Who's Who Legal Thought Leaders: Corporate Immigration 2020

Note: This content was originally published in Who's Who Legal Thought Leaders: Corporate Immigration 2020

Maria is the legal principal and leader of BDO Migration Services, an incorporated legal practice that specialises in all aspects of Australian immigration and nationality law for corporate and private clients. She is an accredited immigration law specialist and a registered migration agent. Acknowledged as one of Australia’s leading immigration law specialists, Maria brings a unique depth and breadth of immigration law and corporate and commercial-related legal experience from her years in private practice. This is complemented by Maria’s former advisory and senior management roles while in government service.

What do you find most challenging about working in the corporate immigration space?

Corporate immigration enabled me to author 457 Visa Law – Addressing Australia’s Skilled Labour Shortage, which was published by Thomson Reuters in 2009.

Since then, Australia’s immigration laws, including in the corporate immigration space, have been transformed well beyond anything that I could have imagined in 2009.

In March 2018, it was replaced by the more restrictive temporary skilled shortage (TSS) (subclass 482) visa programme which is focused on protecting Australian jobs, and is part of the move to a more restrictive temporary skilled and permanent residency migration programme.

The establishment of the Home Affairs portfolio in December 2017 (which brings together the Department of Home Affairs; the Australian Border Force (ABF); the Australian Federal Police; the Australian Criminal Intelligence Commission (ACIC); the Australian Security Intelligence Organisation (ASIO); and the Australian Transaction Reports and Analysis Centre (AUSTRAC)) is a once-in-a-generation change to the management of Australia’s borders while meeting both economic and national security priorities.

The Department of Home Affairs includes the former Department of Immigration and Border Protection with functions as broad as multicultural affairs; transport security; transnational and serious organised crime; national security and counter-terrorism coordination; cyber policy; and countering foreign interference.

While the ABF is established within the Department of Home Affairs, it is the operationally independent enforcement arm of the Department of Home Affairs.

The ABF has broad powers and reach. This includes a significant range of responsibilities for compliance and regulation.

As the operational enforcement arm of the Department of Home Affairs, the ABF under Regional Command is responsible for sponsorship monitoring and migration field compliance.

Both uniformed and non-uniformed sworn officers undertake sponsorship monitoring of approved sponsors and former sponsors. This includes interviews, site visits, desk-auditing, referral to other agencies and other sections of the Home Affairs Portfolio.

The new Migration and Other Legislation Amendment (Enhanced Integrity Act) 2018 (the Enhanced Integrity Act), which came into effect on 13 December 2018, significantly strengthens the sanctions against employer sponsors who breach their obligations under the subclass 457/482 visa programme.

The Enhanced Integrity Act allows the Minister of Home Affairs to publish details of sanctions against sponsors/ former sponsors who breach applicable sponsorship obligations from 18 March 2015 (effectively making this amendment retrospective in nature).

The Enhanced Integrity Act allows the Department of Home Affairs to collect tax file numbers and share data with the Australian Taxation Office as part of regulatory compliance.

The whole-of-government approach, digitalisation, the automated analysis of data (including in the context of the Department of Home Affairs’ data-matching programme protocols with the Australian Taxation Office) and the expanded power and reach of the ABF’s already-significant powers and reach, including in monitoring current and former sponsors, make this an exciting time to work in the corporate immigration space.

This new epoch of corporate immigration is both challenging and rewarding.

On what matters have clients most frequently asked you for advice over the past year? What would you say is driving this?

Both Australian and global corporations are increasingly challenged to ensure that they meet their global talent needs while ensuring regulatory compliance.

Australia arguably has the most complex immigration laws and policies in the world, which are subject to constant change.

Our immigration laws are over 3,000 pages and are underpinned by well in excess of 50,000 pages of internal policy guidelines, which are accessible from the Department of Home Affairs under licence. The policy guidelines guide Departmental officers in the exercise of their decision-making powers.

Since 1994, the Australian government has generated over 500,000 pages of information and regulation relating to immigration and citizenship.

So clients ask for all manner of advice in trying to deal with the complexity and ever-changing nature of Australia’s immigration laws and policies.

Clients ask about the significant restrictions which have been introduced with the subclass 482 visa programme, including those in relation to: the short-term skilled-occupation list, which aims to list the short to medium-term skilled-labour needs in the Australian labour market; the medium and long-term strategic skills list, which aims to meet the medium to longer-term skill needs in the Australian labour market; labour market testing and exemptions under Australia’s international trade obligations; the increased English-language requirements under the subclass 482 and subclass 186 employer nomination scheme and regional sponsored migration schemes; the 45-year age restriction, and exemptions thereto; the requirement for at least two years’ relevant or closely related work experience in the five years prior to the lodgement of a subclass 482 visa application; the Migration (Skilling Australians Fund) Charges Act 2018, and the significant Skilling Australians Fund levy that must be paid by the employer in respect of all subclass 482 and 186 employer and regional-sponsored migration schemes nomination applications and is not refunded if the nomination application is refused; contracts of employment including visa-related contractual terms; and so it goes on.

What is driving this? It is clearly the complexity and ever-changing nature of Australia’s immigration laws and policies, as evidenced by 14 October 2019 change to the policy guidelines in relation to the contract end date, which now requires that the relevant contract cannot be for longer than a maximum period of stay for the subclass 482 visa. In practice, this means that the contract would have to have an end date and not be for an ongoing or permanent position.

Having worked with clients operating in a range of sectors, how do you ensure you maintain sector specific knowledge to assist clients effectively?

Fundamental to practising in corporate immigration as an accredited immigration law specialist with some 30 years of experience is understanding the client, its business, the sector in which it operates and its business needs.

Working across a broad range of industries (including hospitality, tourism, education, manufacturing, IT, recruitment, agriculture, retail, construction, civil engineering, biomedical, mining, health consumer products and aviation, to name a few) you have to know how business operates regardless of the sector.

You have to be agile and nimble, and maintain sector-specific knowledge so that you understand the impact of new policies and regulations, and the interface between government and the specific industries.

You need to know the challenges faced by your corporate client, including in meeting its skilled workforce needs. This requires a knowledge of not only the industry but how it fits within the economy as a whole. For example, the meat industry has significant issues in recruiting highly skilled meat boners and slicers from within the Australian workforce.

The Meat Industry Labour Agreement between Australia (as represented by the minister of immigration, citizenship, migrant services and multicultural affairs) and businesses requires both an understanding of the meat-processing client and its activities (including slaughter, dressing, boning, slicing, preparation and/or packing of fresh meat), as well as workplace relations and the prescribed terms and conditions of employment between employers and employees working in the meat industry.

This requires an understanding of the award or agreement made under the Commonwealth Fair Work Act 2009 and an award or agreement made by the relevant state/territory industrial tribunal or court.

Keeping up to date and getting to know the client, its industry and its challenges, as well as being up to date with the legislative and regulatory changes is vital to putting in whatever it takes to offer exceptional client service delivery and results, regardless of the industry sector in which the client operates.

How does being a member of the Law Council of Australia migration law committee, and the Law Institute of Victoria, enhance your practice?

As a long-term member of the Law Council of Australia migration law committee (which I founded as the Immigration Lawyers Association of Australasia), my active involvement with these peak bodies has enabled me to be involved with stakeholder engagement, continuing professional development and the immigration law specialisation scheme.

I was a founding member of the immigration law specialisation advisory committee of the Law Institute of Victoria and an examiner of lawyers sitting the immigration law specialisation exams for some 17 years before I retired from this role.

I have always been passionate about continuing legal education and have been acknowledged by the Law Institute of Victoria for my continuing contribution to professional development, including in the context of specialisation.

It is a privilege to be involved in stakeholder engagement – including, for example, attending the Home Affairs industry summits, which bring together industry leaders, senior government executives, members of the diplomatic corps, academics and civil society.

It is also a privilege meeting with senior government executives as part of the Department of Home Affairs’ industry engagement strategy, which is intended to engage key industry stakeholders in the migration and mobility environment (both temporary and permanent stays in Australia) and in the context of the priorities of the government of the day.

Memberships of key bodies such as the Law Council of Australia and the Law Institute of Victoria has enhanced my practice in numerous ways. It is a privilege to be involved in key bodies at a time when the global movement of people intersects with virtually every facet of Australian life be it economic or social.

What effect do you see the Liberal-National coalition having on Australian immigration matters/law practices in the future?

Australia is a land of immigrants and as such, over the years, Australia’s immigration laws have generally been bipartisan.

Both sides of politics understand that Australia’s migration programme is part of nation-building. The issue is how to effectively balance the promotion of Australia’s economic and social needs in a way that does not impede the legitimate movement of people.

Globalisation presents to Australia many opportunities but also challenges. While many advocate in favour of more refugees, few appreciate that the UN reported that in 2017, there were some 258 million international migrants in addition to some 68.5 million forcibly displaced people worldwide. This is the highest level of mass migration on record.

Immigration is now a worldwide issue with an increasing trend towards closing borders, including in the UK, the USA and parts of Europe – countries that previously welcomed migrants.

The challenge for all sides of politics is how Australian society can continue to manage the exceptional demand for temporary and permanent entry, and the worldwide humanitarian crisis.

Under its migration programme, which continues to underpin the country’s prosperity, Australia continues to grapple with the new threats to national security in an age of increasing crime, including cybercrime and terrorism.

The ongoing opportunities and challenges that Australia faces in this global world means that the Liberal-National coalition is likely to continue focusing on building a safer and stronger Australia while helping our economy to thrive, and maintaining public confidence in the migration programme.

This is vital, as Australia is a welcoming, multicultural, open and cohesive society and arguably the most diverse in the world. In Victoria alone, we have some 300 nationalities and ethnic groups living side by side.

The Australian government is concerned with maintaining social cohesion, protecting Australian jobs and maintaining civil society that shapes, influences and supports migration at a time of dynamic global change.

How effective has the Home Affairs portfolio been in combating a complex security environment and improving cooperation between various Australian enforcement agencies since its 2017 inception?

The Australian government has progressively transformed how the country’s borders and migration programme is managed – including, since December 2017, the establishment of the Home Affairs portfolio and the Department of Home Affairs.

There is no doubt that Australia continues to grapple with a complex security environment, including human trafficking, cybercrime and cyber-enabled crime and national security issues, including how to protect the safety, security and national interests of Australia through the strategic alignment of priorities and responsibilities against the many threats to Australia’s national security.

The establishment of the Home Affairs Portfolio and the bringing-together of the Department of Home Affairs, the ABF, the Australian Federal Police, ACIC, ASIO and AUSTRAC, aims to effectively balance national security, law enforcement and community protection responsibilities against managing migration and mobility pathways that promote Australia’s economic and social needs.

The ABF, as the Department’s independent operational enforcement arm, is tasked to deliver on national, international, regional and local border protection, law enforcement and security priorities.

The Home Affairs portfolio is structured to benefit from the collaboration and alignment of sustained joint-agency effort, including through close cooperation and sustained joint activity between national security and law enforcement agencies.

This includes federal, state and territory government agencies. It also includes working with partners in Australia and overseas to identify and disrupt terrorist activities, counter-espionage, foreign interference and malicious insiders; to counter serious threats to Australia’s border integrity; and to preserve protective security advice to government and business.

As the Department of Home Affairs publications make clear, the vision is to harness Australia’s unique capabilities through national intelligence, regulation, collaboration and international engagement in our complex and ever-changing world.

In 2020, the Home Affairs portfolio priorities include 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.

Australia continues to pursue technology and systems that streamline processes, improve the management of risk and preserve the integrity of its migration programme.

The fact that Australia continues to be overwhelmed by temporary and permanent entry applications, and the Department of Home Affairs’ prediction of an increase in demand of some 35 to 50 per cent, reflects that Australia is clearly a sought-after destination in this challenged and dynamic world.

Clearly, the Home Affairs portfolio is transforming how Australia’s complex security environment and enforcement agencies work in an increasingly strategic environment.

WWL says: Maria Jockel sits among the best corporate immigration lawyers that Australia has to offer. Peers can “attest to her skill and expertise” and describe her as “one of the best” in the market.