The Corporate Immigration Review: Australia

Introduction to the immigration framework

Australia's immigration 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 to effectively respond to Australia's economic, democratic and social interests. It is aimed at ensuring that migration is beneficial for the current and future economic and social growth of Australia. It has become even more important to promote Australia's economic recovery since the coronavirus pandemic. As a result, there is a growing emphasis on skilled migration, targeting migrants with specific skills and abilities that support sectors in demand under coronavirus circumstances, meet the need of local labour market, alleviate the impact of an ageing population and promote income tax revenue.

During the covid-19 pandemic, Australia's immigration framework has witnessed unprecedented and systematic change; for example, the introduction of new programmes and streams, the implementation of a global talent attraction scheme, the revolutionary merge of different visa subclasses and streams, an incremental allocation of places in certain visa categories, and conspicuous efforts to promote regional development and population growth. The global pandemic has also posed a previously unseen challenge to immigration. Since March 2020, the Australian Border Force has commenced with imposing travel restrictions with limited exceptions for the protection of public health in the Australian community. Inbound travellers who are non-citizens or residents are required to have an approved exemption to arrive in Australia, even though some of them hold a valid visa. Conversely, Australian citizens and permanent residents need permission before they can go overseas. Government announcements are still unclear as to when the restrictions will be removed; however, considering the global covid-19 situation, it is likely that the Australian border will remain closed for the rest of 2021, although recent changes to the legislation now permit Australian citizens and permanent residents to travel to New Zealand and New Zealand citizens to travel to Australia from 22 March 2021.2

i Legislation and policy

Australia's immigration law is governed by two statutes: the Migration Act 1958 (Cth) (Migration Act) and the Migration Regulations 1994 (Cth) (Migration Regulations). These governing principles are administered by the Department of Home Affairs in relation to immigration, citizenship and border control, with functions including policy review and change, visa processing and decision-making.3 A number of agencies, including the Australian Taxation Office, assist the Department of Home Affairs in ensuring the compliance of overseas workers and sponsoring companies.

Australia has a complex immigration system and all foreign nationals require a visa to enter, remain or work in Australia. Australia's long-standing migration legacy 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 annually through the government's budget process and is inevitably informed by political discourse, in particular in 2020 and 2021, driven by the need of economic recovery in the post-covid-19 environment. Key features of Australia's governance structure allow the executive branch of government considerable discretion as to who is eligible for entry into Australia.

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 promote migration of highly skilled workers with experience immediately available to contribute into the Australian workforce as well as enhance the regulatory framework to strengthen compliance by sponsoring businesses.

On 22 March 2021, dual regulation for migration lawyers came to an end, after more than 20 years, due to the enforcement of the Migration Amendment (Regulation of Migration Agents) Act 2020. The deregulation highlights that Australian lawyers are already highly regulated and educated to provide immigration services. Migration lawyers can advise and assist with visa applications without being registered as a migration agent: an Australian practicing certificate will be sufficient.4 Migration lawyers are able to offer migration services without being bound to regulatory frameworks for migration agents. The Department of Home Affairs website has been updated to reflect this information, stating '[l]egal practitioners can provide immigration assistance in connection with legal practice. They no longer need to be registered with the Office of the Migration Agents Registration Authority (OMARA).'5 The Law Council of Australia has been advocating for these changes and states that 'the legal profession in Australia is well regulated and offers effective consumer protection mechanisms', and additionally, 'removal of expensive and inefficient regulation of migration lawyers will improve access to justice by reducing costs for lawyers and therefore their clients'.6 Currently, changes are being made to the administrative processes to encompass the deregulation changes, including the fact that immigration lawyers will need to use their

Australian legal practicing certificate number in the interim until they are provided with a unique identifier, namely a legal practitioner number.7

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 global network of embassies and high commissions. 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 Migration and Refugee Division, Administrative Appeals Tribunal (AAT). The Australian Border Force (a section within the Home Affairs profile) was established on 1 July 2015 and serves as the frontline operational enforcement entity, focusing on investigations, compliance and detention operations. The Border Force is also responsible for the new covid-19 border regulatory imposition of travel restrictions as of 20 March 2020,8 policy making and guiding the approval of exemptions to lift the travel ban.9 A travel exemption must be sought on critical skills sectors or compelling and compassionate grounds by Australian citizens and permanent residents requesting to leave Australia, and for foreign nationals who request to enter Australia despite holding a visa within its validity.10 As mentioned above, as of 22 March 2021, the travel ban imposed on Australian citizens and permanent residents to New Zealand only has been removed because New Zealand is no longer seen as a high-risk covid-19 country; travellers must confirm that they were in Australia at least 14 days before departure.11

Tribunals

The power to conduct a merits-based review of immigration decisions was formerly vested in the Migration Review Tribunal and the Refugee Review Tribunal; however, on 1 July 2015 these tribunals merged with the AAT to create a single body for the independent review of decisions made by the government. The AAT was established under the Administrative Appeals Tribunal Act 1975 (Cth). The AAT's jurisdiction, powers and procedures in relation to the review of immigration decisions are set out in the Migration Act and the Migration Regulations. The Migration and Refugee Division of the AAT has jurisdiction to review a wide range of visa applications, employer sponsorship applications and other decisions relating to migration and temporary visas, as well as protection or refugee visa decisions within Australia. If the AAT affirms a decision made by the primary decision-maker, the applicant still has a right to judicial review where there is an error of law or error of jurisdiction. The decision can be reviewed by the Federal Court or Federal Circuit Court of Australia, or by an application for special leave to appeal to the High Court of Australia.

Ministerial intervention request

A request for ministerial intervention is viewed as the last option, as the results are often uncertain. The request to the Minister for Home Affairs 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.12

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 11.13

The year in review

Covid-19 caused a reevaluation of processes on a global scale. In particular, it caused sweeping changes within the Australian immigration field. The Australian border has been shut to both inwards and outwards-bound travellers, which requires travellers to obtain an approval to lift the restrictions on a certain ground before boarding their flight. The grounds include critical skills and sectors and compelling and compassionate grounds.14 Furthermore, as a result of the pandemic, there have been many changes to visa subclasses to better Australia's economy in addition to concessions for visa holders.

The migration programme total for 2020–2021 is 160,000 places, a decrease of places in comparison to 2019–2020, which saw 140,366 places. This consisted of 79,600 skilled stream places compared to 108,682 in 2019 and 2020, and 77,300 family stream places compared to the previous year's 47,732, 3,000 child places and 100 special eligibility places.15

i Skilled migration: independent and employer sponsored

The temporary and skilled migration programme is a highly valuable part of workforce development in Australia and a vital tool to assist individual businesses experiencing skill shortages, as well as filling skills gaps in the economy in general. The skilled stream accounted for 49.75 per cent of Australia's total migration programme in 2020 to 2021 compared to 69.5 per cent in 2019 to 2020.16 Since the 2019–2020 migration planning levels and despite the covid-19 pandemic, the Department of Home Affairs has kept the migration programme levels the same, at 160,000 places,17 however the numbers within the relevant visa categories were revised to achieve Australia's economic recovery from the impact of covid-19. The 2021 plan demonstrates an increase of places in partner visas (increased 81 per cent to 72,300 places), the global talent programme (tripled to 15,000) and the business innovation and investment programme (BIIP) (nearly doubled to 13,500).18 The federal government and state and territories governments are not issuing invitations to skilled occupations other than those in high demand and those that can be supported in circumstances caused by the coronavirus pandemic outbreak. These exempted occupations usually include medical practitioners, nurses, engineers and highly skilled ICT professionals.

ii BIIP

The BIIP is an immigration option for those who make a substantial investment in Australia or own or operate a business.19 It encourages economic activity by increasing entrepreneurial talent and diversifying business expertise in Australia. The programme has received particular political attention for its role in assisting Australia's post-pandemic economic recovery: the planning level has almost doubled from 6,862 to 13,500.

iii Introduction of the regional skilled migration programme

Australia has identified that to achieve the most benefit from the migration programme, the distribution of skilled migrants must be considered. The strong population growth in Australia's major cities has placed pressure on infrastructure, housing, services and the environment. It is reported that almost 90 per cent of Australia's permanent migrants live in Australia's capital cities, with the majority settling in Sydney and Melbourne.20 It is acknowledged that there is a need for migration to contribute to regional Australia by advancing local economies and meeting skills shortages in regional areas that require greater access to skilled workers.

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

Redefining regional

An updated and broader list of postcodes is now available under the Migration (Regional Areas) Instrument (LIN 20/292) 2020. The expansion of what is defined as regional will help divert attention away from Australia's overpopulated cities. The Department of Home Affairs has listed the following as major cities: Sydney, Melbourne and Brisbane.

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

In addition to the expanded regional definition, the government has introduced a wider range of occupations eligible for regional skilled migration and offers priority processing for all regional areas.21

Skilled work regional (provisional) visa (subclass 491) and skilled employer sponsored regional (provisional) visa (subclass 494)

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

The subclass 494 visa replaces the direct entry (DE) stream of the regional sponsored migration scheme visa (subclass 187) programme. The DE stream visa closed to new applications as from 16 November 2019.

Regional pathway to permanent residency

The two new regional visas above will provide a pathway to a third new (permanent) visa after a period of at least three years' residence and employment in a designated regional area of Australia. Regulations for the Permanent Residence (Skilled Regional) visa (subclass 191) will commence on 16 November 2022. To be eligible to transition to this permanent visa, holders must have lived for at least three years in a designated regional area and have a taxable income at or above $53,900 for at least three years. This permanent visa incentivises migrants to live and work in regional Australia on a permanent basis, with a long-term impact on the growth of the Australian economy.

iv Global talent independent programme

The global talent independent (GTI) programme offers highly skilled migrants who expect to earn above A$153,600 per year a fast-tracked route to permanent residency through priority processing for a distinguished talent visa application subclass 858, which could be granted in a day.22 The applicants must be able to earn above the threshold within Australia in addition to being highly specialised in one of the following 10 key 'high-growth' industry sectors:23

  1. resources;
  2. agri-food and agtech;
  3. energy;
  4. health industries;
  5. defence, advanced manufacturing and space;
  6. circular economy;
  7. digitech;
  8. infrastructure and tourism;
  9. financial services and fintech; and
  10. education.

However, there are flexibilities in the target sectors; for example, there have been successful examples for medical practitioners having been granted a distinguished talent visa under the GTI programme.

Ability to meet the threshold will be assessed on factors such as current salary or the salary of a future job offer. Applicants who have recently graduated or are graduating shortly with a PhD or master's degree in the above-mentioned industry sectors are also able to apply. However, since 20 January 2021, applicants that have a master's or bachelor's honours degree will not be eligible for the GTI programme solely based on their academic qualifications.

The government plans to focus on this visa stream for its economic recovery plan, and is seeking to attract the 'best and brightest' to Australia.24 Applicants will be prioritised as they will be given a global talent identifier and guided by a Department of Home Affairs contact to receive the most efficient service.

On 14 November 2020, the Department repealed the onshore version of distinguished talent subclass 124 and merged it with the existed subclass 858. Applicants to the distinguished talent scheme must now all apply for subclass 858 regardless of their location at the time of application – the merge facilitates applicants and their joining immediate family members to combine in one application while being based in different countries.25

Amendments to the programme have been made to include the endorsement 'Prime Minister's Special Envoy for Global Business and Talent Attraction', which demonstrates the government's commitment to attracting global talent.26 Furthermore, this visa category, in particular the endorsement, has been transformed into a 'whole-of-government effort to attract high-value enterprises and exceptionally talented individuals to Australia to help turbocharge our economic recovery from Covid-19, boost our national resilience and drive competitiveness'.27 It is also aimed to 'help transform Australia into a more powerful magnet for marquee enterprises and exceptional individuals . . . and reap the benefits of their capital, talent, ideas and global networks'.28 The Prime Minister's Special Envoy is a multi-agency government initiative and reportable to seven different ministerial portfolios or ministers. The Taskforce is hosted by the Department of Home Affairs and the Trade and Investment Commission, with partner departments including the Treasury, the Department of Foreign Affairs and Trade, the Department of Industry, Science, Energy and Resources, the Department of Education, Skills and Employment, the Defence Force, the Prime Minister and cabinet, state and territory governments, the Senate Fintech Group and parliamentary committees. The Prime Minister's Special Envoy can directly nominate suitable exceptionally talented candidates on behalf of the Taskforce to apply for a global talent visa if they are likely to make a significant contribution to the Australian economy.

Employer sponsorship

i Temporary skill shortage (subclass 482) visa programme

The temporary skill shortage (TSS) visa allows Australian companies to nominate foreign workers in skilled occupations for up to two or four years, depending on whether the nominated occupation falls on the short-term skilled occupation list (STSOL) or the medium and long-term strategic skills list (MLTSSL). The nominated occupation must be on the STSOL or the MLTSSL with the occupation lists reviewed and updated on a six to 12-monthly basis. Nevertheless, it should be noted that the STSOL and the MTLSSL can be changed at any given time by the issuance of a new legislative instrument. The TSS visa programme is demand-driven and is not subject to a quota, although the changes to the 2020–2021 migration plan demonstrate a decrease of places. The application process for the TSS involves three stages and, due to the outbreak of the pandemic since March 2020, application processing times have significantly increased.

The introduction of the TSS programme has reduced the available pathways to employer-sponsored permanent residence. Visa holders under the short-term stream are able to renew the TSS visa once onshore for a further two years but cannot access employer-sponsored permanent residence.

The Department of Home Affairs has implemented particular arrangements for visa holders whose applications were lodged or approved prior to 18 April 2017. These grandfathered 457 visa holders will be able to access existing permanent visa provisions under the temporary residence transition (TRT) stream of the subclass 186 visa, applying the 'old' law, including:

  1. all 457 visa holders have access to 186 temporary residence transition (186 TRT) regardless of whether the occupation is on MLTSSL;
  2. the visa holder needs to work for the sponsor on the 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 rather than the current 45 age limit (unless exempt).

Eligible overseas workers will need to lodge an application for permanent residence by 18 March 2022 (repeal date of the grandfathering instrument) to access these transitional arrangements. Visa holders of the grandfathered subclass 457 are not able to pursue subclass 186 TRT (permanent residence) if they changed employer on or after 18 March 2020 in order to serve their two years' qualifying period for 186 TRT.

ii Occupation lists

The occupation lists, formerly known as the consolidated sponsored occupation list (CSOL) and the skilled occupation list (SOL), underpin a range of visas, including the subclass 482 visa. As of 19 April 2017, the CSOL and SOL were updated and renamed as the STSOL and the MLTSSL, and the regional occupation list respectively.29 The current skilled occupation lists were updated on 11 March 2019. These changes included standardising the MLTSSL by making 30 occupations available to all visa subclasses. An occupation ceiling may be applied to invitations issued for selected occupation groups. Since the pandemic, the government has introduced the priority migration skilled occupation list (PMSOL), which has 18 occupations focusing on critical skills needed for Australia's economic recovery.30 Priority processing is given to occupations on PMSOL.31

iii Labour market testing

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

A new instrument effective from 1 October 2020 makes it mandatory for the employer to advertise on Job Outlook, a government-owned recruiting website, in addition to two advertisements on other advertising platforms, for the nominated position, including the position title, required skills, name of the employer or the recruiter and salary range if annual earnings are lower than A$96,400.32

Australia uses the TSS programme to serve its international trade obligations.

However, there is no such LMT exemption on the basis of conflicting with Australia's international trade obligations for skilled employer sponsored regional visa (SESR) subclass 494, as Australia has fulfilled its obligations under the TSS.

iv Employer nomination scheme 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 TRT stream, the direct entry stream and the labour agreement stream.

TRT stream

The TRT stream is geared towards applicants who have been on a subclass 482 or subclass 457 visa and who intend to be sponsored by the same employer under the subclass 186 visa. To be eligible, applicants must have worked full time on a subclass 482 visa for at least three of the four years prior to the subclass 186 nomination application.

Direct entry stream

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

v Subclass 491 and 494 visa applications

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

Skilled employer sponsored regional (provisional) visa (subclass 494): employer-sponsored stream

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

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

Skilled work regional (provisional) visa (subclass 491)

This is a points-tested visa for applicants sponsored by a designated regional area of an Australian state or territory, or an eligible family member residing in a designated regional area of Australia.

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 general skilled migration visa programme. The government seeks to utilise this visa category to secure Australia's economic recovery.

i BIIP

The BIIP continues to be seen, both domestically and internationally, as an avenue of approach for the government in its attempts to market Australia's currently robust economy to the world. The Department of Home Affairs points out that this programme is designed 'to attract high quality investors and entrepreneurs to invest in Australia'.33 The programme reinforces the foundational ties that have already been laid by Australia's higher education market, which draws in a significant number of students from the Asia-Pacific region, and it aims to attract individuals who are looking to make considerable investments in the Australian economy. The BIIP, which covers both provisional and permanent visas, is made up of three visa subclasses: the business talent (permanent) visa (subclass 132), the business innovation and investment (provisional) visa (subclass 188) and the business innovation and investment (permanent) visa (subclass 888). Applicants must submit an expression of interest through SkillSelect to be nominated by a state or territory government agency and invited by the Department of Home Affairs. Within the subclasses, there consists many streams that are aimed at a variety of investors. As part of the government's plan to attract economic investment in Australia, in particular after the pandemic, the streams will be streamlined from nine to four streams, with some changes to eligibility requirements, effective from 1 July 2021.34 The four streams are business innovation, entrepreneur, investor and significant investor.35 Moreover, provisional visa holders in the four streams (which will be valid for five years) may apply for permanent residence after three years if they meet the requirements.36

Business talent visa (subclass 132)

This visa allows applicants to establish a new business or develop an existing business in Australia and stay in Australia as a permanent resident. There are two streams: the significant business history stream and the venture capital entrepreneur stream (applications for both of these streams will stop being accepted from 1 July 2021, although applications submitted before this date will continue to be processed).37

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

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

Applicants who have sourced at least A$1 million in venture capital funding from a member of the Australian Investment Council to start the commercialisation or development of a high-value business idea in Australia can apply under the venture capital entrepreneur stream.

Business innovation stream (subclass 188)

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

  1. he or she must have owned a business with a turnover of at least A$500,000 for two of the past four years (this figure is set to increase to A$750,000, effective from 1 July 2021);38
  2. he or she must have net personal and business assets of at least A$800,000 (this figure is set to increase to A$1.25 million, effective from 1 July 2021);39 and
  3. he or she must score at least 65 on the points test.

With the changes coming into place on 1 July 2021, under this stream visa holders can apply for a two-year extension to enable additional time to meet the requirements.40

Investor stream (subclass 188)

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

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

Significant investor stream (subclass 188)

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

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

  1. submit an expression of interest 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: the points test, the upper age limit and residence for permanent visa requirements.

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

In July 2015, changes were made to complying investments under the significant investor stream. For applications made after July 2015, a complying significant investment of at least A$5 million must be made in the following proportions over four years:41

  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.

Under the new changes in place on 1 July 2021, visa holders can apply for a two-year extension if they maintain the complying significant investment.42

Subclass 888 covid-19 concessions

Due to the economic effect of the covid-19 pandemic, the government has introduced concessions for subclass 888 holders that began on the 1 February 2020 and end on a currently undetermined date due to the ongoing pandemic. These include:43

  1. Permitting applications for a subclass 888 to be made by primary and secondary former subclass 188 holders whose visa has ceased in the concession period due to covid-19 travel restrictions; the application cannot be made more than three months after the cessation of the concession period.
  2. Holders of a subclass 188 visa as well as former holders who are able to meet the requirements to hold a subclass 888 visa who, however, are unable to meet the residency requirements as a result of covid-19 travel restrictions will be able to apply for and be granted the visa (dependant on other requirements).
  3. Former permit holders of the business innovation stream (held during the concession period) can apply for the business innovation extensions stream if the former subclass 188 was granted before 1 July 2019. The application cannot be made more than three months after the cessation of the concession period.
  4. Permit subclass 188 visa holders and former holders affected by travel restrictions can apply for up to two visas in the business innovation extensions stream.
  5. Modification of investment requirements for subclass 888 applicants in the investor stream who currently hold or formerly held a subclass 188 visa granted before 1 July 2019, allowing withdrawals or cancellations during a concession period where a subclass 188 visa holder in the investor stream meets the two-year requirement to live in Australia.
  6. Modification of investment requirements for subclass 888 applicants in the significant investor stream who currently hold or formerly held a subclass 188 visa granted before 1 July 2019, allowing withdrawals or cancellations of their balancing investment component during a concession period while maintaining the investment component in venture capital and emerging companies.
  7. Amendment of the subclass 188 visa in the significant investor stream primary criteria to enable applicants that held a subclass 188 visa granted prior to 1 July 2019 to access the visa if they have withdrawn or cancelled investments in line with the above concession.
  8. Ensuring that visa holders subject to visa conditions requiring the maintenance of an investment during the visa period are able to comply with the condition after the withdrawal or cancellation of investments in accordance with the concessions.

Skilled independent visa (subclass 189) and skilled nominated visa (subclass 190)

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

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

Since the covid-19 outbreak, it appears that the points-based general skilled migration programme only offers invitations to applicants who hold occupations being in high demanded, such as those on the PMSOL such as medical practitioners and ICT workers.

Temporary activity (subclass 408) (Australian government endorsed event) visa

The temporary work visa is a temporary residency visa that allows migrants to remain in Australia if they have no other visa options and are unable to depart Australia due to covid-19 travel restrictions or to assist in critical sectors during the covid-19 pandemic.

Under the Australian government-endorsed event stream there are no sponsorship requirements. However, applicants must demonstrate the genuineness of their intention to stay in Australia only for the purpose of the activity approved under the sponsorship. This means the visa applicant will be conditioned to work exclusively for the supporting business after the visa is granted.

The maximum stay period for applicants in Australia at the time of grant who satisfy the criterion for government-endorsed events is four years. There are distinctive benefits for applicants employed in critical sectors such as agriculture, food processing, healthcare, aged care, disability care and childcare. Recently, as of 27 Feb 2021 up until 30 June 2022, a new visa stream was added to this subclass. The new instrument legislates an intra-corporate transfer and relocation of overseas business to 'assist in Australia's response to the event' (event meaning 'the period of recovery from the economic effects of covid-19 in Australia is a specified event').44 These are known as 'beach head' visas for relocating businesses and are supported by the Taskforce: individuals in eligible firms will have access to the temporary activity visa subclass 408 under this post-pandemic economic recovery stream, which allows a firm 18 months to set up its operations in Australia.

Due the urgent nature of this visa, there are no visa application charges under this stream, and those non-citizens who have become unlawful within the past 28 days are also eligible to make such an application.

Outlook and conclusions

Australia's immigration framework reflects a patchwork of ideologies; the strands that comprise its operation have been introduced incrementally over the past 60 years to address varied policy goals and targets. Migration has accounted for 58 per cent of Australia's population growth over the past decade, making it a vital consideration when planning population.45 It is reported that currently, around 29 per cent of Australia's residents were born overseas.46 Among all residents between 20 to 30 years of age, one in four is a recent immigrant.

Covid-19 has raised unprecedented challenges to all aspects of human society and has more specifically affected the landscape of Australian migration to a great extent. Needless to say, Australia still needs immigrants, and has demonstrated a steady determination to drive the economy, and attract capital and top-profile global talent from overseas to assist in Australia's post-pandemic economic recovery. There have been many updates and changes in Australian immigration law since March 2020. Generally speaking, Australia is effectively responsive to the coronavirus crisis and, so far, has been ranked as one of the countries that have done best in tackling the pandemic. Australia's outstanding performance has made it a preferred and safe destination for global investors and skilled workers.

The recent and extensive reforms to the regional skilled migration programme highlight the government's shift to strengthening its commitment to regional Australia by ensuring the migration system encourages skilled migrants to live and work in regional areas to balance the population allocation and support regional development while relieving the infrastructure and resource stress in big cities like Sydney, Melbourne and Brisbane. Prime Minister Scott Morrison, in one of his earlier media releases, elicited this political trend: 'We are using our migration programme to back our regions to grow to take the population pressure off our major capital cities and by supporting strong regions we're creating an even stronger economy for Australia.'47 This trend of supporting migrants to settle in regional areas is likely to last in the long run.

Australia's current political climate is constantly adapting to balance the promotion of wider business growth with the cost of upskilling the Australian workforce and ensuring maintenance of the efficiency and competitiveness of Australia's programme of business migration. The government remains committed to streamlining Australia's investment migration schemes to make it simpler for investors and business entrepreneurs to access and more convenient for foreign investors to transfer their capital to Australia.

Skilled migration law and policy, and the allocation of places to each visa category have proved their essential roles in addressing and balancing the labour market shortage and development in certain regions. The budget for FY2021–2022 is expected to be released in May 2021, as it has always been despite the one-time delay in announcement of FY2020–2021 budget due to covid-19. Migration programme planning will consider Australia's economic, labour, population and social cohesion needs and continue to be a key component of Australia's recovery from the attack of the coronavirus crisis. Flexibility will remain important against continuing uncertainty in a post-covid environment. In developing future migration programme settings, it will be important to consider Australia's changing migration needs and how migration can best support these.

Footnotes

1 Anne O'Donoghue is a principal, May Liao is a registered migration agent and Palwasha Nawabi is a paralegal at Immigration Solutions Lawyers.

2 Biosecurity (Entry Requirements – Human Coronavirus with Pandemic Potential) Determination 2020.

3 Department of Home Affairs; www.homeaffairs.gov.au.

4 Joanne Kinslor, 'The end of dual regulation for migration law practice', Law Society Journals, https://lsj.com.au/articles/the-end-of-dual-regulation-for-migration-law-practice/#:~:text=After%20more%20than%2020%20years,or%20assist%20in%20immigration%20matters (1 October 2020).

5 Department of Home Affairs, 'Who can help you with your application, Using a legal practitioner', https://immi.homeaffairs.gov.au/help-support/who-can-help-with-your-application/using-a-legal-practitioner .

6 Dr Jacoba Brasch QC, Law Council of Australia, media statement, 'The end of dual regulation for migration lawyers', https://www.lawcouncil.asn.au/media/media-statements/the-end-of-dual-regulation-for-migration-lawyers (22 March 2021).

7 Migration Alliance, 'Australian Immigration Daily News, Form 1548 Application for an Australian Legal Practitioner Number (LPN). and updated Form 956 and Giving immigration assistance in Australia Fact Sheet', https://migrationalliance.com.au/immigration-daily-news/entry/2021-03-form-1548-application-
for-an-australian-legal-practitioner-number-lpn-and-updated-form-956-and-giving-immigration-assistance-in-australia-fact-sheet.html (22 March 2021).

8 Media release, Prime Minister, Minister for Foreign Affairs, Minister for Women, Minister for Home Affairs, https://www.pm.gov.au/media/border-restrictions (19 March 2020).

9 Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020.

11 Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination 2020.

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

13 Administrative Appeals Tribunal (see footnote 12).

15 Department of Home Affairs, 2020-2021 Migration Planning Levels, https://immi.homeaffairs.gov.au/what-we-do/migration-program-planning-levels.

16 ibid.

17 Department of Home Affairs, 'migration programme Planning Levels', https://immi.homeaffairs.gov.au/what-we-do/migration-program-planning-levels.

18 ibid.

19 Department of Home Affairs, '2018–19 migration programme Report', https://www.homeaffairs.gov.au/research-and-stats/files/report-migration-program-2018-19.pdf, p. 10.

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

22 The processing time is based on our recent practical experience. The grant of subclass 858 is dependent on the completion and communication of medical examinations and all other visa requirements under the Migration Regulations 1994 (Cth).

23 On 17 December 2020, s499 Ministerial Direction No. 89 came into effect and includes a new list of global talent priority sectors.

24 The Hon Alan Tudge MP, Former Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, media release, 'Securing and Uniting Australia as part of the Government's economic recovery plan', https://minister.homeaffairs.gov.au/alantudge/Pages/Securing-and-Uniting-Australia-as-part-of-the-Government%E2%80%99s-economic-recovery-plan-.aspx.

25 Home Affairs Legislation Amendment (2020 Measures No. 2) Regulations 2020.

26 Migration Amendment (2021 Measures No. 1) Regulations 2021.

28 ibid.

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

30 Australian Department of Home Affairs, 'Priority Migration Skilled Occupation List, https://immi.homeaffairs.gov.au/visas/employing-and-sponsoring-someone/sponsoring-workers/pmsol.

31 ibid.

32 Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Instrument 2018.

33 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.

34 The Hon Alan Tudge, Former Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, media release, 'Getting a better deal for Australia from business and investment visas' (17 December 2020).

35 ibid.

36 ibid.

37 ibid.

38 ibid.

39 ibid.

40 ibid.

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

42 The Hon Alan Tudge, Former Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, media release, 'Getting a better deal for Australia from business and investment visas' (17 December 2020).

43 Migration Regulations 1994 Sch 2.

44 Migration (Post covid-19 economic recovery event for Subclass 408 visas) Instrument (LIN 21/008) 2021.

45 Australian Bureau of Statistics, 'Slowing migration for half the states and territories' (18 December 2014), https://www.abs.gov.au/ausstats/[email protected]/lookup/3101.0Media%20Release1Jun%202014.

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

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

Get unlimited access to all The Law Reviews content