2.1
Australia's temporary migration programme is designed to allow people to come to Australia for a range of purposes, including: work; international relations; study; training; and to visit.
2.2
Under Australia's temporary migration programme, temporary visas are issued to non-citizens to enter and remain in Australia for specified periods, events or a specified status. The right to work is provided under various circumstances, and different temporary visas allow different work conditions and periods.
2.3
Temporary visa holders make a valuable and substantial contribution to Australia's economic, social and cultural fabric. Aside from the social and economic benefits, Australia's temporary migration programme also contributes to global people-to-people links, providing opportunities and benefits to Australia and helping to shape the perception of Australia around the world.
Shift from permanent migration to temporary migration
2.4
Immigration is central to Australia's national story. From a population of around 7 million people after the Second World War, Australia has grown to a nation of more than 25 million people in 2020, with the immigration programme playing a core role in that nation building.
2.5
Until the 1990s, migration policy was predicated on a settlement-based system where permanent visas were granted to new migrants on arrival in Australia.
2.6
Since the mid-1990s, Australia has shifted from a permanent migration system towards one focused on temporary migration, with an emphasis on employer-sponsored migration. Previously, Australians saw immigration as a pathway to citizenship, but without major debate, this has changed, bringing with it major consequences.
2.7
As a result, the number of temporary visa holders with work rights in Australia has increased steadily for a number of years. Between 1 July 2015 and 31 July 2020 the number of temporary visa holders in Australia increased by around 16 per cent from approximately 1.7 million to just under 2 million. For the most part, temporary visas are uncapped and demand driven.
2.8
The increase in the number of temporary visa holders has led to a two-step immigration policy whereby an increasing proportion of migrants first enter Australia on a temporary visa and then later seek to obtain a permanent visa.
2.9
Before the closure of Australia's international border in 2020, the number of temporary visa holders arriving in Australia each year was substantially larger than the permanent migration programme. The permanent migration programme for 2020–21 is currently capped at 160,000 places.
2.10
The COVID-19 pandemic has significantly impacted Australia's temporary migration programme due to the closure of Australia's international border. According to the Department of Home Affairs (Home Affairs), the number of temporary visa holders was 1,720,957 as at 30 April 2021, which was a reduction of 17 per cent from the number of temporary visa holders as at 30 April 2020 (2,068,992). (A breakdown of the number of visa holders in each temporary visa category for the last two years can be found in Chapter 3 – Table 3.1, including the percentage change from year to year.)
2.11
Australia's migration system does not offer migrants automatic progression from temporary to permanent visas. Each permanent visa has distinct requirements that must be met by an applicant before a visa can be granted. The pathways from a temporary visa to a permanent visa are explored in detail in Chapter 5.
Temporary visas
2.12
The committee acknowledges there are many different temporary visas that provide some form of permission to work in Australia. The evidence the committee received primarily focused on temporary skilled visas, seasonal and working holiday visas, and visas for educational purposes. Therefore this report predominately considers the following temporary visas and programmes:
Temporary Skill Shortage (TSS) (Subclass 482) visa;
The Working Holiday Maker (WHM) program;
Seasonal Worker Programme (SWP) and Pacific Labour Scheme (PLS);
Student (subclass 500) visa; and
Temporary Gradate (subclass 485) visa.
Temporary Skill Shortage visa
2.13
The TSS visa was introduced in March 2018 to enable employers to meet their workforce needs by bringing in skilled overseas workers where an employer genuinely cannot source an appropriately skilled Australian worker. The TSS visa replaced the Temporary Work (Skilled) (subclass 457) visa. The temporary skilled migration settings are managed by Home Affairs.
2.14
According to Home Affairs, the intention of the TSS visa is 'that Australian workers have priority for Australian jobs and that overseas workers supplement but do not displace Australian workers'. The TSS visa provides a mechanism to bring overseas workers to Australia who are highly skilled and can quickly contribute their experience to the Australian workplace.
2.15
The TSS visa allows an overseas skilled worker to travel to and from Australia for the duration of their visa to work in Australia in a nominated occupation, for an approved sponsor. The visa permits a stay of up to four years, depending on the nomination length, and the occupation.
2.16
As at 30 April 2021, there were 102,722 Temporary Resident (Skilled Employment) visa holders in Australia.
Skilled Migration Occupation Lists
2.17
Australia's skilled visa programmes are underpinned by the following lists:
the Short-term Skilled Occupation List (STSOL);
the Medium and Long-Term Strategic Skills List (MLTSSL); and
the Regional Occupation List (ROL).
2.18
To assist Australia to meet its labour market needs, labour market analysis is undertaken and views are sought from across industry, employers, unions and individuals to prepare advice for the Australian Government on where skilled workforce needs exist.
2.19
On 2 September 2020, the Priority Migration Skilled Occupations List (PMSOL) was introduced. The PMSOL allows small numbers of sponsored skilled workers to enter Australia to supplement the skilled workforce needs of sectors critical to the recovery of the Australian economy from the COVID-19 pandemic. The PMSOL has subsequently been updated four times since its introduction. Employer sponsored nomination and visa applications with an occupation on the PMSOL will be given priority processing.
2.20
On 30 June 2021 the National Skills Commission (NSC) announced the Skills Priority List (SPL). The SPL provides a current labour market rating and a future demand rating for occupations nationally. The SPL is in addition to the other skills occupations lists that are developed by the NSC and provided as advice to Home Affairs for consideration in temporary and skilled migration programmes.
TSS visa streams
2.21
TSS visa holders can work in a nominated occupation for an approved sponsor under one of three streams listed below:
the Short-Term stream is for employers to sponsor an overseas skilled worker on a temporary basis, only in occupations listed on the STSOL for a TSS visa. It can be used to fill positions for a maximum of two years, or four years if an International Trade Obligation (ITO) applies;
the Medium-Term stream allows employers to sponsor an overseas skilled worker for periods of up to four years in occupations listed on the MLTSSL or the ROL for a TSS visa; and
the third stream is through labour agreements which are available for employers to sponsor an overseas skilled worker by entering into a labour agreement with the Australian Government.
2.22
The NSC, within the Department of Education, Skills and Employment (DESE) portfolio, is responsible for undertaking the labour market analysis that informs advice to the Government on the workforce needs of the Australian economy and labour market, including the skilled migration occupation lists.
Labour market testing
2.23
Under the TSS visa, labour market testing (LMT) is mandatory, with exemptions available only in specific circumstances. To meet the LMT requirement, employers must:
…provide evidence when submitting the nomination application to demonstrate that they have tested the local labour market within the four months prior to nominating a skilled overseas worker for a TSS visa, over at least four weeks.
2.24
Advertisements must:
be in English and specify skill/experience requirements;
have the position salary specified in the advertisement for positions with salaries less than AUD 94,600; and
include at least two advertisements using the methods of a national recruitment website, national print media/radio or business website of accredited sponsors.
2.25
The recruitment practices of Australian employers must also satisfy Australian workplace, equal opportunity and non-discrimination laws. Home Affairs stated that:
…job vacancies including those lodged on company websites and with labour hire firms should be available to Australian jobs seekers and should not target applications from persons holding particular visa types or from specific foreign countries.
2.26
Under the TSS visa, the applicant must:
have relevant skills, qualifications and employment background to perform the nominated occupation;
have worked in their nominated occupation or a related field for at least two years; and
meet English language requirements.
Skilling Australians Fund levy
2.27
All businesses nominating overseas workers for temporary or permanent employer sponsored visas, including a TSS visa, are required to pay a Skilling Australians Fund (SAF) levy.
2.28
The SAF prioritises apprenticeships and traineeships in occupations that are in high demand, rely on skilled migration or have future growth potential, including in rural and regional Australia. For businesses nominating overseas workers for a TSS visa, the amount of SAF levy payable depends on the size of the sponsoring business and the proposed period of stay of the overseas worker in Australia.
Temporary changes to TSS visa
2.29
Home Affairs stated that TSS or subclass 457 visa holders who have been stood down, but not laid off due to the COVID-19 pandemic, will maintain a valid visa. Home Affairs stated that businesses will have the opportunity to extend visas as per normal arrangements, and that businesses will be able to reduce workers hours without employees being in breach of their visa conditions or business being in breach of their employer obligations.
2.30
Home Affairs outlined that if a workers temporary work visa is expiring, they are not working in a critical sector, they are unable to return home because of entry restrictions and they cannot meet the requirements for another visa, workers still may be eligible for the COVID-19 Pandemic event visa.
Working Holiday Maker program
2.31
The objective of the Working Holiday Maker (WHM) program is to promote cultural exchange and strengthen people-to-people links by creating opportunities for young people to travel and undertake short-term work to supplement their holiday experience.
2.32
The WHM program has two visa subclasses:
the Working Holiday (subclass 417) visa; and
the Work and Holiday (subclass 462) visa.
2.33
Home Affairs has responsibility for administrating the WHM program.
Working Holiday visa
2.34
The Working Holiday visa is open to people between 18 to 30 years old (or 35 years for Canada, France and Ireland), who can support themselves while in Australia, meet health and character requirements and are not accompanied by dependent children.
2.35
The Working Holiday visa is an uncapped, demand driven programme open to nationals of the following 19 partner countries and regions: Belgium; Canada; Cyprus; Denmark; Estonia; Finland; France; Germany; Hong Kong; Ireland; Italy; Japan; Korea; Malta; Netherlands; Norway; Sweden; Taiwan; and the United Kingdom.
Work and Holiday visa
2.36
The Work and Holiday visa is open to nationals from 25 countries and is subject to annual visa caps, except for the United States of America (USA). The 25 countries are: Argentina; Austria; Chile; China; Czech Republic; Ecuador; Greece; Hungary; Indonesia; Israel; Luxembourg; Malaysia; Peru; Poland; Portugal; San Marino; Singapore; Slovak Republic; Slovenia; Spain; Thailand; Turkey; Uruguay; USA; and Vietnam.
2.37
In addition to meeting health and character requirements, visa applicants for the Work and Holiday visa must have completed at least two years of post-secondary education (except for the USA) and possess functional English proficiency. Visa applicants must also meet financial requirements, not be accompanied by dependants and for some countries and regions, they must provide a letter of support from their government.
Visa conditions
2.38
Both visas allow young people to holiday and work in Australia for up to 12 months. Working Holiday Makers (WHMs) can work in any occupation or industry while in Australia, for up to six months with one employer. Visa holders may choose to undertake three months of specified work in regional areas to become eligible to apply for a second 12-month visa.
2.39
As listed on the Home Affairs website, the following industries and areas are approved for specified work:
tourism and hospitality in northern, remote or very remote Australia only;
plant and animal cultivation in regional Australia;
fishing and pearling in regional Australia;
tree farming and felling in regional Australia;
mining in regional Australia;
construction in regional Australia;
bushfire recovery work in declared bushfire affected areas only, after 31 July 2019; and
critical COVID-19 work in the healthcare and medical sectors anywhere in Australia, after 31 January 2020.
2.40
Specified work is any type of work listed above and it must be the primary role, function or activity performed during employment. For example, Home Affairs stated that ‘supporting work, such as book-keeping, in any industry described in the list above, does not meet the definition of specified work’.
2.41
From 1 July 2019, holders of a second 12-month visa may choose to undertake six months of specified work in regional areas to become eligible to apply for a third 12-month visa.
2.42
The WHM visa allows employers to quickly increase their workforce and is an important, flexible source of labour when local workers are not available, particularly for seasonal roles.
Temporary changes to the WHM program
2.43
On 17 February 2020, the Australian Government introduced changes to the WHM program to support bushfire recovery efforts. These changes included:
extending the time a WHM can work with the same employer, from six months to 12 months for those assisting with bushfire recovery efforts; and
paid and volunteer disaster recovery work in declared areas impacted in the recent bushfires be counted towards ‘specified work’ needed to apply for a second or third year 417 or 462 visa.
2.44
Examples of eligible specified work in bushfire recovery includes:
re-building fences destroyed in a bushfire affected community;
caring for wildlife in a bushfire affected community;
support work for volunteer organisations assisting victims of bushfires;
demolition of buildings, trench digging, land clearing and earth moving; and
residential and non-residential construction or renovation/repair, including of roads, footpaths, bridges, parking lots, fencing, railways, dams, irrigation systems, sewage and storm water drainage systems.
2.45
Additionally, in response to the COVID-19 pandemic, WHMs are:
exempt from the six month work limitation with one employer if working in a critical sector such as agriculture, food processing, health, aged care, disability care and child care;
able to work in healthcare and medical sectors anywhere in Australia as specified work towards a second or third WHM visa;
WHMs employed in these critical sectors who are ineligible for a second or third WHM visa, and cannot return to their home country, can apply for a COVID-19 Pandemic event visa; and
able to count critical COVID-19 related work in the healthcare and medical sectors on a COVID-19 Pandemic Event visa towards eligibility for a second or third WHM visa.
2.46
As at 30 April 2021, there were 38,489 working holiday visa holders in Australia (subclasses 417 and 462).
Seasonal Worker Programme and Pacific Labour Scheme
2.47
Australia operates two temporary labour mobility programmes for workers from nine Pacific countries and Timor-Leste, the Seasonal Worker Programme (SWP) and the Pacific Labour Scheme (PLS).
2.48
The countries that participate in the SWP and PLS are: Fiji; Kiribati; Nauru; Papua New Guinea; Samoa; Solomon Islands; Tonga; Tuvalu; Vanuatu; and Timor-Leste.
2.49
The SWP, along with the PLS, supports rural and regional businesses and communities with labour shortages, while also advancing bilateral relationships with Pacific Island countries and fostering links between people in Australia and the Pacific. The two labour mobility programmes allow for remittances and skills development to boost economic growth in Pacific Island countries.
Seasonal Worker Programme
2.50
The SWP provides access to short-term, seasonal work opportunities in the Australian agriculture sector, and in selected locations in the accommodation sector. The SWP provides for employment opportunities for up to nine months where there is insufficient local labour supply available.
2.51
The SWP is led by DESE, in partnership with other agencies including the Department of Foreign Affairs and Trade (DFAT), the Fair Work Ombudsman (FWO) and Home Affairs.
Pacific Labour Scheme
2.52
The PLS provides access to longer-term low and semi-skilled work placements in rural and regional Australia for up to three years. The PLS is administered by DFAT, with PLS workers participating in the hospitality and tourism, aged care, agriculture, fisheries, forestry, and meat processing sectors.
2.53
Under the PLS, the Pacific Labour Facility (PLF), a contractor engaged to support delivery of the PLS, connects Australian employers with workers and supports the administration of the Scheme. The PLF works closely with partner governments in the Pacific and Timor-Leste to build a work-ready pool of suitably qualified workers. At the same time, the PLF helps Australian businesses identify and access workers under the Scheme.
Approved employers
2.54
To participate in the SWP and PLS, entities must apply for approval from either DESE or DFAT before they can recruit seasonal workers through the Programme or Scheme. Once approved, entities are then referred to as approved employers.
2.55
To become an approved employer under the SWP, organisations must, among other things, demonstrate a commitment to first employing Australian job seekers; good workplace relations and immigration practices; and demonstrate an understanding of an approved employer's obligations under the SWP.
2.56
Businesses eligible to participate in the PLS as approved employers must conduct LMT and are vetted by DFAT to ensure they are financially solvent, have a history of compliance with Australian workplace and immigration legislation, have established employment and workplace policies and procedures, and are able to meet the high worker welfare requirements of the Scheme. Only businesses which meet these criteria are approved to participate in the PLS.
2.57
Approved employers must enter into an agreement with either DESE or DFAT and must also enter into a sponsorship arrangement with Home Affairs. Home Affairs assesses and facilitates travel for eligible Pacific island workers through the International Relations (subclass 403) visa, with workers having to meet standard visa requirements including security, identity, health and character checks.
Temporary changes to SWP and PLS
2.58
In response to COVID-19, in April 2020, temporary changes to visa arrangements for the SWP and PLS were announced. The temporary changes allowed:
workers under the SWP and the PLS to continue working in the agriculture sector;
workers with new visas to remain in Australia and continue working for up to 12 months; and
continued sponsorship arrangements between workers and their employers.
2.59
On 4 August 2020, the Government introduced a SWP trial in the Northern Territory (NT) to address the labour shortages affecting NT mango farmers. The trial saw up to 170 workers from Vanuatu enter Australia to help with the 2020 mango season. The mango industry, in consultation with the NT Government, nominated participating approved employers and growers. Under the trial, approved employers undertook labour market testing to ensure Australians had the first opportunity to be recruited.
2.60
Under the trial, stringent conditions were in place to ensure the health and safety of Australians and Northern Territorians, including 14 days mandatory quarantine at the Manigurr-ma Village Quarantine Facility at Howard Springs. The Australian Health Protection Principal Committee reviewed the trial arrangements and quarantine procedures and considered they were appropriate to ensure COVID-19 related risks to the Australian community and overseas workers were acceptably low. Flights and the cost of quarantine were funded by the NT Government and the mango industry.
2.61
Following the success of the SWP trial in the NT, the Australian Government implemented a restart of the PLS and SWP to help fill labour shortages in key industries, particularly the agriculture sector. With the Commonwealth having constitutional responsibility for quarantine, it is important in light of the current health risks, that the federal government works together with the states and territories on how best to process SWP and PLS workers through quarantine facilities. Consideration should also be given to a travel bubble with Pacific Island countries.
2.62
As at 30 April 2021, there were 8,284 SWP participants in Australia.
2.63
As of mid-October 2020, there were 950 PLS participants in Australia.
Streamlining the Seasonal Worker Programme and the Pacific Labour Scheme
2.64
The National Agricultural Workforce Strategy, released in March 2021, recognised the important role played by Pacific and Timorese workers in filling workforce gaps. The strategy recommended streamlining the SWP and PLS to mobilise overseas workers more effectively and improve accessibility to the programme.
2.65
In June 2021, the Australian Government announced a Pacific Labour Mobility Consultation and released a discussion paper on options for further enhancing the SWP and the PLS to maximise benefits for employers, workers and participating countries.
Student (subclass 500) visa
2.66
The purpose of the international student visa is to enable international students to pursue a chosen course of studies in Australia. Student visa requirements ensure that international students are enrolled in courses that are subject to Australia's quality assurance framework for international education, set out under the Education Services for Overseas Students Act.
2.67
Student visa holders are permitted to stay for up to five years, with the type of course determining the length of stay. International students are required to demonstrate an ability to support themselves in Australia prior to being granted a visa. However, student visa holders are also permitted to work up to 40 hours per fortnight while their course is in session and full time during scheduled course breaks. This condition has been relaxed in certain sectors due to the COVID-19 pandemic, as discussed below.
Temporary changes to student visa conditions
2.68
The following measures have been introduced for international students in response to the COVID-19 pandemic:
Student visa holders working in healthcare, disability and aged care, nursing and supermarkets (supermarkets arrangement ended 1 May 2020) can temporarily work more than 40 hours per fortnight while their course is in session. In January 2021, the temporary relaxation of working hours for student visa holders was extended to those employed in the agricultural sector, and further extended in May 2021 for international students employed in the tourism and hospitality sector.
From 20 July 2020, time spent studying online outside Australia will count towards qualifying for a post-study work visa for student visa holders affected by the COVID-19 pandemic.
From July 2020, visa holders affected by the COVID-19 pandemic can apply for and be granted a post-study work visa outside Australia. In September 2020, regulation changes were made to allow offshore applications.
From 20 July 2020, additional time has been allowed to provide results for English language testing, biometrics collection and health checks, where COVID-19 has disrupted access to services, and Home Affairs is taking a flexible approach where COVID-19 restrictions have prevented student visa conditions being met.
2.69
As at 30 April 2021, there were 374,574 student visa holders in Australia.
Temporary Gradate (subclass 485) visa
2.70
The Temporary Graduate (subclass 485) visa provides eligible international students who have graduated from an Australian education provider with the opportunity to work in Australia. The Temporary Graduate visa provides an incentive for international students to choose Australia as a study destination and supports Australia's attractiveness as an international education destination.
2.71
The Temporary Graduate visa has two streams, the:
graduate work stream: this steam requires an applicant to nominate an occupation on the MLTSSL (18 months validity); and
post-study work stream: this stream is for applicants who have completed a Bachelor qualification or above (validity between two and four years based on qualification).
2.72
From 2021, international students who graduate from a regional education campus may apply for additional time on a Temporary Graduate visa (post-study work stream), providing they maintain ongoing residence in regional Australia.
2.73
As at 31 May 2021, there were 91,011 Temporary Graduate visa holders in Australia.
Other temporary migration programmes
2.74
Other visas that provide some form of permission to work in Australia include the:
Temporary Work (short stay specialist) (subclass 400) visa: which provides short-term non-ongoing work for visa holders with highly specialised skills, knowledge or experience;
Temporary Work (International Relations) (subclass 403) visa: which allows people to come to Australia on a temporary basis if they meet the requirements of one of the six streams within the visa. The streams are government agreement; foreign government agency; domestic worker; privileges and immunities; SWP; and PLS;
Temporary Activity (subclass 408) visa: which comprises ten categories and allows stays between three months and two years depending on the activity, for example religious work, research activities, sporting activities and entertainment activities;
Special Category Visa (subclass 444): The Special Category Visa (SCV) is a temporary visa that allows New Zealand citizens to visit, live and work in Australia;
Sponsored Parent (Temporary) (subclass 870) visa: this visa provides an alternative pathway for parents to live in Australia on a temporary basis. This programme enables Australian citizens, permanent residents and eligible New Zealand citizens to sponsor their parents to visit Australia for up to five years for each visa, and for a total period of 10 years;
Visitor Visa (subclass 600): is for people visiting Australia as a tourist, to see family and friends or for purposes other than business or medical treatment. It lasts for up to 12 months and does not provide the right to work in Australia, save for under the three-month Business Visitor stream, which allows to visitors to make general business or employment enquiries, negotiate contracts, or take part in a conference or trade fair;
Temporary Protection Visa (TPV): is for people who have arrived in Australia without a visa, and want to seek asylum. A TPV allows an individual to stay in Australia temporarily if the individual engages in Australia's protection obligations and meets all other requirements for the grant of the visa. A TPV allows an individual to live, work and study in Australia temporarily for three years;
Safe Haven Enterprise Visa (SHEV): is for people who have arrived in Australia without a visa and engages in Australia's protection obligations and allows an individual to work and study in Australia for up to five years. Under a SHEV, an individual must sign a declaration that they will work or study in regional Australia; and
Bridging visas: Bridging Visa A (subclass 010), Bridging Visa B (subclass 020), Bridging Visa C (subclass 030), and Bridging Visa E (subclasses 050 and 051) provide a temporary visa that allows people to stay lawfully in Australia until their substantive visa application is finally determined. Bridging visas can also be granted in association with judicial review, until those proceedings are completed, and in cases where people are waiting for an immigration decisions or applying for a protection visa. It is possible to work in Australia while on a bridging visa, if requirements are met.
Other pathways to work in Australia
2.75
There are other pathways that allow temporary migrants to work in Australia. These include through labour agreements, ITOs and designated area migration agreements.
Labour Agreements
2.76
A labour agreement is a formal agreement between an Australian employer and the Australian Government, and is an alternative option for employers seeking to access specific occupations that are not available through the standard visa programmes. Labour agreements require employers to provide evidence of labour shortages including through LMT.
2.77
Labour agreements are generally in effect for five years and provide for visas to be granted under one or several of the following categories, the:
Temporary Skill Shortage (TSS) (subclass 482) visa;
Employer Nomination Scheme (ENS) (subclass 186) visa; and
Skilled Employer Sponsored Regional (Provisional) (SESR) (subclass 494) visa.
2.78
Industry specific labour agreements can be used to address workforce gaps in the Australian economy, and are currently in place for the agricultural sector in the dairy, meat, pork and fishing industries. A Horticulture Industry Labour Agreement was introduced on 1 January 2020.
2.79
Industry specific labour agreements provide for fixed terms and conditions agreed to by the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) in consultation with key industry stakeholders, specific to an industry sector. The industry agreements allow unique terms, conditions and concessions for certain occupations which will apply to all future labour agreements in that industry sector. Concessions include any variations to the requirements prescribed in the Migration Legislation in relation to the age, skills, qualifications, employment background, level of English Language proficiency and the Temporary Skilled Migration Income Threshold (TSMIT) required for the nomination and grant of a TSS, SESR or ENS visa.
2.80
Within the TSS visa programme, the labour agreement stream accounted for 1,102 visas granted in 2019-20 to 31 May 2020 or 3.94 per cent of the overall number of visas granted.
International Trade Obligations
2.81
Temporary migration is an essential component of Australia's trade relationships. Australia's free trade agreements (FTAs) contain legal obligations to facilitate the temporary entry of skilled workers, supporting broader two-way trade and investment.
2.82
Under Australia's FTAs and the General Agreement on Trade Services (GATS), there are commitments to facilitate the temporary entry of certain categories of skilled workers. For example, to allow short-term business visitors to attend a conference, existing employees in a foreign enterprise can be transferred to an office in Australia (known as intra-corporate transferees); independent executives (investors establishing a branch of a foreign enterprise); installers and servicers of specialised machinery and equipment; and skilled workers with specialist trade, professional and technical knowledge entering Australia to fulfil a contract (known as contractual service suppliers).
2.83
Australia meets its ITOs relating to the movement of people within the structures of its existing visa categories. The TSS visa is the primary visa that facilitates Australia's ITOs.
2.84
While LMT is a mandatory requirement for the short-term and medium-term streams of the TSS visa, LMT does not apply when it is inconsistent with Australia's ITOs. Citizens of China, Chile, Japan, Korea, New Zealand and Thailand are fully exempt from LMT under FTAs, and LMT is not required in certain circumstances for some categories of entrants (senior executives, independent, specialists and intra-corporate transferees).
2.85
On 15 June 2021, Prime Ministers the Hon Scott Morrison MP and the Hon Boris Johnson MP announced that Australia and the UK had reached agreement in principle on core elements of a new FTA. Under the proposed FTA, Australia will remove the sectoral work requirement for UK nationals in Australia’s WHM program. The change will be introduced within 5 years to monitor any impact on the agriculture sector and ensure alternative workforce opportunities are in place.
Designated Area Migrating Agreements
2.86
A Designated Area Migration Agreement (DAMA) is a formal agreement between the Australian Government and a state, territory or regional authority. It provides access to more overseas workers than the standard skilled migration programme. DAMAs operate under an agreement-based framework, providing flexibility for regions to respond to their unique economic and labour market conditions.
2.87
A DAMA is a two-tier framework covering a defined regional area. The first tier is an overarching five-year deed of agreement with a Designated Area Representative (DAR) which may be any entity including a state or territory authority, regional authority or local council. The second tier comprises individual labour agreements with employers that are entered into once the employer is endorsed by the DAR.
2.88
For a DAMA to be approved, a number of factors are considered. These include: a demonstrated effort to recruit Australians first; ceilings on numbers of overseas workers employed annually; and that local support is made available to migrant workers.
2.89
Once a DAMA is in place, labour market demand in the designated area determines the extent of the use of the DAMA. There are currently seven DAMAs in effect in the following regions:
The Northern Territory Designated Area Migration Agreement;
The Goldfields, WA: City of Kalgoorlie Boulder;
Great South Coast, VIC: Warrnambool City Council;
Adelaide City Technology and Innovation Advancement: Skilled & Business Migration;
South Australia Regional: Skilled & Business Migration;
Orana, NSW: Regional Development Australia; and
Far North Queensland: Cairns Chamber of Commerce DAMA – Cairns Chamber of Commerce.
Changes to temporary visas in response to the COVID-19 pandemic
2.90
The Australia Government has made a series of changes to enable temporary visa holds to work and remain in critical sectors including health and aged care, disability services, agriculture and food processing and child care during the COVID-19 crisis.
2.91
For example, the COVID-19 Pandemic Event visa was made available within the exiting Temporary Activity (subclass 408) visa:
… for temporary visa holders in Australia with expiring visas who are unable to depart and are not able to apply for any other visa or have evidence from an employer that they have ongoing work in a critical sector.
2.92
As at 31 May 2021, there were 12,698 people in Australia on the COVID-19 Pandemic Event Visa.
2.93
In response to the COVID-19 pandemic, the Australian Government is refunding and waiving Visa Application Charges (VAC) to prospective partners, temporary workers, seasonal workers, working holiday makers and visitors impacted by the COVID-19 travel ban.
Legislative framework
2.94
As outlined above, there are a number of temporary visas with different work rights and priorities, with different Commonwealth agencies having full, or shared, responsibilities for different visa streams. Numerous agencies have jurisdiction over Acts that are relevant to temporary visa holders. These agencies are listed below in Table 2.1.
Table 2.1: Relevant agencies and legislation administered
|
|
|
|
Department of Home Affairs
|
Migration Act 1958
|
|
Australian Border Force
|
Migration Act 1958
Australian Border Force Act 2015
|
|
Fair Work Ombudsman
|
Fair Work Act 2009
|
|
Attorney-General's Department
|
Criminal Code, Divisions 270 and 271
Work Health and Safety Act 2011
Fair Entitlements Guarantee Act 2012
|
|
Department of Education, Skills and Employment
|
Education Services for Overseas Students Act 2000
|
|
Australian Taxation Office
|
Tax Administration Act 1953
Superannuation Guarantee (Administration) Act 1992
A New Tax System (Australian Business Number) Act 1999
|
|
Australian Competition and Consumer Commission
|
Competition and Consumer Act 2010 (which provides for the Franchising Code of Conduct)
|
|
Australian Securities and Investment Commission
|
Corporations Act 2001
|
Source: Report of the Migrant Workers' Taskforce, March 2019, p. 61 (amended to reflect 2021 departmental arrangements).
2.95
The responsibilities of the varying Australia Government departments are discussed below.
Department of Education, Skills and Employment
2.96
DESE includes the NSC, which has a role in providing independent advice to the Australian Government on Australia's skilled migration occupation lists, evaluating workforce trends, and undertaking skills shortage research and employment projections. DESE also has responsibility for delivering the SWP, supporting Australia's international education sector, and providing advice on the Australian labour market.
Department of Foreign Affairs and Trade
2.97
DFAT submitted that temporary migration advances Australia's national interests by contributing to exports, foreign investment and economic growth, strengthening Australia's international relationships and reputation, and fostering links between people. DFAT's primary role in Australia's regulatory framework for temporary visa holders is its oversight of the PLS.
Attorney-General's Department
2.98
AGD supports the Minister for Industrial Relations to ensure safe, fair and productive workplaces. It is the lead department on the inter-agency working group that is dedicated to implementing the 22 recommendations of the 2019 Report of the Migrant Workers' Taskforce, and is currently involved in the implementation of 15 of the 22 recommendations.
2.99
AGD is also responsible for establishing the National Labour Hire Registration Scheme, which was created following a recommendation of Report of the Migrant Workers' Taskforce. Additionally, AGD is continuing to work with the relevant departments, including undertaking ongoing consultation as part of the Australian Government's 2019 commitment to review the industrial relations system.
Department of Home Affairs
2.100
The temporary migration programme settings are managed by Home Affairs and are the responsibility of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. Home Affairs submitted that Australia's temporary migration programme is designed to allow people to come to Australia for a range of purposes, including temporary activity or work, international relations, study, training and to visit.
2.101
Home Affairs is a member of the Migrant Workers Interagency Group working to implement the recommendations from the 2019 Report of the Migrant Workers' Taskforce. Home Affairs is also implementing a number of programmes that are designed to increase social cohesion in Australia, including:
the National Community Hubs Program, which helps migrant and refugee women with young children to connect with their community;
a pilot Youth Hubs initiative, which supports migrant and refugee young people aged 13 to 21 years, as well as their mothers;
the Community Languages Multicultural Grants Program, which helps young Australians learn another language and connect people to new languages and cultures;
Implementing Sport 2030, which includes a range of initiatives supporting Australian sport and the role it plays in promoting social inclusion;
the Fostering Integration Grants Program, which helps local community organisations assist migrants to integrate into life in Australia;
the Enhanced Community Engagement Program, which helps young people to understand and counter online hate; and
grants to community organisations with a record of delivering successful grassroots programmes to enhance integration, mutual understanding and respect for diversity.
2.102
Home Affairs works with the FWO on a range of 'communication approaches to increase awareness of Australia's workplace laws among temporary visa holders, as well as educating employers about their obligations'. The Assurance Protocol that is in place between Home Affairs and the FWO is discussed below.
The Fair Work Ombudsman
2.103
Established under the Fair Work Act 2009, the FWO is tasked with:
providing education, assistance, advice and guidance to employers, employees, outworkers, outworker entities and organisations;
promoting and monitoring compliance with workplace laws;
inquiring into and investigating breaches of the Fair Work Act 2009;
taking appropriate enforcement action; and
performing its statutory functions efficiently, effectively, economically and ethically.
2.104
Temporary visa holders employed in Australian workplaces are entitled to the same workplace rights and protections as employees who are Australian citizens and permanent residents, including pay and conditions under relevant modern awards and enterprise agreements, superannuation, and workplace safety. Visa holders that are underpaid and exploited can approach the FWO for assistance in resolving issues in their workplace, including ensuring that they receiving the minimum wages and conditions that they are entitled to under the Fair Work Act 2009.
2.105
As outlined in the Report of the Migrant Workers' Taskforce, the FWO provides information and education on work rights and obligations, assists people to resolve workplace disputes, investigates suspected contraventions and undertakes litigation and other actions to enforce workplace laws. The FWO also monitors certain skilled visa arrangements. Its activities are split between enforcement and educative activities. The FWO participates in 16 cross agency forums and multicultural network meetings nationally to provide information about its functions, resources and workplace laws and engages with over 100 organisations that connect with and support migrant workers.
2.106
The 2017-18 year, which is described below, is a representative example:
In 2017–18, the FWO recovered over $29.6 million in unpaid wages for more than 13,000 workers through requests for assistance involving a workplace dispute and FWO-initiated activities. Of the 28,275 requests for assistance the FWO handled involving a workplace dispute:
96 per cent (27,074) were resolved through education and dispute resolution activities in an average of seven days, with more than $20.8 million recovered
4 per cent (1,201) were resolved through compliance activities in an average of 167 days, with more than $2.7 million recovered.
2.107
The FWO also may assist temporary visa holders in using small claims procedures under the Fair Work Act 2009, although this only applies to underpayments of $20,000 or less.
2.108
In 2019-20, the FWO completed 6,395 requests for assistance with recoveries for amounts of less than $20,000. The majority of these requests were resolved through direct assistance from the FWO. Table 2.2 sets out the small claims recoveries for 2019-20, where the FWO provided information and guidance to assist people with small claims applications.
Table 2.2: 2019 - 20 Small Claims Recoveries
|
|
|
|
|
|
$0 - $5,000
|
50
|
|
|
$5001 - $10,000
|
10
|
|
2019-20
|
$10,001 - $15,000
|
3
|
|
|
$5,001 - $20,000
|
1
|
Source: Fair Work Ombudsman, answers to questions on notice, 30 June 2021 (received 30 July 2021), p. 6.
2.109
Outside of this practice, the FWO also litigates strategically, reserving court action for matters that act as a general or specific deterrence or provide clarification of the law.
2.110
The FWO has a range of enforcement tools that it can utilise in cases of 'deliberate or repeated exploitation of highly vulnerable workers by operators', which include compliance notices and legally enforceable undertakings.
2.111
In its submission to the inquiry, the FWO outlined activities that it is undertaking to 'remedy the systematic exploitation of migrant workers'. These activities include:
enforcing compliance with workplace laws through a significant increase in the use of statutory enforcement tools, including compliance notices to address underpayments, breaches of awards and the National Employment Standards;
working with government, stakeholders and the community to share intelligence, carry out joint compliance activities and address the broader settings that impact on the treatment of migrant workers in the labour market; and
the provision of education and accessible tools and resources that enable migrant workers to understand and act on their rights.
2.112
The FWO further noted that it had helped visa holders to recover over $3.1 million for nearly 1,650 employees in 2018-19 and over $1.2 million for over 680 employees up to 31 December in 2019-20.
2.113
The FWO stated in its submission that the exploitation of temporary visa holders is a 'systemic and complex' issue and that it is 'committed to continuing to refine its operational model and priorities to ensure that migrant workers continue to receive reliable and timely advice, education and compliance outcomes'.
The Fair Work Commission
2.114
The Fair Work Commission (FWC) is Australia's national workplace relations tribunal, established by the Fair Work Act 2009. It is responsible for administering the provisions of the Fair Work Act 2009. As listed on the Commission's website, its powers and functions include:
dealing with unfair dismissal claims;
dealing with anti-bullying claims;
dealing with general protections and unlawful termination claims;
setting the national minimum wage and minimum wages in modern awards;
making, reviewing and varying modern awards;
assisting the bargaining process for enterprise agreements;
approving, varying and terminating enterprise agreements;
making orders to stop or suspend industrial action;
dealing with disputes brought to the Commission under the dispute resolution procedures of modern awards and enterprise agreements;
determining applications for right of entry permits; and
promoting cooperative and productive workplace relations and preventing disputes.
2.115
As an independent national workplace relations tribunal, it is responsible for maintaining a safety net of minimum wages and employment conditions. It does not provide advice on entitlements under an award or registered agreements or enforce minimum pay and award entitlements.
Enforcement and compliance framework
2.116
This section outlines the roles of various Australian Government departments in maintaining the enforcement and compliance framework that underlies Australia's regulatory approach to temporary visa holders, as well as court processes that may be available to temporary visa holders who have been underpaid or otherwise exploited.
Department of Home Affairs
2.117
Home Affairs enforces a spectrum of responses to employees who do not comply with visa conditions, as well as to employers that exploit temporary visa holders. Home Affairs and the ABF administer three sanction frameworks under the Migration Act 1958. These three areas are:
Employer sanctions for businesses which employ/contract, allow or refer non-citizens to illegally work in Australia without taking reasonable steps to confirm that they have a valid visa and permission to work;
Sponsor obligations for sponsors who do not comply with legally binding sponsorship obligations that aim to protect temporary visa holders in Australia from exploitation; and
Paying for visa sponsorship, which is characterised by sanctions for any person or business entity who asks for, receives, offers or provides a benefit in return for a visa sponsorship, or employment that requires a visa sponsorship.
2.118
Within each of these three areas, Home Affairs and the ABF have 'graduated tiers of sanctions to encourage employers and other entities to comply with migration legislation', including:
serving an infringement notice;
barring or cancelling a sponsor from engaging in the programme;
pursuing a civil penalty through the courts; or
referring evidence to the Commonwealth Director of Public Prosecution to pursue criminal prosecution.
The Australian Border Force
2.119
The ABF monitors the compliance of visa sponsors with their obligations and also monitors whether their sponsored visa holders are upholding their visa conditions, undertaking such monitoring for up to five years after sponsors cease their sponsorship activities. This monitoring occurs via:
writing to sponsors to request information in accordance with the obligation to provide records and information;
site visits, with or without notice; and
exchanging information with other Commonwealth, state and territory government agencies, including the FWO and the Australian Taxation Office.
2.120
The ABF publicly publishes on its website a register of employers sanctioned for failing to comply with their obligations to sponsored workers, which is intended as a deterrent to sponsors acting inappropriately. The ABF can also undertake enforcement actions against non-compliant sponsors, including:
cancelling a sponsor's access to the programme;
barring a sponsor from sponsoring more visa holders;
serving infringement notices up to $12,600 per obligation breach; and
civil penalties of up to $63,000 per obligation breach.
2.121
Additionally, the ABF has jurisdiction over removing non-citizens who do not hold a valid visa and who have exhausted all avenues to remain in Australia lawfully. Home Affairs reported that, between 1 March 2020 and 31 July 2020, 304 people were subject to immigration detention and subsequent deportation after being determined to be unlawful non-citizens.
Taskforce Cadena
2.122
Established in June 2015, Taskforce Cadena is a Joint Agency Taskforce comprising Home Affairs, ABF, and the FWO. The Taskforce's objective is to 'enhance operational and intelligence capabilities to support whole-of-government efforts targeting organized visa fraud, illegal work and the exploitation of temporary visa holders in Australia'.
2.123
Home Affairs submitted that findings from Taskforce Cadena have enabled the ABF to 'develop targeted operations against facilitators to disrupt the exploitation of foreign workers'. Home Affairs further stated that Taskforce Cadena has 'enhanced all agencies' understanding of the criminal environment as it relates to foreign worker exploitation and its links to more serious criminality than was previously known', including in the areas of:
illegal sex work, human trafficking, slavery, money laundering, and illicit drugs;
unscrupulous labour hire intermediaries facilitating the movement and placement of foreign workers in exploitative conditions for financial gain;
the use of lawful and unlawful immigration service providers charging foreign workers exorbitant fees to exploit visa pathways and prolong their working stay in Australia;
the use of professional facilitators who establish complex financial structures to hide illegal activity, and avoid payment of taxes, creditors and employee entitlements; and
the use of offshore networks to recruit foreign workers, provide transport logistics to Australia and in some cases, false identification documents.
2.124
Home Affairs also provided statistics on the number of activities undertaken by Taskforce Cadena, which are replicated in Table 2.3 below.
Table 2.3: Taskforce Cadena
|
|
|
|
|
|
Employer sanction awareness visits
|
53
|
<5
|
54
|
|
S48ZC Migration Act warrants
|
8
|
9
|
17
|
|
3E Crimes Act warrants
|
6
|
0
|
6
|
|
Other non-warrant visits
|
5
|
0
|
5
|
|
Illegal worker warning notices
|
27
|
19
|
46
|
|
Identification of organised networks involved in exploitation of foreign workers
|
<5
|
<5
|
6
|
|
Operational activity that disrupts ongoing ability of targets
|
20
|
8
|
28
|
|
Initiation of proactive field intelligence activity
|
6
|
7
|
13
|
|
Australian Criminal Intelligence Commission
coercive hearings
|
<5
|
<5
|
<5
|
|
Joint agency enforcement activity
|
16
|
<5
|
18
|
|
Referrals to partner agencies
|
16
|
14
|
30
|
|
Human trafficking referrals
|
<5
|
0
|
<5
|
|
Criminal Assets Confiscation Taskforce referrals
|
<5
|
<5
|
5
|
|
ABF infringement notices
|
22
|
<5
|
26
|
|
Intelligence products
|
53
|
<5
|
54
|
Source: Department of Home Affairs, Submission 82.1, p. 5.
Operation Battenrun
2.125
The ABF established Operation Battenrun on 3 December 2018. Operation Battenrun is a national operation that targets labour hire intermediaries and entities of interest that are exploiting vulnerable onshore foreign workers, including unlawful non-citizens. The operation is undertaken in order to 'detect, deter and disrupt labour hire intermediaries responsible for the exploitation of foreign nationals in Australia'. Home Affairs noted that '[i]ndividuals are identified based on threat and geographical locations, with priority being placed on those individuals who pose a threat to the Australian community'.
2.126
The operation was described as 'multi-faceted, targeting entities of interest and labour hire intermediaries, with a focus on employer compliance, the exploitation of foreign workers, and the exploitation of Australia's visa programs'. Home Affairs submitted that, as a result of recent activities, 'the ABF and AFP obtained useful intelligence to inform future investigations, and developed valuable community and human sources'.
2.127
Home Affairs provided statistics on the activities undertaken as part of Operation Battenrun, which are reflected in Table 2.4 below.
Table 2.4: Operation Battenrun
|
|
|
|
|
|
|
Field activities
|
94
|
843
|
374
|
1311
|
|
Warrants executed
|
7
|
72
|
17
|
96
|
|
Non-warrant visits
|
0
|
90
|
26
|
116
|
|
Employer awareness and education activities
|
2
|
102
|
124
|
228
|
|
Bridging visa Es Issued
|
0
|
43
|
18
|
61
|
Source: Department of Home Affairs, answers to questions on notice, 30 June 2021 (received 21 July 2021), [p. 2].
2.128
Home Affairs advised the committee that field activities for Operation Battenrun have reduced as a result of the COVID-19 pandemic.
The Australian Federal Police
2.129
The Australian Federal Police (AFP) are responsible for investigating offences under divisions 270 and 271 of the Criminal Code Act 1995, which includes human trafficking, slavery and slavery-like offences. The AFP noted in its submission that victims of human trafficking may have temporary migrant status, and that this includes—but is not limited to—victims of forced marriage, forced labour, deceptive recruiting and servitude. The AFP has dedicated Human Trafficking Teams that investigate such crimes.
2.130
Additionally, the AFP is a member of the Interdepartmental Committee on Human Trafficking and Slavery, which is responsible for monitoring the implementation of the National Action Plan to Combat Modern Slavery 2020‑2024, which is currently in draft stage.
2.131
The AFP is currently undertaking a number of programmes to build awareness of human trafficking and forced marriage, including:
the Look a Little Deeper Awareness Program, which was created in collaboration with Victoria Police and is 'a purpose-built human trafficking information and awareness package';
Project SKYWARP, which is Australia's first forced marriage awareness campaign and targets travellers at Sydney Airport; and
the Support for Trafficked People Program, which provides assistance to victims of human trafficking, slavery and slavery-like practices, including forced marriage.
The Assurance Protocol between the Fair Work Ombudsman and the Department of Home Affairs
2.132
The FWO and Home Affairs are responsible for separate but intersecting parts of the regulatory framework that impact the experiences of temporary visa holders in Australia. The two organisations work collaboratively within the regulatory framework to assist vulnerable workers and to take action against those who exploit them. These interactions may involve sharing information, which in some instances will include referring allegations for joint agency responses and targeting.
2.133
Home Affairs and the FWO have established an Assurance Protocol that is designed to encourage temporary visa holders to report exploitation in the workplace. Under the protocol, Home Affairs will generally not cancel a temporary visa with a work entitlement attached in circumstances where:
the visa holder has sought advice or assistance from FWO and is assisting the Ombudsman with their inquiries;
the visa holder has not complied with the work-related conditions only and there is no other basis for visa cancellation (such as national security, character, health or fraud grounds); and
the visa holder commits to abiding by visa conditions in the future.
2.134
In a question on notice to the committee, Home Affairs noted that, as at 25 September 2020, the FWO had referred 66 temporary visa holders to Home Affairs since the commencement of the Assurance Protocol in 2017. Home Affairs stated that:
To date, no-one referred under the Protocol has had their visa cancelled for a breach of work related conditions.
The Fair Work Act 2009: civil penalties for employers and the small claims process
2.135
Aside from activities undertaken by departments, the Fair Work Act 2009 provides for the FWO to litigate against employers that contravene the Act. Additionally, the Fair Work Act 2009 contains a small claims procedure for underpaid works, which deals specifically with underpayments of $20,000 or less.
Civil penalties for employers
2.136
At present, contraventions of the Fair Work Act 2009 committed by employers can 'attract a maximum civil penalty of 60 penalty units (currently $12,600) per contravention for a natural person, or, in the case of a serious contravention, 600 penalty units (currently $126,000) per contravention'. The FWO initiates litigations against actors who have contravened the Fair Work Act 2009.
2.137
However, despite these not insubstantial penalties, the Report of the Migrant Workers' Taskforce noted that these penalties were not having a meaningful impact on reducing the exploitation of temporary visa holders:
… the prevalence of underpayments, particularly in the case of vulnerable workers such as temporary migrant workers, might suggest that penalty levels for underpayments are insufficient to deter wrongdoing or drive behavioural change.
2.138
Additionally, the Report noted that a series of serious underpayment cases involving Australian businesses have 'created a growing perception that the current regulatory model is unable to tackle serious and systemic underpayments of workers'. While, historically, the federal workplace relations system has relied on civil sanctions, the Report of the Migrant Workers' Taskforce expressed support for criminal sanctions being available as an enforcement tool.
The small claims process
2.139
For temporary visa holders seeking to recover unpaid wages and entitlements, the Fair Work Act 2009 contains a small claims procedure to deal specifically with underpayments of $20,000 or less. Its stated purpose is to 'provide a quicker, cheaper and more informal process to settle underpayment claims than regular court proceedings'.
2.140
The FWO provides a level of assistance to temporary visa holders seeking to lodge a claim, in the form of:
providing a pre-lodgement small claims service to assist workers in bringing proceedings in the small claims jurisdiction;
providing detailed small claims resources, including a series of videos which explain the steps in the small claims process, on its website; and
making itself available as a 'friend of the court' in small claims matters in Sydney, Melbourne and Brisbane, wherein the Fair Work Ombudsman assists the courts on point of law, without acting for either party.
2.141
However, the Report of the Migrant Workers' Taskforce found that only a small number of affected temporary visa holders utilise this redress mechanism. The Report cited a number of reasons for this state of affairs:
the excessive legalism of the process and procedure associated with the adversarial court and judge-based framework is difficult and overwhelming for many people;
the complexity of the legal regime governing employment in Australia and the small claims application process necessitates legal advice and representation in what is supposed to be a lawyer-less jurisdiction;
the requirement to pay filing fees serves as a disincentive to commencing a small claim ($210 to $245, depending on jurisdiction and type of claim); and
the time it takes for matters to be finalised (an average time of 4.3 months in 2016-17, with an average of 80 days for a matter to proceed to the first court date).
2.142
The Report of the Migrant Workers' Taskforce made a series of recommendations to improve the courts' powers to punish employers that breach workplace relations laws, specifically recommending that the Australian Government commission a review of the Fair Work Act 2009 small claims process to examine how it can become a more effective avenue for wage redress for migrant workers.
2.143
In response to a question on notice, AGD provided some statistics about small claims filings that had gone through the Federal Circuit Court. This included the number of total cases that went through the Federal Circuit Court, which were:
442 cases in 2017-18; and
2.144
AGD also provided historical timeframes regarding the resolution of relevant cases in the Federal Circuit Court, which were reported in months. This data is replicated in Table 2.5 below.
Table 2.5: Relevant small claims cases in the Federal Circuit Court
|
|
|
|
|
|
Cases filed
|
407
|
442
|
496
|
|
Cases finalised
|
374
|
404
|
413
|
|
Average age of case
|
4.3 months
|
4.8 months
|
5.6 months
|
|
First hearing of case
|
2.8 months
|
2.5 months
|
2.2 months
|
Source: Attorney-General's Department, answer to written question on notice, 28 September 2020 (received 28October 2020), p. 4.
2.145
It is notable that, while the time taken for a first hearing to occur is decreasing, the overall length of time taken for cases to be resolved has continued to extend.
Complexities in the visa system
2.146
As outlined above, there are multiple visas under Australia's temporary migration programme, with multiple commonwealth agencies administering separate and shared elements of the programme. Throughout the inquiry, the committee heard that Australia's visa system is complicated, expensive and challenging to navigate.
2.147
The committee heard that the complexity of the migration system can make it difficult for businesses to understand the process, eligibility and suitability of the different visa offerings and presents a deterrent to businesses accessing the migration programme. Ms Thanushki Kankanange, Skilled Migration Specialist, AMES Australia, explained that 'there are so many different temporary visas and there are so many different conditions. It is quite a complex system, even for someone with a migration background to navigate'.
2.148
Ms Kankanange further explained that in some instances, employers do not understand visa conditions or do not engage with the migration programme due to the complexities:
So employers find it sometimes easier not to—like there is no burning need for them to be across it. The burden is more on an individual to comply with their visa conditions and less so on the employers. So where they can avoid any level of bureaucracy or any monitoring, they do so, and they sometimes don't want to hire temporary visa holders for that reason.
2.149
Ms Jenny Lambert, Acting Chief Executive Officer, Australian Chamber of Commerce and Industry (ACCI), similarly told the committee that Australia's visa system has become increasingly difficult for employers to navigate and they seek professional help which in turn is expensive. Ms Lambert stated that employers:
…can really only navigate it via assistance, from professional help, either because they're a very large company and can do it through their human resource department or smaller companies usually have to resort to using migration agents. That's very expensive.
2.150
The Australian Hotels Association (AHA) and Tourism Accommodation Australia (TAA) submitted that 'migration is not the preference of business owners and it does not present a cheaper option, particularly once time and costs associated with administration, sponsorship training, and application fees are taken into consideration'. Mr Michael Johnson, Chief Executive Officer, TAA, stated that:
Migration is not the preference of employers in our industry. It is a more expensive option. It's often $10,000 more expensive to hire a skilled worker from overseas than hiring an Australian resident.
Processing times
2.151
The shift to a two-step immigration policy, with people arriving on temporary visas and transferring to other temporary or permanent visas, has resulted in long delays and extended processing times.
2.152
In 2016, the Productivity Commission Inquiry Report into Migrant Intake into Australia found that '[o]n average multi-step immigrants receive 3.3 visa grants, including extensions or renewals. The average duration of multi-step pathways is approximately 6.4 years'.
2.153
Home Affairs informed the committee that the average processing times for different temporary visa categories were as follows:
Table 2.6: Department of Home Affairs visa processing times
|
|
|
|
|
|
Student
|
2015-16
|
34 days
|
65 days
|
|
|
2016-17
|
35 days
|
60 days
|
|
|
2017-18
|
37 days
|
61 days
|
|
|
2018-19
|
34 days
|
58 days
|
|
|
2019-20
|
45 days
|
76 days
|
|
|
2020-21 as at 30 April 2021
|
3 months
|
5 months
|
|
Temporary Resident (Other Employment)
|
2015-16
|
44 days
|
84 days
|
|
|
2016-17
|
45 days
|
73 days
|
|
|
2017-18
|
31 days
|
60 days
|
|
|
2018-19
|
50 days
|
80 days
|
|
|
2019-20
|
58 days
|
3 months
|
|
|
2020-21 as at 30 April 2021
|
4 months
|
6 months
|
|
Temporary Resident (Skilled Employment)
|
2015-16
|
63 days
|
4 months
|
|
|
2016-17
|
81 days
|
5 months
|
|
|
2017-18
|
5 months
|
10 months
|
|
|
2018-19
|
85 days
|
10 months
|
|
|
2019-20
|
34 days
|
59 days
|
|
|
2020-21 as at 30 April 2021
|
5 months
|
8 months
|
|
Working Holiday Maker
|
2015-16
|
11 days
|
26 days
|
|
|
2016-17
|
12 days
|
31 days
|
|
|
2017-18
|
16 days
|
37 days
|
|
|
2018-19
|
21 days
|
42 days
|
|
|
2019-20
|
18 days
|
37 days
|
|
|
2020-21 as at 30 April 2021
|
72 days
|
3 months
|
Source: Department of Home Affairs, answer to written question on notice, 13 May 2021 (received 9 June 2021)
2.154
The committee also received evidence that there are delays in processing a range of visa types, and the impact this has had on the effectiveness of the temporary migration programme. For example, ACCI submitted that the enormous application costs and ballooning delays in the processing of applications for the temporary skilled visa stream 'has severely impacted the responsiveness and flexibility of the system to meet the immediate labour needs of business[es]'.
2.155
The South Australian Government cited the Committee for Economic Development of Australia's research that found permanent visa processing times had 'ballooned in recent years'. The Australian Meat Industry Council noted that many of its members are experiencing delays in the processing of visa applications, which are creating production problems for meat processing businesses.
2.156
The AHA and TAA similarly submitted that they were concerned with the length of time taken in processing visa applications. In its submission, AHA and TAA stated there should be 'regular audits to identify issues that cause delays in processing times and implement stated time frames for processing, providing regular updates on how these are being achieved'.
2.157
Ms Alexandra Raphael, Director of Policy, Federation of Ethnic Communities' Councils of Australia (FECCA) told the committee that the pathway to permanency has become 'longer and longer'. Ms Raphael highlighted that:
We're talking about people being in that limbo for years, where they are, basically, permanent residents; they're just waiting for that final processing to take place. They've done all the steps. But then, of course, there is a myriad of ways in which people do try to navigate through the system and the different, changing requirements, and they do jump from visa to visa as they try to make the systems, which are very complicated, and the opportunities that are there work for them, because they are desperate to become Australian residents and citizens.
2.158
Dr Carina Garland, Assistant Secretary, Victorian Trades Hall Council, explained to the committee that temporary visa holders 'find themselves stuck on an endless treadmill of temporary visas, hoping that they can keep running until the system provides an opportunity for them to settle permanently'.
2.159
The Australian Women Against Violence Alliance noted that the 'significant processing delays of several years' for protection and partner visas were compounding the stress and trauma of women who were at risk of or currently experience domestic, family and sexual violence. AMES Australia likewise stated that, at present, processing times for partner visas lodged in Australia currently have waiting times of 19 to 25 months.
2.160
For those on temporary protection visas and safe haven enterprise visas, the Asylum Seeker Resource Centre reported that some of their clients had been 'stuck in processing and stuck on bridging visas for up to ten years' and that a processing period of up to eight years happened to many temporary protection visa and safe haven enterprise visa holders. The Centre submitted:
It has been widely reported in the press that the number of bridging visas granted in Australia has more than doubled over the five years to June 2019 to 205,600. This provides a worrying 'red flag' that the kind of maladministration and processing delays of 7-8 years for a primary decision, (referred to earlier regarding temporary protection applications), may be part of a wider problem. The system is clogged up at many stages, resulting in 'blow outs' of processing times and also therefore the periods that people are stuck on bridging visas.
2.161
Regarding the backlog in visa processing times, Mr Michael Willard, First Assistant Secretary, Immigration Programs, Department of Home Affairs, stated that:
The reality over the past 12-plus months is that operating in a pandemic does create a range of challenges and difficulties in respect of visa processing. The department has taken a range of steps to provide as efficient a processing service as we can in the context of having to make a range of changes in respect of COVID. … In terms of your question, in the broad, yes, we're engaged with all of our stakeholders who are users of the visa system. We're attuned to feedback and are striving to provide as best a service as we can in the context of COVID, noting that our role is to make decisions against the migration legislation and that at times we'll make a correct decision that stakeholders won't be happy with.
2.162
Mr Willard did note that '[p]rocessing times across a number of visa categories have increased', but did not indicate any long-term plans to reduce processing times.
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The impact of the decreasing pathways to permanency is discussed in detail in Chapter 5.
Communication with Home Affairs
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The committee heard from employers that communication with Home Affairs lacks clarity and timeliness. Mrs Donna Fuller, Operations Manager, EC Throsby Pty Ltd, told the committee that in relation to their Meat Industry Labour Agreement approval, communication had 'been extremely poor'. Mrs Fuller stated that:
We need to get more, clear, concise transparent communication with the department so that we can understand where our approvals [are], whether or not we've done something, whether or not we can change something that we've submitted. We don't know. We don't have any idea where we're at.
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Ms Lauren Stark, Senior Policy and Project Officer, FECCA, commented on the reports they had received from community consultation on the quality of communication between Home Affairs and visa applicants. Ms Stark told that committee that:
… the interaction is not timely and is not transparent; there is a lot of stress that, if a single letter or email is missed, the process will be extended even further or derailed, which can lead to a lot of obsession with mailboxes and phones; and, also, when trying to inquire with the department, people are often met with 'no further information'.
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In regards to employer sponsored visas, Mr Patrick Hutchinson, Chief Executive Officer, Australian Meat Industry Council (AMIC), told the committee that AMIC would like to see the Department of Home Affairs to be required to provide greater transparency on the progress of employer sponsored visa applications. Mr Hutchinson stated that '[o]ne of the more interesting things we'd like to learn about is: what is the queue, how long is the queue, and how can we get it moving?'