Australia’s Migration Programme – An unprecedented commitment to managing Australia’s borders

Maria Jockel, BDO Migration Services

Maria

In December 2018, the Home Affairs Portfolio and the Department of Home Affairs were established to combat the increased complex security environment and the evolved threats from terrorism and organised crime, and to respond to the current arrangements of cooperation between Australia’s intelligence, security and law enforcement agencies.

The Home Affairs Portfolio supports a federation of independent security and law enforcement agencies, including the Australian Border Force, which is an operationally independent body. 

The Department of Home Affairs includes the former Department of Immigration and Border Protection, and other functions, including those related to organised crime, national security and counter-terrorism coordination, cyberpolicy, and countering foreign interference. 

This “once in a generation” change touches upon every part of Australian life. This includes commerce, trade and travel. It replicates other global models, including that of the UK.

The bringing together of law enforcement, security, intelligence and other border-related functions and agencies is part of the commitment to protect and manage Australia’s borders, and meet Australia’s economic needs. 

These changes have profound implications for the management of Australia’s borders and migration law and reflect an unprecedented commitment to a strong regulatory and compliance regimes.

As at 2017, the Department of Home Affairs was receiving over 30,000 visa applications each day worldwide. In the 2018/2019 financial year the Department of Home Affairs is budgeted to raise some A$3.25 billion in visa fees, fines and levies. In the Department’s own words, it continues to face “never before seen volumes of visa applications … forecast to increase by around 50 per cent by 2026–2027”.

The whole-of-government approach to delivering on national security, law enforcement and security priorities has an impact on all aspects of immigration, as the Department of Home Affairs and the Home Affairs Portfolio forge closer cooperation as part of border security.

The increased focus on the security of the Department of Home Affairs’ systems, use of biometrics, the analysis and sharing of metadata/data, the whole-of-government approach, and the significant role of the Australian Border Force are part of ongoing and restrictive reforms. 

The Australian Border Force is responsible for a broad range of compliance and enforcement operations. It has significant powers and reach including to verify the claims made in an application and the documentary evidence used to support it. For employer-sponsored visas, this includes claims as to the nature of the business and the visa applicant’s claims as to identity, work history, educational level, character and such like.

Businesses employing overseas workers, and which are approved sponsors or former sponsors under the former Temporary Work Skilled (subclass 457) visa programme and the reformed Temporary Skill Shortage (subclass 482) visa programme (which came into effect on 18 March 2018), are subject to sponsorship monitoring by Australian Border Force officers. 

The Australian Border Force (and the Fair Work Ombudsman) work collaboratively with employers to identify emerging risks and to foster high levels of compliance. This is supported by the Australian Border Force’s significant monitoring, compliance, enforcement and sanctions powers.

Information-sharing through the various data-matching protocols (including with the Australian Taxation Office) allow the sharing of information with prescribed agencies, including for the purposes of reducing visa fraud, fraudulent phoenix activity, and unlawful employer and labour hire practices, and to detect, investigate and prosecute in cases of breaches of law.

The Department of Home Affairs continues to focus on creating a visa system better suited to managing the growing number of visa and citizenship services while focusing on reforms and complex high-risk matters. 

The momentum for change continues, as reflected in several 2017 and 2018 reforms, as described below.

Reforms of 2018

The Allegiance to Australia Act and the Australian Citizenship Amendment Bill

The Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018 (the Bill) seeks to amend the Australian Citizenship Act 2007 (Cth) to strengthen the citizenship loss provisions inserted by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (the Allegiance to Australia Act). The Allegiance to Australia Act sets out the grounds of loss of citizenship. The Bill seeks to:

  • remove the requirement that a person be sentenced to six or more years of imprisonment if convicted of a terrorism offence;
  • adjust the threshold for determining dual citizenship, with a requirement that the Minister is satisfied that the person will not become one who is not a national or citizen of any other country; and
  • extend the powers of the Minister of Home Affairs by requiring specified groups of applicants to provide “personal identifiers” at the time a visa application is lodged. This includes the power to render a visa application invalid if the personal identifiers are not provided, and to enable the Minister to specify how the personal identifiers may be provided.

The Allegiance to Australia Act and the Bill reflect a commitment to tightening the eligibility criteria for citizenship, at a time when some 250,000 applications are awaiting processing by the Department of Home Affairs and more applications continue to be lodged daily. 

Inquiry into the Effectiveness of the Current Temporary Skilled System

Another development is the Inquiry into the Effectiveness of the Current Temporary Skilled System in Targeting Genuine Skill Shortages, following the replacement of the Temporary Work Skilled (subclass 457) visa programme with the highly restrictive Temporary Skill Shortage (subclass 482) visa programme. These changes include: 

greater discretionary powers to allow the Department of Home Affairs to look behind the employment arrangements, including remuneration, and ascertain whether the size and nature of the business genuinely require the position to be filled by a sponsored overseas worker;

significant and ongoing changes to the approved forms and manner of application commenced on 18 March 2018 under the subclass 482 visa programme and associated changes including the annual market salary rate, mandatory skills assessments for specified occupations and new definitions of Australian employers and employees based on the Fair Work Act 2009;

  • greater focus on protecting Australian jobs and conditions; 
  • more prescriptive labour market testing requirements, unless exempted under Australia’s International Trade Obligations, which include:
    • the labour market testing must be undertaken for a minimum of four weeks, in the four months immediately prior to lodgement of the subclass 482 nomination application;
    • annual earnings must be advertised unless they are A$96,400 or higher;
    • skills and experience of the position must be advertised; and
    • positions where the annual earnings are at least A$250,000 are exempt; and
  • the gathering of more extensive information and documents (including for data-matching exchange with prescribed agencies) to support each of the sponsorship, nomination and visa applications.

The Australian Values Statement

The Australian Values Statement applies to a significant number of visa subclasses; a full list can be found at https://www.legislation.gov.au/details/F2018C00207.

The Australian Values Statement codifies the Public Interest Criterion 4019 (the Values Statement) in the Migration Regulations 1994, which applies to specific applications made on or after 15 October 2007. It includes provisions relating to values that are important to Australian society, matters concerning Australian citizenship (if relevant) and compliance with the laws of Australia.

The Skilling Australian Fund

In August 2018, the training benchmarks that existed in the 457 visa programme, which required sponsors to demonstrate ongoing expenditure on training Australians in their business, was replaced with the tax-deductible Skilling Australians Fund (SAF) charge. The SAF charge is determined by the turnover of the business and is payable by sponsors at the time of the lodgement of the nomination application. It cannot be passed on to the sponsored overseas worker. 

For the Temporary Skill Shortage (subclass 482) visa programme, a business with a turnover of less than A$10 million must pay A$1,200 per year of visa requested; and if more than A$10 million, A$1,800 per year of visa requested. 

For the Employer Nomination Scheme (subclass 186) and Regional Skilled 

Migration Scheme (subclass 187), a business with a turnover of less than A$10 million must pay A$3,000; a business with a turnover of more than A$10 million must pay A$5,000.

Other reforms

  • The pass mark for skilled points test rose from 60 to 65 points for the Skilled Nominated (subclass 190) and Skilled Independent (subclass 189) visas. Due to the highly competitive nature of these programmes, some 85 points is reportedly required to be eligible for the grant of a visa in the case of accountants (with a PhD/master’s degree).
  • There is now specification as to the maximum number of visas for the Contributory Parent; Parent; and other parent visa programmes to be granted between 1 July 2017 and 30 June 2018 (with a combined total maximum, across the Parent Visa categories, of 8,675). Due to the heightened number of Contributory Parent (subclass 143/173) visa applications lodged each week, the current estimated processing times exceed 49 months. 
  • The Migration Amendment (Family Violence and Other Measures) Act 2018 amends the Migration Act 1958 to introduce a sponsorship framework to address integrity concerns for the sponsored family visa programme, and:
    • provide a framework for the assessment and approval of sponsors;
    • impose statutory obligations on sponsors;.
    • provide for civil penalties and administrative sanctions for breach of sponsorship obligations; and
    • facilitate the sharing of information between relevant parties.
  • The Modern Slavery Act 2018 requires Australian and foreign entities operating in Australia to submit Modern Slavery Statements in every 12-month period where their annual revenue is at least A$100 million.

Reforms in effect from 1 January 2019

The momentum for change continues to be reflected in the reforms which commenced on 1 January 2019 and include the following. 

The Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018 (Cth)

This significantly strengthens the sanctions against employer sponsors who breach their sponsorship obligations and allows the Minister to publish details of sponsors or former sponsors who have breached their sponsorship obligations from 18 March 2015, so these provisions are in effect retrospective.

The Minister of Home Affairs is not required to observe natural justice rules in publishing this information, which includes personal information about the sponsor/former sponsor, and no civil liabilities can arise from the publication in good faith of such information.

The Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018 (Cth)

This amends the Migration Act 1958, the Income Tax Assessment Act 1936 and the Taxation Administration Act 1953 (and other legislation), and allows the collection of tax file numbers and the sharing of data with the Australian Taxation Office to support the integrity of Australia’s tax and related systems, and to maintain community confidence in the integrity of those systems. 

The data contained in subclass 457/482 nomination and other applications is matched by the Department of Home Affairs, with the Australian Taxation Office, to effectively detect and deal with compliance risk among visa holders, employers/sponsors and migration agent communities. Data from the Department of Home Affairs is used as part of the Australian Tax Office’s risk detection models for administrative action, including relating to tax return integrity, income tax, superannuation, and other tax non-compliance and fraud.

Data matching and a whole-of-government approach

The Department of Home Affairs’ data matching programme to enhance compliance in the Temporary Skilled visa programme with the Australian Taxation Office, will allow both agencies (and other prescribed agencies) to identify instances of non-compliance and undertake activity relating to visa holders, sponsors and migration agents. 

The introduction of single-touch payroll reporting provides the Australian Taxation Office with real-time payroll data and therefore allows the opportunity to quickly identify and act on any anomalies or non-compliance.

Through data analysis and matching, the Minister of Home Affairs can publish information, including personal information, about an approved sponsor or former sponsor who has failed to meet the applicable sponsorship obligations. This includes the business or trading name; the Australian Business Number; details of the corporation or individuals within the organisation; the sponsorship obligations that they have failed to satisfy; details of a breach; and details of any sanctions or subsequent decisions to waive the sanction.

The Department of Home Affairs can now collect, record, store and use tax file numbers of overseas workers, including sponsored overseas workers for compliance and other purposes. 

The data matching programme to enhance compliance in the Temporary Skilled visa programme with the Australian Taxation Office will match data on a periodic basis, with an estimated 680,000 records (representing about 280,000 individuals) being shared. 

The Australian Tax Office has been matching visa and related data from the Department of Home Affairs (and its predecessors) since the 2008 and 2009 financial years. 

The Australian Tax Office estimates that “the total number of records that will be obtained across the three-year period” of the 2017 to 2020 financial years, through its protocol including with the Department of Home Affairs, is “likely to exceed 20 million individuals”. 

Digitalisation, data-matching and exchange are also part of the Department of Home Affairs’ focus on creating a better visa system with the use of technology. Data collection, analysis and matching are part of administrative decision-making, and of selectively automating administrative decision-making in the age of digital technology and the trend towards automation.

With an increasing reliance on the personal liability of directors and executive officers, the level of regulatory scrutiny and enforcement activity continues to increase substantially. 

Corporate culture and the liability of directors and officers in visa and related breaches 

The sharing of information across government, including the disclosure of personal information about a visa holder or former visa holder, or sponsor or former sponsor, is part of the extensive information-gathering powers of the Department of Home Affairs under the Migration Act 1958 (Cth), including in the context of the Department of Home Affairs and the Australian Border Force’s significant powers and reach in regard to monitoring, compliance, enforcement and sanctions. 

The gathering and sharing of information is part of the Department of Home Affairs’ online digital processes and systems in an ever-changing and increasingly stringent regulatory framework focused on protecting and managing Australia’s borders. 

Australian employers, including sponsors and former sponsors, would be well advised to undertake a payroll and compliance review to identify and remediate any underpayments of entitlements, including those to sponsored or former sponsored workers. The introduction of single-touch payroll reporting in the Australian Taxation Office makes this more essential than ever before. 

In this environment, there is a requirement for better standards of governance and risk oversight, and of management of risk (including operational risk). 

There is a need to adopt a broader enterprise risk-management approach where risk is embedded into the strategic and business-planning, decision-making processes and their execution, within an organisation, and as part of overall enterprise risk management. To ensure compliance, businesses and directors need to ask the following questions:

  • What is the compliance model (including the attitude to compliance and compliance strategy)?
  • What is the operational risk management matrix and the inputs and outputs of risk management tools?
  • How is risk managed (including through education, detecting compliance and non-compliance, review frequency and risk likelihood, and dealing with overall enterprise risk management)?

Developing a risk-management strategy is integral to the day-to-day operations and the cost of doing business in this complex age of Brexit and Trumpism, and the global movement of people. 

Maximising risk-management strategies is an integral and vital part of day-to-day business operations; the cost of doing business; and meeting skilled workforce needs, including global mobility needs. 

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