LSJ - August 2017

Legal updates MIGRATION

Based upon advice from within government, the Minister for Immigration and Border Protection will now revise the MLTSSL in July of each year and the STSOL bi-annually to ensure that employers can only nominate foreign workers in occupations where the government has determined there is a labour market shortage. Occupations that would benefit from skilled migration to meet Australia’s medium- and long-term skill needs now ap- pear on the MLTSSL while occupations facing skill shortage in the short-term would be relegated to the STSOL. Controversy immediately arose because, under new policy pa- rameters, 457 visa applicants whose occupations appeared on STSOL would only be granted a visa for up to two years while those fortunate enough to perform an occupation under the MLTSSL list would still be granted a visa for up to four years. Furthermore, from March 2018, only applicants whose occupa- tions appear on the MLTSSL may be nominated for permanent residence (subject to some potential exceptions for employers in regional Australia) while those with STSOL occupations may only renew their temporary visa once while in Australia and have no skilled migration pathway to permanent residence. Making matters worse, the government did not amend the legal framework which only allows for applications to be approved if a person’s occupation appeared on the relevant list at the time a decision is made. Given protracted application processing times and the frequency with which the lists may change, employers now face heightened workforce planning challenges and visa ap- plicants now find themselves facing an uncertain future. Stakeholders raised concerns about the adverse impacts posed by sudden and ongoing frequent changes to occupational skills lists, especially given the insufficient consultation regarding the com- position of the lists introduced on 18 April 2017. Concerns were also raised about whether the truncation of visa grant periods to a maximum of two years for persons nominated to perform certain STSOL occupations would violate Australia’s international trade obligations as they relate to the movement of natural persons. Lobbying efforts and adverse media publicity saw some balance restored to the revised occupations lists that took effect on 1 July 2017. For example, various occupations now appear on the MLTSSL (after having been removed or relegated to the STSOL on 19 April 2017), including Chief Executive Officer, Corporate General Manager, University Lecturer and Horse Trainer. Fur- thermore, if an international trade obligation (e.g. World Trade Organisation General Agreement on Trade in Services or other Free Trade Agreement) applies in relation to an occupation being nominated on the STSOL, the visa may be granted for a period of up to four (rather than two) years. Unlike the massive change on 18 April 2017, only nine occupations were removed from the lists on 1 July. Lawfulness and scope of the new caveat system At a DIBP Stakeholder Roundtable Meeting on 27 April 2017, on behalf of the Law Council of Australia, we drew attention to the emerging view within the legal profession that the law un- derpinning the amending legislative instrument did not permit

the Minister to restrict employers accessing the 59 occupations that had been made subject to various ‘caveats’. The enabling legislation only permitted the Minister to ‘specify’ an occupation on a list and provided no further authority to the Minister to qualify or restrict access to that occupation to a class or group of employers that met further requirements (see subreg- ulation 2.72(10)(aa) of Migration Regulations 1994 ). New regulations were subsequently made on 27 June 2017 that purported to address this problem ( Migration Amendment (Spec- ification of Occupations) Regulations 2017 ). The new regulations, which commenced on 1 July 2017, apply to all undecided ap- plications lodged before commencement as well as applications made on or after commencement. However, in our view, the legal basis of the revised 457 visa caveat system remains open to legal challenge. The amended regulations now confer an unlimited power upon the Minister to specify ‘any matters’ relating to an employer’s eligibility to access occupations under these visa programmes. The new regulations are arguably invalid insofar as they allow the Minister to exercise legislative, rather than administrative, power because no limits have been prescribed within which the Minister must operate in exercising this new power ( Godkin v Newman [1928] NZLR 593 at 597; Twinn v MIMIA [2005] FCAFC 242 at [40]-[41] obiter dicta ). While it could be argued that the caveat requirements currently specified by the Minister are not inconsistent with the enabling legislation, it remains that the new regulations could be struck down, in whole or part, be- cause of the unfettered authority they confer upon the Minister to make such specifications. We expect migration lawyers will closely examine the first wave of decisions to be made by DIBP and the Administrative Ap- peals Tribunal in relation to caveat-affected applications. It is likely that a person adversely affected by a caveat will seek judi- cial review, at which time a court may examine the validity of the legislation underpinning the caveat scheme. Furthermore, we anticipate the prospect of some inconsistent and unlawful decision-making as conflicts will emerge over the scope of various important terms specified, but not defined, by the Minister in the revised legislative instruments. Despite efforts to clarify the scheme and thereby streamline decision-making, the new caveat system has ushered in an entirely new series of contests between applicants and decision-makers over the migra- tion law definition of various key terms which form part of the caveat system eg ‘annual turnover’, ‘base salary’, ‘business’, ‘rele- vant work experience’, ‘low skilled tasks’, ‘front-line retail setting’ etc. Regrettably, the enabling legislation offers limited guidance and DIBP’s emerging policy guidelines are yet to be fully tested. Quality migrants – shifting goalposts, retrospectivity and unintended consequences In an effort to improve the quality and potential economic contribution of visa applicants, the reform package includes a tightening of requirements relating to an applicant’s age, English language proficiency and skill level.

76 LSJ I ISSUE 36 I AUGUST 2017

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