Note: This content was originally published on Who's Who Legal - Australia’s Immigration Programme
In this turbulent, ever-changing and interconnected world, Australia has continued to make unparalleled changes to the management of Australia’s borders and the movement of goods and people.
These changes commenced on 1 July 2015 with the Department of Immigration and Border Protection, and the Australian Customs and Border Protection Service formally becoming one new department with the Australian Border Force (ABF) as its operational enforcement arm.
These once-in-a-lifetime changes are part of ongoing reforms that aim to continue to make Australia an open and diverse society, which is also prosperous and safe.
The vision is to be able to respond proactively in a changing global environment and to withstand the test of time. In order to achieve this vision, the new department is guided by information and intelligence; the use of technology; and an organisational structure that, in delivering Australia’s visa and citizenship programmes, interfaces with:
- the role of the ABF, tasked to deliver on national, international, regional and local border protection, law enforcement and national security priorities;
- policy and regulation consistent with strategy and policy, to ensure visa and citizenship programmes achieve policy intent;
- intelligence services and products to support departmental decision-making resource allocation, and to counter border threats;
- client services being the workforce that assesses and decides applications in relation to visas, citizenship, customs and trade;
- enabling and support being the human, IT and related resources to manage security, risk, assurance, governance, and strong national and international relationships to harness emerging opportunities and foster a safe, cohesive and prosperous Australia.
The Australian government has continued to “create history” as it has proceeded to integrate the functions of the new department and the ABF, and to achieve unprecedented milestones of reform, with the establishment on 20 December 2017 of the Home Affairs Portfolio and the Department of Home Affairs.
Building upon the recognition that the border is a continuum, the aim is to ensure that the Home Affairs Portfolio, the Department of Home Affairs and the ABF are Australia’s trusted global gateway.
These profound reforms reflect a complex security environment, which includes human trafficking, cybercrime/cyber-enabled crime and national security issues.
At the same time, Australia – which arguably has the most complex and dynamic immigration laws and policies in the world – continues to implement restrictive visa-related reforms in response to the unprecedented mass movement of people across borders.
In 2019 there were 1 billion migrants across the globe (of whom 258 million are international migrants). That is one in seven of the world’s population. Some 68 million of the world’s internal and international migrants are forcibly displaced.
With Australia getting over 30,000 visa applications each day worldwide, and the Department of Home Affairs’ prediction of an increase in demand of some 35-50 per cent in the foreseeable future, the immigration landscape continues to be reshaped with Australia’s well-managed and restrictive migration programme, which is focused on contributing to Australia’s growth, prosperity and social cohesion.
In this financial year, it is anticipated that the Department of Home Affairs will raise some $3.25 billion in visa fees, fines and levies.
The Home Affairs Portfolio brings together:
- the Department of Home Affairs, which is the lead department for law enforcement and crime prevention (including organised crime, money laundering, cybercrime, human trafficking, people smuggling and illicit drugs), and crime prevention initiatives and programmes;
- the ABF, with responsibility across numerous domains including border force operations, such as all aspects of compliance and regulation (eg, compliance, identity, investigations, removals, surveillance operations, targeted enforcement operations, and the monitoring of approved sponsored employers/former sponsors employing overseas workers under the employer-sponsored temporary and permanent entry programmes);
- the Department of Immigration, Citizenship, Migration Services and Multicultural Affairs, which includes visa operations and visa reforms; migration programme implementation (family, state and territory programmes); skilled visa reforms and citizenship; passenger processing services (SmartGate passenger movement charges); visa cancellations and ministerial intervention;
- the Australian Federal Police (AFP), which is responsible for preventing, disrupting and investigating Commonwealth and state offences (with a federal aspect), and contributes to combating organised crime and activity in Australia and overseas;
- the Australian Criminal Intelligence Commission, which gathers and shares criminal intelligence; leads or participates in joint investigations and intelligence operations; provides national information systems and services to police and law enforcement agencies;
- the Australian Transaction Reports and Analysis Centre (AUSTRAC), which is Australia’s anti-money laundering and counter-terrorism financing regulator and specialist financial intelligence unit; and
- the Australian Securities and Intelligence Organisation, Australia’s intelligence/counter-intelligence and foreign interference agency.
The Home Affairs Portfolio and ongoing reforms are in response to a dynamic, global economic trade and risk environment, in the context of new technologies, evolving international power dynamics, and the emergence of new strategic threats.
This environment continues to profoundly shape Australia’s migration programme, the role of the Department of Home Affairs and the ABF.
The 2019 Home Affairs Portfolio Industry Summit
The Home Affairs Portfolio, a central policy agency, provides coordinated strategy and policy leadership with a focus on national security, law enforcement, a whole-of-government approach, and interconnected national and international partnerships in an increasingly restrictive immigration landscape focused on safety and prosperity, building resilience to emerging security challenges and risks.
The Industry Summit showcased the role of the Home Affairs Portfolio as the central policy agency and the whole-of-government approach across national security, law enforcement, visa operations and intelligence.
The Industry Summit included the following:
- Customs and border modernisation by “leveraging technologies to streamline trade and travel, enhance intelligence-led risk management and ensure our integrity”.
- Countering a foreign interference approach which focused on the concern that “foreign interference interests were occurring on an unprecedented scale” and on Australia’s approach to countering foreign interference.
- The role of identity within national security and law enforcement environments, and the increased focus on data sharing and analytics – including in the context of the Identity-matching Services Bill 2019, which – once passed by Parliament – will allow unprecedented levels of integrated data collection, sharing and analysis capabilities.
- Skilled migration for Australia – today and tomorrow – and the future of work in a globally mobile world where Australia continues to be at the forefront of attracting global talent while being “responsive to new and emerging labour needs”.
- Implementing Australia’s Modern Slavery Act when, globally, “40 million people are trapped in modern slavery with 17 million in private-sector supply chains”.
- Seizing the opportunities that new and emerging technology offers while mitigating the risks and protecting Australia’s critical infrastructure and systems at a time of heightened threat, including by “proactively identifying and remediating cyber instances on critical systems”.
- Increasing resilience to terrorism, which continues to underpin all aspects of government’s operations, including at the border.
- Preventing and combating crime and money laundering, including “combating non-compliance of businesses and tax structures”, the black economy and trade enforcement “measures and strategies to protect revenue, community safety and lawful employment conditions for migrant workers”.
- The ongoing management of the anticipated significant growth in the movement of goods and people, and how new and emerging “technology, cyber risks and compliance with regulatory frameworks” “can achieve secure seamless travel” in an increasingly globalised economy.
Security and strong border controls in the context of Visa operations and Visa reform
The escalating volumes of trade, in an increasingly complex security environment, have resulted in a historically unprecedented focus on integrity across supply chains, as Australia’s two-way trade is worth more than $799 billion.
The Home Affairs Portfolio and the Department of Home Affairs continue to focus on migration, airport security, seaport security and cybersecurity as part of the many touchpoints that must be managed with Australia being an open, diverse and multicultural society, and one of the world’s most advanced Western democracies.
Australia’s immigration laws and policies continue to shift, in order to reflect the significant change with the Department of Home Affairs operating as part of a national security, intelligence and law enforcement portfolio.
The never-ending legislative change continues to result in the ever-expanded power of the Department of Home Affairs and the ABF.
The ABF administers border controls on behalf of 46 government agencies and departments. Through sustained collaboration across national and international agencies, the ABF – as Australia’s frontline border law enforcement agency and customs service – continues to expand its role as part of managing the integrity of Australia’s borders and ensuring regulatory compliance.
Data analytics including predictive analytics, intelligence and surveillance (including satellite-based surveillance) are part of the collaboration across the Home Affairs Portfolio, which continue to focus on the integrity of Australia’s borders and laws while maintaining prosperity and security.
Data is the new oil, and in our increasingly interconnected and hyper-connected world, the growth of new technologies underpins regulatory compliance and enforcement.
In the past four years, international air travellers across Australia’s borders grew from 38 million to almost 47 million – which means that almost double Australia’s population move through our international airports each year.
The AFP seeks to counter and diffuse threats, and reduce criminal and security threats to Australia’s economic and societal interests, including in the context of preventing foreign bribery and corruption.
AUSTRAC’s contribution to the Home Affairs portfolio and the Australian community includes its significant role in anti-money laundering and terrorism financing, working with a range of networks including 100 international partners and over 15,000 private sector entities.
In an age of heightened visa and national security reforms, there are never-ending legislative changes. Recent national security legislation includes 18 national security bills passed by parliament comprising 1,046 pages of new legislation.
Four entirely new acts have been created including the Office of National Intelligence Act; the Security of Critical Infrastructure Act; the Foreign Influence Transparency Scheme Act; and the Counter‑Terrorism (Temporary Exclusion Orders), as well as extensive amendments to existing legislation.
Australia's permanent migration programme
The permanent migration programme consists of three streams: the skill stream; the family stream; and the special eligibility stream. Details of each category within these streams are taken from the Australian government’s “2019-2020 Migration Program” report.
This aims to improve Australia’s economy and to fill skill shortages in the labour market, including in regional areas of Australia. The skill stream consists of the following categories.
- Employer-sponsored: “Fills identified skill shortages in the medium- to long-term. This is the largest category in the skill stream.”
- Skilled – independent: “Addresses Australia’s long-term labour market needs by expanding its human capital through young, highly skilled migrants with advanced English language proficiency.”
- State/territory and regional nominated: “Supports labour market needs by providing skilled migration specifically for states and territories.”
- Business innovation and investment programme: “Encourages economic activity by increasing entrepreneurial talent and diversifying business expertise in Australia.”
- Distinguished talent: “Benefits Australia by attracting people who have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts, academia and research.”
In 2019, the Department of Home Affairs launched the Global Talent Independent programme, which is a key part of its immigration strategy. Its aim is to identify and proactively recruit up to 5,000 highly skilled migrants per year.
This enables Australian citizens and permanent residents to reunite with close family members. This includes partners, children and certain dependent relatives. The family stream consists of the following categories:
- Partner: “Allows Australian citizens, permanent residents or eligible New Zealanders to sponsor their partner to live in Australia. This is the largest category in the Family stream.”
- Parent: “Allows Australian citizens, permanent residents or eligible New Zealanders to sponsor their parents to live in Australia.”
- Other family: “Allows family members to sponsor carers, remaining relatives or aged dependent relatives to live in Australia.”
- Child: “Allows parents to sponsor their child who is outside Australia to come to Australia. This category is uncapped and demand-driven.”
Special eligibility stream
This stream “provides visas for those in special circumstances that do not fit into other streams, including former residents. The Special Eligibility stream also includes visas granted under ministerial intervention.”
Australia’s migration programme continues to focus on skilled migration, which accounts for close to 70 per cent of the annual migration intake. The migration intake has been reduced from 190,000 to 160,000 for the 2019/2020 year.
As part of the Australian government’s aims to redirect migrants from cities such Melbourne and Sydney to regional Australia, on 26 October 2019 the Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs announced changes to the regional migration planning levels, with an increase from 23,000 to 25,000 places in 2019/2020. The programme’s aims will be met through existing pipelines and the new provisional visas.
As part of these changes, the new Skilled Employer Sponsored Regional (Provisional) (subclass 494) Visa and Skilled Work Regional (Provisional) (subclass 491) Visa commenced on 16 November 2019.
In the 2018/2019 financial year, there were some 367,585 permanent residence visa applications (including under the humanitarian programme) lodged with the Department of Home Affairs. Of these, 246,182 visas were granted and 105,511 were refused.
Integrity concerns continued to be identified in most migration categories in 2018–2019. The Department of Home Affairs continues to focus on ensuring high levels of integrity, with an increasing number of visa applications being refused or withdrawn. The number of applications refused in 2017–2018 was 46 per cent up on the previous year.
Australia's temporary migration programme in 2019-2020
Australia’s temporary visa programmes are uncapped and demand-driven.
- temporary skills shortage (TSS) (subclass 482) visa;
- temporary worker (short stay specialist) (subclass 400) visa;
- visitor and business visitor visa (including the subclass 600, 601 and 651 visas);
- student visa programme; and
- working holiday (subclass 417), and work and holiday (subclass 462) visa programmes.
Tourism and international education make a significant contribution to Australia’s economy – with some 754,656 international students in Australia as of November 2019, and international education generating some $35 billion in export revenue in 2019.
Some 18,000 student visas were cancelled last year, with common reasons for visa cancellations including failure to be enrolled in an appropriate course, providing incorrect information or bogus documents and being found to be a “non-genuine” student.
In 2017, there were around 1.7 million temporary migrants in Australia. In 2017-2018, about half of all permanent visas were granted to visa applicants who were in Australia as holders of a temporary visa.
The March 2018 introduction of the more restrictive subclass 482 temporary skill shortage visa, with the Short-Term Skilled Occupation List (STSOL), the Medium and Long-Term Strategic Skills List (MLTSSL) and the Regional Occupation List (ROL), as well as the ongoing reviews of the Skilled Migration Occupation Lists, reflect a commitment to protecting Australian jobs and enabling employers to address genuine labour shortages.
The Skilled Migration Occupation Lists Review Traffic Light Bulletin – March 2020 Update proposes a number of changes to the current status of specified occupations with red-flagged occupations proposed to be removed from the lists; orange-flagged occupations proposed to be moved between lists; green-flagged occupations proposed to be added to the lists.
For example, the role of a sales and marketing manager (ANZSCO code: 131112), which is currently on the STSOL, has been recommended to move to the MLTSSL (with a salary caveat of not less than $120,000 gross per annum). These changes to the status of specified occupations have significant implications on eligibility criteria, including if the person may be nominated for permanent residency under the employer nomination scheme.
Data sharing and analytics - the new age of data sharing and regulatory compliance and enforcement
The Department of Home Affairs continues to advance its digital processing model including lodgement, assessment and decision-making on visa applications, all of which are lodged online and allow for an integrated approach to information and data sharing, and predictive analytics.
The Department of Home Affairs, together with other prescribed agencies, continues to collect a vast array of personal and business information as part of visa and citizenship applications. The management of Australia’s borders continues to be shaped by the whole-of-government approach; digitalisation, automated analysis of data; the Department of Home Affairs’ data-matching programme protocols with the Australian Taxation Office (ATO); and the significant power and reach of the ABF.
Data-matching is increasingly used by Commonwealth and state agencies to effectively detect and deal with compliance risks through the use of risk detection models and to improve decisions, services and compliance.
The data-matching programme to enhance compliance in the temporary skilled visa programme came into effect in January 2019. It allows the Department of Home Affairs and the ABF to exchange extensive data with the ATO to “effectively detect and deal with compliance risks in the temporary skilled visa program”.
The particular focus of the data matching programme to enhance compliance in the temporary skilled visa programme is to identify and enable compliance action relating to:
- temporary skilled visa holders who are not working in the occupation in which, or for the employer by whom, they were sponsored; and
- sponsors who are breaching their sponsorship obligations, including by incorrectly paying temporary skilled visa holders.
The ATO provides the Department of Home Affairs with the tax file numbers (TFNs) and details of temporary and permanent skilled visa holders, and sponsoring employers, including:
- income details from income tax returns and payment summaries;
- employment details from TFN declarations, income tax returns and payment summaries;
- Australian business numbers (ABNs) for all employers who issued the visa holder with a payment summary, or who the visa holder has declared on their TFN declaration or income tax return; and
- related data from single-touch payroll, which provides real-time payroll, tax, superannuation and related data.
The ATO has advised that “it is estimated that the total number of records that will be obtained across the three year period of this data matching program is likely to exceed 20 million individuals”.
This significant level of regulatory scrutiny heightens directors’ responsibilities in the migration area, with the Enhanced Integrity Act allowing the Minister of Home Affairs to publish the business or trading names of businesses that have failed to meet applicable sponsorship obligations.
The Department of Home Affairs will publish an analogous level of detail as is currently published by the Fair Work Ombudsman, including business names, ABNs and specific details of their adverse compliance outcome.
Data matching and the Identity-matching Services Bill 2019, once it becomes law, will facilitate the secure, automated and accountable exchange of identity information between Commonwealth, state and territory governments so as to give effect to the objectives of the Intergovernmental Agreement on Identity Matching Services, agreed to by the Council of Australian Governments in October 2017.
It will give the Department of Home Affairs the explicit legal authority to collect, use and disclose identification information, including facial images, and related identity information between parties for preventing identity crime, general law enforcement, national security, community safety and identity verification.
Data-matching enables the exploitation of information, and the identification of non-compliance in Australia’s migration programme and increasingly robust regulatory framework, with large-scale data analytics integral to administration, compliance and enforcement.
Data management in the modern digital age is now integral to regulatory compliance and enforcement, as Australia grapples with integrity and security while managing Australia’s borders and supporting prosperity.
The ubiquity of data, data analysis and data compromise continues to accelerate at a never-before-seen pace.
The migration amendment Character and General Visa Cancellation Act 2014 (CTH)
The commitment to strengthening the character requirements that must be met by all non-citizens who are visa applicants for temporary and/or permanent entry to Australia continues to result in visa refusals, or cancellation of visas if the person does not pass the ever-evolving character test.
The Migration Amendment Character and General Visa Cancellation Act 2014 (Cth) under section 501(3)(a)(i) requires automatic visa cancellation if the non-citizen has a substantial criminal record based on subsections 501(7)(a)(c).
The Migration Amendment (Strengthening the Character Test) Bill 2019 (Cth), section 6, expands the definition of “designated offence”, so that if the bill becomes law, any non-citizen convicted of a crime punishable by two years’ imprisonment or more may have their visa cancelled, regardless of whether a prison sentence is imposed.
The ever-evolving character test; data matching and analytics; and the work of the Home Affairs Portfolio, the Department of Home Affairs, the ABF and its partner agencies reflect the ever-increasing emphasis on keeping Australia safe, and on compliance with the law.
With the ongoing transformation of the management of Australia’s borders and migration programme, Australia continues to harness unique capabilities through national intelligence, regulation, collaboration, and national and international engagement – the aim of which is to ensure integrity, prosperity and security.
The establishment of the Home Affairs Portfolio, the Department of Home Affairs and the ABF is integral to the collaboration and alignment of a sustained joint-agency effort, which is itself a response to our increasingly complicated, interconnected and ever-changing world.
In 2020, the Home Affairs Portfolio priorities include managing the burgeoning demand for temporary and permanent entry to Australia; counter-terrorism; disrupting serious and organised crime; thwarting the exploitation of children; maintaining secure borders; countering foreign interference and espionage; and enhancing the integrity and efficiency of trade and travel systems.
Given the predicted increase in demand for temporary and permanent entry visas, Australia as a sought-after destination will continue to transform the management of our borders and the movement of goods and people, so as to achieve border integrity, prosperity and security.
We can only expect that Australia will continue to undertake significant and ongoing reforms to achieve these aims.