Maria Jockel
, BDO Migration Services National Leader, discusses the management of Australia’s borders as it responds an ever-changing world .
Few appreciate the complexity of Australia’s immigration laws and policies which are highly codified, and subject to frequent and ongoing change.
There are 99 Visa categories, and over 3000 pages of legislation, which are underpinned by over 50,000 pages of Department of Home Affairs policy guidelines which are available to migration practitioners under licence.
Australia’s Migration Program is a part of nation building. It aims to address critical skilled labour shortages, drive sustainable population growth, and underpins Australia’s economic prosperity.
It is subject to constant change so as to meet the priorities of the government of the day.
Australia is a vast continent with a small population of 25.5 million. It is roughly the size of the USA or China, and our population fits into the city of Beijing.
In this turbulent, ever-changing and interconnected world, the closure of Australia’s borders from March 2020 to the full reopening in February 2022 had a profound impact on the Australian community and the Migration Program as a whole.
Compared to the same period in 2019, total arrivals by air or sea decreased by approximately 93% in terms of actual people coming to Australia.
The Commissioner of the Australian Border Force, who has the same standing as the Chief of the Australian Defence Forces and the Commissioner of the Australian Federal Police, was empowered to exercise his personal discretion to grant an Inbound or Outbound travel exemption.
Overnight a new area of law evolved with some fixed categories and some discretionary categories on the basis on which travel exemptions could be approved.
The Commissioner was tasked with balancing the advice from the Australian Health Protection Principal Committee, noting that there was a need to protect Australia and the community from COVID-19, and the vast majority of COVID-19 cases were imported by people coming from oversea. On the other hand, there was also a need to grant travel exemptions on the basis of skill, or compassionate and humanitarian grounds.
The closure of Australia’s borders has had unprecedented and far-reaching consequences for Australian citizens and permanent residents, many of whom were not permitted to travel either for personal or business reasons.
Now with the reopened border, the Department of Home Affairs is grappling with the backlog of applications and looking to reduce processing times across the board.
The impact of the border closure has exacerbated Australia’s critical skilled workforce shortages.
In response, the Department of Home Affairs announced concessional COVID-19 arrangements. Working Holiday Maker Visa holders can now work for more than six months with the one employer, and Student Visa holders can work more than the 40 hours per fortnight.
Effective from 1 July 2022, prescribed subclass 482 Visa holders whose occupations are on the Short -term Skilled Occupations List will have a pathway to permanent residency.
The Department will progressively move into a post COVID-19 environment and wind back on COVID concessions, including the subclass 408 Visa; an emergency Visa for those that were unable to depart Australia.
There are some 1.6 million temporary Visa holders currently onshore looking for a means to stay. There are also some 1.3 million Visa holders offshore, including large numbers of Visitor and Student Visa holders.
The Government will reinstate the Migration Program planning levels to 160,000 for the 2022/2023 program year.
Net Overseas Migration is expected to increase from -89,000 in 2020-2021 to 41,000 in 2021-2022, then to 180,000 in 2022 – 2023, before reaching 213,000 people in 2024 – 2025.
The focus is on the Skill Stream which will account for 70% of the program, with the Family Stream being allocated the remaining 30% places program.
The Humanitarian Program of 13,750 of places in 2022-2023 includes a government commitment to settle 50% of humanitarian entrants in regional Australia.
Up to 4000 three-year Temporary Humanitarian Concern Visas (subclass 786) will be available to Ukrainians across 2021 to 2023, with most Ukrainians expected to resettle in Europe.
The Department of Home Affairs is seeking to increase resources to meet offshore demand, particularly Student and Working Holiday Makers Applications and address the backlog of applications.
Few appreciate the overwhelming demand for temporary and permanent entry. In 2021, the migration agent industry generated revenue of $888.1 million with some 5,473 businesses (Migration Agents in Australia – industry Data, Trends, Stats, IBISworld, April 2021) while the Department of Home Affairs raised some $1.6 billion in Visa fees, fines and levies. In 2020, the migration agent industry generated revenue of $1 billion and the Department of Home Affairs raised some $2.196 billion in Visa fees, fines, and levies.
As Australia’s border is now open and the Temporary Skill Stream is demand driven, it is expected that there will be a rapid increase in arrivals, including over time a growth in tourism.
Few also appreciate the ongoing transformation of the management of Australia’s borders. The Department of Home Affairs is part of the Home Affairs Portfolio and the Australian Border Force is its independent operational enforcement arm.
The Australian Border Force has wide ranging powers and reach with responsibility for compliance and regulation including:
- Sponsorship monitoring and compliance with sponsorship obligations
- Border protection command operations
- Character consideration
- Compliance assessment
- Case management
- Identity
- Investigation
- Status resolution
- Surveillance operations
- Targeted enforcement operations
As Australia grapples with the ongoing demand for temporary and permanent residency, the Department of Home Affairs together with the Australian Border Force have increased authority and reach to ensure compliance, and with a range of penalties and sanctions for breach.
In this ever-changing world and the evolving regulatory environment, the Department of Home Affairs, with the Australian Border Force, employ sophisticated risk assessments through Visa programs, and work with other government agencies and international partners to ensure compliance and deliver enforcement outcomes.
We can expect ongoing legislative and policy changes and initiatives as Australia continues to respond to the challenges and opportunities of the 21st century post COVID-19.
Maria Jockel is the National Leader in charge of BDO’s national immigration law services to corporate and private clients. She is a Law Institute of Victoria Credited Specialist in immigration law and a registered migration agent in Australia and New Zealand. Acknowledged as one of Australia’s leading immigration specialists, Maria brings a unique depth and breadth of immigration law and corporate and commercial related legal experience from her years of experience. This is complemented by Maria’s former advisory and senior management roles while in government service. Regarded as an authority on immigration law, Maria is listed in “The International Who’s Who of Corporate Immigration Lawyers” (2010-2017) and has been recognised in the peer reviewed “Best Lawyers” in the areas of Immigration law (2008-2017). Maria is a sought after speaker and lecturer, and a prolific author on all aspects of immigration and citizenship law. Contact Maria at maria.jockel@bdo.com.au or connect via LinkedIn 
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