Article:

Australian Immigration Law Alert – Constant Change to Protect and Manage Australia’s Borders

19 January 2018

The establishment of the Home Affairs Portfolio, on 20 December 2017, which includes the Department of Home Affairs (the Department) and subsumes the Department of Immigration and Border Protection heralds a new era in protecting and managing Australia’s borders.

The Minister for Home Affairs who has a dual role as Minister for Immigration and Border Protection is supported by two new ministers, the Minister for Law Enforcement and Cybersecurity and the Minister for Citizenship and Multicultural Affairs.

The new UK-like Department of Home Affairs Portfolio is responsible for Australia’s national transport security, federal law enforcement, criminal justice, cyber security, border, immigration, multicultural affairs, emergency management and trade related functions.

These changes further consolidate the significant changes which were made to the management of Australia’s borders on 1 July 2015, when the Australian Border Force became the operational enforcement arm of both Immigration and Customs.

The Home Affairs Portfolio supports a federation of independent security and law enforcement agencies. This includes the Australian Border Force, the Australian Security Intelligence Organisation, the Australian Federal Police and the Australian Criminal Commission.

These historic changes are also in response to the demand for entry to Australia which now receives over 30,000 visa applications each day worldwide. It is expected that the Department will generate some $2.35 billion in 2017-2018 from Visa Application Charges and fines.

Constant change in law and policy

The momentum for change is reflected in the significant reforms which were implemented in 2017, and which will continue in 2018. These include:

  • Enhancing the visa system to include automation and technology to facilitate the rising number of travellers and the ability to verify the identity of individuals seeking entry to Australia;
  • Biometrics and data analysis and sharing which include large scale biometrics storage and processing capabilities including analysis and data sharing of facial images, fingerprint biometrics and the sharing of data generally across government as a whole, and as part of national security, law enforcement functions related to Australia’s border;
  • New Temporary Skill Shortage (TSS) Visa which is anticipated to replace the Temporary Work (Skilled) (subclass 457) Visa in March 2018. These reforms are extensive and ongoing and include:
  • 457 Visa
  • Employer Nominated Scheme (subclass 186) (ENS)
  • Regional Sponsored Migration Scheme (subclass 187) (RSMS)
  • Skilled Regional (Provisional) (subclass 489)
  • Skilled Nominated (subclass 190)
  • Skilled Independent (subclass 189)
  • Training visa (subclass 407)
  • Graduate Work stream of the Temporary Graduate Visa (subclass 485) (only in certain cases).

From 19 April 2017, the Government has progressively implemented significant reforms, the most significant being on 19 April 2017 as phase 1 to the skilled occupations list with:

  • The new Short-term Skilled Occupation List (STSOL) which aims to meet short to medium-term skill needs in the Australian labour market;
  • The Medium to Long-term Strategic Skills List (MLTSSL) which aims to meet the medium to longer term skill needs in the Australian labour market;
  • Over 219 occupations have been removed from the now defunct Consolidated Skill Occupation List and 59 occupations are subject to occupation specific caveats and additional caveats to prevent use of the subclass 457/subclass 186 visa programmes.

On 1 July 2017, phase 2 of the 457 Visa reforms included:

  • The removal of the English Language threshold for applicants with a salary of $96,400 except in respect of intra-company transfers;
  • The introduction of the more restrictive benchmark requirements; and
  • Mandatory police certificates for all primary and secondary visa applicants over the age of 16 years.

On 1 July 2017, changes to ENS and RSMS included:

  • A requirement of an International English Language Testing System (IELTS) (or equivalent test) score of 6 in each component;
  • A maximum age of 45 at the time of application for Direct Entry stream applicants;
  • A maximum age of 50 for Temporary Residence Transition stream applicants.

By March 2018, phase 4 reforms are intended to be implemented including the abolition and replacement of the 457 Visa with the TSS which will have two streams, including:

  • A Short-term Stream which will allow for a visa grant of up to two years, a requirement of an IELTS or equivalent test score of 5, with a minimum of 4.5 in each component and a genuine temporary entrant requirement;
  • A Medium-term Stream which will allow for a visa grant of up to four years including a requirement of a minimum of IELTS 5 (or equivalent test) in each test component.

Eligibility criteria for both streams will include:

  • At least two years’ relevant work experience for relevant sectors;
  • Mandatory labour market testing unless an international obligation applies to exclude this requirement;
  • Minimum market salary rate and Temporary Skilled Migration Income Threshold requirements;
  • Mandatory police certificates;
  • A non-discriminatory workforce test to ensure employers are not actively discriminating against Australian workers.

On 17 January 2018, further changes to the occupations list came into effect which include:
 

  • Occupations added to the STSOL

ANZSCO

Occupation

Caveats

612112

Property manager

Yes

272314

Psychotherapist

Nil

612115

Real estate representative

Yes

 

  • Occupations moved from STSOL to MLTSSL

ANZSCO

Occupation

Caveats

121316

Horse breeder

Yes

224711

Management consultant

Yes

 

  • Occupations removed from the lists

ANZSCO

Occupation

312112

Building associate

142114

Hair or beauty salon manager

 

  • Occupations with caveat only changes

ANZSCO

Occupation

Caveats

141999

Accommodation and hospitality managers nec

New caveat

221112

Management accountant

New caveat

411611

Message therapist

Wording amendment

223112

Recruitment consultant

Amended caveat

133611

Supply and distribution manager

Amended caveat

221113

Taxation accountant

Amended caveat

 

  • Nominations and visa applications lodged before 17 January 2018 will not be effected by these changes.
  • These changes affect all 457 visa applications made on or after 17 January 2018.
  • These changes affect all subclass 186 Direct Entry skills assessments and visa applications made on or after 17 January 2018.
  • Subclass 186 nomination and visa applications lodged before 17 January 2018 will not be affected by these changes.

Complexity of Australia’s immigration laws and policies

Australia’s immigration laws and policies are arguably the most complex in the world. The legislative and regulatory framework consist of over 3,000 pages. This framework is underpinned by the Department’s policy guidelines of some 25,000 pages, which guide decision makers on the exercise of their decision making and related powers.

Australia’s immigration laws and policies are subject to constant and ongoing change.

The complexity of employer sponsored temporary and permanent entry visas

The Government’s ongoing reforms aim to strengthen the quality and integrity of the temporary and permanent employer sponsored skilled migration programmes.

Currently, there are some 29,000 subclass 457 visa applications in the pipeline and many more are being lodged each day.

There are some 49,000 subclass 186 visa applications in the pipeline and again, many more are being lodged each day.

It is anticipated that the STSOL will be updated every six months based on advice from the Department of Employment and the MLTSSL will be updated annually based on the advice of the Department of Education and Training.

These changes can only add to what is already a highly complex and dynamic system of law and policy.

Both individuals and organisations need to seek specialist advice to meet their visa and related aims.