Unpacking the politics of Australian immigration

Last week there were several articles published by mainstream media outlets on Australia’s permanent and temporary migration numbers and the future of Australia’s immigration policy.

As previously expected, the permanent migration intake was 163,000, down from the 190,000 yearly cap. The Federal Government has heralded this as a success, with the Minister of Home Affairs declaring this was because of “looking more closely at the applications that are made.” Prime Minister Malcolm Turnbull even weighed in, saying they have been “very picky about who comes to Australia as permanent migrants” and despite having “more applications than ever” they have been “absolutely more fastidious and more scrupulous in ensuring that everyone who comes here is needed and is somebody we want.”

While the quotes and soundbites come across as typical politicking, and probably made with votes in mind, with five byelections this Saturday and a looming federal election, they may end up being more for show.

Firstly, the prime minister’s comments could be conceived that there is some merit system involved: comparing applications and approving one over the other, by being “picky”. This is simply not the case. The criteria for approval are set in the regulations, and decision-makers are either satisfied or not satisfied the visa applicant meets the requirements. For example, if it is a criterion to have a competent level of English, an applicant cannot be refused if they only have the necessary competent level when another applicant has a superior level of English.

Secondly, processing times have blown out considerably. This is demonstrated by the increased number of bridging visa holders, which as of 31 March 2018 number 194,875, and up 27 per cent in one year. While there a few reasons for granting a bridging visa, in most circumstances, bridging visas are granted to those in Australia who have validly applied for a visa that can be granted in Australia to keep them lawfully onshore until a decision has been made. The form used to apply for their visa is also the approved form to apply for a bridging visa, and a bridging visa is granted once the application has been validly lodged.

Processing delays do not stop an application from being assessed, they simply kick the processing can down the road. Once an application is validly made, section 47 of the Migration Act requires it must be considered until it is approved, refused, or withdrawn. But the Minister does have certain powers to either stop or delay this. These are:

Cap and cease. Under section 39, the Minister can limit the number of a visa class that can be granted except for protection visas. When that number has been reached all other application are considered to have not been made, and any outstanding visa applicants are refunded the visa application charge they paid.

Cap and ceasing is controversial and therefore does not happen regularly. In fact, it has happened only twice in the past decade, and only to offshore visa applications, applications that do not carry with it an entitlement to a bridging visa. It is probable that any attempt to cap and cease applications to onshore visas, those where an applicant is entitled to a bridging visa, would be politically disastrous because affected applicants may have been in Australia for a long time and may be employed, thereby also incurring the outrage of their Australian business employer and a constituent.

Cap and queue. Under section 85, the Minister can limit the number of visas granted in any financial year except for temporary protection and safe haven enterprise visas. This provision is a mainstay for parent visas, and the reason why contributory parent visas are now reportedly taking up to 55 months to process (for 90 per cent of applications processed, up from two years not too long ago), and non-contributory parent visas taking a reported 30 years.

Suspend processing. Under section 84, the Minister can suspend the processing of a particular visa class, except for partners and dependent children of Australian citizens, permanent residents or a usually resident person whose presence is not subject to a limitation of time impose by law.

Directing the order applications are processed. The Minister can also set the processing arrangements as he or she sees fit under section 499 of the Act. This effectively pushes applications down the processing queue. For family visas under Direction No 72 it is the primary reason why remaining relative and aged dependent relative visas are processing at a listed timeframe of a ridiculous 50 years. Skilled visas are also subject to a direction, Direction No 74, however, it remains to be explained why Subclass 187 – Regional Sponsored Migration Scheme visas, which is first on the priority list are taking up to 24 months (for 90 per cent of applications processed) compared to Subclass 189 – Skilled Independent visas which is fourth on the list and taking up to 10 months (for 90 per cent of applications processed).

Thirdly, the climbing rate of refusals may come back to haunt. Given the increased rate of refusals there is now a growing backlog of review applications sitting at the Administrative Appeals Tribunal (AAT). Quite obviously, no applicant wants their visa refused, and while this “crackdown” may indeed be warranted, time will tell if it has gone too far. If refused applicants are successful at the AAT, processing will generally head straight back to the Department of Home Affairs with a direction that the applicant meets the refused criterion. Unless the Department of Home Affairs want to contest the AAT's decision in a federal court. This will have the same effective as a delay in processing.

Given all this, the government has been slowly pulling the regulatory levers to slow not only the number of permanent visa applications lodged, but also the number granted. They have done this by:

Increasing application fees. While there is law and policy limits on how much visa application charges can be raised by, it did not stop previous astronomical hikes. Another way around this is by implementing new fees, such as the Skilling Australia Fund Levy, which will come in force on 22 November 2018, if not sooner. Any tax is financially dissuasive for employers to sponsor overseas nations, and the same goes for overseas nationals applying if they do not have the funds to apply.

Toughen visa application criteria. An application cannot be approved if it does not meet the relevant criteria, and therefore a migration place is not taken either. Making the criteria harder to satisfy, in conjunction with expensive visa application charges, is an obvious way as any rational potential applicant would not make an application and pay the hefty charges if they did not think they would meet the criteria. This has happened with Subclass 186 – Employer Nomination Scheme visas and Subclass 187 – Regional Sponsored Migration Scheme visas in numerous ways:

• Removing the high-salary income threshold exemption for English language and skills, and also increasing the English language requirements for any Temporary Resident Transition stream primary applicant to have competent and not vocational English unless exempt,
• Increasing the work experience requirements for 187 visa applications under the Direct Entry stream. Primary applicants must now have a minimum of three years’ full-time work experience at the level of skill required for the occupation. Previously, work experience was not required unless for a skill assessment,
• Using occupation lists. Occupation lists, especially for 186 visas has reduced the number of potential applicants drastically. Unless subject to transitional arrangements which is available only until 18 March 2022, applicants can only be nominated in an approved occupation.

Institute an invitation system. The SkillSelect model only allows visa applications to be made if an applicant is invited. No invitiation, no application. For Subclass 189 – Independent visas, and Subclass 489 – Regional (Provisional) visas sponsored by an eligible relative, this is where a ranking system chooses the best applicants based on the number of points they claim. This is the only system where being “picky” is truly at play. Visa applicants who claim more points than they can prove are refused. 

What is expected, especially for 186 and 187 visas, is a drop in the number of applications and approvals in the coming years after those eligible for transitional arrangements have been processed.

As recently as over the weekend, the prime minister was sounding out the possibility of “forcing” migrants to regional areas. There are already laws and visa conditions that carry with it the strong disincentive for not living or working in a determined area by threat of visa cancellation for those with visas subject to them. These are:

• Section 137Q of the Migration Act provides for the cancellation of 187 visas should the primary visa holder not make a genuine effort to commence their employment or their employment was terminated within two years; and
• Visa conditions 8539 and 8549 which require Subclass 489 – Skilled Regional (Provisional) visa holders to live, study and work only in an area specified.

While 187 visas are popular, 489 visas are not and generally beholden to State and Territory whims as to what criteria they require.

The government, however, needs to figure out how to make regional areas attractive, not just to migrants, but to Australian businesses to provide employment in industries usually based in major cities. They will also need to consider whether to make regulatory concessions for regional areas, which is contrary to what has recently occurred, the above amendment to the work experience required for 187 visas is a prime example.

Lastly, can we expect to see provisional visas and visa conditions such as 8539 and 8549 being applied to any migration programme in the future? The terms and reference for a major visa overhaul suggests that the delineation between temporary, provisional, and permanent visas will be investigated. Provisional visas may become in vouge.