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Migration and Other Legislation Amendment (Enhanced Integrity) Bill 2017

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2016 - 2017

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

MIGRATION AND OTHER LEGISLATION AMENDMENT (ENHANCED INTEGRITY) BILL 2017

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Border Protection,

the Hon. Peter Dutton MP)

 

 

MIGRATION AND OTHER LEGISLATION AMENDMENT (ENHANCED INTEGRITY) BILL 2017

 

OUTLINE

 

The Migration and Other Legislation Amendment (Enhanced Integrity) Bill 2017 (the Bill) amends the Migration Act 1958 (Migration Act), the Income Tax Assessment Act 1936 (the Income Tax Assessment Act) and the Taxation Administration Act 1953 (the Taxation Administration Act) to support the integrity of the temporary and permanent employer sponsored skilled visa programmes.

 

Specifically, the Bill:

·          Amends the Migration Act to authorise the public disclosure of sponsor sanction details;

·          Amends the Migration Act to ensure that there is certainty around merit review rights for certain skilled visas, and that the legislation achieves the Government’s policy intention;

·          Amends the Income Tax Assessment Act, the Taxation Administration Act and the Migration Act to enable the Department of Immigration and Border Protection (the Department) to collect, record, store and use tax file numbers for prescribed purposes in relation to prescribed visas; and

·          Amends the Migration Act to address incorrect references to the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act).

 

FINANCIAL IMPACT STATEMENT

 

These amendments will have low financial impact.

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A statement of compatibility with human rights has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 and is at Attachment A .

 

 

 

 



 

MIGRATION AND OTHER LEGISLATION AMENDMENT (ENHANCED INTEGRITY) BILL 2017

 

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1          Short Title

 

1.                   The short title by which this Act may be cited is the Migration and Other Legislation Amendment (Enhanced Integrity) Act 2017.

 

Clause 2          Commencement

 

2.                   Subclause 2(1) sets out when the provisions of the Act commence.

3.                   The whole of the Act will commence on a single day or days to be fixed by Proclamation, unless the provisions do not commence within 6 months of Royal Assent, in which case they commence on the day after the end of that 6 month period.

4.                   Subclause 2(2) provides that any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

 

Clause 3          Schedule(s)

 

5.                   This clause provides that each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to this Act has effect according to its terms.

 



 

SCHEDULE 1 - Amendments

 

Part 1 - Public disclosure of sanctions

 

Migration Act 1958

 

Item 1             At the end of section 140K

 

6.                   This item inserts new subsections 140K(4), (5), (6) and (7) at the end of current section 140K.  Current section 140K sets out actions that may be taken in relation to approved and former approved sponsors.

 

7.                   New subsection 140K(4) requires the Minister to publish information, including personal information, if an action is taken under current section 140K in relation to an approved sponsor or former approved sponsor who fails to satisfy an obligation imposed on them.  The requirement to publish will be subject to any exceptions prescribed in regulations for the purpose of new subsection 140K(7).

 

8.                   The purpose of publishing information about actions taken in relation to approved or former approved sponsors is to deter businesses from breaching their sponsorship obligations, and to allow Australians and overseas workers to inform themselves about a sponsor’s breaches. It will also increase public awareness of the Department’s sponsor monitoring activities.  

 

9.                   New subsection 140K(5) makes it clear that the Minister is not required to observe any requirements of the natural justice hearing rule in publishing information under new subsection 140K(4).  This is because the information will only be published under new subsection 140K(4) once a decision has been made to take action under current section 140K.  New subsection 140K(5) does not limit the Minister’s procedural fairness obligations in relation to the decision to take action.

 

10.               New subsection 140K(6) provides protection from civil proceedings where information is published under new subsection 140K(4) in good faith.

 

Item 2             At the end of section 140ZH                                    

 

11.               This item inserts a note at the end of current section 140ZH.  The note makes it clear that the requirement to publish information, including personal information, under new subsection 140K(4) is in addition to the Minister’s powers to disclose personal information under current section 140ZH.

 

Item 3             Application of amendments

 

12.               This item provides that the amendments made by item 1 of this Schedule apply in relation to actions taken under section 140K on or after 18 March 2015.  This reflects the date of the Government’s response to the report Robust New Foundations - A Streamlined, Transparent and Responsive System for the 457 Programme (the report).

 

13.               The Government’s response supported recommendation 21.2 of the report that the Department disclose greater information on its sanction actions, and communicate this directly to all sponsors and the migration advice profession, as well as placing information on the website.  This amendment will give effect to that recommendation.

 

Part 2 - Review of decisions relating to certain visas

 

Migration Act 1958

 

Item 4               Paragraph 338(2)(d)

 

14.               Current section 338 defines when a decision is a Part 5-reviewable decision by the Migration and Refugee Division of the Administrative Appeals Tribunal (the MRD).  Current paragraph 338(2)(d) provides that for prescribed temporary visa subclasses which require the applicant to be sponsored by an approved sponsor, a decision to refuse to grant the visa will be a Part 5-reviewable decision if, at the time of the application for review, either:

 

  • the applicant is sponsored by an approved sponsor; or
  • an application for review of a decision not to approve the sponsor has been made and is pending.

 

15.               The intention of current paragraph 338(2)(d) was to prevent abuse of the merits review process by preventing refused visa applicants, who had no sponsor, and therefore no ability to meet the criteria for grant of the visa, from seeking to extend their stay in Australia by lodging a review application.

 

16.               This paragraph was not, however, amended in 2008 at the time of the Migration Legislation Amendment (Worker Protection Act) 2008 , which replaced the former sponsorship regime with the current Division 3A of Part 2 of the Act from 14 September 2009 onwards.  As a result, this paragraph still only refers to ‘sponsorship’ and is not consistent with the current criteria for the grant of certain visas, which only requires the existence of a current approved nomination but do not require the approved sponsorship to still be in effect.

 

17.               Due to this inconsistency, a number of court decisions handed down over recent years have interpreted current paragraph 338(2)(d) in an attempt to try and adapt it to these new arrangements.  This has led to confusion and uncertainty for both clients and the Department, which this item seeks to address.

18.               In particular, the Court in Kandel v the Minister for Immigration and Border Protection [2015] FCCA 2013 ( Kandel ) interpreted ‘sponsored by an approved sponsor’ as including situations where the applicant has been identified in a nomination that has yet to be decided at the time of application for review.  This interpretation is inconsistent with the policy intention of paragraph 338(2)(d), as it encourages the sponsor to keep lodging repeat applications for approval of a nomination, rather than seeking review of a nomination refusal. It has also resulted in a confusing situation where an applicant has no entitlement to seek merits review of a decision to review their visa at the time the visa decision is made, but may subsequently obtain review rights (for example, because a repeat nomination application is lodged). 

 

19.               To address the decision in Kandel, this item repeals current paragraph 338(2)(d) and substitutes it with new paragraph 338(2)(d).  New paragraph 338(2)(d) applies to visas requiring sponsorship and nomination, and visas only requiring sponsorship, that are prescribed for this paragraph.

 

20.               This will clarify the circumstances in which merits review of decisions relating to certain visas is available in line with the intended operation of paragraph 338(2)(d). New paragraph 338(2)(d) will also ensure that there is certainty regarding a visa applicant’s entitlement to apply for merits review when the decision to refuse is made, which will reduce the risk of a notification given under subsection 66(2) being defective.

 

21.               New subparagraphs 338(2)(d)(i) and (iii) apply to applicants that require a sponsorship and a nomination. A decision to refuse to grant a non-citizen such a visa will be a Part 5-reviewable decision if, at the time the decision to refuse to grant the visa is made:

 

·          the applicant is identified in a current approved nomination (subparagraph 338(2)(d)(i)); or

·          an application has been made to the MRD for review of a decision not to approve the nomination identifying the visa applicant, and a decision on the review is pending (subparagraph 338(2)(d)(iii)).

 

22.               New subparagraph 338(2)(d)(ii) applies to applicants that require either a sponsorship and a nomination or applicants that do not require a nomination. A decision to refuse to grant a non-citizen such a visa will be a Part 5-reviewable decision if, at the time the decision to refuse to grant the visa is made, an application has been made to the MRD for review of a decision not to approve the visa applicant’s sponsor, and a decision on the review is pending.

 

23.               New subparagraph 338(2)(d)(iv) only applies to applicants for prescribed visas that do not require a nomination.  For these applicants, a decision to refuse to grant a visa will be a Part 5-reviewable decision if the applicant is sponsored by an approved sponsor at the time the decision to refuse to grant the visa is made. This ensures that visa applicants who are not required to have an approved nomination will not be negatively impacted by new subparagraphs 338(2)(d)(i) and (iii), by maintaining their right to seek merits review in circumstances where the visa is refused on grounds other than not having an approved sponsor. The exclusion of applicants under subparagraph 338(2)(d)(iv) that are required to be identified in an approved nomination makes it clear that those applicants will only have access to merits review if they meet the criteria set out in subparagraphs 338(2)(d)(i) to (iii). This is consistent with the original intended operation of paragraph 338(2)(d).

 

Item 5               Application of amendments

 

24.               This item provides that the amendments made by item 4 of this Schedule apply in relation to decisions to refuse to grant a visa of a kind prescribed for the purpose of new paragraph 338(2)(d) after item 4 commences.  The amendments will not affect the jurisdiction of the MRD in relation to applications made after commencement for review of a decision made before commencement of this item.

 

Part 3 - Tax file numbers

 

Income Tax Assessment Act 1936

 

Item 6               At the end of section 202

 

25.               Section 202 outlines the objects of Part VA of the Income Tax Assessment Act 1936 , which is the establishment of a system of tax file numbers.  This item inserts new subsection 202(t) to add the facilitation of the administration of the Migration Act as an object of Part VA.

 

26.               In conjunction with item 10 of this Schedule, new paragraph 202(t) allows tax file numbers to be requested, recorded, used and disclosed to the extent authorised by the Migration Act .

 

Migration Act 1958

 

Item 7               Subsection 5(1)                   

 

27.               This item inserts a signpost definition of tax file number which refers to subsection 995-1(1) of the Income Tax Assessment Act 1997.  

 

Item 8               After section 506A

 

28.               This item inserts new section 506B, which permits tax file numbers to be requested, provided, used, recorded and disclosed. This will give effect to the Government-supported recommendation 18.2 of the 457 Integrity Review.

 

29.               New subsection 506B(1) allows the Secretary of the Department of Immigration and Border Protection (the Secretary) to request the tax file number of a person who is an applicant for, or holder or former holder of, a visa of a kind to be prescribed by the regulations.   A regulation made for the purposes of new subsection 506B(1) will be subject to disallowance by either House of Parliament, ensuring that there will be Parliamentary scrutiny over the kinds of visas that are prescribed for the purposes of this subsection.  

 

30.               Tax file numbers will assist the Department of Immigration and Border Protection to undertake more streamlined, targeted and effective compliance activity.  For example, in the context of the employer sponsored skilled migration programme, information obtained from the Australian Taxation Office (ATO) will assist the Department to identify skilled visa sponsors who breach their obligations, including by underpaying visa holders, as well as visa holders who work for more than one employer in breach of their visa conditions.

 

31.               Access to tax file numbers will enhance the Department’s ability to match and access data held by the ATO.  This improved data matching will improve the Department’s ability to undertake research and trend analysis, which will provide an evidence base for the Department in developing visa policy. 

 

32.               The amendments will also allow the Department to store tax file numbers when they are provided during the visa application process. This will reduce the administrative burden on the Department as it will not need to redact these tax file numbers.

 

33.               New subsection 506B(2) lists the persons to whom a request under new subsection 506B(1) can be made.  

 

34.               New paragraph 506B(2)(a) allows a request to be made to a visa applicant, visa holder or former holder to provide their own tax file number. Consistent with subsection 7(3) of the Privacy (Tax File Number) Rule 2015 issued under section 17 of the Privacy Act 1988 , it is not the intention to require a visa applicant, visa holder or former holder to provide their tax file number.

 

35.               New paragraphs 506B(2)(b), (c), (d) and (e) allow a request to be made to an approved or former approved sponsor, or a person who nominated the visa applicant, visa holder or former holder in an approved nomination (whether or not that nomination has ceased under the regulations) for the tax file number of the visa applicant, visa holder or former holder.  This does not by itself require the visa applicant, visa holder or former holder to provide their tax file number to the sponsor or nominator.

 

36.               New subsection 506B(3) ensures that a person to whom a request is given under new subsection 506B(1) can lawfully disclose the requested tax file number to the Department if they lawfully hold the tax file number. It is not the intention that a person who receives a request under new subsection 506B(1) be required to obtain the requested tax file number if they do not hold it. New subsection 506B(3) does not by itself authorise the request recipient (such as the sponsor or nominator) to request, record, use or disclose a tax file number.  For example, if the sponsor (as an employer) lawfully held a visa holder’s tax file number, and the Department requested the sponsor to provide the tax file number, the sponsor would be able to provide the visa holder’s tax file number to the Department.

 

37.               New subsection 506B(4) allows the Secretary to provide a tax file number to the Commissioner of Taxation (the Commissioner) for verification purposes.  Upon receipt of a tax file number, new subsection 506B(5) permits the Commissioner to confirm the tax file number is correct, or provide the relevant person’s correct tax file number, or inform the Secretary that the relevant person does not have a tax file number.  This verification process will ensure the integrity of tax file numbers provided to the Department, as well as any subsequent information obtained through data matching.

 

38.               New subsection 506B(6) will allow the Secretary to obtain directly from the Commissioner the tax file numbers of persons the Secretary advises the Commissioner are relevant persons.  This is in addition to the power for the Secretary to request a tax file number under new subsection 506B(1) and verification of a tax file number under new subsection 506B(5). This is intended to be the primary means through which the Department will collect tax file numbers. This approach minimises the regulatory burden on visa applicants, visa holders, former visa holders and sponsors.

 

39.               New subsection 506B(7) ensures that a tax file number obtained under section 506B can only be used, recorded or disclosed for a purpose prescribed by the regulations.  A regulation made for the purposes of new subsection 506B(7) will be subject to disallowance  by either House of Parliament, meaning that there will be Parliamentary scrutiny over the kinds of purposes that are prescribed under this subsection.  

 

Taxation Administration Act 1953

 

Item 9               Paragraphs 8WA(1AA)(b) and 8WB(1A)(a) and (b)

 

40.               This item inserts a reference to paragraph 202(t) of the Income Tax Assessment Act in paragraphs 8WA(1AA)(b) and 8WB(1A)(a) and (b).  This ensures that a person does not commit an offence under subsection 8WA(1) or subsection 8WB(1) of the Taxation Administration Act by requesting, recording, using or disclosing a tax file number as authorised by the Migration Act.

 

Item 10             Application of amendments

 

41.               This item provides that the amendments made by this Part apply in relation to any request or record that is made or maintained, and any use, disclosure or communication of a tax file number that occurs after commencement of this item. 

 

Part 4 - Technical Amendments

 

Migration Act 1958

 

Item 11             Subparagraph 140K(1)(a)(iv)

 

42.               Current subparagraph 140K(1)(a)(iv) allows the Minister for Immigration and Border Protection (the Minister) to accept an undertaking under the Regulatory Powers Act.

 

43.               This item is a technical amendment to address the incorrect reference in current subparagraph 140K(1)(a)(iv) to section 119 of the Regulatory Powers Act .   Amended subparagraph 140K(1)(a)(iv) refers to section 114 of the Regulatory Powers Act, which provides for the acceptance of undertakings.

 

Item 12             Subparagraph 140K(1)(a)(v)

 

44.               Current subparagraph 140K(1)(a)(v) allows the Minister to apply for an order under the Regulatory Powers Act if the Minister considers that an undertaking has been breached.

 

45.               This item is a technical amendment to address the incorrect reference in current subparagraph 140K(1)(a)(v) to section 120 of the Regulatory Powers Act Amended subparagraph 140K(1)(a)(v) refers to section 115 of the Regulatory Powers Act, which provides for enforcement of undertakings.

 

Item 13             Subparagraph 140K(2)(a)(iii)

 

46.               This item is a technical amendment to address the incorrect reference in current subparagraph 140K(2)(a)(iii) to section 119 of the Regulatory Powers Act. Consistent with item 11, amended subparagraph 140K(2)(a)(iii) refers to section 114 of the Regulatory Powers Act.

 

Item 14             Subparagraph 140K(2)(a)(iv)

 

47.               This item is a technical amendment to address the incorrect reference in current subparagraph 140K(2)(a)(iv) to section 120 of the Regulatory Powers Act. Consistent with item 12, amended subparagraph 140K(2)(a)(iv) refers to section 115 of the Regulatory Powers Act.

 



Attachment A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Amendment (Enhanced Integrity) Bill 2017

This Bill/Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

This Bill amends legislation to enable the Department of Immigration and Border Protection (the Department) to implement measures to strengthen the integrity of Australia’s temporary and permanent employer sponsored skilled migration programmes.  Legislative change will be required to the following:

•          Migration Act 1958 (the Act);

•          Tax Administration Act 1953 (the Taxation Act);

•          Income Tax Assessment Act 1936 (the Tax Assessment Act);

The purpose of the Bill is fourfold.

Tax File Number sharing

Firstly, the Bill will enable the Department to collect, record, store and use the tax file numbers (TFNs) of applicants and holders of specified visas for compliance activities, to assess the work undertaken in Australia for some permanent sponsored skilled visa applications, and research purposes.  Enhanced data matching through TFN sharing will improve the Department’s ability to perform the research and trend analysis that underpins the development of visa policy.

The Department monitors sponsors of overseas workers to ensure they comply with their obligations under the Migration Act and the Migration Regulations 1994 (the Migration Regulations). Sponsors may breach their obligations by, for example, underpaying visa holders, or otherwise contravening the Migration Act. 

Sponsored visa holders are subject to condition 8107 which requires that a visa holder not cease or change work. This includes visa holders working for a business that was not approved in the nomination.  There are currently difficulties verifying that sponsors are paying visa holders correctly or if a visa holder is working for more than one employer.  Employers may collude with visa holders to alter documentation provided to the Department as evidence of salary payments, or employers may be engaging skilled visa holders who are not approved to work for them.

The Australian Taxation Office (ATO) is responsible for the collection of tax revenue within Australia.  As such, their records include information on salaries paid to visa holders; including the amount and origin of such payments.  The ATO tracks these payments through a unique identifier; the TFN.  The TFN would assist the Department in undertaking more streamlined, targeted, and effective compliance activities. 

However, subsection 8WA(1) of Subdivision BA of the Taxation Act provides that a person must not require or request another person to quote the other person’s TFN. Subsection 8WB(1) provides that a person must not record another person’s TFN or maintain such a record, use another person’s TFN in a manner connecting it with the other person’s identity, or divulge or communicate another person’s TFN to a third person.

The Bill will amend sections 8WA and 8WB of the Taxation Act, amend section 202 of the Tax Assessment Act, and amend the Act to specifically limit the operation of sections 8WA and 8WB and to facilitate the administration of the Act for the relevant purposes.

Public disclosure of sponsor sanctions

Secondly, the Bill will authorise the Department to publicly disclose the details of sponsors who have breached their obligations as set out in the Migration Regulations 1994 (the Regulations).  

Currently, the Department is only able to release limited information to the public regarding breaches of sponsorship obligations. Current annual reports on sponsor sanctions contain aggregate data. However, these annual reports do not contain information on companies or their breaches under the sponsorship obligations set out under Division 2.19 of the Regulations. The Department also periodically publishes details of sponsor sanctions that have already reached the public domain through court proceedings or the media. 

Due to a lack of detail contained in annual sponsor sanctions reports and the irregularity of the Department commenting on specific cases that have already reached the public, current disclosure practices do not sufficiently inform the public of breaches and sponsors’ compliance histories. The Department is also unable to advise informants of the outcome of their complaint.  Consequently, the release of information currently does not offer a sufficient deterrent to sponsors that have, or may, breach their obligations under the framework.  This undermines public confidence in the Department’s compliance activities in this area. 

To authorise the Department to publicly disclosure the details of business once a sanction has been imposed, the Bill will amend Division 3A of Part 2 of the Act to expressly permit the Minister to disclose information regarding sponsor sanctions to the public.

Clarification of review rights

Thirdly, the Bill will ensure that there is certainty around merit review rights for visas that require an approved nomination and that the relevant legislation achieves the Government’s policy intention.  It will do this by amending section 338 of Part 5 of Division 2 of the Act to provide that merit review is only available where:

·          there is an approved nomination that has not ceased; or

·          an application to review a decision not to approve a nomination has been lodged; or

·          an application to review a decision not to approve a sponsorship has been lodged; or

·          an applicant who does not require a nomination is, at the time that the visa is refused, sponsored by an approved sponsor.

Judicial reviews in recent years have resulted in a number of interpretations in relation to whether the visa applicant is ‘sponsored’ or not, based on the state (lodged, approved, or refused) of the associated nomination application.  This has resulted in circumstances where an applicant has review rights that are wider than the original policy intention.  This has led to vexatious applications for merits review aimed solely at inappropriately extending a visa applicant’s stay in Australia, and uncertainty as to whether or not the Department has correctly notified the relevant persons of their right to merits review.

Technical amendments

Finally, the Bill will correct references to sections of the Regulatory Powers Act in the Migration Act (subparagraphs 140K(1)(a)(iv) and (v), and s140K(2)(a)(iii) .

 

These technical amendments have no client impact. Whilst the provisions to enter into an enforceable undertaking, and to apply for orders where an enforceable undertaking is breached already exist in the Migration Act, they have not been used as the references to the Regulatory Powers Act are incorrect. The amendment corrects these references and gives effect to the original intent of legislation. As such, this aspect of the Bill does not engage any of the applicable rights or freedoms.

 

A detailed explanation of the rights and freedoms when the original enforceable undertaking legislation was introduced can be found in the Statement of Compatibility prepared for the Migration Amendment (Temporary Sponsored Visas) Act 2013.

Human rights implications

The Right to work and rights at work

Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

a)       Remuneration which provides all workers, as a minimum, with:

                                i.             Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

                              ii.             A decent living for themselves and their families in accordance with the provisions of the present Covenant;

b)       Safe and healthy working conditions;

c)       Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

d)       Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays

Article 8 of the International Covenant on Civil and Political Rights (ICCPR) provides:

1.       No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

2.       No one shall be held in servitude.

3.       (a) No one shall be required to perform forced or compulsory labour.

The Bill positively engages Article 7 of the ICESCR and Article 8 of the ICCPR and protects both the right to work and right to fair work conditions for workers to be properly renumerated by their employer.

Under paragraph 2.79(1A)(b) and sub regulation 2.79(2) of the Regulations a sponsor is obligated to provide an annual salary and working conditions that are no less favourable than would be enjoyed by an Australian citizen in the same position. 

Visa holders may be considered to have greater vulnerability to exploitation in the workplace due to their unfamiliarity with Australian practices and laws.  This Bill seeks to redress this issue by informing the public, including visa holders, of a sponsor’s adverse compliance history. This will assist visa holders to make more informed decisions about potential employers and therefore be better placed to avoid workplace exploitation in Australia.  Additionally, by releasing a sponsor’s adverse compliance history to the public, the Department will be able to demonstrate that there are public repercussions for sponsors who breach their sponsor obligations described by Division 2.19 of the Regulations . This will encourage visa holders, and others, to report suspected breaches, and acts as a deterrent to a sponsor who may otherwise breach their obligations. 

Right to an adequate standard of living

Article 11(1) of the ICESCR provides

1.       The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

Breaches of sponsor obligations may jeopardise the income and standard of living of sponsored visa holders.  Temporary work visa holders rely on their employer to provide them with an income that supports an adequate standard of living given they do not qualify for unemployment benefits in Australia.

This reliance of the temporary work visa holder upon their employer might, in some cases, provide the visa holder an incentive to tolerate an erosion of their workplace rights. The public disclosure of sponsor sanction details would result in financial and reputational impacts for a business that is found to have breached their obligations towards a visa holder.  These impacts would serve as a general deterrent for employers that may consider breaching sponsorship requirements.  Additionally, the Department’s ability to use TFN sharing to verify that relevant visa holders are being paid the salary approved during the visa process and investigate where salaries are reduced inappropriately is a further protection for Temporary work visa holders.   This is an extra layer of income protection for temporary work visa holders who are unable to access the welfare system.  As such, this Bill positively engages Article 11 of the ICESCR as it protects a temporary work visa holders’ right to an adequate standard of living.

Right to Privacy and Reputation

The International Covenant on Civil and Political Rights (ICCPR) Article 17 states:

1.       No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2.       Everyone has the right to the protection of the law against such interference or attacks.

Serious ramifications may result from salary underpayments or breaches of visa conditions.  Sponsors may be removed, or suspended from, the sponsored skilled work visa programme.  Visa holders may have their visa cancelled. 

Data matching using TFNs minimises the risk of misidentifying a visa holder when investigating a sponsor for compliance with their obligations.  The limits placed on a visa holder’s right to privacy by TFN sharing are justifiable as reasonable, necessary and proportionate because it provides the Department with a tool to more accurately identify and investigate infringements of that visa holder’s work rights.  As such, TFN sharing will enable the Department to undertake compliance activities with improved targeting. TFN sharing will also support legitimate research activities into skilled migration trends and outcomes.

Adverse information regarding a sponsor’s breaches of the relevant legal requirements will be disclosed publicly, as discussed in the background above.  This information may be linked to individuals within an organisation, as in the case of sole proprietors.  However, given the disclosure of information is limited to the name of the business, the Australian Business Number, the relevant legal requirements that have been breached, there will be limited circumstances where personal information of individuals will be involved.  As such, to the extent that the publication of a sponsor’s breaches of the relevant legal requirements discloses personal information, Article 17 of the ICCPR is engaged.

The disclosure of a sponsor’s breaches of the relevant legal requirements will be lawful on the passing of this Bill.  Further, publication of details of sponsor sanctions will be executed in accordance with the Australian Border Force Act 2015 (the ABF Act), and the Privacy Act 1988 (Cth), both setting out protections in Australian domestic law consistent with the requirement in Article 17(2) of the ICCPR.  Public disclosure of details when a party breaches regulatory requirements is an existing practice within the Australian Government.  The Office of the Migration Agents Registration Authority (OMARA) regularly publishes details of disciplinary decisions taken against migration agents on its website.  This includes agent names, registration numbers, and the results of compliance investigations.  Similarly, the Fair Work Ombudsman (FWO) publishes the details, including business names, of litigation outcomes, enforceable undertakings, and compliance partnerships on the FWO website.   The Department will publish an analogous level of detail as is currently published by the OMARA and the FWO, such as business names, Australian Business Numbers, and specific details of their adverse compliance outcome.

The publication of sponsor sanction details should be seen as the Department applying a consistent approach to the enforcement of regulatory requirements with entities that participate in its programmes. In this way, the publication of sponsor’s breaches of the relevant legal requirements is reasonable; it is applying a measure used in similar contexts for similar purposes.

Given the serious ramifications for vulnerable visa holders that arise from sponsors breaching the relevant legal requirements, such as limiting a visa holder’s ability to earn a wage that allows them to appropriately support themselves and their families, the limitation of a sponsor’s right to privacy is justified.  The publication will be appropriately limited to cases where a breach has been substantiated and a sanction has been imposed.  As such it will be confined to cases where it is necessary to inform future potential visa holders of the risks of accepting employment with the relevant sponsor and to cases that will genuinely act as a deterrent to other sponsors.  Further, the public disclosure of a sponsor’s adverse compliance outcomes will support public confidence in the integrity of the skilled migration programmes by demonstrating that sponsors breaching their legal requirements will not go unnoticed. 

Right to effective remedy

Article 13 of the ICCPR provides:

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

Merits review rights for applicants whose subclass 457 visa were refused currently depend on the circumstances in place at the time the merits review application is lodged, as opposed to the time the visa decision is made.  This leads to a complex situation where some visa applicants may not have merits review rights at the time their application is refused, but may subsequently obtain merits review rights as a result of future events.  This includes the approval of a new nomination or lodgement of a review application in relation to a nomination refusal.  Applicants also currently have merits review rights in circumstances where a nomination has been lodged but has not been decided at the time they apply for merits review of the decision to refuse to grant a visa. 

This presents a barrier to properly notifying an applicant of their merits review rights, as required under the Act, and also undermines the original intention of the policy of these provisions by introducing ambiguity around who the Department should notify of merits review rights and when notification should occur.

Over the past four years, this ambiguity has led to vexatious applications for merits review aimed solely at inappropriately extended a visa applicant’s stay in Australia.  Contained in this Bill is a measure to clarify the circumstances when a visa applicant with an approved nomination has merits review rights.

The clarification of merits review rights will result in the removal of certain merits review rights, namely in circumstances where a nomination application has been lodged but is not yet approved at the time the decision to refuse to grant a visa is made.  The amendment ensures that it is clear that merits review is available at the appropriate point in the visa application process, namely when a visa is refused, and only in circumstances where there is either an approved nomination, or a decision affecting whether there is an approved nomination not is being reviewed  This reflects the original policy intention. 

It is the Australian Government’s position that while merits review can be an important safeguard, there is no express requirement for merits review under the ICCPR, including under Article 13.  As such, the removal of certain merits review rights in this context does not limit Article 13.  Furthermore, merits review rights continue to be available for nomination and visa decisions, albeit only after refusal.  This Bill does not change or remove, in any way, a visa applicant’s rights to judicial review, which is the right to challenge the legal validity of a decision in a court.

Conclusion

The proposed amendments are compatible with human rights because they support the relevant human rights and to the extent that they may also limit human rights, those limitations are reasonable, necessary and proportionate.

 

Migration Amendment (Enhanced Integrity) Bill 2017

Senator the Hon. Peter Dutton, Minister for Immigration and Border Protection