I INTRODUCTION TO THE IMMIGRATION FRAMEWORK

Australia's Migration Program is a non-discriminatory programme, open to anyone who meets the desired visa criteria as set out in Australian law. Australia's immigration policy is structured so that it effectively responds to Australia's economic, democratic and social interests. It is aimed at ensuring that migration is beneficial for the current and future economic and social growth of Australia. As a result, there is a growing emphasis on skilled migration, targeting migrants with specific skills and abilities that can promote the labour market, alleviate the effects of an ageing population, and promote tax revenue.

i Legislation and policy

Australia's immigration law is governed by the Migration Act 1958 (Cth) (the Migration Act) and the Migration Regulations 1994 (Cth) (the Migration Regulations). These governing principles are administered by the Department of Home Affairs, which includes the entirety of the former Department of Immigration and Border Protection. The Department of Home Affairs administers Australian law and policies in relation to immigration, citizenship and border control, with functions including policy review and change, visa processing and decision-making.2 A number of agencies, including the Australian Taxation Office, assist the Department of Home Affairs in ensuring compliance for overseas workers and sponsoring companies.

Australia has a complex immigration system and all foreign nationals require a visa to enter, remain or work in Australia. Australia's rich migration history has led to the development of a legislative framework that continues to be refined to respond to contemporary economic, political and cultural influences.

The size and composition of Australia's Migration Program is revised each year through the government's budget process and informed by political discourse. Key features of Australia's governance structure allow the executive branch of government considerable discretion as to who is eligible for entry into Australia. Currently, attention is focused on tailoring migration to address local unemployment rates, to ease urban congestion and act as a safeguard of Australian national security.

Specifically, the permanent Migration Program is primarily guided by Australia's labour market shortages and needs. Since 2013, the government has maintained that the total programme is to be made up of at least two-thirds of skilled migrants. The federal government's policy agenda has therefore been dedicated to the relationship between businesses and the supply of labour. Focus has also shifted to enhance the regulatory framework to strengthen compliance by sponsoring businesses.

Through consultation with key stakeholders, the Australian government allocates the number of available places for people wanting to migrate permanently to Australia annually. The Migration Program has been capped at a ceiling of 190,000 places since 2012–2013; however, only 160,323 places were awarded in 2018–2019.3 Of this total number, 109,713 places were allocated for the programme's skill stream, representing 68.4 per cent of the total Migration Program.4 Family migrants, excluding child visas, accounted for 47,247 places, and 115 places were for special eligibility migrants.5

ii The immigration authorities

The main authority in enforcing Australian immigration law and policy is Home Affairs. All visa applications are processed by Home Affairs, either in Australia or throughout a network of embassies and High Commissions. The Australian Border Force (another body within the Home Affairs profile) was established on 1 July 2015 and serves as the front-line operational enforcement entity, focusing on investigations, compliance and detention operations. Should a visa application be refused at the primary level, applicants in most (but not all) visa categories will have rights to a merits-based review by the Administrative Appeals Tribunal (AAT) within the Migration and Refugee Division.

Tribunals

The power to conduct merits-based review of immigration decisions was formerly vested in the Migration Review Tribunal and the Refugee Review Tribunal; however, on 1 July 2015 these tribunals merged with the AAT to create a single body for the independent review of decisions made by the Australian government. The AAT was established under the Administrative Appeals Tribunal Act 1975 (Cth). The AAT's jurisdiction, powers and procedures in relation to the review of immigration decisions are set out in the Migration Act and the Migration Regulations. The Migration and Refugee Division of the AAT has jurisdiction to review a wide range of visa applications, employer sponsorship applications and other decisions relating to migration and temporary visas, as well as protection or refugee visa decisions within Australia. If the AAT affirms a decision made by the primary decision-maker, the applicant still has a right to judicial review where there is an error of law or error of jurisdiction. The decision can be reviewed by the Federal Court, Federal Circuit Court of Australia or an application for special leave to appeal to the High Court of Australia. In the absence of an error of law or jurisdiction, there is a further right to request the Minister for Home Affairs (the Minister) to exercise, in the public interest, his or her power to intervene under the Migration Act.6 Notably, the Minister's power is exercised on a discretionary basis and cannot be compelled.

A combined total of 25,809 lodgements were made to the AAT in the Migration Division between 1 July 2018 and 30 June 2019.7 The tribunals had 39,029 cases on hand at on hand at 30 June 2019.8

Ministerial intervention request

A request for ministerial intervention is viewed as the final option, as the results are often uncertain. The request to the Minister can only be made if there are compelling and compassionate circumstances that fall within unique or exceptional criteria that the Minister has set. These guidelines set out several circumstances and factors that may produce a positive outcome.9

The exercise of the Minister's powers cannot be compelled and, if the Minister decides not to intervene, this decision is not reviewable or appealable and the grounds for refusal are not given. A fresh visa application may be an option only in very limited circumstances because of the imposition of the Section 48 bar of the Migration Act. Section 48 of the Migration Act states that a non-citizen who does not currently hold a substantive visa, and who has been refused a visa since their most recent entry to Australia, may not make a further visa application onshore other than those specified by the Minister.10

A case can be referred to the Minister for a second time only upon satisfaction of the threshold requirement that there is a 'significant change in circumstances which raise new, substantive issues not previously provided or considered in a previous request' falling within the ambit of Sections 9 and 11.11

II INTERNATIONAL TREATY OBLIGATIONS

Australia has a number of bilateral treaties in force that maintain fairness and the general welfare of citizens from the relevant foreign country when they make a migration application to Australia.12

i Working Holiday (subclass 417) and Work and Holiday (subclass 462) visas

Australia's working holiday visa represents an amalgamation of a series of bilateral agreements negotiated with various countries around the world. Participants must be aged between 18 and 30 and can stay for up to 12 months, allowing them to engage in short-term study and work (generally limited to six months with a single employer). Australia has reciprocal agreements with 44 partner countries and regions.13 Negotiations are always ongoing for new arrangements with additional countries. In early 2018, Austria and the Czech Republic became eligible countries for this programme.14 In July 2017, the maximum possible age was from 30 to 35 years; however, this is only applicable for countries that have a bilateral agreement with Australia to this effect.15

Recent changes to the Working Holiday visa programme implemented in November include:16

  1. expanding the regional areas where subclass 462 visa holders can work in agriculture (plant and animal cultivation) to qualify for a second year of stay in Australia. Currently, only those who work in Northern Australia are eligible;
  2. increasing the period in which subclass 417 and 462 visa holders can stay with the same agricultural (plant and animal cultivation) employer from six to 12 months;
  3. the option of a third year for subclass 417 and 462 visa holders who, after 1 July 2019, undertake six months of specified work in a specified regional area during their second year;
  4. offering an increase in the annual caps to a number of countries that participate in the subclass 462 visa programme; and
  5. an increase in the eligibility age for subclass 417 visa applicants from Canada and Ireland to 35 years old.

These programme changes target the growing labour shortages in regional Australia, supporting farmers with immediate access to workers in regional Australia while permitting those workers to stay longer and work in more areas across Australia.

In the 2018–2019 financial year, the Department of Home Affairs reported that a total of 209,036 Working Holiday Maker visas were granted. This demonstrates a 0.73 per cent fall compared with 2017–2018.17 It was noted that this was the sixth consecutive decrease since the programme peaked in 2012–2013, with 258,248 visas granted.18 The Department of Home Affairs has noted that the decline may be a result of 'changing economic conditions and seasonal variability in visa application numbers in partner countries'.19 This decline in Working Holiday visa grants could be attributed to a variety of influences, including fluctuating economic state of affairs and seasonal irregularity in visa application numbers in partner countries. The United Kingdom, Germany, France, Taiwan and South Korea respectively were the top three countries of origin for Working Holiday visa grants in 2018–2019.

ii Reciprocal healthcare agreements

The Australian government has reciprocal healthcare agreements (RHCAs) with Belgium, Finland, Ireland, Italy, Malta, the Netherlands, New Zealand, Norway, Slovenia, Sweden and the United Kingdom. Residents of these countries may qualify for access to limited Medicare benefits while they are in Australia.20 Some health services and subsidised medicines are provided to people who are covered by an RHCA, and such people may also be exempt from Medicare levy surcharges. Subclass 482 visa applicants must provide evidence that they have obtained adequate insurance before their visa can be granted and RHCA membership will suffice for this requirement.

III THE YEAR IN REVIEW

The Migration Program total for the year 2018–2019 was 160,323 places. This consisted of 109,713 skilled stream places, 47,247 family stream places and 115 special eligibility stream places.21 There were three main contributor countries – India (33,611 places), China (24,282 places) and the United Kingdom (13,689 places).22

i The skilled stream

The temporary and skilled migration programme is a highly valuable part of workforce development in Australia and a vital tool to assist individual businesses experiencing skill shortages, as well as filling skills gaps in the economy in general. The skilled stream accounted for 69.8 per cent of Australia's total migration programme in 2018–2019.23 In the financial year 2018–2019, the federal government reported that the general skilled migration (GSM) programme comprised 70,447 lodgements with a grant rate of 95.5 per cent.24 The demand for places in the skilled migration stream decreased by 11.8 per cent in 2018–2019 compared with 2017–2018. There were 118,076 first stage applications received in the skilled migration stream in 2018-19 compared to 133,856 first stage applications in 2017–2018.25 This decline was seen mainly in the employer sponsored category. These statistics indicate that the skilled stream continues to be an integral part of the inflow of labour into the Australian economy.

ii Business Innovation and Investment Programme

The Business Innovation and Investment Programme (BIIP) is an immigration option for those who make a substantial investment in Australia or own or operate a business.26 It encourages economic activity by increasing entrepreneurial talent and diversifying business expertise in Australia. The planning level of this programme for 2018–2019 had an outcome of 7,261 places, but demand in this category increased by 4.6 per cent in 2018–2019, with 14,922 applications lodged compared to 14,259 applications made in 2017–2018.27 The BIIP delivered all the places available under the ceiling for this category.

The government is committed to rebooting the Significant Investor visa programme and facilitating the migration of high-net-worth individuals in return for investments of A$5 million in complying investments in Australia. It has been reported that 2,312 Significant Investor visas were granted between the programme's commencement on 24 November 2012 and 31 December 2019 and A$11,560 billion has been invested in complying investments.28

iii Introduction of the regional skilled migration programme

Australia has identified that to achieve the most benefit from the Migration Program, the distribution of skilled migrants must be considered. The strong population growth in Australia's major cities has placed pressure on infrastructure, housing, services and the environment. It is reported that almost 90 per cent of Australia's permanent migrants live in Australia's capital cities, with the majority settling in Sydney and Melbourne.29 It is acknowledged that there is a need for migration to contribute to regional Australia, by advancing local economies and meeting skills shortages in regional areas that require greater access to skilled workers.

On 26 October 2019, the government expanded the classification of regional areas eligible for regional skilled migration.

To further support the continued focus on improving regional migration allocation and greater distribution of migrants across Australia, the Department of Home Affairs introduced two new skilled regional provisional visas: the new Skilled Employer Sponsored Regional (Provisional) visa (subclass 494) and the Skilled Work Regional (Provisional) visa (subclass 491) commenced on 16 November 2019.

Redefining 'regional'

An updated and broader list of postcodes is now available under the Migration (LIN 19/127: Regional Areas) Instrument 2019. The expansion of what is defined as regional will help divert attention away from Australia's overpopulated cities. The Department of Home Affairs has listed the following as major cities: Sydney, Melbourne and Brisbane.

All applicants from outside Sydney, Melbourne and Brisbane will be able to access regional points, for state and territory nomination and family sponsorship and for regional study purposes.

In addition to the expanded regional definition, the government has introduced a wider range of occupations eligible for regional skilled migration.

Skilled Work Regional (Provisional) visa (subclass 491)

This visa replaces the first provisional stream of the Skilled Regional (Provisional) visa (subclass 489) programme. The new subclass 491 will be classified as a general skilled migration visa. This visa has many of the same features as the former subclass 489; however, major differences include a visa validity period of five years and the imposition of conditions enforcing the government's intentions for visa holders to live, work and study only in regional areas.

Skilled Employer Sponsored Regional (Provisional) visa (subclass 494)

This visa replaces the Direct Entry (DE) stream of the Regional Sponsored Migration Scheme visa (subclass 187) programme. The DE stream visa closed to new applications as from 16 November 2019.

Regional pathway to permanent residency

The two new regional visas above will provide a pathway to a third new (permanent) visa after a period of at least three years' residence and employment in a designated regional area of Australia. Regulations for the Permanent Residence (Skilled Regional) visa (subclass 191) will commence 16 November 2022. To be eligible to transition to this permanent visa, holders must have lived for at least three years in a designated regional area and have a taxable income at or above a specific income threshold for at least three years. This permanent visa incentivises migrants to live and work in regional Australia on a permanent basis, with a long-term impact on the growth of the Australian economy.

iv New Global Talent Independent programme

The Global Talent Independent (GTI) programme offers highly skilled migrants who expect to earn above A$148,700 per year, a rapid route to permanent residency through priority processing for a Distinguished Talent visa application, which takes less than one month to be granted. The applicants must be able to earn above the threshold within Australia in addition to being highly specialised in one of the following seven key 'high-growth' industry sectors: agtech; fintech; medtech; cybersecurity; energy and mining technology; space and advanced manufacturing; and quantum information and advanced digital and data science and information communications technology.

Ability to meet the threshold will be assessed on factors such as current salary or the salary of a future job offer. Applicants who have recently graduated or are graduating shortly with a PhD or master's degree in the above-mentioned industry sectors are also able to apply.

Applicants will be prioritised as they will be given a Global Talent identifier and guided by a Department of Home Affairs contact to receive the most efficient service. Moreover, applicants will still be subject to the normal requirements, including character, security and integrity checks.

Step 1: referral

Referrals to the programme should be made through the Global Talent contact form (available at: immi.homeaffairs.gov.au/global-talent-contact-form).

Step 2: consideration for GTI programme

The department will review the referral and may invite the candidate to apply under the Global Talent programme. A unique GTI identifier number will be emailed to the candidate along with further information on the Distingushed Talent visa application process (with offshore candidates applying for the subclass 124 visa and onshore candidates applying for the subclass 858 visa).

Step 3: visa application

After following the Department of Home Affairs' instructions on the relevant requirements, the candidate can then lodge the Distinguished Talent visa application.30

IV EMPLOYER SPONSORSHIP

i Work permits

The policy underlying Australia's skilled migration programme is to 'maximise lifetime earnings – and therefore the maximum contribution to productivity growth and fiscal impact'.31 Work permits in Australia are most frequently granted under employer-sponsored visas. The purpose of the employer sponsored visa category is to fill identified skill shortages in the short, medium and long term. The Temporary Skill Shortage (subclass 482) visa and the Employer Nomination Scheme (ENS) visa (subclass 186) are the two most common options for business wishing to sponsor an overseas worker.

ii Temporary Skill Shortage (subclass 482) visa programme

The Temporary Skill Shortage (TSS) visa allows Australian companies to nominate foreign workers in skilled occupations for up to two or four years, depending whether the nominated occupation falls on the Short-Term Skilled Occupation List (STSOL) or the Medium- and Long-Term Strategic Skills List (MLTSSL). The nominated occupation must be on the STSOL or the MLTSSL with the occupation lists reviewed and updated on a six- to 12-monthly basis. Nevertheless, it should be noted that the STSOL and the MTLSSL can be changed at any given time by the issuance of a new legislative instrument. The TSS visa programme is demand-driven and is not subject to a quota. The application process for the TSS involves three stages.

The introduction of the TSS programme has reduced the available pathways to employer sponsored permanent residence. Visa holders under the short-term stream are able to renew the TSS visa once onshore for a further two years but cannot access employer sponsored permanent residence. Visa holders under the medium-stream will need to have been on their TSS visa for three years (rather than two years) with the same employer in a nominated occupation, unless the applicant is able to access transitional arrangements The aforementioned regulations do not apply to applicants who are able to access transitional arrangements (see below).

iii Grandfathering arrangements

The Department of Home Affairs implemented particular arrangements for visa holders whose applications were lodged or approved prior to 18 April 2017.

These visa holders will be able to access existing permanent visa provisions under the Temporary Residence Transition stream of the subclass 186 visa. Specifically:

  1. the nominated occupation does not need to be on the current list of eligible occupations;
  2. the visa holder needs to have held their subclass 457 visa for at least two years out of the previous three years before applying; and
  3. the visa holder must be under the age of 50 (unless exempt). Eligible overseas workers will need to lodge an application for permanent residence by March 2022 to access these transitional arrangements.

iv Occupation lists

The occupation lists, formerly known as the Consolidated Sponsored Occupation List (CSOL) and the Skilled Occupation List (SOL), underpin a range of visas, including the subclass 482 visa. As of 19 April 2017, the CSOL and SOL were updated and renamed as the STSOL and the MLTSSL, and the Regional Occupation List respectively.32 The current skilled occupation lists were updated on 11 March 2019. These changes included standardising the MLTSSL by making 30 occupations available to all visa subclasses. As of March 2019, 508 skilled occupations are eligible for the TSS visa programme.33 An occupation ceiling may be applied to invitations issued for selected occupation groups. This ensures that the skilled migration programme is not dominated by a small number of occupations.

v Labour market testing

Labour market testing (LMT) requires that sponsors first attempt to recruit suitably qualified and experienced Australian citizens or Australian permanent residents for the position they wish to nominate under the TSS visa programme. Under the regulations, LMT is mandatory for all sponsors unless the occupation is exempt or an international trade obligation applies. LMT must be conducted for at least 28 days and within the four months immediately before lodgement of the nomination component of the application. The evidence to support this must be provided at the time of lodgement.

The employer is required to place two advertisements for the nominated position including the position title, required skills, name of employer or the recruiter and salary range if annual earnings are lower than A$96,000.

Sponsors must satisfy the assessing officer that the business tested the local labour market sufficiently but no suitable Australian citizens or permanent residents were found.

Exemption from LMT is available where there would be a conflict with Australia's international trade obligations. Australia's international trade obligations fall under two categories:

  1. World Trade Organization General Agreement on Trade in Services (WTO GATS) commitments; or
  2. free trade agreements.

Those cases where it would be inconsistent with Australia's international trade obligations under an agreement with a third country or countries to require a sponsor to satisfy the labour market testing condition are specified in a legislative instrument. Some obligations are contained in more than one trade agreement (for example, under both WTO GATS and a bilateral free trade agreement).

WTO member countries

World Trade Organization member countries are listed under 'WTO membership' on the WTO website and should be referred to for current information.

Intra-corporate transferees

An intra-corporate transferee is an employee of a business that is established in a World Trade Organisation Member State or a country with whom Australia has a trade agreement that includes this category of entrant, and who is transferred by that business lawfully operating in Australia to fill a vacancy in that business. Intra-corporate transferees are a broad category of entrant and can be either an executive, senior manager or specialist.

vi Skilling Australians Fund levy

On 12 August 2018, the Skilling Australians Fund (SAF) levy replaced the previous Training Benchmark requirement. This levy contributes to the Skilling Australians Fund operated by the Department of Education and Training, with the objective of reducing the regulatory burden on employers and providing improved training outcomes for Australians. This fee is payable upon lodgement of the nomination application. This levy is payable on the subclass 482, 186 and 187 nomination applications. The levy makes a distinction between small and large businesses. Sponsoring entities with a turnover of less than A$10 million per year are considered to be small businesses, while entities with a turnover of A$10 million per year are defined as large businesses.

The levy payable for TSS (subclass 482) nominations are:

  1. A$1,200 each visa year for a small business; and
  2. A$1,800 each visa year for a large business.

The levy payable for ENS (subclass 186) and Regional Sponsored Migration Scheme (RSMS) (subclass 187) nominations are:

  1. A$3,000 for a small business; and
  2. A$5,000 for a large business.

The SAF levy aims to raise over A$1.5 billion over the next four years to help train and skill Australians in regional areas and in high-demand occupations. This scheme will ensure that businesses that benefit from migrant employees also contribute to supporting the training of Australians.

vii Sponsorship

Standard Business Sponsorship approval

The employing business first needs to be approved as a standard business sponsor. As a prerequisite, the business must be operating lawfully in Australia and be able to demonstrate that the business is operating. It must not have any adverse information recorded against it. If the business is a company, it will need to show its Australian Business Number registration, evidence of its business name registration (if applicable) and evidence of its incorporation (the Australian Company Number for an Australian company). All business sponsors (including start-ups companies and sponsors that are provided with accredited status) are now provided with a five-year Standard Business Sponsorship approval period.

Nomination

The second stage involves the employer nominating a proposed visa applicant in an occupation listed on either the STSOL or MLTSSL. Sponsoring businesses must provide evidence that the sponsored applicant is subject to terms and conditions of employment no less favourable than those of Australian workers in the same occupation in the same location, and evidence that the salary offered is at market rate. All employers (regardless of the nominated occupation), must also satisfy the LMT requirements unless an international obligation applies, and show existence of genuine skill needs that could not be sourced from the local labour market.34 The nominator must be able to demonstrate that the nominated position is a genuine position and that the nominator requires the nominee in the nominated occupation.

Changing employer sponsors on a TSS visa must be done in a timely manner to ensure that the TSS visa does not get cancelled. If a subclass 457 or TSS visa was granted before the 19 November 2016, the visa applicant will have 90 days to transfer the nomination; if a subclass 457 or TSS visa was granted on the 19 November 2016 or after, the visa applicant will have 60 days.

Visa

When applying for the visa, there are key criteria that must be met by the applicant:

  1. skill: the applicant must demonstrate the requisite skill for the nominated occupation. In certain circumstances, especially in relation to trade occupations, applicants may be required to provide a positive skills assessment from the relevant skill assessment body;
  2. work experience: with the introduction of the TSS visa, all applicants must demonstrate at least two years of work experience relevant to the particular occupation;
  3. English-language requirement: the primary applicant must meet the English requirement unless exempt;35
  4. registration or licensing: for certain occupations, although a skills assessment may not be required, registration is needed to practise or work in that occupation. TSS visa holders must obtain any mandatory registration, licence or membership within 90 days of the visa grant.36 Often to qualify for occupation registration, the applicant may need to show proficiency in English; and
  5. character: the applicant must provide police clearance certificates for any residencies of at least 12 months in any country in the previous 10 years.

viii ENS visa (subclass 186)

The permanent employer sponsored programme is a residence visa scheme for skilled workers who are sponsored by an Australian business, and can be applied for either onshore or offshore. The subclass 186 visa allows skilled applicants to work under one of three streams; the Temporary Residency Transition stream, the Direct Entry stream and the Labour Agreement stream.

The following changes were made to the ENS requirements in 2018:

  1. the English-language requirement was raised;
  2. the age requirement was lowered to 45 years of age;
  3. applicants must now be paid in accordance with Australian market salary rate and meet the temporary skilled migration income threshold;37
  4. the ENS programme was limited to occupations on the MLTSSL only; and
  5. stricter regulation of sponsors was introduced to ensure their obligations under the Migration Regulations 1994 are met.38

Temporary Residence Transition stream

The Temporary Residence Transition (TRT) stream is geared towards applicants who have been on a subclass 482 or subclass 457 visa and who intend to be sponsored by the same employer under the subclass 186 visa. To be eligible, applicants must have worked full time on a subclass 482 visa for at least three of the four years prior to the subclass 186 nomination application. If the applicant held (or had applied for and were later granted) a subclass 457 visa on 18 April 2018, they must have worked full time on the subclass 457 visa for at least two of the three years prior to nomination.

Applicants must also meet the following requirements or meet an exemption:

  1. applicants' nominated occupation must be on the MLTSSL or STSOL;39
  2. applicants must be less than 45 years of age; and
  3. applicants must have a competent level of English.40

Direct Entry stream

The Direct Entry stream is designed for applicants who do not meet the requirements of the TRT stream or who are not yet in Australia, provided they satisfy the skill and work experience requirement.

Applicants must meet the following requirements or exemptions:

  1. the applicant must be less than 45 years of age;
  2. the applicant must have at least a competent level of English;
  3. the applicant must have an occupation listed on the MLTSSL;
  4. the applicant must have at least three years of experience relevant to the particular occupation; and
  5. the applicant is required to have a positive skills assessment from a relevant skills assessment body.
Skills exemptions

Unless exempt, overseas workers must obtain a positive skills assessment for their nominated occupation from the relevant skills assessment authority in Australia. Skills exemptions apply only to the Direct Entry stream and applicants must meet the following requirements:

  1. the applicant must be nominated as an academic by an Australian university or as a researcher by an Australian government agency;
  2. the applicant must have nominated earnings at least equivalent to the current Australian Taxation Office top individual income tax rate;41 or
  3. the applicant must have been working for the applicant's sponsor as the holder of a subclass 444 or subclass 461 visa in the applicant's nominated occupation for the past two years.

Labour Agreement stream

The Labour Agreement stream is for applicants sponsored by an employer under a labour agreement or regional migration agreement. Applicants in this stream must meet the following requirements:

  1. applicants must be less than 45 years of age;
  2. applicants must have the qualifications and skills stipulated in the labour agreement; and
  3. applicants must satisfy the English-language requirement stipulated in the labour agreement.

Subclass 186 application

A subclass 186 application comprises the following two stages: ENS approval and then the visa application. Both stages must be completed under the same stream:

ENS approval

All employers must first be approved as a sponsor under the ENS programme. The following criteria must be fulfilled.

  1. the employer's business is actively and lawfully operating in Australia;
  2. the nominated position is available for the nominee for at least two years full time and this is renewable;
  3. in the terms and conditions of employment, the nominee's conditions are the same as those that would apply to an Australian citizen or an Australian permanent resident in a comparable position;
  4. there is no adverse information relating to the employer that is known to the Department of Home Affairs; and
  5. the employer has complied with relevant workplace laws.

Age

Age exemptions are available to applicants who:

  1. are nominated as an academic by an Australian university or as a researcher by an Australian government agency;
  2. have been working for their sponsor as the holder of a subclass 457 visa for at least four years and whose earnings have been at least equivalent to the Fair Work Australia high-income threshold42 for each year over that period;
  3. are nominated as a medical practitioner43 after working for the nominating employer for at least four years as a subclass 547 or 422 visa holder with two of those years being in a location in regional Australia; or
  4. are applying through the TRT stream and are under 50 years of age, and whose subclass 482 visa was lodged before 18 April 2017.

English language

Overseas workers must show they meet the English requirement at the time the application is lodged. Currently, competent English is the minimum level required for the ENS programme. From 16 November 2019, the English exemption previously available under the TRT stream was removed from the legislative instrument. All applicants must show competent English at the time the application is submitted.

Dependants

Dependants of a primary visa applicant may be included in a subclass 186 visa application. In November 2016, the definition of 'members of the family unit' (MoFU) was simplified and is now limited to any of the following individuals who share a specific relationship with the main applicant:

  1. a partner, which includes any spouse or de facto partner; and
  2. a child or stepchild of the main applicant or the main applicant's partner who is under the age of 18; or is under the age of 23 and is dependent on the main applicant or the main applicant's partner; or has turned 23 but is dependent on the main applicant or the main applicant's partner as defined in the Migration Regulations 1994.44

Transitional arrangements have been put in place for applicants who held a listed visa subclass prior to the November 2016 changes, to allow them to apply for a new visa with the rest of their family unit, even if they no longer qualify under the MoFU definition; for example, if they are now over the age of 23.45

ix Subclass 187 visa application

The subclass 187 visa allows sponsoring an overseas employee to work in a regional area of Australia under either the TRT stream or the Labour Agreement stream.

On 16 November 2019, the Direct Entry stream was closed to new applicants and was replaced by the Skilled Employer Sponsored Regional (Provisional) visa (subclass 494).

The applicant for a subclass 187 visa needs to be under 45 years of age, meet the skills, qualifications and English-language requirements (unless exempt), and be nominated by an approved Australian employer. The current requirements regarding age, skill and English language are set out as follows:

  1. Age: an applicant must be less than 45 years of age at the time of lodgement unless exempt. This maximum age requirement was decreased from 50 to 45 years of age on 1 July 2017. A maximum age requirement of 50 at the time of application will continue to apply for TRT stream applicants who held (or had applied for and were granted late) a subclass 457 visa on 18 April 2017.
  2. Skills and work: for the Direct Entry stream, applicants must show a positive skills assessment in addition to three years of full-time post-qualification work experience. Skills assessments obtained for temporary graduate visa applications are not accepted as they are not considered full skills assessments for permanent skilled migration purposes. This does not affect any ENS and RSMS applications lodged prior to the effect of this change on 28 October 2013. For the TRT stream, applicants must show that they worked for the sponsoring company as a holder of a subclass 457 or 482 visa and that they have applied their skills in their nominated occupation for at least three years.
  3. English language: from 1 July 2017, the English language requirement for all streams has been raised to competent English, which requires a score of at least six in each of the four test components in the International English Language Testing System examination or equivalent. Exemptions to the above requirements are only available in limited circumstances.

x Subclass 491 and 494 visa applications

As stated above, the subclass 491 and 494 visas are temporary visas granted for five years introduced on 16 November 2019. The applicant is required to live and work in regional Australia for three years before transitioning to permanent residency under subclass 191.

Skilled Employer Sponsored Regional (Provisional) visa (subclass 494) – Employer Sponsored Stream

This visa enables regional employers to address identified gaps within their region by sponsoring skilled workers when they are unable to source an appropriately skilled Australian worker. This visa allows the holder to live, work and study in a designated regional area and to apply for permanent residency after three years of regional employment.

There are three stages in obtaining this visa: standard business sponsorship, 494 nomination application and the 494 visa application.

Standard Business Sponsorship application

This is the same as the Standard Business Sponsorship process discussed above in Section IV.vii, which is also required for the subclass 482 visa.

494 nomination application

The second stage involves the employer nominating a proposed visa applicant in an occupation listed on the 494 occupation list. Sponsoring businesses must provide evidence that the sponsored applicant is subject to terms and conditions of employment no less favourable than those of Australian workers in the same occupation in the same location, and evidence that the salary offered is at market rate. All employers (regardless of the nominated occupation), must also satisfy the requirements of LMT unless an international obligation applies, and show existence of genuine skill needs that could not be sourced from the local labour market.46 The nominator must be able to demonstrate that the nominated position is a genuine position and that the nominator does require the nominee in the nominated occupation.

494 visa application

To be eligible for the visa, the applicant must:

  1. be under 45 years old at the time of application;
  2. be nominated by an approved sponsor in a designated regional area;
  3. have three years of full-time experience in the nominated occupation in the previous five years;
  4. have a positive skills assessment;
  5. have at least competent English; and
  6. meet character and health requirements.

Skilled Work Regional (Provisional) visa (subclass 491)

This is a points-tested visa for applicants sponsored by:

  1. a designated regional area of an Australian state or territory, or
  2. an eligible family member residing in a designated regional area of Australia.

To be eligible for this visa the applicant must:

  1. be on the subclass 491 occupation list;
  2. be sponsored by an eligible relative or state authority;
  3. be invited to apply by the Department of Home Affairs;
  4. be under 45 years of age;
  5. have a positive skills assessment;
  6. be able to score 65 points or more;
  7. have at least competent English; and
  8. meet character and health requirements.

xi Annual market salary rates

Australia has implemented strict labour market regulations, which must be adhered to by both visa applicants and businesses. In particular, considerable attention has been paid to reducing the likelihood of foreign worker exploitation. To successfully sponsor a foreign worker, employers must ensure that they pay their nominees a salary comparable to that of an Australian citizen or an Australian permanent resident in a similar position. This is referred to as the annual market salary rate (AMSR). The AMSR is determined by looking at what the employer would pay equivalent Australian workers, enterprise agreements or industrial awards, job outlook information, job advertisements for the previous six months in the same location, and remuneration surveys or advice from unions or employer associations.

xii Obligations of sponsors

Under the subclass 482 visa programme, an approved business sponsor is immediately subject to sponsorship obligations. The standard business sponsor must ensure that the terms and conditions of employment provided to the subclass 482 visa holder are no less favourable than those provided to Australian citizens or permanent residents performing equivalent work in the same workplace. Furthermore, the sponsor is legally restricted from recovering from the visa holder certain costs associated with the sponsorship, nomination and recruitment of the foreign worker. The nature and duration of the obligations are as follows.47

Employer obligation Duration of obligation
Obligation to cooperate with inspectors Starts at approval of sponsorship and ceases five years after sponsorship ceases
Obligation to ensure equivalent terms and conditions of employment Starts at approval of nomination or visa grant until employment ceases or grant of new substantive visa
Obligation to pay travel costs to enable sponsored persons to leave Australia Starts at approval of nomination or visa grant until new nomination approved or grant of new substantive visa or leaving Australia
Obligation to pay costs incurred by the Commonwealth to located and remove unlawful non-citizen Starts when sponsored person becomes unlawful non-citizen until five years after sponsored person leaves Australia
Obligation to keep records Starts at approval of sponsorship until two years after final sponsored person ceases with the sponsor
Obligation to provide records and information to the Minister Starts at approval of sponsorship until two years after final sponsored person ceases with the sponsor
Obligation to provide information to Immigration when certain events occur Starts at approval of sponsorship until sponsorship ceases and employer no longer sponsors the visa holder
Obligation to secure an offer of a reasonable standard of accommodation Relevant for Subclass 403, 407 and 408 visas only. Sponsor obligations can be found in Migration Regulations 1994
Obligation to ensure skilled worker does not work in an occupation other than an approved occupation. Starts at approval of nomination or visa grant until new nomination approved or grant of new substantive visa or leaving Australia
Obligation to provide training Starts at approval of sponsorship. If the period of standard business sponsorship is less than six years, the obligation ceases after three years. If the period of standard business sponsorship is at least six years, the obligation ceases after six years
Obligation not to engage in discriminatory recruitment practices Starts at approval of sponsorship until approved sponsorship ceases and no sponsored persons in relation to the sponsor

The Department of Home Affairs, together with the Australian Border Force, has a wide range of powers to monitor and investigate possible non-compliance with sponsorship obligations and various measures to address identified breaches of these obligations. These include taking administrative action to bar or cancel the sponsorship approval, or to issue civil pecuniary penalties by way of infringement notices.

Sanctions may be imposed in a number of circumstances, including but not limited to the following:

  1. the business sponsor provides false or misleading information;
  2. the business sponsor fails to meet or no longer meets the sponsoring criteria;
  3. the business sponsor or the primary sponsored person contravenes the law of the Commonwealth, state or territory;
  4. the business sponsor fails to comply with the terms of a special programme agreement, or makes unapproved changes to the programme;
  5. the business sponsor fails to pay additional security as requested by an authorised office; and
  6. the business sponsor fails to pay medical and hospital expenses for the primary sponsored person.

As part of the new reforms to the permanent employer sponsored skilled migration programme the Department of Home Affairs will commence publishing details relating to sponsors who are sanctioned for failing to meet their obligations under the Migration Regulation 1994 and related legislation.48 The Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018 (the Enhanced Integrity Act) contained in the associated regulations enables the Minister to publish information about an approved sponsor or former sponsor who has failed to meet the applicable sponsorship obligations. The following information about the sanctions must be published:

  1. information identifying the approved sponsor or former approved sponsor;
  2. the sponsorship obligations that they have failed to satisfy, and other details of the breach;
  3. action taken against the sponsor under the Migration Act 1958, including details of any sanctions or subsequent decisions to waive the sanction.

The associated regulation also give power to the Department of Home Affairs to:

  1. collect, record, store and use the tax file numbers of skilled migrants for compliance and research purposes; and
  2. allow the Department of Home Affairs to enter into an enforceable undertaking with a sponsor that has breached its obligations.

The provisions of the Enhanced Integrity Act are retrospective as they allow publication of actions that were undertaken under the relevant provisions that occurred on or after 18 March 2015.

Administrative sanctions may result in the sponsorship being cancelled, or the business sponsor being barred from nominating candidates and from making further applications for approval as a sponsor for a specified period. A decision to bar a business sponsor from sponsoring for a certain time can be reviewed at the AAT. In certain circumstances, there may be grounds for the business sponsor to apply for the bar to be waived. If the application to the AAT is unsuccessful, the applicant may make a request to the Minister to waive the bar under Section 140O of the Migration Act.49

With the enactment of the Migration Amendment (Reform of Employment Sanctions) Act 2013, Australia's system regarding employer sanctions is now organised according to three tiers of offences, reflecting the graduation of consequences faced by the employer based on the seriousness of the offence:

  1. non-fault civil penalty provisions: fault elements of knowledge and recklessness do not apply and evidence does not need to be proven 'beyond reasonable doubt';
  2. non-aggravated offences (baseline offences): physical and fault elements (knowledge or recklessness) must be established beyond reasonable doubt. These offences are punishable by up to two years' imprisonment; and
  3. aggravated criminal offences: occur where there is exploitation of the foreign national worker. Such offences correlate with their non-aggravated counterparts and are punishable by up to five years' imprisonment.

Statutory defences are available for both non-aggravated criminal offences and for civil penalty provisions. The defendant bears the burden of proof to show that they took reasonable steps at reasonable times to either verify that the foreign national worker was not an unlawful non-citizen or verify by checking a government computer system50 that the foreign national worker was not in breach of the work-related visa.

xiii Rights and duties of sponsored employees

The primary subclass 482 visa holder must be paid market salary rates by the sponsor and the market salary must be equal to or greater than the temporary skilled migration income threshold (TSMIT), which at present is A$53,900. The TSMIT has a dual purpose: first to act as an indicator that an occupation is skilled and, second, to ensure that a visa holder has reasonable means of support while in Australia.51 The TSMIT will apply if the market rate of a particular occupation is below this threshold. The TSMIT is indexed in accordance with average weekly incomes.

Subclass 482 visa holders may be subject to various visa conditions, including condition 8170, which obliges the visa holder to work with the sponsoring company in the nominated occupation, and condition 8501, which makes all new subclass 482 visa holders responsible for healthcare costs for themselves and their respective families. Breach of these conditions may result in cancellation of the visa.

xiv Modern slavery and human trafficking compliance

The Department of Home Affairs states the following in its 2020 background paper 'The Administration of the Immigration and Citizenship Program':

In Australia, modern slavery refers to a range of serious exploitative practices, including human trafficking, slavery and slavery-like practices (such as forced marriage, forced labour, domestic servitude, and debt bondage). These are criminalised in the Commonwealth Criminal Code Act 1995 (the Criminal Code).
In the context of the immigration program, the Australian Government is aware of a very small proportion of non-citizens who are suspected victims of modern slavery or human trafficking (51), identified in the 2018–19 program year, representing 0.0006 per cent of all visas granted (8.98 million visa grants).52

Sponsoring companies must be aware of the risk of modern slavery in their operations and supply chains. The Modern Slavery Act 2018 (Cth), which is presently the only focused legislative framework in Australia designed to combat or report modern slavery, commenced operation on 1 January 2019. In Australia, an entity falls within the scope of the Modern Slavery Act and is required to report pursuant to the Act if it meets the following criteria for a reporting entity:

  1. it has a consolidated revenue of at least A$100 million over its 12-month reporting period;
  2. it is an Australian entity at any time in that reporting period; and
  3. it is a foreign entity carrying on business in Australia at any time in that reporting period.

Entities may also choose to provide a voluntary report if they do not meet the criteria listed above. The report, referred to as the Modern Slavery Statement, must contain the following information:

  1. identity of the reporting entity;
  2. description of the reporting entity's structure, operations and supply chains;
  3. description of the risks of modern slavery practices in the operations and supply chains of the reporting entity and any entities it owns or controls to assess and address these risks, including due diligence and remediation processes;
  4. description of how the reporting entity assesses the effectiveness of these actions;
  5. description of the process of consultation with any entities the reporting entity owns or controls (a joint statement must also describe consultation with the entity giving the statement); and
  6. any other relevant information.

The introduction of this legislative framework was a huge milestone in tackling the issue of modern slavery within Australia. According to the US State Department's Trafficking in Persons Report 2019, Australia has demonstrated serious and sustained efforts to eliminate human trafficking and consistently rates as a 'Tier 1' country in this regard. The Modern Slavery Act 2018 (NSW) (New South Wales Act) is not yet in force and is currently subject to parliamentary review.

V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS

Australia's immigration policy is also designed to allow foreign nationals to immigrate to Australia independently; this category includes the government's business skills programme and its points-based GSM visa programme.

i Business Innovation and Investment Programme

The BIIP continues to be seen, both domestically and internationally, as an avenue of approach for the government in its attempts to market Australia's currently robust economy to the world. The Department of Home Affairs points out that this programme is designed 'to attract high quality investors and entrepreneurs to invest in Australia'.53 The programme reinforces the foundational ties that have already been laid by Australia's higher education market, which draws in a significant number of students from the Asia-Pacific region, and it aims to attract individuals who are looking to make considerable investments in the Australian economy. The BIIP, which covers both provisional and permanent visas, is made up of three visa subclasses: the Business Talent (Permanent) visa (subclass 132), the Business Innovation and Investment (Provisional) visa (subclass 188) and the Business Innovation and Investment (Permanent) visa (subclass 888). Applicants must submit an expression of interest through SkillSelect to be nominated by a state or territory government agency and invited by the Department of Home Affairs.

Business Talent visa (subclass 132)

This visa allows applicants to establish a new business or develop an existing business in Australia and stay in Australia as a permanent resident. There are two streams: the Significant Business History stream and the Venture Capital Entrepreneur stream.

High-calibre business owners or part-owners who intend to do business in Australia can apply under the Significant Business History stream. To be eligible for this stream, the applicant must meet the following requirements:

  1. the applicant must have net business and personal assets of at least A$1.5 million;
  2. the applicant must have an annual business turnover of at least A$3 million; and
  3. the applicant must be under 55 years of age, unless the proposed business is deemed to be of exceptional economic benefit to Australia.

Applicants who have sourced at least A$1 million in venture capital funding from a member of the Australian Investment Council (formerly the Australian Private Equity and Venture Capital Association) to start the commercialisation or development of a high-value business idea in Australia can apply under the Venture Capital Entrepreneur stream.

Business Innovation stream (subclass 188)

This stream is designed for applicants who wish to own or manage a new or existing business in Australia. To be eligible for this stream, the applicant must meet the following requirements:

  1. the applicant must have owned a business with a turnover of at least A$500,000 for two of the past four years;
  2. the applicant must have net personal and business assets of at least A$800,000; and
  3. the applicant must score at least 65 on the points test.

Investor stream (subclass 188)

The investor stream is for people who wish to make a designated investment in an Australian state or territory and wish to maintain the business activity in Australia after the original investment has matured. Applicants must meet the following requirements:

  1. the applicant must have had business and personal assets of at least A$2.25 million for the past two fiscal years;
  2. the applicant must make a designated investment of at least A$1.5 million in an Australian state or government security;
  3. the applicant must have three years of experience in managing a business or 'eligible investments' and show a high level of management skill; and
  4. for at least one of the past five years the applicant must have:
    • managed a business in which the applicant has held 10 per cent of the shares; or
    • managed eligible investments of at least A$1.5 million in value.

Significant Investor stream (subclass 188)

This stream was introduced by the government on 24 November 2012 and is intended to provide a more streamlined avenue to permanent residency for applicants who make an investment of at least A$5 million in the Australian economy. The Significant Investor visa programme is targeted towards high-net-worth individuals who make complying investments in an Australian state or territory government, privately owned Australian companies or an Australian asset regulated by the Australian Securities and Investments Commission. Each state and territory government stipulates its own separate requirements when nominating a potential investor.

There are three stages under this stream. The applicant must:

  1. submit an expression of interest (EOI) to an Australian state or territory government;
  2. be invited by the corresponding state or territory government to apply for a visa; and
  3. lodge a visa application within 60 days of the invitation.

In return for investing in the Australian economy, the applicant is afforded considerable concessions in relation to the usual visa requirements. Applicants under the investor stream who wish to gain permanent residence may obtain concessions to the following requirements:

  1. the points test;
  2. the upper age limit; and
  3. residence for permanent visa requirements.

Primary applicants under the significant investor stream need only be present in Australia for at least 40 days per year for the duration of the provisional visa. These days do not need to be consecutive.

In July 2015, changes were made to complying investments under the significant investor stream. For applications made after July 2015, a complying significant investment of at least A$5 million must be made in the following proportions over four years:54

  1. at least A$500,000 in venture capital and growth private equity funds that invest in start-ups and small private companies;
  2. at least A$1.5 million in approved managed funds investing in emerging companies listed on the Australian Stock Exchange (ASX); and
  3. a 'balancing investment' of at least A$3 million in managed funds that may invest in a range of assets, including investment in ASX-listed companies, Australian corporate bonds or notes, annuities and commercial real estate in Australia.

Premium Investor stream (subclass 188)

The review of the Significant Investor visa resulted in the creation of the Premium Investor visa, which commenced on 1 July 2015. This scheme offers a 12-month pathway to permanent residence in return for a minimum investment of A$15 million into the Australian economy.55 There are no minimum residence requirements for visa holders to be eligible for permanent residence. Applicants must have net assets of at least A$15 million and demonstrate a genuine and realistic commitment to continue business and investment activity in Australia. Nominations for this visa are made exclusively by Austrade56 on behalf of the Australian government.

A complying investment of A$15 million under the Premium Investor stream may be made in any of the following options:

  1. ASX-listed assets;
  2. Australian government or semi-government bonds or notes;
  3. corporate bonds or notes issued by an ASX-listed entity or investment grade-rated Australian corporate bonds or notes rated by an AFS-licensed debt rating agency;
  4. Australian proprietary limited companies;
  5. real property in Australia, excluding residential property;
  6. deferred annuities issued by Australian-registered life companies; and
  7. state or territory government-approved philanthropic contributions.

Entrepreneur stream (subclass 188)

On 10 September 2016, a new Australian entrepreneur visa was introduced to target foreign entrepreneurs interested in developing or commercialising their innovations in Australia. Applicants must:57

  1. have a complying entrepreneur activity;
  2. have a funding agreement of at least A$200,000 to carry out entrepreneurial activity in Australia; and
  3. be nominated by a state or territory, or Austrade.

A complying entrepreneur activity must relate to an innovative idea that will lead to:

  1. the commercialisation of a product or service in Australia; or
  2. the development of an enterprise or business in Australia.

ii GSM

The GSM programme is points-based and does not require the applicant to be sponsored by an employer. To be eligible for these visas, applicants must first lodge an EOI and be invited to apply for skilled migration by the Department of Home Affairs.

To access the GSM programme, applicants must be 45 years of age or under at the time of invitation and have at least competent English.

Further requirements include the following:

  1. applicants must have an occupation listed on the most current relevant skilled occupation list;
  2. applicants must have a suitable skills assessment for the nominated occupation before making an EOI; and
  3. applicants must satisfy the most current points-test pass mark.

In 2018, Home Affairs introduced two significant changes to the points-tested visas. In March 2018, the maximum age for applying was lowered from 50 to 45 years. The pass mark for points-tested visas was then raised from 60 to 65 points in July 2018.

Skilled Independent visa (subclass 189) and Skilled Nominated visa (subclass 190)

The subclass 189 visa is a points-based visa programme and does not require the applicant to be sponsored by an employer, state or territory government. Once approved, the applicant can live and work anywhere in Australia as a permanent resident.

The subclass 190 visa is also a points-based visa programme; however, in contrast to the subclass 189 visa, It requires the applicant to be nominated by a state or territory government. This nomination gives the applicant an extra five points. As a condition of the nomination, the applicant must agree to live and work in the nominated state or territory for a specified duration.

To be eligible under this visa programme, applicants must:

  1. be nominated for an occupation listed on the relevant skilled occupation list (the MLTSSL);
  2. have obtained a suitable skills assessment for the nominated occupation;
  3. have achieved a pass mark in the points test of at least 65 points (Higher points may be required depending on the occupation and demand.) However, because of the high competition, invitations are sent to applicants with more than 65 points;
  4. be under 45 years of age; and
  5. have at least competent English.

Point test changes

The Department of Home Affairs recently announced changes to the points test for the subclass 189 and 190 visas. These changes, which came into effect on 16 November 2019, are as follows:

  1. 10 points for a skilled spouse or de facto partner;
  2. 10 points for certain science, technology, engineering and mathematics qualifications;
  3. five points for a spouse or de facto partner with competent English; and
  4. 10 points for applicants without a spouse or de facto.

Invitations for the 189 and 190 visas will be ranked in the following order:

  1. first: primary applicants with a skilled spouse or de facto partner;
  2. equal first: primary applicants without a spouse or de facto partner;
  3. second: primary applicants with a spouse or de facto partner who can demonstrate competent English but not the skills required for skilled-partner points; and
  4. third: primary applicants with a partner who is ineligible for either competent-English or skilled-partner points. These applicants will be ranked below all other cohorts, if all other points claims are equal.

VI OUTLOOK AND CONCLUSIONS

Australia's immigration framework reflects a patchwork of ideologies; the strands that comprise its operation have been introduced incrementally over the past 60 years to address varied policy goals and targets. Migration has accounted for 58 per cent of Australia's population growth over the past decade, making it a vital consideration when planning population.58 It is reported that currently, around 29 per cent of Australia's residents were born overseas.59 Following from the challenges around sponsored workers, it is expected that sponsorship compliance will remain at the forefront of the immigration agenda in the future.

The recent and extensive reforms to the regional skilled migration programme highlight the Australian government's shift to strengthening the commitment to regional Australia by ensuring the migration system encourages skilled migrants to live and work in our smaller cities and regions. Prime Minister, Scott Morrison in his 2019 media release stated: “We are using our migration programme to back our regions to grow to take the population pressure off our major capital cities and by supporting strong regions we're creating an even stronger economy for Australia.'60 This trend of supporting migrants to settle in regional areas is likely to continue.

The Australian government remains committed to streamlining Australia's investment migration schemes to make it simpler for investors and business entrepreneurs to access these. Trade with the Asia-Pacific region is a key international priority, which is illustrated by recent negotiated free trade agreements with China61 and other nations of the Pacific Rim.62

Australia's current political climate is constantly adapting to balance promotion of wider business growth with the cost of upskilling the Australian workforce and ensuring maintenance of the efficiency and competitiveness of Australia's programme of business migration.


Footnotes

1 Anne O'Donoghue is a principal, Taraneh Arianfar is the case manager and Jenny Nguyen is a solicitor at Immigration Solutions Lawyers.

2 Australian government, the Department of Home Affairs; www.homeaffairs.gov.au.

3 Department of Home Affairs, Planning Australia's 2020–21 Migration Program; https://www.homeaffairs.gov.au/reports-and-pubs/files/discussion-paper-planning-australias-migration-program-2020-21.pdf, page 5.

4 ibid.

5 ibid.

6 Migration Act 1958 (Cth) Sections 48B, 351 and 417.

7 Administrative Appeals Tribunal, Migration and Refugee Division caseload summary by subclass: For the period 1 July 2018 to 30 June 2019; https://www.aat.gov.au/AAT/media/AAT/Files/Statistics/MRD-caseload-statistics-by-subclass-2018-19.pdf.

8 ibid.

9 The Powers Available under Legislation – Ministerial powers – Minister's guidelines on ministerial powers (Migration Act 1958 (Cth) Sections 351, 391, 417,474 and 501J).

10 Migration Act 1958 (Cth) Section 48.

11 Administrative Appeals Tribunal (see footnote 8).

12 Constitution of the Intergovernmental Committee on European Migration [1954] ATS 22; Agreement between the government of the Commonwealth of Australia and the government of the Federal Republic of Germany on Assisted Migration [1965] ATS 9; Migration and Settlement Agreement between the government of the Commonwealth of Australia and the government of Malta [1970] ATS 18; Migration and Settlement Agreement between the government of the Commonwealth of Australia and the government of the Republic of Italy [1971] ATS 13; Protocol Relating to a Certain Case of Statelessness; Convention on Certain Questions relating to the Conflict of Nationality Laws [1938] ATS 4; Convention on the Nationality of Married Women [1961] ATS 4; Convention relating to the Status of Stateless Persons [1974] ATS 20; Convention on the Reduction of Statelessness [1975] ATS 46; League of Nations Conference for the Codification of International Law; Special Protocol concerning Statelessness; International Convention relating to Economic Statistics, and Protocol [1932] ATS 4; Agreement between the government of Australia and the government of the Kingdom of Belgium on 'Working Holiday' Arrangements [2005] ATS 13.

14 Department of Home Affairs, Working Holiday visa (subclass 417); https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/work-holiday-417.

15 ibid.

16 Department of Home Affairs, Working Holiday Maker visa programme (7 November 2018); https://www.homeaffairs.gov.au/news-subsite/Pages/2018-Nov/working%20holiday%20maker%20visa%20program.aspx.

17 Department of Home Affairs, Australia's Migration Trends 2018–19 Highlights; https://www.homeaffairs.gov.au/research-and-stats/files/migration-trends-highlights-2018-19.PDF, p. 12.

18 ibid.

19 Department of Home Affairs, Working Holiday Maker visa programme report (31 December 2018); https://www.homeaffairs.gov.au/research-and-stats/files/working-holiday-report-dec-18.pdf.

20 Department of Human Services, Reciprocal Health Care Agreements; www.humanservices.gov.au/customer/services/medicare/reciprocal-health-care-agreements.

21 Department of Home Affairs, 2020–21 Planning Australia's 2020-21 Migration Program; https://migrationalliance.com.au/images/easyblog_images/5725/Planning-Australias-2020-21-Migration-Program.pdf, page 5.

22 Department of Home Affairs, 2018–19 Migration Program Report; https://www.homeaffairs.gov.au/research-and-stats/files/report-migration-program-2018-19.pdf, p. 11.

23 ibid., p. 9.

24 ibid., p. 28.

25 ibid., p. 10.

26 ibid.

27 ibid., p. 10.

29 Australian Bureau of Statistics, Australian Census and Migrants Integrated Dataset, 2016.

31 Department of Immigration of Citizenship, quoted in Australian Law Reform Commission (2012), 'Grey Areas: Age Barriers to Work in Commonwealth Laws', p. 198.

32 Migration (LIN 19/051: Specification of Occupations and Assessing Authorities) Instrument 2019.

34 It is anticipated that LMT will become mandatory for all businesses from March 2018.

35 Exemptions are based on country of citizenship, nominated occupations, salary level and higher education studies; www.legislation.gov.au/Details/ F2017L00835.

36 Migration Regulations 1994 (Cth) Sch8, Section 8107.

37 Currently A$53,900.

38 These include collection of TFNs to ensure employees are paid the nominated salary and publication of sponsors who fail to meet their obligations.

39 Applicants who were holders of a 457 visa, or had applied for a 457 visa on or before 18 April 2018, are eligible to transition into permanent residency under transitional arrangements. All visa requirements must be met for the applicant to obtain permanent residency.

40 The English-language requirements are a score of 6.0 in each test component in the International English Language Testing System or equivalent.

41 Currently A$180,001 (2017–2018 rate applied from 1 July 2017).

42 Currently A$142,000 (2017–2018 rate applied from 1 July 2017).

43 Australian and New Zealand Standard Classification of Occupations Minor Group 253.

44 Migration Regulations 1994 (Cth) Reg 1.05A(1)(b).

45 Migration Regulations 1994 (Cth) Reg 1.05A(5).

47 Migration Act 1958 (Cth) Section 140H(1); Migration Regulations 1994 (Cth) div 2.19.

48 See Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018.

49 Migration Regulations 1994 (Cth) div 2.22.

51 Department of Home Affairs, Review of the Temporary Skilled Migration Income Threshold (TSMIT); https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/regional-sponsor-migration-scheme-187/salary-requirements.

52 Department of Home Affairs, The Administration of the Immigration and Citizenship Program, Fourth edition, February 2020; https://immi.homeaffairs.gov.au/programs-subsite/files/administration-immigration-program.pdf, p. 20.

53 The Parliament of the Commonwealth of Australia, Report of the Inquiry into the Business Innovation and Investment Programme (March 2015); https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Migration/BIIP/Report, p. 6.

54 Department of Home Affairs, What are complying significant investments for the Significant Investor Visa; https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/business-innovation-and-investment-188/significant-investor-stream#Eligibility.

55 Department of Home Affairs, What is the Significant Investor visa and Premium Investor visa?; https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/business-innovation-and-investment-188/premium-investor.

56 The Australian Trade and Investment Commission.

58 Australian Bureau of Statistics, Slowing migration for half the states and territories (18 December 2014); https://www.abs.gov.au/ausstats/abs@.nsf/lookup/3101.0Media%20Release1Jun%202014.

59 Australian Bureau of Statistics, Migration Australia, 2017–18, cat. No. 3412.0.

60 Department of Home Affairs, The Hon Alan Tudge MP, Joint media release with the Hon Scott Morrison MP, Prime Minister, the Hon Alan Tudge MP and the Hon Dan Tehan MP – Morrison Government increases regional migration target (26 October 2019); https://minister.homeaffairs.gov.au/davidcoleman/Pages/morrison-government-increases-regional-migration-target.aspx.

61 The China–Australia Free Trade Agreement, which entered into force on 20 December 2015.

62 The Trans-Pacific Partnership, which was formally signed by Australia on 4 February 2016 but has yet to enter into force.