Migration Programme in Australia is becoming increasingly restrictive and dynamic at the same time

Migration Programme in Australia is becoming increasingly restrictive and dynamic at the same time https://whoswholegal.com/news/features/article/33791/australias-migration-programme-increasingly-restrictive-dynamic-landscape/

Migration Programme in Australia is becoming increasingly restrictive and dynamic at the same time Since the Department of Immigration and Border Protection has merged with the Australian Customs and Border Protection Services, and the Australian Border Force has been established as the operational enforcement arm, its reach and authority has gone to greater heights.

Mass migration is a huge challenge, and focusing on national security, priorities on security, as well as law enforcement mean that our nation is trying to deal with an immigration and political landscape that are much more complicated, albeit dynamic. The DIBP’s imperatives have a push and pull effect: enabling both permanent and temporary entry; and what comes after that – the enforcement, monitoring, and sanctions.

The DIBP is a global organisation that employs nearly 15,000 individuals working in over 52 locations around the world. It is the Commonwealth’s 2^nd largest collection agency in terms of revenue. At present, it receives more than 25,000 visa applications on a daily basis worldwide, and is expected to raise more than $2 billion from visa fees and fines alone for the period of 2016 – 2017.

The DIBP is an integrated immigration and customs agency. It promotes closer cooperation between the 2 arms of its border security operations: policy and enforcement. It promotes its systems’ security through the use of several essential means: biometrics, metadata/data analysis, international partnerships, a whole-of-government approach, trusted trade schemes, and automated gates, among others.

The Australian Border Force is the DIBP’s operational arm of enforcement. It maintains its important work in immigration compliance and enforcement, as well as other operational areas that work both in and out of the country in close collaboration with its strategic partners, including national security, defence, law enforcement, and intelligence partners here and abroad.

For the year ending June 30^th of last lear, the DIBP has granted the following:

• Permanent visas – 190,000 (72,840 skilled migration visas; 7,500 refugee and humanitarian visas)
• Temporary visas – 7.7 million
• Special category visas to New Zealand citizens – 4.8 million
• Working holiday visas – 215,000
• International air & sea passengers travelling through Australia – some 40 million

3 principal government outcomes the DIBP is trying to deal with:

• a strong national security to protect the sovereignty, security and safety of Australia through the management of its borders (this includes managing non-citizens’ stay and departure)
• a thriving economy in the globalisation age so as to advance the economic interests of the country
• a society that is prosperous and cohesive through the effective management of the DIBP’s migration and citizenship programmes.

The DIBP’s significant reforms includes:

• Migration Amendment (Charging for Migration Outcome) Act 2015
• Australian Citizenship Amendment (Allegiance to Australia) Act 2015
• introduction of temporary visas for parents
• Migration Amendment (Visa Revalidation and Other Measures) Bill 2016

The Migration Amendment (Charging for Migration Outcome) Act 2015
This is an amendment of the Migration Act 1958. Through this, it is now unlawful for an individual to give or receive a benefit in exchange for a migration outcome related to certain skilled visa programmes such as the Subclass 457 Temporary Work (skilled programme) and the Subclass 186 Employer Nomination Scheme programme.

It targets both exploitative employers or sponsors, as well as those who are looking to take advantage of prospective employees or visa applicants by:

• demanding a fee to be sponsored
• deducting money from the wages of an employee, or demanding that an employee work for free or for very low wages to be sponsored
• refusing to provide fair employment benefits such as overtime, sick leave, personal leave during the sponsorship of an employee

This amendment also imposes a strict liability penalty coupled with heavy fines. It also has discretionary power for the cancellation of any visa that the applicant holds, regardless if the payment or the offer is related to the sponsorship.

The penalties may apply even if the charged person is completely unaware such conduct is unlawful or improper. It comes with severe penalties for sponsors as well, as migrant workers have the possibility of being exploited in their employment.

The Migration Amendment (Charging for Migration Outcome) Act 2015 makes it possible for offences and penalties to be set out. This includes civil penalty provisions and visa cancellation in case there is an offer to provide, or a benefit has already been provided.

Under section 245AQ, the definition of ‘benefit’ includes:

• a payment or other valuable consideration
• a deduction of an amount
• any kind of real or personal property
• an advantage
• a service; and
• a gift.

Migration Programme in Australia is becoming increasingly restrictive and dynamic at the same time Any visa may be cancelled, even if the case is not related to the sponsorship event. A visa may also be cancelled whether or not the event took place.

Under the Migration Act 1958, a visa holder may be fined and may also be subject to the discretionary power to have their visa(s) cancelled.

Should the benefit be proven that it was requested and received by the sponsor, he/she may also be liable to a sizable penalty, whether or not (a) the sponsorship-related event is related to the current visa or any previous visas owned by the visa holder, and (b) the sponsorship-related event happened.

The Migration Amendment (Charging for Migration Outcome) Act 2015 also imposes strict liability civil and criminal penalties. It demands a thriving corporate culture which needs compliance. Civil and/or criminal liability may be given to a company for the act of a high managerial agent if the company cannot provide proof that it exercised due power so the conduct or the risk of the conduct can be prevented.

Migration Programme in Australia is becoming increasingly restrictive and dynamic at the same time If proven that a person has asked for, or received a benefit, may end up in a maximum civil penalty of $43,200. For a body corporate, it is set to as much as $216,000.
An offence’s criminal penalty is imprisonment for 2 years and/or a fine of $64,800 for an individual. For a body corporate, it is $324,000.

With the executive officers’ and directors’ increasing reliance and personal liability, companies need to take a closer look at how they operate with regard to foreign worker recruitment, and make sure that there is compliance with the Migration Amendment (Charging for Migration Outcome) Act 2015.

The Australia Citizenship Amendment (Allegiance to Australia) Act 2015

The Australian Citizenship Amendment (Allegiance to Australia) Act 2015 is an amendment of the Australian Citizenship Act 2007. This may apply to an Australian citizen regardless of how he or she became a citizen. This includes an individual who became an Australian citizen upon his or her birth.

This has expanded immensely the government’s power to revoke the citizenship from a dual national found to have engaged in terrorist conduct.

There are a number of mechanisms for revoking an Australian citizenship. These include renunciation and cessation of citizenship. It applies to an individual aged 14 and above who is a national or a citizen of a country other than Australia, who renounces their Australian citizenship if he or she acts inconsistently with their allegiance to Australia through any of the following acts:

• engaging in international terrorist activities using explosive or lethal devices
• engaging in a terrorist act
• providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act
• directing the activities of a terrorist organisation
• recruiting for a terrorist organisation
• financing terrorism
• financing a terrorist
• engaging in foreign incursions and recruitment.

Conduct falls into the categories mentioned above if:

• there is an intention to advance a political, religious or ideological cause
• there is an intention to influence, intimidate, or coerce the Australian, or a state and territory government, or the public, or a part of the public.

An individual is taken to have engaged in the act if the said individual was, at the time of the act, either a member of or acting on instruction of, or in cooperation with, a declared organisation of terrorism.

Migration Programme in Australia is becoming increasingly restrictive and dynamic at the same time When an individual renounces their Australian citizenship under these provisions, the renunciation takes effect and the citizenship of the individual immediately ceases upon his or her engaging in the specified act.

The Minister of DIBP also has powers to strip the individual of his/her citizenship, if they have been convicted of an offence listed in the new section 35A of the Australian Citizenship Act 2007. They may also be sentenced to six or more years in prison.

The revocation of citizenship is still limited to dual citizens. Sole nationals cannot be stripped off of their Australian citizenship, as this would leave the individual stateless.
The Introduction of Temporary Visas for Parents

Under the migration programme of Australia, there are a number of temporary and permanent parent work visas. This includes:

• Parent (Non-Contributory) visas
• Contributory Parent and Contributory Aged Parent visas

In Migration Intake into Australia (a 2016 report), the Productivity Commission mentioned the fiscal impacts on the Australian community of claims made by immigrant parents on aged care, health, and social security systems, which needs be met through taxpayer funds. It stated that even the Contributory Parent visa charge only meets a fraction of the fiscal costs for the annual intake of parent migrants.

It was concluded by the Productivity Commission that if there are more flexible temporary parent visa arrangements were introduced, there would only be a few reasons to retain parent migration visas in their present form. The discussion paper Introducing a Temporary Visa for Parents proposes a number of measures for these concerns to be properly addressed, while a new temporary parent visa in prescribed circumstances is being proposed. This is in response to the Productivity Commission’s recommendation to raise the visa charge a considerable amount for the contributory parent visa while the eligibility of the non-contributory parent visas is narrowed.

It is noted in the Discussion Paper that the changes will come into effect on the 1^st of July 2017.

Migration Amendment (Visa Revalidation and Other Measures) Bill 2016
It is being proposed in the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 that amendments to the Migration Act 1958, which would give the minister of immigration power to require a ”specified class of persons” to go through revalidation checks of their visas if it was in the public interest.

A ”specified class of person” could be identified based on whether they hold a particular passport, or if they live in a particular state, province or country. This would also be possible if they have travelled through a particular area, or applied for a visa during certain dates.

The DIBP minister would also have the power to refuse to revalidate the visa if there already was ”adverse information” regarding the person in question.

The minister could invoke the power if it was in the public interest, which is quite a broad term that could include several factors such as public health and safety, national security, the economic wellbeing of the country, the circumstances in an individual’s home country, and the risk of overstaying, among others.

The public interest test will be flexible, broad, and confer a personal and non-delegable power on the DIBP minister. It will need to be determined by a legislative instrument and certain information will be tabled before each House of Parliament.

There have been concerns regarding the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 as it is being seen as a way to target people based on their religion, passport, or birthplace. This is because the measures would provide the minister considerable power to demand that ”a specified class of person” to go through extra scrutiny, as well as the possibility of the visa being suspended through this revalidation process.

An Increasingly Restrictive Landscape for Immigration

As the country continues to struggle with the continuing demand for temporary and permanent entry to Australia, our complex laws and policies continue to be subject to constant and ongoing change.

The DIBP continues its huge regulatory reforms, which introduces expanding powers, as well as significant penalties and sanctions. This is definitely a new era for Australia, and is proving to be a challenge to both businesses and individuals.