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, humanitarian 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 needs of the local labour market, alleviate the impact of an ageing population and promote income tax revenue.
Australia's recovery from the onset effects of the covid-19 pandemic sees the Australian immigration framework evolving and embracing migrants with an unprecedented importance and catering for skilled migration. For example, the introduction of new programmes and streams, the implementation of a global talent attraction scheme, the revolutionary merging 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 in the unprecedented action of the closing of international borders. However, 2022 has brought about a year of recovery for the harshly impacted immigration sector. Prime Minister Scott Morrison announced that Australia would fully open its border to fully vaccinated visa holders, tourists, business travellers and visitors from 21 February 2022. This is a day where families are reunited, and a well-deserved opportunity for Australia to build its way back to its flourishing economy and multicultural population, celebrating with it the importance of skilled migration to revamp the Australian job market with those who are passionate and equipped.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.2 Several 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, cultural and humanitarian 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, driven in 2021 and 2022 by the need for economic recovery in the post-covid-19 environment, and humanitarian intake influenced by Afghanistan's Taliban takeover and the very recent Russian invasion of Ukraine. Key features of Australia's governance structure allow the executive branch of government considerable discretion as to who is eligible for entry into Australia.
In terms of the corporate arena 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 to the Australian workforce as well as enhance the regulatory framework to strengthen compliance by sponsoring businesses.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 and exemptions as of 2 March 2022,3 policy making and guiding the approval of exemptions to enter Australia unvaccinated.4 As Australia witnessed in the case of Djokovic v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Australian government introduced a further requirement to enter the country whereby the Border Force now has authority to make decisions for the health and safety of the community.5Tribunals
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.6
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 11.7
The year in review
Covid-19 caused a re-evaluation of processes on a global scale and caused sweeping changes within the Australian immigration field; however, the recovery plan is monumental in the welcome and consideration it gives to skilled travel. The Australian border has opened from 21 February 2022 and with that comes visa extensions (namely visa extensions for subclass 476, 489, 491 and 494 visa holders), updates and concessions. The grounds include critical skills and sectors and compelling and compassionate grounds.8 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 2021–2022 remains at 160,000 places. This consists of 79,600 skilled stream places, 77,300 family stream places, 100 special eligibility places and 3,000 child places. These placements have remained the same for the 2020–2021 Migration Program Planning levels.9 The 79,600 skilled stream visa consists of a wide variety of visas that are implemented to target areas of industries and locations that need skilled workers and welcome international businesses and investors alike to add value to the Australian economy. Someone's eligibility will vary based on what visa they are applying for. Eligibility looks different for different visa subclasses ranging from whether your occupation is on an occupations list, how much money you intend to invest in Australia as an investor and if you are not being sponsored by an employer, whether you obtain enough points to be invited to apply for a visa (points are determined based on one's English competency, their age and lastly whether they meet the health and character requirements). For example, the subclass 482 (temporary skill shortage) visa, and its counterpart the subclass 494 (skilled employer sponsored pegional (provisional)) visa are both employer sponsored visas. The 494 is intended for those who wish to conduct their work and study in regional Australia (excluding Sydney, Melbourne and Brisbane), whereas the 482 visa does not require a regional location.10i 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 2021 to 2022, identical levels as seen in 2020–2021.11 Since the 2020–2021 migration planning levels and despite the decreasing effects of covid-19, the Department of Home Affairs has kept the migration programme levels the same, at 160,000 places;12 however, the numbers within the relevant visa categories were revised to achieve Australia's economic recovery from the impact of covid-19. The 2022 plan demonstrates a stable level of places (as replicated in 2021) in partner visas (72,300 places), the global talent programme (15,000) and the Business Innovation and Investment Programme (BIIP) (13,500).13 The federal government and state and territories governments, unlike in 2021, are issuing invitations to skilled occupations. A total of 1,550 invitations between July 2021 and January 2022 have been dispersed. The occupations throughout the 2021–2022 programme year include medical practitioners, nurses, engineers, highly skilled ICT professionals, social workers and veterinarians.14ii BIIP
The BIIP is an immigration option for those who make a substantial investment in Australia or own or operate a business.15 It encourages economic activity by increasing entrepreneurial talent and diversifying business expertise in Australia. The programme has received political attention for its role in assisting Australia's post-pandemic economic recovery: the planning level has remained the same at 13,500 since 2021. The visas that are part of the programme include the Investor (Subclass 188), Significant Investor (Subclass 188), Business Skills (Provisional) (class EB) Business Innovation and Investment (Provisional) (Subclass 188) visa and the Venture Capital Entrepreneur (subclass 132) to name a few. Interestingly, although there are a variety of business categories and specific visa categories for the BIIP, not all share the same conditions and requirements such as one of the boldest requirements, the health requirement. With specific reference to the Business Innovation Stream (subclass 188), this requires the visa applicant to meet a health requirement that ensures the protection of the Australian community from public health and safety risks, helps control how it is spent on services such as social security benefits, allowances and pensions, and ensures Australian citizens and permanent residents can access health and community services that are in short supply.16iii 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.17 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) commencing on 16 November 2019. The current round of invitations that were issued on 21 January 2022 include 200 SkillSelect invitations and a total of 900 invitations for skilled work regional (provisional) visas (subclass 491) – family sponsored visas have been issued.18Redefining 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.19
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 subclass 491 is 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 replaced the direct entry (DE) stream of the regional sponsored migration scheme visa (subclass 187) programme. On 18 January 2022, Immigration Minister, Hon Alex Hawke, announced visa flexibility for skilled work regional provision (subclass 489, 491 and 494) visas. The Australian government will extend these visas by three years for visa holders impacted by the covid-19 international travel restrictions that were in place.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 A$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$158,500 per year (an increase from A$153,600) 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.20 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:21
- agri-food and agtech;
- health industries;
- defence, advanced manufacturing and space;
- circular economy;
- infrastructure and tourism;
- financial services and fintech; and
However, there are flexibilities in the target sectors; for example, there have been successful examples of 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, which prospective applicants can utilise in their visa application to showcase their strong job prospects. 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.22 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 existing 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 merger facilitates applicants and their joining immediate family members to combine in one application while being based in different countries.23 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.24 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'.25 It is also aiming 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'.26 The Prime Minister's Special Envoy is a multi-agency government initiative and reportable to seven different ministerial portfolios or ministers. 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.
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.43 It is reported that currently, around 29 per cent of Australia's residents were born overseas.44 Among all residents between 20 and 30 years of age, one in four is a recent immigrant.
Covid-19 had and continues to raise unprecedented challenges to all aspects of human society and has more specifically affected the landscape of Australian migration to a great extent, even in current times where we learn to adapt to our new norm. 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 covid-19 demonstrated its relentless effect on the world in March 2020. As we continue to reform migration law to cater for the economic health of Australia, our nation continues an effective response 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 such as 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.'45 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. Migration programme planning will consider Australia's economic, labour, population and social cohesion needs and continue to be a key component of Australia's already demonstrated successful recovery.