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 and social interests. 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. 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.

The size and composition of Australia's migration programme 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 programme 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 programme has been set at a capped ceiling of 190,000 places since 2012 to 2013; however, only 162,417 places were awarded in 2017 to 2018.3 Of the total number, 111,099 places are allocated for the skill stream of the programme, which represents 68.4 per cent of the total migration programme.4 Family migrants, excluding child visas, account for 47,732 places, and 236 places are 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 (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.6 Notably, the Minister's power is exercised on a discretionary basis and cannot be compelled.

A combined total of 23,596 lodgements were made to the AAT in the Migration Division between 1 July 2018 and 28 February 2019.7 The tribunals had 31,058 cases on hand at 1 July 2018 and 37,231 cases on hand at 28 February 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 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.13 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.

Changes to the Working Holiday visa programme implemented in November include:14

  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.

In the 2017–2018 financial year, the Department of Home Affairs reported that a total of 210,456 Working Holiday Maker visas were granted. This demonstrates a 0.3 per cent fall compared with 2017–2018.15 When divided up into categories, the Working Holiday (subclass 417) programme saw an overall reduction of 3.3 per cent compared with 2016–2017. 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'.16 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 are the top countries of origin for Working Holiday visa grants. The Work and Holiday (subclass 462) programme saw an increase of 16.2 per cent compared with June 2017, 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 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 programme total for the year 2017-2018 was 162,417 places. This consists of 111,099 skilled stream places, 47,732 family stream places and 236 special eligibility stream places.19 There were three main contributor countries – India (20.5 per cent), China (15.5 per cent) and the United Kingdom (8.4 per cent).20

i The skilled stream

The skilled stream accounted for 68.4 per cent of Australia's total migration programme in 2017–2018.21 In the financial year 2017–2018, the federal government reported that the general skilled migration (GSM) programme comprised 61.3 per cent of the skilled stream migration with an outcome of 68,111 grants. The employer-sponsored category comprised 32 per cent of the skilled stream with an outcome of 35,528 grants.22 Of the 35,528 grants, 29,307 places were granted under the Employer Nominated Scheme (ENS) and 6221 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 increased by 5.8 per cent in 2017–2018, with 16,816 applications lodged compared to 15,888 applications made in 2016-17.25

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.

Abolishment of 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

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 2018.27 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.28 It was identified that the 457 visa programme is no longer meeting Australia's labour market and economic needs.

Introduction of the Temporary Skills Shortage 482 visa programme

On 18 March 2018, the subclass 457 programme was replaced by the new Temporary Skill Shortage (TSS) visa. The TSS programme has three distinct streams under which eligible applicants can submit an application Under the TSS programme, eligible applicants will be able to apply for this temporary working visa via three distinct streams: the short-term stream grants sponsored applicants up to two years of work rights in an occupation on the Short-Term Skilled Occupation List (STSOL), the medium-term stream grants sponsored applicants up to four years of work in an occupation that appears on the Medium- and Long-Term Strategic Skills List (MLTSSL),29 and the labour agreement stream allows skilled workers to be sponsored by employers who have a formal agreement in place with the Australian government. This latter stream caters for exceptional circumstances where there is a demonstrated need that cannot be met in the Australian labour market and standard visa programmes are not available.

The introduction of the TSS programme has also reduced pathways available 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 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).

Grandfathering arrangements

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.

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 482 visa. As of 19 April 2017, the CSOL and SOL were updated and renamed as the STSOL and the MLTSSL respectively.30 These lists have been dramatically reduced in size from 651 occupations to just 508.31

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. Standard business sponsors seeking to employ foreign employees under the 457 visa programme were required to conduct LMT for a small number of occupations. This provision was further strengthened in the April 2017 reforms. The LMT requirements under the TSS visa programme were finalised in August 2018. 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 following information:

  1. the title or a description of the position;
  2. the skills or experience required for the position;
  3. the name of the employer or the recruiter placing the adverts; and
  4. the salary for the position if the 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.

International trade obligations of Australia that have been determined to be obligations where it would be inconsistent under Australia's agreement with the 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 WTO GATS and bilateral free trade agreements).

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, who is transferred by that business lawfully operating in Australia to fill a vacancy in said business. Intra-corporate transferees are a broad category of entrant, and can be either an executive, senior manager or specialist.

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 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 a small business, while entities with a turnover of A$10 million per year are defined to be a large business.

The levy payable for TSS 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 186 and RSMS 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.

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'.32 Work permits in Australia are most frequently granted under employer-sponsored visas. The Temporary Work (Skilled) visa (subclass 457), Temporary Skill Shortage (subclass 482) visa and the ENS visa (subclass 186) are the two most common options for business wishing to sponsor an overseas worker.

Subclass 482 (TSS) visa programme

This temporary 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 STSOL or the MTLSSL. The nominated occupation must be STSOL or the MLTSSL with the occupation lists reviewed and updated on a six- to 12-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 TSS involves three stages.

Sponsorship

The employing business first needs to be approved as a standard business sponsor. As a prerequisite, the business must be operating lawfully and not have any adverse information recorded against it. All business sponsors (including start-ups companies and sponsors that are provided with accredited status) are now provided with a five-year SBS 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 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.33

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: 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;34
  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. TSS visa holders must obtain any mandatory registration, licence or membership within 90 days of the visa grant.35 Often to qualify for registration in that occupation, the applicant may need to show proficiency in English; and
  5. character: the applicant must provide police clearance certificates for any country resided in for at least 12 months in the last 10 years.

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;36
  4. the ENS programme was limited to occupations on the MLTSSL only; and
  5. the stricter regulation of sponsors was introduced to ensure their obligations under the Migration Regulations 1994 are met.37

Temporary Residence Transition stream

The Temporary Residence Transition (TRT) stream is geared towards applicants who have been on a subclass 482 or 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 482 visa for at least three of the four years prior to the 186 nomination application. If the applicant held (or had applied for and were later granted) a 457 visa on 18 April 2018, they must have worked full time on the 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;38
  2. applicants must be less than 45 years of age; and
  3. applicants must have a competent level of English.39

Direct Entry stream

The Direct Entry stream is designed for applicants who are currently not on the subclass 482 (or 457) visa or who have never worked (or only worked briefly) in Australia.

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 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 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 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.40

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 threshold41 for each year over that period;
  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; or
  4. are applying through the TRT stream and are under 50 years of age and their 482 visa was lodged before 18 April 2017.

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;42 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$9,800.43

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

Subclass 187 visa application

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 late granted) 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: 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, a score of at least 50 in each test component of the Pearson Test of English Academic, a score of at least 169 in the 'Cambridge English: Advanced' test, or prescribed results for each of the four test components of the Test of English as a Foreign Language Internet-Based Test.46

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 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 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 certain costs associated with the sponsorship, nomination and recruitment of the foreign worker from the visa holder. 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 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

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.48 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 The Ministers' delegate will assess this request against the following prescribed criteria:50

  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.

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 system51 that the foreign national worker was not in breach of the work-related visa.

Rights and duties of sponsored employees

The primary 482 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.52 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 482 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'.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). The business innovation and investment (provisional) visa (subclass 188) comprises five 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 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 had 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

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

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: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

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. 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.

Entrepreneur stream

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 comply 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 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 45 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.

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.

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.58 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. 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 extensive reforms – the abolishment of the subclass 457 visa and introduction of the TSS visa – highlight the Liberal government's aim of further safeguarding Australian jobs and maintaining the integrity of the programmes. This purpose was evident in a recent report59 by the Senate's Legal and Constitutional Affairs Committee that investigated the effectiveness of the temporary skill visa system in targeting genuine skill shortages. The Committee offered a number of recommendations, suggesting that the year 2020 will see compliance obligations strengthened, LMT tightened and the TSMIT increased.

In contrast to the restrictive TSS visa programme, 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 China60 and other nations on the Pacific Rim.61

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

1Anne O'Donoghue is a principal, Jenny Nguyen is a paralegal, and Taraneh Arianfar and Syera Rehmani are solicitors at Immigration Solutions Lawyers.

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

3Department of Immigration and Border Protection, 2019-20 Migration Programme Report;
https://www.homeaffairs.gov.au/research-and-stats/files/report-migration-program-2017-18.pdf, page 3.

4ibid.

5ibid.

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

7Administrative Appeals Tribunal Migration and Refugee Division Caseload Report Financial Year to 28 February 2019; https://www.aat.gov.au/AAT/media/AAT/Files/Statistics/.MRD-detailed-caseload-statistics-2018-19.pdf.

8ibid.

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

10Migration Act 1958 (Cth) Section 48.

11Administrative Appeals Tribunal (see footnote 8).

12Constitution 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.

13Department of Home Affairs, Working Holiday visa (subclass 417); https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/work-holiday-417.

14Department of Home Affairs, Working Holiday Maker visa programme (07 November 2018); https://www.homeaffairs.gov.au/news-subsite/Pages/2018-Nov/working%20holiday%20maker%20visa%20program.aspx.

15Department of Home Affairs, Working Holiday Maker visa programme report (30 June 2018); https://www.homeaffairs.gov.au/research-and-stats/files/working-holiday-report-jun18.pdf.

16Department of Home Affairs, Working Holiday Maker visa programme report (31 December 2018), p. 6.

17ibid.

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

19Department of Home Affairs, 2017–18 Migration Programme Report; https://www.homeaffairs.gov.au/research-and-stats/files/report-migration-program-2017-18.pdf, p. 1.

20ibid, p. 6.

21ibid, p. 3.

22ibid, p. 3.

23ibid.

24ibid.

25ibid, p. 13.

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

27Department 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.

28ibid.

29Department of Home Affairs, Temporary Skill Shortage visa (subclass 482); https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-skill-shortage-482.

30Department 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.

31ibid.

32Department of Immigration of Citizenship, quoted in Australian Law Reform Commission (2012), 'Grey Areas: Age Barriers to Work in Commonwealth Laws', p. 198.

33It is anticipated that LMT will become mandatory for all businesses from March 2018.

34Exemptions are based on country of citizenship, nominated occupations, salary level and higher education studies; www.legislation.gov.au/Details/F2017L00835.

35Migration Regulations 1994 (Cth) Sch8, Section 8107.

36Currently A$53,900.

37These include collection of TFNs to ensure employees are paid the nominated salary and publication of sponsors who fail to meet their obligations.

38Applicants 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.

39English-language requirements will become a score of IELTS 6.0 in each component or the equivalent.

40Migration Regulation 1994 (Cth) – Exemptions to Skill, Age and English Language Requirements for Subclass 186 and Subclass 187 Visas) Instrument 2018 – IMMI 18/045 – F2018L00301.

41Currently A$142,000 (2017–2018 rate applied from 1 July 2017).

42Currently A$180,001 (2017–2018 rate applied from 1 July 2017).

43Department of Home Affairs, Fees and charges for visas; www.homeaffairs.gov.au/Trav/Visa/Fees#.

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

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

46See footnote 29.

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

48See footnote 29.

49Migration Regulations 1994 (Cth) div 2.22.

50ibid., reg 2.101.

52Department 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 .

53The 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.

54Department 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.

55Department 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.

56The Australian Trade and Investment Commission.

58Affects all applications in prescribed visa classes lodged from 22 March 2014.

59The Senate, Legal and Constitutional Affairs References Committee, Effectiveness of the current temporary skilled visa system in targeting genuine skill shortages, April 2019.

60The China–Australia Free Trade Agreement, which entered into force on 20 December 2015.

61The Trans-Pacific Partnership, which was formally signed by Australia on 4 February 2016 but is yet to enter into force.