I INTRODUCTION TO THE IMMIGRATION FRAMEWORK

Australia's Migration Programme 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 interests. There is a growing emphasis on skilled migration, targeting migrants with specific skills and abilities that can contribute to the Australian economy. Australia's business visa opportunities are largely centred on an employer-sponsored system, to ensure that new migrants enjoy favourable economic opportunities when entering Australia.

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 (Home Affairs), which includes the entirety of the former Department of Immigration and Border Protection. 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

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. Currently, attention is focused on tailoring migration to respond to the fluctuations of the international economy. The federal government's policy agenda has therefore been dedicated to the relationship between businesses and the supply of labour. Key features of Australia's governance structure allow the executive branch of government considerable discretion as to who is eligible for entry into Australia. Through consultation with key stakeholders, the Australian government allocates annually the number of available places for people wanting to migrate permanently to Australia. For the year 2016–2017, the figure was set at 190,000; however, only 183,608 place were awarded.3 Of the total number, 123,567 places are allocated for the skill stream of the programme, which represents 67.3 per cent of the total migration programme.4 Family migrants, excluding Child visas, account for 47,825 places and 421 places are for special eligibility migrants.5 Additionally, at least 3,400 places are available outside the managed migration programme.6

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 (ABF) (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 (MRT) and the Refugee Review Tribunal (RRT); 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 (MRD) 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.7 Notably, the Minister's power is exercised on a discretionary basis and cannot be compelled.

A combined total of 16,558 lodgements were made to the AAT between 1 July 2017 and 28 February 2018.8 The tribunals had 17,146 cases on hand at 1 July 2017 and 25,254 cases on hand at 28 February 2018.9

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.10

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.11

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 11.12

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.13

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 31 and can stay for up to 24 months, allowing them to engage in short-term study and work. Australia has reciprocal agreements with 43 partner countries and regions. 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. As of March 2018, there are currently no countries that have specified the higher age limit.15

In the 2016–2017 financial year, Home Affairs reported that a total of 211,011 Working Holiday Maker visas were granted. This demonstrates a 1.7 per cent fall compared with 2015–2016.16 When divided up into categories, the Working Holiday (subclass 417) programme saw an overall reduction of 7 per cent compared with 2015–2016. The United Kingdom, Germany, France, Taiwan and South Korea respectively are the top countries of origin for Working Holiday visa grants. The Work and Holiday (subclass 462) programme saw an increase of 25.7 per cent compared with June 2016, mainly because of the new arrangements allowing Work and Holiday applicants to apply for their second year.17

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.18 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 457 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 programme total for the year 2016–2017 was 183,608 places. This consists of 123,567 skilled stream places, 56,220 family stream places and 421 special eligibility stream places.19 There were three main contributor countries – India (21.2 per cent), China (15.4 per cent) and the United Kingdom (9.3 per cent).20

i The skilled stream

The skilled stream accounted for 67.3 per cent of Australia's total migration programme in 2016–2017.21 In the financial year 2016–2017, the federal government reported that the general skilled migration (GSM) programme comprised 54.9 per cent of the skilled stream migration with an outcome of 67,858 grants. The employer-sponsored category comprised 39 per cent of the skilled stream with an outcome of 48,250 grants.22 Of the 48,250 grants, 38,052 places were granted under the Employer Nominated Scheme (ENS) and 10,198 under the Regional Sponsored Migration Scheme (RSMS).23 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 option for immigration who those who make a substantial investment in Australia or own or operate a business.24 The planning level of this programme has remained at 7,260 since 2013, but demand in this category decreased by 74.4 per cent in 2016–2017, with 15,781 applications lodged.25

The government is committed to rebooting the Significant Investor visa programme and to facilitating the migration of high-net-worth individuals in return for investments of A$5 million in complying investments in Australia. It is reported that 1,746 Significant Investor visas were granted between the programme's commencement on 24 November 2012 and 28 February 2017. In 2014, a review was conducted of the Significant Investor visa programme, which forms a part of the BIIP. In response to the review, to enhance the attractiveness of the scheme, the government announced the removal of mandatory investment of A$1.5 million into government bonds and introduced a new visa stream targeting high-net-worth individuals: the Premium Investor visa. Premium Investor visas commenced on 1 July 2015 and form part of the BIIP, allowing applicants who invest A$15 million into specific investments to be eligible for permanent residence after 12 months.

Changes to the Temporary Work (Skilled) 457 visa programme

The subclass 457 visa programme was designed to allow Australian employers to use overseas workers to fill genuine skills shortages in Australia. In the 2017–2018 programme year to 30 September 2017, the programme saw an overall decrease of 41.2 per cent of visas lodged.26 Of the overall 12,864 Temporary Work 457 visa lodgements, 61.8 per cent were lodged for professional occupations, 20.6 per cent were technicians or trade workers and 13.1 per cent were managers.27 The 457 visa programme is also a pathway to permanent residence in Australia. In the 2017–2018 programme year to 30 September 2017, there was a decrease of 17.9 per cent of 457 visa holders granted permanent residence or a provisional visa.28

On 18 April 2017, the Australian government announced numerous substantial changes to skilled migration schemes, including the abolition of the Temporary Work (Skilled) 457 visa programme and its replacement with a completely new Temporary Skills Shortage (TSS) visa in March 2018.29 These changes were announced as part of the government's long-term plan to 'strengthen the integrity and quality' of Australia's temporary and permanent employer-sponsored skilled migration programmes and contains new safeguards that aim to ensure Australian workers are prioritised and not discriminated against.30 While some of these changes do not take effect until March 2018, there has been considerable overhaul that impacts the subclass 457 and employer-sponsored skilled migration visas effective from 19 April 2017. Further changes have been rolled out in the lead up to March 2018 and it is hard to estimate what impact this will have on the numbers of visas granted in the upcoming years.

Significance of the 18 April 2017 reforms

The most recent changes to 457 visas do not affect visa holders whose 457 visa applications were lodged or approved prior to 19 April 2017, especially those whose occupations have now been removed from the eligible occupation lists. However, this means that they are no longer eligible to find a new sponsor to change employers, as no new applications for these occupations will be accepted by Home Affairs. All pending and future applications are subject to the current and impending changes.

These reforms are intended to be in Australia's best interests, in response to the needs of the Australian labour market, specifically to those occupations that are of strategic value to Australia and by providing only those occupations with a pathway to permanent residency.

With these reforms in mind, there is certainly an argument for ongoing consultation with business and relevant stakeholders to enhance economic growth and business innovation.

Previously, businesses could access a diverse range of occupations, provided that they could demonstrate a genuine need for the position within the business to allow them to respond to current market demands. However, under the new reforms, it is very difficult for businesses to plan their future development and progression. There is no certainty as to whether there will be continued access to the critical skills, as the lists are now reviewed every six months and occupations that appear on the Short-Term Skilled Occupation List will not be able to obtain permanent residency.

Occupation lists

The occupation lists, formerly known as the Consolidated Sponsored Occupation List (CSOL) and the Skilled Occupations List (SOL), underpin a range of visas, including the subclass 457 visa. As of 19 April 2017, the CSOL and SOL were updated and renamed as the Short-Term Skilled Occupation List (STSOL) and the Medium- and Long-Term Strategic Skills List (MLTSSL) respectively.31 These lists have been dramatically reduced in size from 651 occupations to just 435, with another 59 occupations having caveats placed on them.32 There are three categories of caveats that are applicable to certain occupations: first, Group A caveats, which exclude certain occupations from the subclass 457 programme unless the applicant has two years' relevant work experience; Group B caveats, which exclude certain occupations under the subclass 457 programme unless the position is located in regional Australia;33 and Group C caveats, which apply to specific occupations (e.g., 'Marketing Specialist' (ANZSCO 225113), which excludes positions based in a front-line retail setting, positions that predominantly involve direct client transactional interaction on a regular basis, positions with companies than have an annual turnover of less than A$1 million, and positions that have a nominated base salary of less than A$65,000).34 These caveats have been put in place to ensure that the subclass 457 visa programme is used to fill genuinely skilled vacancies, rather than semi- or low-skilled positions at the expense of the Australian workforce. The STSOL will be reviewed and updated every six months based on advice from the Department of Employment, and the MLTSSL is subject to further review based on outcomes from the Department of Education and Training's review.

Temporary Skills Shortage visa

When the 457 visa programme transforms into the TSS visa in the first half of March 2018, eligible applicants will be able to apply for this temporary working visa via two distinct streams. The short-term stream grants sponsored applicants up to two years of work rights in an occupation on the STSOL, and the medium-term stream grants sponsored applicants up to four years of work in an occupation that appears on the MLTSSL.35 Once the TSS visa is effective, applicants will need to have been on their 457/TSS visa for three years with the same employer in a nominated occupation that is on the MLTSS only, before applying for a subclass 186 visa, unless the applicant is able to access transitional arrangements.

Labour market testing

Labour market testing (LMT) was introduced by the Migration Amendment (Temporary Sponsored Visas) Act 2013 to strengthen the integrity of the 457 visa programme and to ensure that it is only accessed when there are genuine skills shortages. From 23 November 2013, standard business sponsors seeking to sponsor foreign employees on 457 visas may be required to show evidence of conducting LMT, depending on their nominated occupations. This provision was further strengthened in the April 2017 reforms, as the Department of Immigration and Border Protection will be more stringent in its assessment.36

While there are no mandatory periods for conducting LMT, employers are currently required to provide information about all advertising or other recruitment efforts undertaken within the 12 months prior to lodging the nomination application. For a nomination application to be successful, 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 provided in the following circumstances:

  1. where there will be conflict with Australia's international trade obligations (eligibility for this exemption is very restricted);
  2. when major disaster occurs in Australia (exemption can only granted by the Minister); and
  3. occupation-based exemptions: currently all occupations at Skill Levels 1 and 2 are exempt. Skill Level 1 occupations have a level of skill commensurate with a bachelor's degree or higher qualification (Australian Qualifications Framework (AQF)); at least five years' relevant experience may substitute for a formal qualification. Skill Level 2 occupations have a level of skill commensurate with at least AQF associate degree, advanced diploma or diploma; at least three years' relevant experience may substitute for a formal qualification.

Once the TSS visa is in effect, it is anticipated that LMT will be mandatory for all employers regardless of the nominated occupation, unless an international obligation applies.

iii Exemptions and favoured industries

Specific exemptions for select individuals and industry groups exist as part of Australia's corporate migration policy. These exemptions are tailored for key business stakeholders, especially in Australia's core resource industries, such as coal and gas.

Enterprise Migration Agreements

In 2012, the first Enterprise Migration Agreements (EMAs) were approved by the federal government. EMAs are custom-designed migration programmes that address skill shortages in Australia's resource centre and are negotiated between government and project owners.37

Previously, individual labour agreements were available in Australia, allowing specific small-scale negotiations to take place between business owners and government. EMAs, however, are designed to be a straightforward process, allowing businesses to negotiate a migration programme on a much larger scale.

To be eligible for an EMA, projects must have capital expenditure of more than A$2 billion and a workforce of at least 1,500 workers.38 An EMA proposal will also be required to provide a comprehensive training programme to show, most importantly, how the company is committed to reducing its reliance on foreign labour over time. The standard training benchmarks imposed on sponsors under the ENS will also be imposed, as well as additional training requirements.

The effect of an approved EMA is to override the requirements applicable to applicants under the subclass 457 visa provision, especially in relation to English language, age and skill. This affords considerable discretion, first to the industry leaders in proposing a particular 'type' of migrant, and second to the federal government, which makes the final decision as to whether an agreement is approved. These two parties, in proposing and approving EMAs, therefore have an exclusive say in determining the composition of a select group of skilled migrants.

Other changes affecting the subclass 457 visa scheme between 1 July 2012 and 19 April 2017 include the following:

  1. increase of market salary rate exemption threshold to A$250,000;
  2. removal of occupation-based English-language exemption; all applicants must meet the English-language requirement or otherwise be exempt. Applicants are exempt from the English-language requirement in the following circumstances:39
    • the applicant is a holder of a valid passport from the United Kingdom, the United States, Canada, New Zealand or the Republic of Ireland;
    • the applicant has completed at least five years of full-time study in a secondary or higher education institution where the instruction was delivered in English;
    • the applicant has been granted the registration, licence or membership required for the occupations and has demonstrated a level of English language competency for the grant of the registration, licence or membership that is equivalent to better than the level required by the English test.
  3. businesses that have operated for less than 12 months (start-up businesses) are now subject to restricted terms of sponsorship;40 and
  4. Condition 8107, to which 457 visa holders are subject, has been expanded to require visa holders to commence work within 90 days of arriving in Australia. Condition 8107 also extends the period within which a 457 visa holder can seek a new sponsored employment, this was changed from 90 days to 60 days for any 457 visas granted on, or after 19 November 2016.41

The above changes were introduced by the previous government before the federal election on 7 September 2013 and under the Liberal government's policy reforms to temporary and permanent skilled migration programmes. Some of these changes have been widely criticised by the coalition government and industry leaders as having been hastily introduced with a lack of essential consultation and evidentiary support to justify the changes. Further, the unprecedented increase in visa application fees, brought about by structural changes (with charges for additional applicants and for subsequent temporary applications per applicant) on top of the doubling of the primary visa application fee, affects visa applicants severely, particularly 457 visa applicants and employers. There is still considerable ambiguity and uncertainty about the upcoming changes in this area, with much the criticism levelled at the reduction of pathways for permanent residency via skilled work visas.

Anticipated changes affecting the 457 visa scheme (and then TSS) to come into effect between 1 July 2017 and late March 2018 include:

  1. the subclass 457 programme will no longer be excluded from standard policy on penal checks (a police check from every country the applicant has lived in for a period of 12 months or more (cumulatively) in the past 10 years);
  2. possible further adjustments to the STSOL and MLTSSL;
  3. expansion of client cohorts for whom mandatory skills assessments are required;
  4. major changes to the training benchmarks for employers nominating a worker for a TSS visa (the employer will be required to pay a contribution to the Skilling Australians Fund, ranging from A$1,200 per year or part year for small businesses (those with annual turnover of less than A$10 million) and A$1,800 per year or part year for other businesses); and
  5. all TSS applicants will be required to meet the minimum English language-level requirements as there will be no exemptions for applicants whose salary is over A$96,400.

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'.42 Work permits in Australia are most frequently granted under employer-sponsored visas. The Temporary Work (Skilled) visa (subclass 457) and the ENS visa (subclass 186) are the two most common options for business wishing to sponsor an overseas worker.

Subclass 457 visa programme (to be replaced by the TSS visa programme by mid 2018)

This temporary visa currently 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 STSOL or the MTLSSL. The nominated occupation must be STSOL or the MLTSSL, the occupation lists will be reviewed and updated on a six-monthly basis. Nevertheless, it should be noted that STSOL and MTLSSL can be changed at any given time by issuing a new legislative instrument. The application process for the subclass 457 visa and the subsequent TSS visa both have three stages.

Sponsorship

The employing business first needs to be approved as a standard business sponsor. To be approved, the business has to show that it is a lawfully operating business that meets the prescribed training benchmark (either 1 per cent or 2 per cent of the payroll of the business) if the business has been trading for 12 months or more. Currently, if the business has been operating for less than 12 months, only an 18-month standard business sponsorship (SBS) will be awarded.

The anticipated changes under the TSS visa will include various changes, including a five-year SBS approval for all businesses (start-ups or well-established businesses) and the introduction of a levy on sponsoring businesses, which will be priced at either A$1,200 or A$1,800 per year per employee, and which must be paid up front and in full at the time of nomination.43 The levy will replace the current training benchmarks, with revenue generated under the scheme contributing towards the new Commonwealth Skilling Australians Fund, which 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.

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 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.44

Visa

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

  1. skill: the applicant must show they have the requisite skill for the nominated occupation. In certain circumstances, especially in relation to trade occupations, applicants may be required to show a positive skills assessment from the relevant skill assessment body;
  2. work experience: once the TSS visa enters into effect in 2018, all applicants must demonstrate at least two years' work experience relevant to the particular occupation;
  3. English language requirement: the primary applicant must meet the English requirement unless exempt;45 and
  4. registration or licensing: for certain occupations, while a skills assessment may not be required, registration is needed to practise or work in that occupation. Subclass 457 visa holders must obtain any mandatory registration, licence or membership within 90 days of the visa grant.46 Often to qualify for registration in that occupation, the applicant may need to show proficiency in English.

ENS visa (subclass 186)

Under the reforms to Australia's permanent employer sponsored skilled migration programme, the ENS programme and rules governing its eligibility are in transition. Currently, this programme is a permanent 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.

Temporary Residence Transition stream

The Temporary Residence Transition (TRT) stream is currently geared towards applicants who have been on a subclass 457 visa for at least two years with the same employer and who intend to be sponsored by this current employer of the subclass 186 visa. It is anticipated that the period applicants are required to be on a subclass 457 before applying for permanent residency under a subclass 186 will be extended to three years once the TSS visa is in effect.47

Once the TSS visa enters into effect in 2018, applicants must also meet the following requirements or show that they are exempt:

  1. applicants' nominated occupation must be on the MLTSSL or STSOL;48
  2. applicants must be less than 45 years of age; and
  3. applicants must have a competent level of English.49

Direct Entry stream

The Direct Entry stream is designed for applicants who are currently not on the subclass 457 visa or who have never worked (or only worked briefly) in Australia.

Once the TSS visa enters into effect in 2018, applicants must meet the following requirements or show that they are exempt:

  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 at least three years of experience relevant to the particular occupation; and
  4. the applicant is required to have a positive skills assessment from a relevant skills assessment body.

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 50 years of age, unless the relevant labour agreement provides for persons over the age of 50;
  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.

Further changes to the ENS requirements to be implemented once the TSS visa enters into effect in 2018 are anticipated to include:

  1. the English language requirement being raised;
  2. applicant age at the time of application being lowered to 45 years of age;
  3. applicants must be paid in accordance with Australian market salary rate and meet the temporary skilled migration income threshold;50
  4. limitation of the ENS programme to occupations on the MLTSSL only; and
  5. stricter regulation of sponsors to ensure their obligations under the Migration Regulations 1994 are met.51

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 on a full-time basis and this is renewable;
  3. in 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 Immigration and Border Protection; and
  5. the employer has compiled with relevant workplace laws.

'Exceptional circumstances' waivers are no longer available in relation to the ENS and the previous discretionary exemptions relating to age, skills and English language requirements for permanent business migration were repealed on 1 July 2012 in favour of stricter rules and again in 2017; therefore, the only categories of exemption currently available for the ENS programme are as follows.52

Age

Age exemptions are available to applicants who:

  1. are nominated as an academic by an Australian university or 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 threshold53 for each year over that period; or
  3. are nominated as a medical practitioner (ANZSCO Minor Group 253) after working for their nominating employer for at least four years as a subclass 547 or 422 visa holder and two of those years were located in regional Australia.
Skills and qualifications

Skill exemptions apply only to the Direct Entry stream and require that an applicant:

  1. be nominated as an academic by an Australian university or a researcher by an Australian government agency;
  2. have nominated earnings at least equivalent to the current Australian Taxation Office top individual income tax rate;54 or
  3. have been working for their sponsor as the holder of a subclass 444 or 461 visa in their nominated occupation for the past two years.
English language

To be exempted from the English-language requirement, an applicant must:

  1. have nominated earnings at least equivalent to the current Australian Taxation Office top individual income tax rate; or
  2. be applying through the TRT stream and have completed at least five years of full-time study in a secondary or high education institution where instruction was delivered in English.

Primary applicants exempted from the English language requirement are still required to pay the second instalment of the visa application charge, which currently stands at A$9,800.55

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 1994.56

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 23.57

Subclass 187 visa application

The applicant needs to be under 50 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 50 years of age at the time of lodgement unless exempt. As of 1 July 2017, a maximum age requirement of 45 at the time of application applies to the Direct Entry stream. A maximum age requirement of 50 at the time of application will continue to apply for TRT stream applicants until the introduction of the new ENS and RSMS reforms take effect in mid 2018.
  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 visa and that they have applied their skills in their nominated occupation for at least two years. Once the reforms take effect, this will be extended to at least three years.
  3. English language: for the Direct Entry stream, applicants must have competent English 'unless exempt'. This is defined as achieving a test result of at least six in each of the four test components in the International English Language Testing Systems (IELTS) examination, at least a 'B' in each of the four test components of an occupational English test (OET), a score of at least 50 in each test component of the Pearson Test of English Academic (the PTE Academic), a score of at least 169 in the 'Cambridge English: Advanced' (CAE) test, or prescribed results for each of the four test components of the Test of English as a Foreign Language Internet-Based Test (TOEFL iBT).58
  4. TRT stream: applicants must show test results of at least five in each of the four test components in the IELTS examination, at least a 'B' in each of the four OET test components, a score of at least 36 in each component of the PTE Academic, a score of at least 154 in the CAE, or prescribed results for each of the four test components of the TOEFL iBT.

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 IELTS examination or equivalent. Exemptions to the above requirements are only available in limited circumstances.

Labour market regulation

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.

Obligations of sponsors

Under the subclass 457 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 457 visa holder are no less favourable than those provided to Australian citizens or permanent residents performing equivalent work in the same workplace. The nature and duration of the obligations are as follows:59

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 last sponsored person ceases with the sponsor
Obligation to provide records and information to the Minister Starts at approval of sponsorship until two years after last sponsored person
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 401, 402, 408, 416 and 420 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 ceased and no sponsored persons in relation to the sponsor

Administrative 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 medial 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 Immigration and Border Protection will commence publishing details relating to sponsors who are sanctioned for failing to meet their obligations under the Migration Regulation 1994 and related legislation.60 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.61 The Ministers' delegate will assess this request against the following prescribed criteria:62

  1. whether Australia's interests would be significantly affected if the bar were not waived;
  2. whether a substantial trade opportunity would be lost if the bar were not waived;
  3. whether there would be a significant detriment to the Australian community if the bar were not waived;
  4. whether the person's inability to be a sponsor would significantly damage Australia's relations with the governance of another country; and
  5. if a delegate has previously refused to waive the bar, whether the current delegate is satisfied that the circumstances in which the previous delegate took the criteria above into account have changed substantially.

Criminal and civil penalty provisions

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 system63 that the foreign national worker was not in breach of the work-related visa.

Rights and duties of sponsored employees

The primary 457 visa holder must be paid market salary rates by the sponsor and the market salary must be equal of 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.64 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 457 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 457 visa holders responsible for healthcare costs for themselves and their respective families. Breach of these conditions may result in cancellation of the visa.

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 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 Immigration and Border Protection points out that this programme is designed 'to attract high quality investors and entrepreneurs to invest in Australia'.65 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). The business innovation and investment (provisional) visa (subclass 188) comprises four streams.

Business Innovation stream

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 two requirements: they must have owned a business with a turnover of at least A$500,000 for two of the past four years and have net personal and business assets of at least A$800,000.

Investor stream

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;

• managed 'eligible investments' of at least A$1.5 million in value; and

• a significant investor stream.

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 their 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 40 days of every year, or part thereof, in which the applicant holds the provisional visa.

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:66

  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

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.67 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 Austrade 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. Australian securities exchange-listed assets;
  2. Australian government or semi-government bonds or notes;
  3. corporate bonds or notes issued by an Australian exchange-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 contribution.

ii General skilled migration

The GSM programme is points-based and does not require the applicant to be sponsored by an employer, state or territory government.

There are three stages of this application; the applicant must:

  1. submit an EOI;
  2. be selected by a state, an employer or by the Department of Home Affairs to apply for a visa; and
  3. submit the visa application.

To access the GSM programme, applicants must be 50 years of age or under at the time of invitation and have competent English.

Further requirements include the following:

  1. applicants must have an occupation listed on the most current and 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 pass mark of the points test.

On 22 September 2015, the Assistant Minister for Australian Immigration and Border Protection set a cap for, and ceased, some offshore GSM visas. Any applications for the Skilled – Independent (subclass 175), Skilled – Sponsored (subclass 176) and Skilled – Regional Sponsored (subclass 475) visas not finalised by this date are taken not to have been made.68

The significance of Public Interest Criterion 4020

This provision was enacted on 2 April 2011 to give Home Affairs the power to refuse a visa application of a prescribed class on the basis of false or misleading information having been provided in the application. Those applicants who have their visas refused under Public Interest Criterion 4020 (PIC 4020) on the basis of bogus, false or misleading documents or information will be subject to a three-year ban that may prevent the grant of a further temporary visa. A waiver can be provided if it can be demonstrated that there are compelling or compassionate circumstances affecting the interests of an Australian citizen or permanent resident. In 2013, the prescribed classes of visa were expanded to include skilled migration, business, temporary visitor, student, and family visas. Further provisions have been added to PIC 4020 requiring applicants to satisfy the identity requirement to be granted a visa. Where there has been a refusal of visa on identity grounds under PIC 4020 on the basis of bogus or false or misleading identity information and documentation, the period of exclusion will be 10 years.69 This requirement is not subject to a waiver, but decisions to refuse a visa application on PIC 4020 grounds may be reviewed by the AAT. In cases where decisions are affirmed by the AAT, judicial review may be available.

VI OUTLOOK AND CONCLUSIONS

Australia's immigration framework reflects a patchwork of ideologies; the strands that comprise its operation have been incrementally introduced throughout the past 60 years to address varied policy goals and targets. As the most commonly used avenue for corporate immigration, the 457 visa programme has been the subject of consistent review since its introduction under the 1996 Howard government. This is reflective of the Australian government's commitment to maintaining a responsive visa scheme that complements the Australian labour market. The most recent and most extensive reforms to the temporary and permanent sponsored skilled migration programmes began on 18 April 2017, with the purpose of further safeguarding Australian jobs and maintaining the integrity of the programmes. The TSS visa programme will replace the highly politicised subclass 457 visa programme and will effectively generate increased government revenue and tighten the scope for skilled workers to gain permanent residency.

The focus of Australia's migration programme has changed significantly since 1945. Whereas the original aim was to build the population for defence purposes, attention has shifted to the economy and emphasis is now on temporary and permanent skilled migration to supplement Australia's labour market. This reflects the Liberal government's commitment to promoting business, free trade agreements and faster employer-sponsored and investor visa processing, as well as eliminating union red tape for Australian business while meeting our international trade obligations. Australia's corporate migration streams will continue to undergo reform over the next 12 months, with the added objective of safeguarding Australian jobs and promoting domestic job skills and growth.70 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 and the federal government has recently negotiated free trade agreements with China71 and other nations on the Pacific Rim.72

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 business migration.


Footnotes

1 Anne O'Donoghue is the managing partner, Tamanna Hashemee and Anwen Price are qualified lawyers at Immigration Solutions Lawyers.

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

3 Department of Immigration and Border Protection, 2016–17 Migration Programme Report; www.homeaffairs.gov.au/ReportsandPublications/Documents/statistics/report-on-migration-program-
2016-17.pdf, page 1.

4 Ibid.

5 Ibid.

6 Ibid.

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

8 Administrative Appeals Tribunal Migration and Refugee Division Caseload Report Financial Year to 28 February 2018; www.aat.gov.au/AAT/media/AAT/Files/Statistics/MRD-Detailed-Caseload-Statistics-
2017-18.pdf.

9 Ibid.

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

11 Migration Act 1958 (Cth) Section 48.

12 Administrative Appeals Tribunal (see footnote 8).

13 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);
www.homeaffairs.gov.au/trav/visa-1/417-.

15 Department of Home Affairs, Work and Holiday visa (subclass 462);
www.homeaffairs.gov.au/trav/visa-1/462-.

16 Department of Immigration and Border Protection, Working Holiday Maker visa program report (30 June 2017); www.homeaffairs.gov.au/ReportsandPublications/Documents/statistics/working-holiday-
report-jun17.pdf.

17 Ibid.

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

19 Department of Immigration and Border Protection, 2016–17 Migration Programme Report; www.homeaffairs.gov.au/ReportsandPublications/Documents/statistics/report-on-migration-program-
2016-17.pdf, page 1.

20 Ibid.

21 Ibid.

22 Ibid.

23 Ibid.

24 Ibid.

25 Ibid.

26 Department of Immigration and Border Protection, Subclass 457 quarterly report: quarter ending at 30 September 2017; www.homeaffairs.gov.au/ReportsandPublications/Documents/statistics/457-quarterly-
report-300917.pdf.

27 Ibid.

28 Ibid.

29 Department of Home Affairs, Abolition and replacement of the 457 visa – Government reforms to employer sponsored skilled migration visas; www.homeaffairs.gov.au/trav/work/457-abolition-replacement.

30 Ibid.

31 Department of Home Affairs, Fact sheet one: Reforms to Australia's temporary employer sponsored skilled visa programme; www.homeaffairs.gov.au/WorkinginAustralia/Documents/commencement-of-tss-fact-
sheet-1.pdf.

32 Ibid.

33 Regional Australia excludes Sydney, Newcastle, Wollongong, Melbourne metropolitan area, greater Brisbane area and the Gold Coast, as well as Perth and surrounding area; www.homeaffairs.gov.au/trav/visa-1/187-?modal=/visas/supporting/Pages/187/eligible-postcodes-in-regional-australia.aspx.

35 See footnote 29.

36 Ibid.

37 Department of Immigration and Border Protection, Fact sheet – Enterprise migration agreements;
https://www.homeaffairs.gov.au/about/careers-recruitment/enterprise-agreement.

38 Ibid.

39 Migration Regulations 1994 (Cth); www.legislation.gov.au/Details/F2016C00510.

40 Prior to 2013, a standard validity period of three years applied to all approved business sponsors. In 2013, start-up businesses were limited to an approved sponsorship term of 12 months. Following further changes in 2015, start-up businesses will now be approved for an initial term of 18 months' sponsorship eligibility and all 457 visas granted will be valid for 18 months. The standard validity period of all other approved business sponsors has been increased to five years.

41 Minister for Home Affairs and Minister for Immigration and Border Protection, Upcoming change to the subclass 457 visa; www.minister.homeaffairs.gov.au/peterdutton/2016/Pages/457-visa-changes.aspx.

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

43 The levy amount will depend on the turnover of the business.

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

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

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

47 Department of Immigration and Border Protection, Fact sheet two: Reforms to Australia's permanent skilled migration programme; www.homeaffairs.gov.au/WorkinginAustralia/Documents/reforms-australia-
permanent-employer-sponsored-migration-programme.pdf.

48 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,

49 English language requirements will become a score of IELTS 6.0 in each component or the equivalent.

50 Currently A$53,900.

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

52 Department of Immigration and Border Protection, Permanent Employer Sponsored Programme: Age, Skill and English requirements and exemptions; www.homeaffairs.gov.au/trav/work/work/age-skill-and-
english-language-exemptions-permanent-employer-sponsored-programme.

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

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

55 Department of Home Affairs, Fees and charges for visas; www.homeaffairs.gov.au/Trav/Visa/Fees#.

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

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

58 See footnote 29.

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

60 See footnote 29.

61 Migration Regulations 1994 (Cth) div 2.22.

62 Ibid., reg 2.101.

63 Visa Entitlement Verification Online (VEVO); www.homeaffairs.gov.au/busi/visas-and-migration/visa-entitlement-verification-online-(vevo).

64 Department of Home Affairs, Review of the Temporary Skilled Migration Income Threshold (TSMIT); www.homeaffairs.gov.au/ReportsandPublications/Documents/reviews-and-inquiries/tsmit_review_
report.pdf, p. 18.

65 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.

66 Department of Home Affairs, What are complying significant investments for the Significant Investor Visa; www.homeaffairs.gov.au/lega/lega/form/immi-faqs/what-are-complying-investments.

67 Department of Home Affairs, What is the Significant Investor visa and Premium Investor visa?; www.border.gov.au/Lega/Lega/Form/Immi-FAQs/what-is-the-significant-investor-visa.

68 Department of Home Affairs, Workers; www.homeaffairs.gov.au/Trav/Work/Work.

69 Affects all applications in prescribed visa classes lodged from 22 March 2014.

70 Peter Dutton MP, Minister for Immigration and Border Protection, 'Joint media release with the Hon. Malcolm Turnbull MP, Prime Minister – Putting Australian workers first' (18 April 2017); minister.homeaffairs.gov.au/peterdutton/2017/Pages/putting-australian-workers-first.aspx.

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

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