may be revoked.
WHAT'S TO COME IN 2015-2016
The Department’s current review into skilled migration and temporary activity visas aims to support Australia’s long-term prosperity by attracting and retaining overseas skilled workers, while developing a new and simplified visa framework which is supportive, flexible and responsive to Australia’s economic needs.
The Department has announced that it will implement the new visa framework, commencing on 1 July 2016.
With the merger of the Department with the Australian Customs and Border Protection Service and the establishment of the Australian Border Force, there will be an ongoing focus on operational enforcement with specialised border capability, intelligence, risk and targeting, investigations, compliance and enforcement.
As Australia’s borders are now seen as a strategic national asset which hold economic, social and strategic value, there will be significant and ongoing changes to the law, policy and the Migration Programme focused on Australia’s national interest and the longer-term benefits of migration.
The migration programme’s overall objective is to continue “to contribute to Australia’s economic, demographic and social well-being”.
Practising immigration law in Australia is not for the faint-hearted. It is an exceedingly complex, dynamic and ever-changing area of law and policy.
While the Department continues to acknowledge “the need for a clear, deregulated skilled migration visa programme that will help shape and define Australia’s economic future”, it is expected that this fast-paced and dynamic area of law will continue to change in response to the priorities of the government of the day.