LSJ - August 2017


Shifting goalposts in Australia’s skilled migration program

Peter Papadopoulos and Kathryn Viegas are Solicitor Directors and Accredited Immigration Law Specialists at Nomos Legal.

By Peter Papadopoulos and Kathryn Viegas

B arely a week passes in Australia without some public outcry, political wrangling or media commentary over the shape and direction of our nation’s immigration programs and policies. In a Facebook-first announcement by Prime Minister Malcolm Turnbull MP on 18 April 2017, followed by a Can- berra press conference shortly thereafter, Australia was told the government would be “putting Australian workers first” and that a major skilled migration reform im- plementation process would commence immediately and conclude in March 2018, when the subclass 457 visa would

• ensuring Australia’s skilled migration programs would better meet the coun- try’s labour market needs; • increasing the quality and economic contribution of skilled migrants; and

• In April, the Government announced a major skilled migration reform implementation process that would start immediately and conclude in March 2018 when the subclass 457 visa would eventually be abolished and replaced with a Temporary Skills Shortage visa. • The scope and manner of the reform implementation has come under attack and practitioners face uncertainty as the changes unfold.

• addressing integrity concerns. Revised occupation lists – a moveable feast

Prior to 19 April 2017, Australia’s em- ployer-sponsored temporary and perma- nent visa program required employers to nominate a foreign worker to fill a posi- tion in their business which closely cor- related with an occupation specified, by

way of legislative instrument, either on the Skilled Occupations List (‘ SOL’ ) or the broader Consolidated Sponsored Occupations List (‘ CSOL’ ). While these lists had been subject to some minor changes in recent years, their composition had remained rela- tively stable and provided certainty to users of the program. However, by way of an amending legislative instrument, these lists were significantly overhauled and re-branded on 18 April 2017 as the Medium and Long-term Strategic Skills List (‘ MLTSSL’ ) and the Short-term Skilled Occupations List (‘ STSOL ’) (see Spec- ification of Occupations, a Person or Body, a Country or Coun- tries Amendment Instrument 2017/040 (IMMI 17/040)). Some 216 occupations had been removed and access to 59 of the re- maining occupations was limited to employers that could meet a range of new ‘caveat’ requirements in relation to a variety of factors including the nature and size of the employer’s business, the proposed base salary to be paid to the foreign worker, where the duties of the position would be performed and how many Australians were already employed by the business. According to the Explanatory Statement, access to these occupations had ‘been restricted and removed on the basis of their historically low visa grant rates, Australian citizenship requirements and advice from the Department of Employment concerning their appropriateness for this list’. DIBP maintained that a new caveat system was required to address ‘integrity’ concerns relating to the use of particular occupations by certain applicants.

eventually be abolished and replaced with a Temporary Skills Shortage (‘ TSS ’) visa. The populist flavour of the message was abundantly clear as the Facebook video had the Prime Minister standing in front of an Australian flag and incanting the words ‘Australia’ and ‘Australian’ nine times in a broadcast lasting just under 90 seconds. As we reach the half-way point in the reform implementation process, and bearing in mind the real prospect that all legal prac- titioners will be able to practise immigration law without having to be regulated by the Migration Agents Registration Authority from 1 July 2018 (see Schedule 1 to the Migration Amendment (Regulation of Migration Agents) Bill 2017), it is timely to delve a little deeper. What’s driving these reforms? A confluence of pressures, not least from the media and the opposition, but also arising from the recent Productivity Com- mission’s Migrant Intake into Australia report, led to the govern- ment’s Putting Australian Workers First announcement, which sent shockwaves through key Australian industry sectors that rely upon skilled migration. The slogan speaks for itself – it’s a mimicry of Shorten’s Putting Local Workers First policy branding, influenced by a touch of Hansonist nationalism. Even more tell- ing was the fact the legal framework and detail supporting the changes was simply not there but would be ‘rolled out’ over the coming year. Nevertheless, the government’s intentions became clearer once the Department of Immigration and Border Pro- tection (‘ DIBP ’) announced in late April 2017 that the reforms were necessary towards:



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