6.1
Part of the terms of reference for this inquiry asked the Committee to:
…examine integrity issues associated with the Electronic Travel Authority (subclass 601) visa. The Committee shall have particular regard to evidence of visa cancellation rates, non-compliance with 'no work' conditions, and other integrity concerns.
6.2
This chapter provides some brief information on the Electronic Travel Authority (ETA) visa (subclass 601); some statistics on the number of visitor visa holders in Australia; and examines whether there are any non-compliance or integrity concerns with this visa subclass.
Electronic Travel Authority visa
6.3
Electronically linked to a passport, an ETA visa provides authorisation to travel to and enter Australia for short term stays such as tourism or business visitor activities.
6.4
Currently, the citizens of 34 countries/ jurisdictions, ‘traditionally low immigration risk cohorts’, can apply for an ETA.
6.5
An ETA allows an applicant to stay in Australia for up to three months per visit within a twelve month period from the grant date of the visa, ‘or for the life of the passport if it is less than twelve months.’
6.6
In its submission, the Department of Home Affairs commented that the ETA was an important component of Australia’s bilateral arrangements with those 34 countries:
The ETA is a key element in bilateral arrangements as Australia’s visa free/visa waiver facilitation option. A number of countries accept the ETA as affording their nationals the equivalent of ‘visa-free’ entry to Australia. In this way the ETA has led to reciprocal visa-free arrangements for Australians.
6.7
At 30 June 2018, there were 304,140 visitor visa holders in Australia. Of those, 74,444 were on an ETA visa. During 2016-17, ‘approximately 2.7 million ETAs were issued accounting for just under 50 per cent of all visitor visas.’
Electronic Travel Authority compliance rates
6.8
The Department of Home Affairs measures non-compliance ‘by those who lodged a Protection visa (PV) application, were Refused Immigration Clearance (RIC) at the border or had their ETA cancelled.’
6.9
At a public hearing, the Department of Home Affairs highlighted that over the past ten years over 23 million ETAs had been granted, about 10,000 of those visa holders overstayed their visa and it is estimated that about three-quarters of that cohort were Malaysian nationals.
6.10
In its submission, the Department of Home Affairs stated that the ‘vast majority of ETA holders are compliant with the conditions of their ETA’ noting that in 2017, a very small proportion of ETA holders were non-compliant (0.463 per cent).
6.11
The Department of Home Affairs commented on the role that organised crime and labour hire companies played in exploitation of the visa system, and facilitating illegal workers to stay in Australia, which is driven by the demand for cheap unskilled labour.
6.12
The Department of Home Affairs advised that after undertaking an analysis of the caseload, the overstay rates and protection visa rates they were able to identify an issue with the ETA. In an effort to target organised visa fraud and the exploitation of foreign workers, the Australian Border Force commenced Operation Bonasus:
The operation ran from 29 November 2016 through to August 2017. As part of this national enforcement activity the ABF inspected almost 50 properties and located 288 illegal workers who were found to be working in breach of their visa conditions. Foreign nationals from not only Malaysia but also Indonesia, China, Vietnam, Tunisia, Pakistan and Bangladesh were amongst those who were located working illegally in industries ranging from agriculture to retail and hospitality.
6.13
As part of the operation ‘more than 300 individuals were refused entry into Australia.’
6.14
The Department of Home Affairs provided details on the penalties for labour hire companies found to have committed an offence:
…for a first time offence we look at nine penalty units, which totals $1,890. That is for a natural person. For a body corporate, it's $9,450. Again, that is for a first offence. For repeat offences, it is $3,780 for a natural person and then it goes up to $18,900 for a body corporate.
6.15
The Department of Home Affairs advised that ‘under the Migration Act, we don't have a power to compel payment.’
Electronic Travel Authority holders protection applications
6.16
In the past two years there have been media reports of Malaysian nationals operating unlawfully, either overstaying their visitor’s visa or seeking protection visas after entering Australia on a visitor’s visa.
6.17
Between 1 July 2016 and 4 December 2018 the Department of Home Affairs reported that 27,832 protection visas were lodged from the top ETA source countries which includes: the People’s Republic of China; United Kingdom; United States of America; Japan; Malaysia; South Korea; India; Singapore; Germany and Hong Kong.
6.18
Responding to a question on notice from the Legal and Constitutional Affairs Committee at supplementary budget estimates held on 23 October 2017, the Department of Home Affairs provided estimated data on the number of visa overstayers, unlawful non-citizens, in Australia at that time. The Department of Home Affairs stated that as at 30 June 2017:
…there were an estimated 62,900 unlawful noncitizens. We rate that about 99 per cent of the more than 7.1 million temporary entrants comply. So one per cent don't. Some of those might overstay by a day or a couple of days et cetera. To break that down for you in visa types, there were 46,030 visitors, 9,360 students, 2,270 temporary residents, 1,690 working holiday visas, 300 bridging visas, 280 on bridging visa E, 20 migrants and 2,930 who have been classified as ‘other’.
6.19
The Department of Home Affairs advised that the top five nationalities of unlawful non-citizens in Australia at that time was ‘Malaysia at about 15 per cent, China at about 9.5 per cent, the US at eight per cent, the UK at 5.6 per cent and India at 4.1 per cent.’
6.20
In response to a question on notice from additional estimates hearings held on 26 February 2018, the Department of Home Affairs noted that between 1 July 2014 and 30 June 2017, Malaysian nationals were most likely to apply for a protection visa than any other country (Table 6.1).
Table 6.1: Top 5 countries of onshore asylum claims made by individuals who have arrived in Australia via an airport for each of the past five financial years
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China,
Peoples
Republic of
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China,
Peoples
Republic of
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Malaysia
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Malaysia
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Malaysia
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China,
Peoples
Republic of
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India
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India
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China,
Peoples
Republic of
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China,
Peoples
Republic of
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China,
Peoples
Republic of
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Malaysia
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Pakistan
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Pakistan
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Pakistan
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India
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India
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India
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Egypt
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Fiji
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India
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Iraq
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Vietnam
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Vietnam
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Iran
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Egypt
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Iraq
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Pakistan
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Pakistan
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Thailand
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Iran
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Egypt
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Iraq
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Pakistan
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Pakistan
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Thailand
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Source: Legal and Constitutional Affairs Committee, Immigration and Border Protection Portfolio, 2017-18 Additional estimates, Portfolio question number: AE18/140, p. 1.
6.21
In their supplementary submission, the Department of Home Affairs provided statistics showing that the number of Malaysian nationals that had applied for a permanent protection visa (subclass 866) over the past three years had increased substantially (Table 6.2).
Table 6.2: Permanent Protection Visa applications lodged by Malaysian nationals
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2015/16
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4,809
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2016/17
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8,596
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2017/18
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9,065
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Source: Department of Home Affairs, Supplementary submission 6.2, p. 4.
6.22
Data provided by the Department of Home Affairs pointed out that between 1 July 2014 and 30 June 2017, the vast majority of the Malaysian nationals who applied for a protection visa were unsuccessful. For the 2016-17 financial year, 26,247 Malaysian’s lodged a protection visa application with 168 having been successful.
6.23
At a public hearing, in response to a question on whether there was a disproportionate amount of Malaysian nationals overstaying their visa compared to other countries, the Department of Home Affairs acknowledged that there appeared to be an issue with Malaysian nationals on ETA visas:
I think it would be fair to say that we have identified—through our analysis of the caseload and overstay rates and protection visa rates—that there is an issue there.
6.24
The Department of Home Affairs agreed that Malaysian nationals would apply for an electronic travel authority, arrive in Australia and, quite often, would immediately put in for protection which would enable them to work and stay in Australia for as much as eight years.
6.25
The Department of Home Affairs advised that the Australian and Malaysian governments were working cooperatively to prevent this from continuing:
I would just say that the Malaysian government is quite invested in trying to stop this behaviour as well. We actually have pretty good dialogue with them, because they know that this is not a good outcome for them and for their citizens either. We've done a lot of work through our post, which is in country, and we've also done a lot of work with our intelligence colleagues to identify some profiles for things that we know, through our analysis of the data, where we think that applications might be the most risky applications, and they're stopped from going through the system, in a light-touch way, and they're elevated out for a closer look.
Cost of the appeals process
6.26
Individuals who are unsuccessful in their applications for a protection visa may appeal that decision through the Administrative Appeals Tribunal (AAT), the Federal Circuit Court of Australia (FCC), the Federal Court of Australia (FCA), or the High Court of Australia.
6.27
The Attorney-General’s Department (AGD), who has responsibility for the courts and tribunals, provided information on the estimated costs of the appeals process relating to protection visa applications lodged by Malaysian ETA holders.
6.28
The data shows that the number of total applications received in the AAT, FCC and FCA over the past three financial years had increased markedly. The estimated total costs for appeals in the AAT between 1 July 2015 and 27 June 2017 was over $36 million; in the FCC $617,000; and just over $9 million in the FCA (Table 6.3).
Table 6.3: Applications and estimated total costs by Malaysian ETA holders to the AAT, FCC and FCA
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2015/16
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2,006
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6,212,582
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3
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36,000
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120
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720,000
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2016/17
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4,230
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12,715,380
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7
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91,000
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437
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2,840,500
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2017/18
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5,825
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17,754,600
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35
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490,000
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783
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5,481,000
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Est Total
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12,961
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$36,682,562
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45
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$617,000
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1,340
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$9,041,500
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Source: Attorney-General’s Department, Submission 40, p. 1.
6.29
The AGD advised that it was not able to provide estimated High Court costs as the nationality of litigants is not recorded:
It has been possible to identify only four matters in total over this three-year period, noting that this number could possibly be an underestimate because the High Court does not record the nationality of its litigants.
Fast-track applications
6.30
The Committee received evidence on an administrative process within the Department of Home Affairs to fast-track the consideration of protection visa applications.
6.31
The Department of Home Affairs fast-tracks the consideration of an applicant that has entered Australia as an unauthorised maritime arrival and lodged a valid protection visa application.
6.32
The timeframes for processing fast-track applications and merits review compared to non-fast-track are halved in two areas:
fast-track applicants are given 14 calendar days to respond to a written request for more information (compared to 28 days for non-fast-track applicants); and
fast-track applicants are given 14 calendar days extension to respond to written and oral requests if approved (compared to 28 days for non-fast-track applicants).
6.33
Applicants that have had their fast track reviewable decision refused by the Minister or delegate of the Department of Home Affairs are able to seek a review by the Immigration Assessment Authority.
6.34
The refusal decision is automatically referred to the Immigration Assessment Authority as soon as reasonably practicable by the Department of Home Affairs.
6.35
The Immigration Assessment Authority conducts a review based on the same information that was before the Department of Home Affairs when it made its decision. It ‘aims to complete most reviews within six weeks; however, the length of review can depend on a variety of factors.’
Committee comment
6.36
The Electronic Travel Authority subclass 601 visa is an important mechanism facilitating travel for citizens of 34 countries. Our bilateral relationships and personal and economic connections with these countries are strengthened as a result.
6.37
It is self-evident how important the visa is to Australia having issued about 2.7 million ETAs in the 2016-17 financial year.
6.38
The Committee acknowledges that the vast majority of ETA holders are compliant. However, it appears from the evidence that a percentage of Malaysian nationals are using the ETA as a gateway to circumvent our visa system and enter and stay in Australia and obtain work by applying for a protection visa.
6.39
In an effort to extend their time in Australia, in circumstances when the protection visa application has been unsuccessful, some Malaysian ETA visa holders are appealing the decision to either the AAT, FCC, FCA or High Court.
6.40
It is taking a considerable amount of time, and sizeable expense to the Australia taxpayer, for these appeals to be resolved. Over the last three years the cost is estimated to be over $46 million and in some cases it has taken up to eight years until their claims are finalised.
6.41
Of equal concern is organised crime and labour hire companies that are involved in orchestrating the movement of people from Malaysia to Australia with the express intent of exploiting these vulnerable workers.
6.42
The Committee acknowledges that the Department of Home Affairs and Australian Border Force have taken steps to address this issue. However, more needs to be done to prevent individuals from circumventing our immigration system.
6.43
Establishing a comparable fast-tracked application and merits review process for Electronic Travel Authority (subclass 601) visa holders could prevent applicants from circumventing the system and staying in Australia for extended periods of time as well as potentially saving the taxpayer a significant amount of money.
6.44
The Committee recommends that Electronic Travel Authority visa holders that lodge a valid protection visa application have their application fast-tracked by the Department of Home Affairs.
6.45
The Committee recommends the Migration Act 1958 be amended to provide the Immigration Assessment Authority the power to review fast tracked valid protection visa applications lodged by Electronic Travel Authority visa holders.
6.46
The Committee recommends that Electronic Travel Authority (subclass 601) visa holders that lodge a valid protection visa application have their application fast-tracked by the Department of Home Affairs.
6.47
The Committee recommends the Migration Act 1958 be amended to grant the Immigration Assessment Authority the power to review fast tracked valid protection visa applications lodged by Electronic Travel Authority visa holders.