Who's Who Legal Thought Leaders: Corporate Immigration 2019

Note: This content was originally published in Who's Who Legal Thought Leaders: Corporate Immigration 2019

Maria Jockel is the legal principal and national leader of BDO Migration Services. She is a Law Institute of Victoria-accredited specialist in immigration law and a registered migration agent in Australia and New Zealand. Acknowledged as one of Australia’s leading immigration law specialists, Maria has a unique depth and breadth of immigration law and commercial legal experience from her years in private practice. Maria offers strategic and practical solutions, and as a trusted adviser and specialist counsel, she acts for leading global and Australian corporations and high-net-worth individuals, providing a premium service with outstanding results.

Describe your career to date.

I commenced my career doing a range of legal work, and then following my appointments by federal and state governments to advise on immigration and related matters, including with the Nationality and Population Council, the Family Law Council of Australia, the advisory committee of the Office of Multicultural Affairs and the Victorian Ethnic Affairs Commission, I commenced practice in immigration law.

I was a founding member of the Law Institute of Victoria Immigration Law Specialisation scheme and became an Accredited Immigration Law Specialist in 1992. Since then, including through my work with the Law Council of Australia and the Law Institute of Victoria Migration Law Committees, my interest in all aspects of immigration law has become a passion.

In turn, this has enabled me to author various publications, texts and books; to speak at local and international conferences and forums; and to be active in speaking on behalf of immigration lawyers and the shaping of Australia’s immigration laws.

The complexity and dynamic nature of Australia’s immigration laws also keeps me enthused, as does the new regulatory framework following the establishment of the Department of Home Affairs, the Home Affairs Portfolio and the Australian Border Force as Australia’s front-line border force enforcement agency.

What motivated you to specialise in corporate immigration?

In my view, it is the most dynamic and complex area of Australian law and policy.

With the significant and major shift in government policy, focused on regulatory compliance and enforcement, it requires a sound understanding of the constantly changing regulatory environment, which includes monitoring, compliance, enforcement and sanctions.

Corporate immigration interfaces with human resource operations, risk, governance, compliance and broader enterprise risk-management approaches, where talent strategies must be aligned with regulatory compliance.

Corporate immigration enables me to work with boards and senior management to meet global mobility needs; to assist and advise on policies and principles of risk management; and to achieve strategic objectives, ensure compliance and mitigate risk.

The establishment of the Department of Home Affairs and the Australian Border Force, as its operational enforcement arm, have profound implications for the management of Australia’s borders and migration law, and reflect a commitment to a strong regulatory and compliance regime.

These ongoing changes motivate me to continue to specialise in immigration law with a particular focus on corporate immigration, so as to best assist employers to meet their global mobility needs while managing risk.

How has the market changed since you started your career?

There have been significant changes to the market since I became an accredited immigration law specialist in 1992.

Australia has always been a nation of immigrants, but the level of demand for temporary and permanent entry is unprecedented.

The Department of Home Affairs receives over 30,000 visa applications each day worldwide. This, together with national security priorities, has justified the unprecedented changes to the way that Australia’s borders are managed. 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 market has grown exponentially. In 1992, there were 88 registered migration agents. In 2007, there were 7,087. Over 2,400 new migration agents were registered in the three years to 2017. At the same time, about 1,000 agents leave the industry annually.

Australia’s migration laws and policies have now become labyrinthine. The Department of Home Affairs online legislative library, Legendcom, is some 500,000 pages of migration legislation, regulations, policy and guidance to its decision-makers.

The associated Australian Citizenship legislation is over 250,000 pages.

In March 2018, the then assistant minister for home affairs asked the Joint Standing Committee on Migration to inquire into and report on the efficacy of current regulation of Australian migration agents, including education agents.

The review of Australia’s migration agents reflects significant changes to the market in the context of key reform measures. This includes the proposed removal of lawyers from the migration agents regulatory scheme; the strengthening of the training and entry requirements for new entrants into the migration agent industry; the review of the re-registration process for agents; improving the management of Continuing Professional Development courses; and the review of the professional obligations of migration agents generally.

One of the most significant changes is that the government has agreed to release lawyers from being duly regulated with migration agents under the migration agents regulatory scheme, in order to be able to practise immigration law.

Since the late 1990s, I have strongly advocated for this through the Law Council of Australia.

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

Few corporations or boards are aware of the new, highly restrictive regulatory environment with an increased focus on the security of the Department of Home Affairs’ systems, the increased use of biometrics, the analysis of metadata/data, the whole-of-government approach, and the significant role of the Australian Border Force as an intelligence-led mobile and technologically enabled force working onshore and offshore, including with strategic partners.

The Australian Border Force as the operational enforcement arm of the Department of Home Affairs 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. This includes claims as to the nature of the business and the visa applicant, including as to identity, work history, educational level, character and suchlike.

As the operational enforcement arm, the Australian Border Force, under Regional Command, is responsible for sponsorship monitoring and migration field compliance.

In the case of sponsor monitoring, non-uniformed sworn officers are part of the enforcement operations, enforcement command and border operations group of the Australian Border Force.

The Australian Border Force works collaboratively with employers to identify emerging risks and to encourage sustained adherence to Australia’s regulatory requirements, so as to foster high levels of compliance. This is supported by the Australian Border Force’s significant monitoring, compliance, enforcement and sanctions powers under this complex legislative and regulatory scheme.

Sponsors and former sponsors can be monitored through interviews and site visits, desk auditing, referral to other agencies, and/or other sections of the Home Affairs Portfolio, as well as through education and awareness-raising activities.

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

These are profound changes, and part of an ongoing reform agenda which will continue to impact on all aspects of immigration law and the new and evolving regulatory framework.

What is the significance of the establishment of the Home Affairs Portfolio and what effect will it have on the current corporate immigration landscape in Australia?

The Department of Home Affairs has been created to combat the increasingly 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 of the Home Affairs Portfolio, the Australian Security Intelligence Organisation, the Australian Federal Police, and the Australian Crime Commission.

The Department of Home Affairs has subsumed the Department of Immigration and Border Protection.

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

At the same time, the government has embarked upon an ongoing restrictive reform programme, “Reforming the Visa and Migration Framework”, focused on compliance and integrity.

The Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018, which is to come into effect on or before 1 March 2019, significantly strengthens the sanctions against employer sponsors who breach their obligations under the Subclass 457 and its replacement the Subclass 482 Temporary Skill Shortage (TSS) visas.

It will allow the Department of Home Affairs to publish details of sanctions against sponsors who breach their obligations from 18 March 2015 (effectively making this amendment retrospective in nature).

It will allow the Department of Home Affairs to enter into an enforceable undertaking with sponsors who have been found to be in breach of their obligations and to collect tax file numbers and share data with the Australian Taxation Office as part of regulatory compliance.

The intent of this legislative reform is to increase the integrity of the immigration compliance system, with all businesses facing serious consequences, including reputational damage once an employer’s details are disclosed publicly.

The government’s ongoing reforms, including the proposed visa simplification and building of a new modern visa system with the digitalisation of Australia’s visa application system, will continue to shape the immigration landscape.

How do you think Australian corporate immigration policy will develop over the next five years?

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

In the past few years, we have already had significant legislative change, including the Migration Amendment (Charging for a Migration Outcome) Act 2015, which targets employers (sponsors and others) who seek to take advantage of visa applicants, and provides for strict civil and also criminal penalties in the event of breach.

It includes contraventions of civil penalty provisions, which impose no-fault or strict liability civil penalties on an employer who is found to be in breach.

The Migration Amendment (Employer Sanctions) Act 2013, imposes an obligation on employers to verify non-citizens’ lawful status and work rights using the Department’s Visa Entitlement Verification Online (VEVO) entitlement check.

It also imposes no-fault or strict civil liability penalties on employers who are found to be in breach of its provisions.

These legislative reforms make clear that Human Resource operations need to be part of a broader enterprise risk management system. They require senior management to develop and drive a culture of compliance while meeting skilled workforce needs.

I anticipate that there will be further legislative changes, where an employer’s executive officers will be personally liable for contraventions of the law. I anticipate that the focus will continue to be on regulatory compliance and enforcement.

This means corporations need to regularly review their operations and to continue to create a corporate culture requiring compliance to avoid sanctions and reputational damage and to meet their skilled workforce needs.

Workforce planning coupled with expert immigration advice and visa-related services must also become the norm given the significant lodgement fees coupled with the Skilling Australians Fund Levy which are forfeited to the Department of Home Affairs following the refusal of a TSS and/or a subclass 186 Employer Nomination Scheme Application.

Corporations also need to be aware of the overwhelming website traffic with the Department of Home Affairs e-lodgement system often having outages, so that applications need to be prepared well and in advance, in order to be lodged on a timely basis.

Whether the proposed digitalisation of Australia’s visa application system will ameliorate some of these challenges, has yet to be seen.

In the meantime, the Department of Home Affairs’ budgeted revenue from lodgement fees, fines and the Skilling Australians Funds Levy is some A$3.25 billion in this financial year.

Clearly, the ongoing demand for temporary and permanent entry to Australia will impact how corporate immigration policy develops over the next five years. What is certain, is ongoing change.

How are technological developments currently impacting the corporate immigration field?

The Australian government is continuing to modernise the way it delivers visa and citizenship services to well over 9 million visa applicants each year. These new technologies and innovative solutions are part of the aim to design and build a global digital platform.

The Department of Home Affairs has moved to a new global processing model, which means that all visa applications lodged online can be processed anywhere in the world. This is already happening with partner visas, as the demand for entry continues to outstrip the places available in the partner visa programme each year.

The identity of the case officer is no longer made known. While there is access to a call centre, this does not allow for contact with the case officer. Complaints can be lodged online with the global feedback unit of the Department of Home Affairs; however, this is of limited utility in practical terms. As more work is done online, opportunities to meet with the Senior Departmental officers continue to reduce. Counter services are now only available by appointment.

Technological developments will significantly impact on the corporate immigration field as, while it may create an efficient, sustainable and innovative service delivery model, it raises significant issues in regard to visa decisions including when using robotics automation and artificial intelligence.

The integrating of the Departmental systems to provide and receive information including matters relevant to threat, identity and biometrical capabilities are part of the focus on mitigating risk and applying rigour to visa service delivery.

These ongoing reforms to modernise Australia’s visa system and how it is delivered globally aligns with the whole-of-government digital agenda. Streamlined visa processing will continue to be available for most visa and citizenship applicants, providing automated end-to-end processing and increased use of a self-service model. However, it is proposed that the Department of Home Affairs will continue to retain its core functions, including as to the law and policy, visa decision-making and security checks.

These technological innovations have profound implications for the Department of Home Affairs administrative decision-making and the concepts of jurisdictional error that have always underpinned judicial review of administrative decisions.

With now over 60 per cent of all applications across the migration programme being refused, the ongoing technological developments significantly add to the challenge to ensuring visa approval, as applications, regardless of merit, may be refused.

There is no accountability for the Department’s administrative decision-making where an application is refused, other than to appeal to the Administrative Appeals Tribunal or to seek judicial review in some cases.

These technological developments are likely to result in the evolution of judicial considerations of the nature and limits of administrative decision making in the categories of jurisdictional error and the exercise or purported exercise of decision making powers.

Technological developments are likely to add to the challenges that corporations will continue to face, in meeting their skilled workforce needs as having the right talent at the right time will always be vital to doing business.

Looking back over your career, what is the most memorable case you have worked on?

I have been privileged to work on many memorable cases, but perhaps the most impactful one from a human point of view was getting an 18-year-old boy with Down’s Syndrome out of Donetsk in Ukraine during the civil disturbances taking place there. The case involved the waiver of the health criteria, where the estimated costs to the Australian community likely to be required were at over A$1.293 million.

The then Department of Immigration and Citizenship accepted that the political and economic situation in Ukraine was dire at the time. Most gratifying, however, was that the Department agreed to overlook the fact that his parents had failed to disclose his existence when they applied for and were granted permanent residency a decade earlier.

What advice would you give to younger practitioners looking to specialise in corporate immigration law?

Corporate immigration law is exciting and challenging. It is ever-changing, and increasingly stringent, with an ongoing focus on regulatory compliance and enforcement.

The establishment of the Department of Home Affairs, the Home Affairs Portfolio and the Australian Border Force as the operational enforcement arm, herald a new era in protecting and managing Australia’s borders.

At the same time, the government’s focus on protecting Australian jobs adds to the complexity and challenges of local, national and global corporations meeting their skilled workforce needs.

The sharing of data between the Secretary of the Department, the Commissioner of the Australian Taxation Office and the Australian Border Force’s significant powers and reach in all aspects of compliance and regulation; the personal liabilities of executive officers; and the need for businesses to continue to navigate the raft of regulatory changes, offers significant opportunities for young practitioners to specialise in this complex and vital area of Australia’s immigration laws.