Australia Immigration: Flexibility is Key

AUSTRALIA HAS COME A LONG WAY since the 'populate or perish' policy that followed immediately after World War II. In the 63 years since the establishment of the Department of Immigration and Citizenship Australia's immigration policy has changed from one reliant primarily on British migrants of any kind to one that targets and prefers young, highly skilled, English-speaking migrants. While those migrants may, in theory, originate from any country, it will be seen that those speaking English fluently are preferred.

A "points-based" system has been used to assess skilled migrants since 1982. This system has been continually refined and successfully used as the main control mechanism for skilled migration to Australia. Any country thinking of introducing a similar system would be wise to examine the Australian experience because changes have been needed from time to time to combat abuses. It has proved, however, to be an effective mechanism for adapting the skilled migrant intake to match the changing economic needs of the country.

Until now Australia has not experienced any difficulty filling its annual quotas of skilled migrants. However, this may be about to change as the consequences of aging populations and low birth rates begin to emerge in a large number of Western countries. Departmental head, Andrew Metcalf, recently observed:

Marker countries such as Canada and the United Kingdom are already targeting the same sorts of migrants that Australia wants and needs. While Australia has successfully used migration to meet the nation's economic and social needs, as I've mentioned previously, a survey of what other countries are doing reminds us that we cannot rest on our laurels. ^[1] The European Union is also looking at ways to better attract skilled migrants. The European Commission has proposed a "Blue Card", which is a temporary special residence and work permit for highly skilled migrants. They intend to have Europe "become at least as attractive as favourite migration destinations such as Australia, Canada and the USA".

Individually, Germany, Sweden, the Netherlands and Ireland are also looking to further encourage overseas students to study in their countries by creating pathways from study to temporary post-graduate employment, leading to the possibility of permanent residence. Canada's Parliament recently passed significant reforms to address the long waiting times for permanent migration applicants. It is worth noting that the Canadian Government is presenting these changes as bringing it in line with the practices of countries such as Australia and New Zealand.

As Mr. Metcalf went on to point out, flexibility in the Australian migration system is its key to success. How is this flexibility achieved? The Migration Act 1958and the statutory regulations made under that Act are the primary legislative instruments from which power to implement the program is derived. However, the program itself is reliant on a number of levers for its month-to-month regulation. These levers include the Skilled Occupations List (SOL), the Migration Occupations in Demand List (MODL), the Critical Skills List (CSL), the "points test pass mark" and the English language test. By manipulating these components the government can not only control the numbers of any particular occupation entering the country, but also, in a less scientific manner, the countries of origin.

Fine tuning of the content of the SOL, the MODL or the CSL can be achieved simply by public notification in the appropriate format. Furthermore, section 96 of the Migration Act authorizes the Minister to specify the pass mark for a class of visa. In this way the numbers of independent or sponsored skilled migrants can be changed to meet altered circumstances.

Changes to the level of English required for any visa category can be achieved by amending the Migration Regulations. It is seldom necessary to alter the provisions of the Migration Act itself to facilitate the orderly operation of the migration program. Changes to the Migration Regulations can be made quickly and although they must be tabled in the Parliament, such changes are rarely controversial. This is because they usually appear to be quite innocuous, changing the number of points awarded for a particular attribute or raising the IELTS (International English Language Testing System) requirement from 5 to 6. For applicants, however, these changes are far from innocuous and often spell the death knell for those from particular non-English speaking countries.

Australia aims its skilled migrant intake program at young, highly skilled, English-speaking individuals with work experience and who are, in the main "employment ready". Preference is given to those who are sponsored by an Australian relative or by a state or territory government and those who have studied and/or worked in Australia.

The scheme operates at several levels, including:

• The General Skilled Migration Program (GSM);
• The Employer Nomination Scheme;
• Overseas students converting to temporary and then permanent residence on completion of their courses; and
• The conversion to permanent residence of holders of long term subclass 457 temporary business visas, sponsored by employers.

each of which makes a unique contribution to the overall system.

A POINTS-BASED SYSTEM

The General Points Test has been formulated as a means of evaluating a person's ability to gain employment, and be of long-term economic benefit to Australia. This selection mechanism attempts to be an objective, impartial mechanism for assessing a person's skills and attributes against a pre-determined set of factors.

The starting point is to ascertain the occupation (not the degree, diploma or trade certificate) to be nominated. This must be one of the occupations on the Skilled Occupations List (the SOL). In the General Skilled Migration stream not all occupations are acceptable, only those on the SOL, and they can be varied by Gazette Notice from time to time. Changes in the SOL are not made frequently.

These occupations are rated as 40- 50- or 60-point occupations. Generally, 40-point occupations have little chance of success in most circumstances, but it is possible for the Minister to simply upgrade an occupation from 40 to 50 or 60 points by government gazette should the need arise.

The occupations on the SOL are taken from the Australian Standard Classification of Occupations (ASCO), which is a dictionary containing a definition for each occupation. A skill assessment must then be conducted, not by DIAC, but by the body nominated in the SOL. For instance, computing professionals are assessed by the Australian Computer Society. Nurses are assessed by the Australian Nursing and Midwifery Council. Each of the 38 or so assessing bodies has its own rules of assessment. It is not possible to lodge a valid visa application until a satisfactory skills assessment has been made.

Those with occupations listed on the MODL are awarded additional points. The MODL is adjusted quite frequently to reflect changes in the labour market. It has been interesting to observe the effects of the recently intensifying skills shortage on the MODL. Over the past two years it has expanded from a mere handful of occupations to a list of more than 70.

An age limit of 45 years applies in almost all instances and English competence at level 6, using the International English Language Test (IELTS) is needed in respect of all occupations other than trades, where level 5 is prescribed.

Before an applicant can lodge a valid visa application in this category it must be shown that the applicant has completed a period of 12 months "recent work experience" in any occupation on the SOL. To be awarded additional points however, the applicant must have worked for at least three years in the nominated occupation.

THE POINTS TEST

Once an applicant has overcome the threshold requirements of recent work experience, acceptable occupation, successful skills assessment and English-language competence, a points test is applied. Points are awarded for the occupation, the length of the applicant's work experience, English language competence and other factors. These can include points for:

• A partner's skills;
• A level of English higher than IELTS 6; and
• Study recently completed at an Australian institution (especially an institution located in a "regional" area).

The pass mark in the case of unsponsored applicants is currently 120 points. In a typical case where the applicant is, say, a 30-year-old fully qualified and experienced teacher from the UK the points test would be applied in the following way:

OCCUPATION -- 60 points

WORK EXPERIENCE -- 10 points (minimum three years as a teacher)

AGE -- 25 points (if aged between 30 and 35)

ENGLISH -- 15 points (for IELTS level 6)

TOTAL -- 110 points

It is apparent that even in the case of a highly qualified person such as the teacher in this example the pass mark is not satisfied and the application would fail. Sometimes, however, additional points can be found. For example, additional points are available for an applicant who has Australian work experience or competence in a prescribed "community" language other than English. In the case of the teacher in this example the easiest way to achieve sufficient additional points would be to sit the IELTS test and score at least 7 for reading, writing speaking and listening. In the writer's experience level 7 is difficult to achieve for all but educated native English speakers. Thus in this way the government shows favouritism toward teachers from the UK and other English-speaking countries. This is one of the levers referred to earlier.

It should be noted that English at IELTS 7 is not required by any of the bodies used for skills assessment, other than those assessing medical practitioners. It is therefore difficult to believe that the award of ten additional points for level 7 English is for any reason other than to encourage more UK, Irish, Canadian, American and New Zealand citizens to migrate to Australia.

SPONSORED SKILLED VISAS

Applicants who are sponsored by a qualifying relative or by a state or territory government have to achieve only 100 points to pass the points test. This reflects a degree of flexibility in the policy which acknowledges the importance of family support for successful settlement and, in the case of state sponsorship, the stated skills needs of particular states. For example, the State of Western Australia was recently experiencing a mining boom and had a greater need for mining engineers than other States. At that time a 40-year-old non-English-speaking mining engineer who could not achieve IELTS level 7 might therefore be well advised to seek the sponsorship of the Western Australian government. In this way the states become economic levers in the migration program. In the case of the teacher in the example above it is noted that the occupation of Secondary School Teacher is currently not on the Victorian State Government's list of occupations but that it remains on the State of Tasmania's list. However, Tasmania has specified a minimum IELTS level of 8 so as to effectively limit applicants to native English speakers.

EMPLOYER SPONSORSHIP (ENS) FOR PERMANENT RESIDENCE

The employer nomination scheme also uses a prescribed list of occupations. There is no points test. The sponsorship must be for an occupation on the list and for a permanent position in the employer's organisation and a gazetted minimum salary applies. A skills assessment is needed unless the worker has already been employed in Australia for two years while holding a subclass 457 visa, which is a long-term temporary business visa. English-language testing is required for applicants whose first language is not English.

EMPLOYER SPONSORED LONG-TERM TEMPORARY VISAS (SUBCLASS 457)

This controversial category, known as the 457 visa, is becoming increasingly important in satisfying skills shortages that currently exist in Australia in some sectors. Once again, only applications on a specified list of occupations can be used. A broader range of occupations is available if the employer operates in a "regional" area of the country. Whether or not a particular area is regional is determined by a Gazette notice specifying post codes considered to be regional.

Visas are granted for periods of between three months and four years depending on the employer's requirements. Employers are carefully assessed before approval and each of the position nominated and the visa applicant is assessed against a range of strictly enforced criteria. Employers must demonstrate a commitment to the training of their Australian workforce.

This program is driven by labour market demand. The number of visas issued has doubled since 2003-04 and until the recent economic downturn, continued to grow, with the program reaching 110,570 places in 2007-08.

A pathway from temporary residence to permanent residence is available using this visa. Employees who have worked in Australia on a subclass 457 visa for two years can be sponsored by their employer for permanent residence without the need for a formal skills assessment.

STUDENTS CONVERTING TO PERMANENT RESIDENCE ON COURSE COMPLETION

Students who successfully complete an approved course in Australia lasting a minimum two years can remain in the country and seek a visa to remain in the country with work rights. Sometimes, depending on whether or not the applicant can satisfy the requirement for one year of recent work experience, the application can immediately be for permanent residence. However if, as is usually the case, the student has not worked full time in a skilled occupation for at least 12 of the previous 18 months, the student will apply for a temporary work visa to enable that work experience to be gained and then apply for permanent residence onshore.

WORKING HOLIDAY AND WORK AND HOLIDAY VISAS

Australia has an active program encouraging working holiday makers under 30 years of age from Belgium, Canada, Republic of Cyprus, Denmark, Estonia, Finland, France, Germany, Hong Kong, Republic of Ireland, Italy, Japan, Republic of Korea, Malta, Netherlands, Norway, Sweden, Taiwan and United Kingdom to visit the country for 12 months to work and travel. An extension of one year is available for those who work for at least three months in seasonal harvest work in regional Australia. Many working holiday makers are ultimately sponsored for longer term visas, like the subclass 457 visa, by employers who do not want to let them go.

A "Work and Holiday" visa exists for tertiary qualified nationals of Chile, Thailand, Turkey and the USA. This is a 12-month visa enabling visitors to work and holiday in Australia. It cannot be extended by completion of rural work. A Work and Holiday visa, unlike a Working Holiday visa, is not a qualifying visa for an onshore subclass 457 visa application.

GRADUATES OF RECOGNISED OVERSEAS INSTITUTIONS

Another visa category, introduced in September, 2007, enables graduates from a large number of overseas universities, including eight Canadian universities, to obtain an 18-month visa to live and work in Australia. Applicants must be under 31 years of age. At this time only engineering graduates can be considered for this visa but the scope of the visa can be easily widened by Government Gazette should the need arise.

CONCLUSION

The Australian system is complex but one that nevertheless works surprisingly well. Processing times have been relatively fast^[2] and that has been a plus when migrants are deciding between countries. Applicants are afforded certainty once the threshold conditions are satisfied. However, unless their occupation is on the CSL or they can find a State sponsor, applicants will now face a substantial wait -- at least until prosperous economic times return.

Overall, the longevity of the system is testament to its usefulness and resilience. However, it is not a 'set and forget' system and constant monitoring is necessary so that the right levers are adjusted at the right times.

[1] Andrew Metcalf, Secretary of the Department of Immigration and Citizenship addressing the Government Policy Evolution Conference in 29-30 July 2008

[2] Skilled applications where occupations are on the CSL or where the applicant is sponsored by a State government are processed in only a few weeks. However, since February 2009 and until further Ministerial announcement, no other applications are being processed. Under normal circumstances, those applications for which the occupation is on the MODL, are processed within six months. However, until the economy recovers from the current downturn, those applications may have to wait. Employer Nomination cases are taking six to eight months and subclass 457 visas take anything from just a few days to two months in normal circumstances.