An extract from The Corporate Immigration Review, 10th Edition

Introduction to the immigration framework

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

i Legislation and policy

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

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

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

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

Through consultation with key stakeholders, the Australian government allocates the number of available places for people wanting to migrate permanently to Australia annually. The Migration Program has been capped at a ceiling of 190,000 places since 2012–2013; however, only 160,323 places were awarded in 2018–2019. Of this total number, 109,713 places were allocated for the programme's skill stream, representing 68.4 per cent of the total Migration Program. Family migrants, excluding child visas, accounted for 47,247 places, and 115 places were for special eligibility migrants.

ii The immigration authorities

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

Tribunals

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

A combined total of 25,809 lodgements were made to the AAT in the Migration Division between 1 July 2018 and 30 June 2019. The tribunals had 39,029 cases on hand at on hand at 30 June 2019.

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.

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.

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.

The year in review

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

i The skilled stream

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

ii Business Innovation and Investment Programme

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

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

iii Introduction of the regional skilled migration programme

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

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

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

Redefining 'regional'

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

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

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

Skilled Work Regional (Provisional) visa (subclass 491)

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

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

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

Regional pathway to permanent residency

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

iv New Global Talent Independent programme

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

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

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

Step 1: referral

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

Step 2: consideration for GTI programme

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

Step 3: visa application

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

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. It is reported that currently, around 29 per cent of Australia's residents were born overseas. Following from the challenges around sponsored workers, it is expected that sponsorship compliance will remain at the forefront of the immigration agenda in the future.

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

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

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