Article:

Australia’s Migration Programme: A New Epoch in Protecting and Managing Australia’s Borders

04 May 2018

Who’s Who Legal: Corporate Immigration 2018 |
Maria Jockel , Legal Principal and National Leader, Migration Services |

Maria Jockel explores the establishment of the Home Affairs Portfolio, including the Department of Home Affairs (the Department) which heralds a new epoch in protecting and managing Australia’s borders.

The new UK-like Department of Home Affairs Portfolio is a central policy agency providing coordinated strategy and policy leadership for Australia’s national and transport security, federal law enforcement, criminal justice, cybersecurity, border, immigration, multicultural affairs, emergency management and trade-related functions.

The minister for home affairs, who has a dual role as the minister for immigration and border protection, is supported by the minister for law enforcement and cybersecurity and the minister for citizenship and multicultural affairs.

The former assistant minister for immigration and border protection is now the assistant minister for home affairs.

The Department of Home Affairs Portfolio supports a “federation” of independent security and law enforcement agencies. This includes the Australian Border Force (as Australia’s front-line border law enforcement agency), the Australian Security Intelligence Organisation, the Australian Federal Police and the Australian Criminal Intelligence Commission.

These momentous changes to Australia’s national intelligence and domestic security arrangements are in response to an increasingly complex world and security environment where immigration, border protection and domestic security and law enforcement agencies now fall within the Home Affairs Portfolio.

The Home Affairs Portfolio will provide strategic planning coordination and other support to the independent security and law enforcement agencies including the Australian Border Force, the Australian Security Intelligence Organisation, the Australian Federal Police and the Australian Criminal Commission. The attorney-general will continue to oversee Australia’s intelligence community and the agencies in the Home Affairs Portfolio, so as to safeguard Australia’s security while respecting the rights and liberties of all Australians. (see Prime Minister, Attorney-General, Minister for Immigration and Border Protection, Minister for Justice, Defence and National Security Media Release, 18 July 2017 “A Strong and Secure Australia”.)

These changes are complemented by the government’s ongoing robust reforms consistent with this new era in managing Australia’s borders.

Australia’s immigration policies centre on managing migration and who may enter and stay in Australia and on what basis.

The demand for entry to Australia is reflected in the fact that Australia now receives over 30,000 visa applications each day worldwide. It is anticipated that this demand for temporary and permanent entry will continue to increase in the context of a wider global immigration climate and the movement of people across borders.

Despite the significant demand for temporary and permanent entry to Australia, the 2017-2018 Migration Programme planning levels remain the same as in 2016-2017: namely, 186,515. The focus remains on the skilled stream, with a total of 128,550 places offered (68.9 per cent of the Programme); meanwhile, 57,400 places were offered under the family stream (30.8 per cent of the Programme) and Special Eligibility status accounted for 565 places.

While temporary migrants are not included in the Migration Programme, a growing number of temporary migrants are applying to become permanent residents.

In 2014-2015, the Department generated a revenue of about $1.87 billion from visa application charges and fines. This is expected to increase to some $2.35 billion in 2017-2018. The increase is primarily due to the expected growth in international passenger movements and fines following compliance breaches.

The momentum for change is reflected in the 2017 reforms, which are ongoing, and include the following:

ENHANCING THE VISA SYSTEM

This includes enhancements to the visa framework and systems to support economic and migration objectives, such as automation and technology, to further improve and facilitate the processing of a rising number of travellers and the ability to verify the identity of the individuals arriving in Australia.

The government is considering outsourcing aspects of the visa application process, including the design and development of the digital service for automated assessment of online applications using artificial intelligence and robotics. It proposes to continue to control security assessments, intelligence work, enforcement and decisions of cases requiring human judgement and decision reviews.

BIOMETRICS AND DATA ANALYSIS, AND SHARING

This is part of a comprehensive integration of functions and capabilities. This includes enhancing large-scale biometrics storage and processing capabilities, including analysis and data sharing of facial images, fingerprint biometrics and the sharing of data generally as a whole-of-government approach to national security, law enforcement, and functions related to the border.

With the ever-increasing explosion of information and data that is available to the government, data integration and analysis is seen as being critical to effective border security while allowing for the seamless legitimate movement of people and goods across Australia’s borders. It also aids in effectively detecting and dealing with compliance risks and delivering on enforcement outcomes. 

NEW TEMPORARY SKILL SHORTAGE (TSS) VISA

This will replace the Temporary Work (Skilled) (subclass 457) Visa (457 Visa) as part of the government’s announcements to implement reforms to strengthen the quality and integrity of temporary and permanent employer sponsored skilled migration programmes. Anticipated to come into effect in March 2018, these reforms are extensive and cover:

  • The 457 Visa;
  • The Employer Nomination Scheme (subclass 186) (ENS);
  • The Regional Sponsored Migration Scheme (subclass 187) (RSMS);
  • The Skilled Regional visa (provisional) (subclass 489);
  • The Skilled Nominated visa (subclass 190);
  • The Skilled Independent visa (subclass 189);
  • The Training visa (subclass 407); and
  • The Graduate Work stream of the Temporary Graduate Visa (subclass 485) (only in certain cases).

The reforms aim to better meet Australia’s skilled workforce needs while protecting the jobs of Australian workers.

From 19 April 2017, several reforms were implemented to the skilled occupation lists, commencing with phase 1. These reforms include:

  • 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 and 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; and
  • 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.

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 A$96,400 except in respect of intra-company transfers;
  • The introduction of the more restrictive training 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:

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

By 31 December 2017, phase 3 (to be implemented, subject to new legislation) addressed, among other things, potential worker exploitation with the introduction of the Migration and Other Legislation Amendment (Enhanced Integrity) Bill 2017 (the Integrity Bill), which once passed will allow the minister to:

  • Publish information in regard to an approved sponsor, or former approved sponsor, who fails to satisfy an applicable sponsorship obligation and who was sanctioned on or after 18 March 2015;
  • Collect, record, store and use the tax file numbers of certain visa holders for compliance and research purposes;
  • Be protected from civil liability arising from action taken by him in good faith in publishing information; and
  • Enter into an enforceable undertaking with a sponsor who has breached sponsor obligations.

 The Integrity Bill will facilitate further data sharing between the secretary of the Department and the commissioner of the Australian Taxation Office for the purpose of compliance and enforcement operations.

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

  • A short-term stream which will allow for a visa grant of up to two years, and require an IELTS or equivalent test score of five, with a minimum of 4.5 in each component and a genuine temporary entrant requirement; and
  • A medium-term stream, which will allow for a visa grant of up to four years and require minimum IELTS (or equivalent test) score of five 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; and
  • A non-discriminatory workforce test to ensure employers are not actively discriminating against Australian workers.

 The Migration Amendment (Skilling Australians Fund) Bill 2017 and the Migration (Skilling Australians Fund) Charges Bill 2017 (the Skilling Fund), anticipated to come into effect in March 2018, will introduce the training levy for the TSS and the permanent employer-sponsored visas. Over the forward estimates to 2020-2021, the Skilling Fund is budgeted to raise A$1.2 billion in revenue.

STRENGTHENING REQUIREMENTS FOR AUSTRALIAN CITIZENSHIP

While the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 (the Citizenship Bill) was not passed in 2017, the government intends to introduce a new Citizenship Bill which if passed, will come into effect on 1 July 2018.

The new requirement for citizenship will include:

  • An increase to the general residence requirement, which means applicants for Australian citizenship will need to have a minimum of four years’ permanent residence immediately prior to their application, with no more than one year spent outside Australia during that period;
  • Completion of a separate English-language test, where applicants will need to demonstrate English at a modest level before applying for citizenship by conferral;
  • A strengthening of the Australian values statement to include reference to allegiance to Australia and a requirement for applicants to undertake to integrate into, and contribute to, the Australian community;
  • A strengthening of the test for Australian citizenship through the addition of new test questions about Australian values, and the privileges and responsibilities of Australian citizenship;
  • A requirement for applicants to demonstrate their integration into the Australian community; and
  • A strengthening of the pledge to refer to allegiance to Australia, and an extension of the requirement to make the pledge to applicants aged 16 years and over.

These reforms reflect the government and community expectations that Australian citizenship is an extraordinary privilege which provides full and formal membership of the Australian society. The legislative objective is to ensure aspiring citizens are of good character and are committed to and will contribute to Australia.

STRENGTHENING POWERS TO CANCEL TEMPORARY AND PERMANENT RESIDENCE VISAS AND REVOKE AUSTRALIAN CITIZENSHIP

As part of the ever-expanding powers and reach of the Department and the minister, various legislative amendments and Bills are before the Parliament which provide a discretion or make it mandatory to cancel a temporary and/or permanent visa or to revoke a person’s Australian citizenship in circumstance where the person became an Australian citizen as a result of fraud or misrepresentation.

Increasingly, persons with a criminal history or who have been charged with an offence and even if not convicted, may be subject to visa cancellation.

The minister’s powers including personal powers to cancel a visa or revoke citizenship aims to ensure that only persons of good character and who have not committed criminal offences have the privilege of temporary and/or permanent residency or Australian citizenship as this is seen to be in the interest of the Australian community and national security.

WHAT DO THESE REFORMS MEAN FOR INDIVIDUALS AND FOR EMPLOYERS?

The Home Affairs Portfolio, as a central policy agency providing coordinated strategy and policy leadership with a focus on national security, law enforcement and the analysis and exchange of digitally obtained data is part of a whole of government approach in an increasingly restrictive immigration landscape.

While the government continues its targeted migration programme, which is committed to nation building, with a particular focus on highly skilled temporary and permanent overseas workers, these ongoing reforms herald a new era in the way individuals and travellers enter and depart Australia.

In Australia, a nation of immigrants, immigration policy and controls are now part of, and subsumed by, national border security, intelligence and federal law enforcement agencies.

These changes also herald the increasingly heightened focus on compliance and enforcement with significant and adverse consequences in the event of breach.

No doubt both individuals and organisations increasingly need to seek specialist advice to meet their visa and related aims, ensure compliance and avoid breach.

Source: http://whoswholegal.com/news/features/article/34476/australias-migration-programme-new-epoch-protecting-managing-australias-borders