The Year in Review – 2015 Australian Immigration Highlights
November 27, 2015
As the year draws to an end, 2015 has seen the appointment of a new Australian Prime Minister, and the introduction of a number of key immigration changes. Most notable has been the creation of the Australian Border Force (ABF). Effective from 1 July 2015, the ABF is Australia’s new frontline operational and enforcement agency.
Referred to by Minister for Immigration and Border Protection, Peter Dutton, as a ‘new chapter in Australia’s border history’, the ABF falls under the auspices of the Department of Immigration and Border Protection (DIBP), working closely with partner agencies such as the Australian Federal Police (AFP) to detect and deter the unlawful movement of goods and people across the country’s borders.
Whilst the DIBP remains accountable for functions such as policy, strategy, and the development and assessment of visa and citizenship programs, the ABF is now responsible for:
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Verification of identity and intent;
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Enforcement, compliance and investigation; and
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Specialized border capabilities.
The integration of Australian Customs within the DIBP and the creation of the ABF have driven substantial cultural change within the DIBP, moving it towards a law enforcement mindset and a greater expectation that both individuals and businesses will be immigration compliant.
This is evident in the shift from the educative approach to businesses that the DIBP had previously employed, such as in relation to 457 visa sponsorship obligations. Now, the approach is hard-line and punitive towards non-compliance through administrative sanctions and penalties. Interestingly, the largest civil penalty to date was ordered in April of this year in the case of Minister for Immigration and Border Protection v Choong Enterprises Pty Ltd [2015] FCA 390, where a hospitality business was ordered to pay more than AUD 330,000 for breaching 457 visa sponsorship obligations and underpaying 457 visa holders.
In March 2015, the Australian Senate referred terms of reference to the Education and Employment References Committee to inquire into and report on the impact of Australia’s temporary work programs on the Australian labor market and on temporary work visa holders. Whilst the Committee has been granted an extension for its final report, now due in February 2016, an interim report released at the end of October 2015 focused on the working conditions of Working Holiday and Student visa holders, highlighting concerns of their widespread exploitation.
Labor procurement arrangements for foreign workers came under further scrutiny this year following the June 2015 release of the Fair Work Ombudsman’s (FWO) Statement of Findings regarding the Baida Group. Here, the FWO uncovered complex subcontracting frameworks and exploitation of a labor pool comprised predominantly of Working Holiday visa holders from Taiwan and Korea. The Baida investigation also led to a change in criteria for applications for a second Working Holiday visa, meaning that unpaid work undertaken by a Working Holiday visa holder can no longer be counted towards the required three months of specified seasonal work.
Also in June 2015, the DIBP established Taskforce Cadena, a multi-agency operation involving the DIBP, FWO, AFP, the Australian Securities and Investment Commission (ASIC) and the Australian Taxation Office (ATO). The taskforce is designed to target visa fraud, illegal work and the exploitation of foreign workers.
Initiatives to support Northern Australia
On 18 June 2015, Australia’s first White Paper on “Developing Northern Australia: Our North, Our Future” was released by former Prime Minister Tony Abbott. It included a number of visa initiatives to support development in Northern Australia, which is classified as the Northern Territory, parts of Western Australia and Queensland north of the Tropic of Capricorn.
Such initiatives include allowing Work and Holiday (subclass 462) visa holders to apply for a second 462 visa where they have undertaken three months’ work in the agriculture, tourism or hospitality industries within Northern Australia.
More offshore resource worker debate
In Australian Maritime Officers’ Union (AMOU) v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45, the Federal Court was asked to consider if the Minister for Immigration and Border Protection had power under the Migration Act to determine that offshore activity was excluded from the migration zone and that, as a result, non-Australian workers in such offshore sectors were not required to hold a permanent visa or any other prescribed visa.
On 26 March 2015, the Federal Court unanimously upheld the AMOU appeal, leaving offshore workers in a state of flux. On 27 March 2015, a new Ministerial Determination was made such that an overseas worker will require a work visa, such as a subclass 457 visa, if:
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The resources structure is fixed to the Australian seabed;
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The structure will become fixed to the Australian seabed; or
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The structure will affix to another structure which is fixed to the Australian seabed.
On 30 March 2015, a new Declaration was made under the Migration Act, the effect of which is that an overseas worker performing an offshore resource activity will be deemed to hold a Special Purpose visa under the Act if:
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The structure is floating and will never be fixed to the seabed; and
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The presence of the structure is notified to the ABF.
Changes to employer sponsored visa categories
Also in March 2015, the Australian government provided its response to the findings of an independent panel review of the 457 visa program, largely supporting the panel’s recommendations to reduce red tape for employers while strengthening the program’s integrity. This response led to a number of key amendments to the 457 visa program, effective 18 April 2015, to:
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Increase 457 business sponsorship approval periods to five years or 18 months for start-up businesses;
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Expand the sponsorship notification periods from 10 working days to 28 calendar days. This applies to 457 visas and other temporary sponsored visas, including the Training and Research (subclass 402) visa;
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Relax the 457 visa English language requirements which previously required a minimum score of 5.0 in each band, to allow for an overall band score of 5.0 under the International English Language Testing System (IELTS), and for alternative English language tests to be undertaken;
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Broaden the English language exemptions to allow for cumulative periods of secondary or tertiary study of five years, replacing the former requirement that study periods must be consecutive; and
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Reduce the market rate exemption threshold to AUD 180,000. However, on 17 June 2015, the Senate disallowed the legislative instrument prescribing the lowering of the market rate exemption, resulting in the threshold returning to AUD 250,000.
Other key recommendations of the 457 visa program review which are yet to be implemented include:
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The introduction of a less complex training obligation scheme based on training contributions;
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Streamlined visa processing for low risk applications;
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The introduction of a more responsive and transparent occupation list;
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A visa condition obliging a visa holder to provide the DIBP with a tax file number;
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The review of the Temporary Skilled Migration Income Threshold TSMIT, which represents an entry level salary point for the 457 visa program, and its role in the program; and
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More streamlined processes for sponsorship renewal and access to other temporary visa sponsorships.
Several changes also occurred within the permanent Employer Nomination Scheme (ENS) and Regional Sponsored Migration Scheme (RSMS). Firstly, the removal of the occupation of ‘Minister of Religion’ from the relevant occupation lists means that such occupations may no longer be nominated for a permanent ENS or RSMS visa under the Direct Entry stream.
For those 457 visa holders applying for a permanent ENS or RSMS visa under the Temporary Residence Transition Scheme (TRTS), the DIBP has now reversed its policy position to allow applicants to count work undertaken whilst a dependent 457 visa holder towards the two year work requirement. This is on the proviso that the individual has subsequently obtained a 457 visa in their own right prior to lodging their ENS or RSMS application.
Lastly, whilst all Australian and New Zealand Standard Classification of Occupations (ANZSCO) occupations at skill level 1, 2 or 3 (namely, those generally requiring a minimum of a degree, diploma or certificate IV) could previously be nominated for an RSMS visa under the Direct Entry stream, from 1 July 2015 an occupation list for the RSMS was prescribed meaning that only occupations on the prescribed list may now be nominated under this stream from that date.
Other relevant changes from 1 July 2015
The amalgamation of the Migration Review Tribunal (MRT), Refugee Review Tribunal (RRT) and Social Security Appeals Tribunal (SSAT) into the Administrative Appeals Tribunal (AAT) came into effect from 1 July 2015. MRT and RRT work is now dealt with by a specialist division within the new AAT: the Migration and Refugee Division.
Other immigration related appeals continue to be dealt with by the AAT’s General Division. These may include adverse visa decisions on character grounds, citizenship appeals, and decisions relating to registration of Migration Agents, for example.
The Business Innovation and Investment program was also recalibrated from 1 July 2015 following an overhaul of the investment criteria for the Significant Investor stream, which requires investment of AUD 5 million in complying significant investments comprised of:
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At least AUD 500,000 in eligible Australian venture capital or growth private equity fund(s) investing in start-up and small private companies;
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At least AUD 1.5 million in an eligible managed fund(s) or Listed Investment Companies (LICs) which invest in emerging companies; and
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A ‘balancing investment’ of up to AUD 3 million in managed fund(s) or LICs which invest in a combination of eligible assets that include Australian listed securities, eligible corporate bonds or notes, annuities and real estate property (subject to a ten percent limit on residential real estate).
The new Premium Investor stream visa also came into effect from 1 July 2015, requiring investment of AUD 15,000,000 and which provides access to permanent residence after twelve months.
Cap and cease of particular General Skilled Migration visa applications
On 22 September 2015, the Minister for Immigration and Border Protection issued a new legislative instrument capping the number of specific General Skilled Migration (GSM) visas that may be granted in the 2015/2016 financial year. This instrument only applies to particular GSM visas lodged prior to 1 July 2012.
The Minister then exercised specific ‘cap and cease’ provisions available under the Migration Act, the effect of which is that once the ministerially-determined maximum is reached, any undecided applications for visas of that subclass are taken not to have been made and the DIBP is not required to progress the applications any further. However, applicants affected by the cap and cease provisions may be eligible to apply for a refund of their Government Lodgement Fees.
ChAFTA and Work and Holiday Agreement with China
Finally, the China-Australia Free Trade Agreement (ChAFTA) was signed on 17 June 2015, agreeing to reduce restrictions for temporary skilled workers, investors and business visitors travelling between Australia and China. Following months of negotiations among political parties regarding the terms relating to mobility of semi-skilled workers, the ChAFTA implementation Bill is set to pass through both Houses of Parliament this week, which will lead to Australia’s formal ratification of the treaty and allow the Agreement to come into force on schedule in December 2015.
A Work and Holiday Agreement was also signed with China during the ChAFTA negotiations and came into effect on 21 September 2015. This Agreement allows up to 5,000 skilled Chinese nationals aged between 18 to 30 to apply for Work and Holiday (subclass 462) visas each year.
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