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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 following the pandemic, that meet the needs of the local labour market, that alleviate the impact of an ageing population and that 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 and 2023 have brought about a recovery for the harshly impacted immigration sector. With a new government led by Prime Minister Anthony Albanese, Minister for Home Affairs the Hon Clare O'Neil MP and Minister for Immigration, Citizenship and Multicultural Affairs the Hon Andrew Giles MP have taken steps towards evaluating and improving the immigration processes in Australia. In September 2022, members of Parliament, union figures and council officials, among others, came together to work constructively on the issues and opportunities facing the Australian labour market and economy in the wake of the recovery of the global economies post covid-19. States and countries alike have turned to an imminent focus on foreign talent and skilled workers to rebuild their economy and restrengthen the damage caused by border closures and isolation orders on the workforce and key industries.

Australia's focus on skilled migration has seen pivotal change in 2022 and 2023, and we will delve into this below.

i Legislation and policy

Australia's immigration law is governed by two statutes: 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) 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 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 in 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 are revised annually through the government's budget process and is inevitably informed by political discourse, driven in 2022 and 2023 by the need for economic recovery in the post-covid-19 environment and humanitarian intake influenced by Afghanistan's Taliban takeover and the 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 on promoting migration of highly skilled workers with experience who are immediately available to contribute to the Australian workforce, as well as on enhancing 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 through 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). However, this will change soon (see below, 'Tribunals').

The Australian Border Force (a section within Home Affairs) 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 policymaking 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.5

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 Australian Government has announced a reform of Australia's system of administrative review. This will abolish the Administrative Appeals Tribunal (AAT) and replace it with a new federal administrative review body. The reform will also include a transparent, merit-based system of appointments . . . The government will legislate to abolish the AAT and create a new federal administrative review body. A dedicated taskforce established within the Attorney-General's Department will work across government to implement the reform and ensure there is a smooth transition to the new body. The government will seek the views of a wide range of stakeholders to inform the design of the new body.
An Expert Advisory Group (Advisory Group) will guide the reform to Australia's system of federal administrative review.6

The Advisory Group comprises people such as the former High Court Justice the Hon Patrick Keane AC KC (Chair) and the Hon Alan Robertson SC and ensures that 'Each member is highly qualified and brings a wealth of experience to the Advisory Group, which will guide the delivery of a new, trusted federal administrative review body that serves the interests of the Australian community.'

Ministerial intervention request

A request for ministerial intervention is viewed as the last option, as the results are often uncertain. A request to the Minister for Home Affairs can be made only 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.7

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 the policies of the Migration Act 1958 (Cth), which is not legislation but rather a tool used by decision makers and delegates of the Minister when considering repeat requests.