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I.  General Overview of the Immigration System

Australia’s universal visa system requires all noncitizens to have a valid visa to enter and remain in Australia.  Australia’s immigration program is primarily governed by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth).[1]  The program is administered by the Department of Immigration and Citizenship (DIAC).

The permanent migration program has two main components: the Migration Program[2] and the Humanitarian Program.[3]  Both programs are divided into streams, categories, and visa “subclasses.”  The Migration Program consists of the Skilled Stream, Family Stream,[4] and Special Eligibility Stream.[5]

Australia operates a “hybrid” selection system for skilled migrants that includes both a points-based system and employer sponsorship options.[6]  The Skilled Stream of the Migration Program is divided into four main categories:[7] points-based skilled migration (also known as General Skilled Migration), the Permanent Employer-Sponsored Program,[8] the Business Innovation and Investment Program,[9] and visas for people with “distinguished talent.”[10]  Section III of this report provides information on the points-based skilled migration category.      

Various temporary visas are available.[11]  Some of these visas provide limited rights to work, such as those for students,[12] seasonal workers, and young people on working holidays.  Information on the latter two programs is provided in Section IV of this report.  The subclass 457 visa is the major temporary work visa for employer-sponsored foreign workers in skilled occupations and may be valid for up to four years.[13]  People on this and some other temporary visas may be able to transition to a permanent residence visa while they are in Australia.[14]

New Zealand citizens are able to live, work, and study in Australia indefinitely on special “temporary” visas due to reciprocal arrangements between the two countries.[15]  New Zealanders settling in Australia are included in total settler numbers but are not counted as part of Australia’s Migration Program unless they choose to apply for permanent residence as skilled or family migrants.[16] 

In recent years, Australia has introduced various temporary and permanent visa initiatives targeted at enabling employers in different regions in Australia to address labor shortages by obtaining overseas workers to fill skilled and semiskilled positions.[17]

The specific eligibility criteria for the different subclasses are set out in Schedule 2 of the Migration Regulations 1994 (Cth).  There are also some “general public interest criteria” set out in the Regulations that relate to health[18] and character[19] requirements that apply to all visas.  In addition, applicants for some visas (including all permanent visas) are required to sign an Australian Values Statement.[20]

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II.  Number of Immigrants

As of February 25, 2013, Australia’s population was estimated to be over 22.9 million people.[21]  According to the Australian Bureau of Statistics (ABS), 27% of the estimated population on June 30, 2011, was born overseas (about 6 million people).[22]  The largest group of overseas-born residents at that time was from the United Kingdom (5.3% of the population), followed by New Zealand (2.5%), China (1.8%), India (1.5%), and Vietnam and Italy (0.9% each).[23] 

The ABS states that “[h]istorically, more people immigrate to, than emigrate from, Australia.”[24]  Net overseas migration peaked at 315,700 in December 2008, but declined significantly to about 197,200 in March 2012.  The DIAC has predicted a gradual rise in net overseas migration to about 249,000 by June 2016.[25]

A.  Migration Program

Under section 85 of the Migration Act 1958, the Minister for Immigration and Citizenship can place limits, or “caps,” on the number of visas that can be granted for a particular subclass each year.[26]  In terms of the Migration Program, over the last decade there has been a shift to more people obtaining residence in Australia under the Skilled Stream than the Family Stream.  In 1996-97,[27] more than 50% of migrants arrived under the Family Stream with about 47% of places being awarded under the Skilled Stream.[28]  In comparison, in 2012-13, Australia’s Migration Program is set at 190,000 places,[29] comprising

  • 60 185 places for family migrants who are sponsored by family members already in Australia [31.7% of the program]
  • 129 250 places for skilled migrants who gain entry essentially because of their work or business experience, business qualifications, skills or sponsorship [68% of the program]
  • 565 places for special eligibility migrants who are former permanent residents and have maintained close business, cultural or personal ties with Australia.[30]

B.  Humanitarian Program

In 2011-12, the Humanitarian Program resulted in 13,759 visas being granted against a planning figure of 13,750.  This included 6,718 offshore visas and 7,041 onshore visas.  Forty-four percent of the total number of visas were granted to refugees, 5% were Special Humanitarian Program visas, and 51% were Protection and other visas granted onshore.[31]

C.  Source Countries

The total number of settlers arriving in Australia during the 2010-11 year was 127,460, with people coming from more than two hundred countries.  The majority came from four countries: New Zealand (20.2%), China (11.5%), the United Kingdom (8.6%), and India (8.3%).[32] 

In terms of permanent migration of skilled workers, the top source countries for 2011-12 were as follows:[33]

  • General Skilled Migration: (1) India, (2) United Kingdom, (3) China, (4) Sri Lanka, (5) Malaysia.
  • Employer-sponsored Migration: (1) United Kingdom, (2) Philippines, (3) India, (4) South Africa, (5) China.
  • Total Skill Stream: (1) India, (2) United Kingdom, (3) China, (4) Philippines, (5) South Africa.

In terms of subclass 457 (temporary skilled) visas, the top source countries for 2011-12 were: (1) United Kingdom, (2) India, (3) Ireland, (4) Philippines, (5) United States of America.[34]

In the Humanitarian Program, the main groups resettled from within the three key source regions in 2011-12 were:

  • Middle East/South West Asia—Iraqi minorities from a range of countries in the Middle East, Iranian Baha’is from Turkey, and Afghans from Iran and Pakistan
  • Asia—Burmese refugees from Malaysia, Thailand and India and Bhutanese refugees from Nepal
  • Africa—refugees from Ethiopia, the Democratic Republic of the Congo and Eritrea.[35]

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III.  The Points-Based Skilled Migration System

A.  Overview of the System

The purpose of the points test mechanism is to “help select skilled migrants who offer the best in terms of economic benefit to Australia.”[36]  According to the DIAC, the test “creates a selection process that is transparent and objective, awarding points to the skills and attributes considered to be in need in Australia.”[37]

The visa subclasses that have been established under the points-based skilled migration category are available to independent (unsponsored) applicants, applicants nominated by a state or territory government agency, and applicants sponsored by an eligible relative.[38]  People must be invited to apply for these visas.[39]

Section 93 of the Migration Act 1958 (Cth) provides the Minister with the power to prescribe points for a range of factors through regulations.[40]  Points are currently awarded for the following factors:[41]

  • Age;
  • English language ability;
  • Number of years of skilled employment in the past ten years within or outside Australia;
  • Level of educational qualifications;
  • Qualifications obtained from Australian educational institutions;
  • Other factors, such as community language qualifications, study in regional Australia or a low-population-growth metropolitan area, partner skill qualifications, and Professional Year in Australia; and
  • Nomination by a state or territory government or sponsorship by an eligible family member (relevant visas only).

Under the current system for points-based visas, an applicant must nominate a skilled occupation from the Australian government’s Skilled Occupation List (SOL) and must have their skills assessed as suitable for that occupation by a recognized authority.[42]  However, the occupation itself does not form part of the points test.

Section 96 of the Migration Act allows the Minister to set the “pass mark” for points-tested visas.[43]  The current pass mark for the skilled migration points-based visas is sixty points.[44] “Pool marks” can also be set so that applicants with a score that is lower than the pass mark can be placed in a pool for a specified period of time.  However, the current pool mark for all visas is the same as the pass mark, meaning that no applications are being placed in the pool at this time.[45]

Apart from passing the points test and nominating a skilled occupation from the SOL, there are basic eligibility requirements that must be met in order to obtain one of the visas: applicants must be under fifty years of age, have at least competent English, and meet the health and character requirements.[46] 

Applicants for skilled migration visas can include family members in their application.  Such family members must meet specified secondary applicant criteria.  They must also demonstrate the family relationship with the applicant and satisfy health, character, Australian values, and any English language requirements.[47]

B.  Changes to Skilled Migration 2008-2011

In 2008-09, in the wake of the global financial crisis, the Australian government conducted a review of permanent skilled migration.[48]  The review identified “the need for a shift in focus away from ‘supply driven’ independent skilled migration towards ‘demand-driven’ outcomes, in the form of employer and government-sponsored skilled migration.”[49]  As a result, changes were made to the system to apply priority processing arrangements for sponsored migrants rather than those opting for independent points-based skilled migration.[50]  

Further changes were made in 2010 that were intended to “target the program and ensure that it is driven by the demands of Australian industry rather than the supply of independent skilled migrants.”[51]  This included the phasing out of existing skills lists and their replacement with the Skilled Occupation List referred to above, which is developed by an independent body and updated annually to reflect occupations in demand.[52]

These changes were followed by a review of the points test in 2010,[53] with the resulting recommendations implemented from July 1, 2011.[54]   The new test sought to address concerns that the previous test had “not always led to outcomes consistent with the objectives of the skilled migration program.”[55]  For example, its emphasis on Australian qualifications and experience had meant that “an overseas student with a short term vocational qualification and one year’s work experience in Australia [was put] ahead of a Harvard educated environmental engineer with three years’ relevant work experience.”[56]

According to the DIAC, the new test “does not give undue weight to any one factor and recognises a broader range of skills and attributes.”[57]  The changes to the points test focused on “better English language skills, more extensive skilled work experience, higher level qualifications obtained in Australia and overseas and different age ranges.”[58]  It was as part of these changes that it was determined that points would no longer be awarded on the basis of an applicant’s occupation, although all applicants would still be required to nominate an occupation on the Skilled Occupation List.[59]  Another significant change was an increase in the age limit for skilled migration from forty-five to fifty years.[60]

C.  Skilled Migration Reforms 2012

In 2011, the Australian government announced significant reforms to the Skilled Migration Stream and other visa programs.[61]  The changes included a new, two-stage application process for points-based visas and some business and investment visas.  The process involves an electronic Skilled Migration Selection Model, known as “SkillSelect,”[62] through which persons submit Expressions of Interest (EOI) for specific skilled migration visas.  A person can only apply for one of the visas if he or she is subsequently invited to do so by the DIAC.[63]

For independent skilled migrants, selection is based on the EOI, from which a points test score and occupation rankings are derived, with the highest ranked in each selection round invited to apply.  For state- and territory-nominated migrants, state and territory governments “can select anyone from the expression of interest pool, so long as they meet the points test pass mark and other criteria as specified in their State Migration Plans.”[64]  Employers can also gain access to the database and can “select migrants who have expressed an interest in being sponsored by an employer on a permanent or temporary basis.”[65]

Under the reforms, which took effect on July 1, 2012, the six existing points-based visa subclasses were phased out[66] and replaced with three new points-based visas that are now available through the SkillSelect process:[67]

  • Skilled Independent (subclass 189) visa, which allows skilled workers who are not sponsored by an employer, state or territory, or family member, to live and work permanently anywhere in Australia.[68]
  • Skilled – Nominated (subclass 190) visa, which allows skilled workers who are nominated by a state or territory to live and work permanently in Australia.  Holders of this visa must stay in the state or territory that nominated them for at least two years.[69]
  • Skilled – Nominated or Sponsored (Provisional) (subclass 489) visa, which allows skilled workers who are nominated by a state or territory, or sponsored by an eligible relative living in a designated area of Australia, to live and work in a specified regional area for up to four years.[70]  Holders of this visa can apply for permanent residence through the Skilled Regional (Residence) visa (subclass 887) after certain conditions have been met.[71]

The consolidation of the visa subclasses included the removal of distinctions relating to a person’s location for the above visas, meaning that they can be inside or outside Australia at the time they apply for a visa and when the visa is decided.[72]

As indicated above, the pass mark for the three visas was set at sixty points.  This is lower than the 65-point pass mark that previously applied to the General Skilled Migration subclasses following the 2010 review of the points test.  According to the DIAC, the lower pass mark for the new visas was intended to “encourage a broader range of people with the skills and attributes needed in Australia to register their interest in migration.”[73]

The DIAC has stated that the new points test and SkillSelect “are designed to provide government with 21st century tools to choose skilled migrants who have the most to offer Australia as well as promote effective administration of the Migration Program.”[74]  The new system means that “invitations to apply can be issued in line with the number of visa places available” and legal entitlements to a visa decision are limited to the second stage of the process, thus avoiding a “pipeline of queued applicants” and allowing for better control over the level of net overseas migration.[75]

D.  Labor Market Outcomes of “Points System” Migrants

In 2009, DIAC commenced a program called the “Continuous Survey of Australia’s Migrants” (CSAM), which aims to “provide timely information on the labour market outcomes of recent migrants.”[76]  A summary of the key findings of the first round of CSAM surveys, covering 2009-2011, was published in February 2013.[77]  Findings from the surveys included the following:

  • Overall, skilled migrants had a “particularly high” labor force participation rate of 96%, substantially higher than the national rate of 67% and “much higher than the rate for our Australia-born and overseas-born populations—of 69 per cent and 62 per cent respectively.”[78]
  • After six months of permanent residence, “[a]t $74 600 per year, Offshore Independent migrants had the highest median full-time earnings of any group—well above the $44 400 per annum of Onshore migrants, and higher even then the $71 300 per annum for migrants with employer sponsorship.”[79]  The summary report suggests two key reasons for this situation: “Firstly, unlike Employer Sponsored migrants, they have had to meet the requirements of a strict points test in order to be granted their visa.  Secondly, because of the way the test is structured, most will also have acquired considerable work experience, meaning that provided they are able to find work they are likely to be further advanced in terms of career and pay.”[80]
  • After a year of permanent residence, “Offshore Independent migrants showed strong improvements in labour outcomes, with significant falls in unemployment (down 7 percentage points) and significant increases in full-time work (up 9 percentage points).”  This group also had “a relatively large increase in skilled employment, with the proportion employed in a skilled job increasing by 8 percentage points.”[81]
  • After a year of permanent residence, “Employer Sponsored migrants had almost no unemployment (only 0.5 per cent), the highest rate of workforce participation of all Skilled migrant categories (99 per cent) and the second highest median full-time earnings of $75 000.  They also had the greatest likelihood of being in skilled work (91 per cent).”[82]  The summary report states that “[i]n terms of immediate economic return from skilled migration, the CSAM validates the government’s policies that promote skilled migration and in particular Employer Sponsored migration.”[83]
  • The results for Offshore Independent skilled migrants after a year included 83% in skilled employment, 85% working full-time, 96% participation rate, and median full-time earnings of AU$79,000.[84]  For Employer Sponsored migrants, the figures were 91% in skilled employment, 93% working full-time, 99% participation rate, and median full-time earnings of AU$75,000.[85]

The DIAC has worked with an independent economic consultancy to develop the Migrants’ Fiscal Impact Model, which “provides a detailed profile of the effect of new migrants on the Australian Government Budget, taking into account their impact on revenues and expenditure.”[86]  This model showed that the cumulative fiscal benefit of all Migration and Humanitarian Program (i.e. permanent) visas granted in 2010-11 over the first ten years of settlement in Australia is over AU$10.2 billion, with skilled migrants making the greatest fiscal contribution.[87]   The net fiscal impact on the Budget from different skilled visa categories that existed in that year was estimated as follows:[88]

  • Skilled Independent: AU$384.2 million after ten years of permanent settlement; AU$439.5 million after twenty years
  • State/Territory Sponsored: AU$104.7 million after ten years; AU$138.1 million after twenty years
  • Employer Sponsored: AU$493 million after ten years; AU$530.8 million after twenty years

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IV.  Low-Skilled Migrants

Low-skilled temporary workers may enter and work in Australia under two program areas: the Seasonal Worker Program and the working holiday programs.  Semi-skilled workers may also obtain temporary subclass 457 visas under the Labour Agreement program[89] or two related programs: Enterprise Migration Agreements[90] and Regional Migration Agreements.[91]  These programs are designed to address labor shortages in the context of large resource projects and in remote areas of the country that cannot be resolved via normal sponsorship.

Apart from these programs, low-skilled positions may in some cases be filled by New Zealand citizens who can live and work indefinitely in Australia without meeting any of the skilled migrant requirements.

A.  Seasonal Worker Program

Between September 2008 and June 2012, Australia piloted a guest worker program that enabled people from certain Pacific Island countries to come to Australia for seasonal horticultural work.[92]  Following the pilot, the Seasonal Worker Program (SWP) came into effect in July 2012.[93] 

The SWP involves agreements with several countries[94] where people aged twenty-one to forty-five can apply for special visas[95] to work for approved employers for set periods.  The new program is scheduled to run until 2016 and is administered by the Department of Education, Employment and Workplace Relations (DEEWR).  It applies to the following industries: horticulture (all locations), tourism (accommodation; limited locations), sugarcane (limited locations), cotton (limited locations), aquaculture (limited locations).[96] 

Participants in the program can work for a specified approved employer for between fourteen weeks and six months, cannot bring family members, and are restricted from applying for further visas while in Australia. Seasonal workers can return to Australia to work in future years if they comply with visa conditions.[97]

B.  Working Holiday Programs

Australia also operates two working holiday programs for young people (aged eighteen to thirty years) of certain countries who are able to engage in any type of work for limited periods during their one-year visit to Australia: “Working Holiday” visas (subclass 417) and “Work and Holiday” visas (subclass 462).[98]  According to the DIAC, many working holiday program participants are employed in the hospitality and seasonal horticultural industries.[99]

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V.  Illegal Immigration

A.  Compliance Mechanisms

Any noncitizen in Australia without a valid visa is considered an “unlawful non-citizen.”[100]  It is possible to become an unlawful noncitizen by arriving without a valid visa, by overstaying a visa, or as a result of a visa being cancelled due to noncompliance with a visa condition.[101]  If there is no legal entitlement for a person to remain in Australia, they are expected to depart.[102]  Unlawful noncitizens may be placed in immigration detention and removed from the country.[103]

The DIAC, Centrelink (the agency that disburses social security payments), and the Australian Taxation Office share information in order to locate noncitizens who are illegally employed or who claim welfare payments to which they are not entitled.[104]  The DIAC also works with the Australian Federal Police and state police authorities to locate illegal workers, and has a range of initiatives aimed at addressing noncompliance in the agriculture sector.[105] 

The Australian government instituted a range of reforms in 2007-08 that sought to encourage noncomplying visa holders to voluntarily approach the DIAC.[106]

People who have overstayed their visa can contact the DIAC’s Community Status Resolution Service in order to seek to resolve their status.[107]  The CSRS can grant bridging visas, which allow people to remain in the country (or to leave and return) after their substantive visa expires and while their application for a new substantive visa is being processed.[108]

The DIAC operates a system called “Visa Entitlement Verification Online,” which employers can use to check a person’s work rights.[109]  Individual visa holders can also check their visa status online using the system.[110]  Organizations and individuals must register and be approved to access this system.  The DIAC also runs an “immigration dob-in service,” which enables members of the public to provide information on persons who they think are in the country illegally.[111]

Employers face sanctions under the Migration Act 1958 for recruiting illegal workers.[112]  Proposed amendments to the law introduced in the federal Parliament in 2012 include new, no-fault civil penalty provisions and would allow the Department to issue infringement notices and penalties.[113]

B.  Compliance Numbers

According to the DIAC, overall compliance with Australia’s immigration system is high, with more than 99% of the more than 4.8 million temporary visa holders complying with their visa requirements in 2011-12.[114] 

As of June 30, 2011, Australia’s “overstayer” population was estimated at 58,400.[115]  This was an 8.3% increase from June 30, 2010, and “largely reflects increases in temporary migration from previous years.”[116]  Most of these people “only overstay their visa for a short period and then depart voluntarily.”[117] 

In 2011-12, the DIAC

  • received about 18,900 “dob-ins” or pieces of fraud-related information, compared to 15,600 in 2010-11;[118]
  • located 15,477 unlawful noncitizens, an increase compared to 13,831 in 2010-11 (About 82% of the overall number were voluntary, with 18% of people located through field operations or referred by the police.  Many people were granted bridging visas in order to make their own arrangements to depart Australia, with a small number detained for removal);[119] 
  • located 1,928 people who were working illegally, compared to 1,788 in 2010-11;[120]
  • “assisted or managed” the departure of 10,785 unlawful noncitizens, including voluntary departures as well as the removal of people from immigration detention;[121]
  • resolved the immigration status of 12,588 unlawful noncitizens, an increase of 13% from 11,137 in 2010-11;[122] and
  • took 12,967 people into immigration detention, including 8,371 “irregular maritime arrivals” (IMAs), 2,014 unauthorized air arrivals, 2,455 people who had breached their visa conditions, 68 foreign fishers, and 59 others.[123]

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Prepared by Kelly Buchanan
Chief, Foreign, Comparative, and
International Law Division I
March 2013

Appendix: Current Points Test for Subclass 189, 190, and 489 Visas

Factor

Description

Points

Age

at time of invitation

18–24 years (inclusive)

25–32 years (inclusive)

33–39 years (inclusive)

40–44 years (inclusive)

45–49 years (inclusive)

25

30

25

15

0

English language ability

at time of invitation

Competent English – IELTS 6 / OET B

Proficient English – IELTS 7 / OET B

Superior English – IELTS 8 / OET A

0

10

20

Skilled employment

at time of invitation

 

Only 20 points can be awarded for any combination of overseas and Australian skilled employment

 

Overseas employment in nominated skilled occupation or a closely related skilled occupation

 

Australian employment in nominated skilled occupation or a closely related skilled occupation

Skilled employment outside Australia

 

At least three but less than five years (of past 10 years)  

At least five but less than eight years (of past 10 years)  

At least eight and up to 10 years (of past 10 years)           

 

 

5

 

10

 

15

Skilled employment in Australia

 

At least one but less than three years (of past 10 years)  

At least three but less than five years (of past 10 years)

 

At least five but less than eight years (of past 10 years)  

At least eight and up to 10 years (of past 10 years)           

 

 

5

 

10

 

15

 

20

 

Educational qualifications

at time of invitation

Doctorate from an Australian educational institution or other Doctorate of a recognised standard          

 

At least a Bachelor degree, including a Bachelor degree with Honours or Masters, from an Australian educational institution or other degree of a recognised standard 

 

Diploma or trade qualification completed in Australia, or qualification or award of recognised standard          

20

 

 

15

 

 

 

 

10

Australian study requirements

at time of invitation

One or more degrees, diplomas or trade qualifications awarded by an Australian educational institution and meet the Australian Study Requirement

5

Other factors

at time of invitation

Credentialled community language qualifications           

Study in regional Australia or a low population growth metropolitan area (excluding distance education)

 

Partner skill qualifications      

 

Professional Year in Australia for at least 12 months in the four years before the day you were invited

5

 

5

 

 

5

 

5

 

Nomination/sponsorship

at time of invitation

Nomination by state or territory government (visa subclass 190 only)

 

Nomination by state or territory government or sponsorship by an eligible family member, to reside and work in a specified/designated area (visa subclass 489 only)

5

 

 

5

Source: Contents copied from Skilled Independent (Subclass 189) Visa, DIAC (SkillSelect), http://www.immi.gov. au/skills/skillselect/index/visas/subclass-189/ (click on “Points”). 

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[1] Migration Act 1958 (Cth), http://www.comlaw.gov.au/Details/C2012C00855; Migration Regulations 1994 (Cth), http://www.comlaw.gov.au/Details/F2013C00062.  Multiple additional subsidiary instruments and governmental notices apply under the Migration Act, see Legislative Instruments – All – by Title – MI, ComLaw, http://www.comlaw.gov.au/Browse/Results/ByTitle/LegislativeInstruments/Current/Mi/0; Gazettal Notices, DIAC, http://www.immi.gov.au/legislation/gazettals/ (both last visited Feb. 28, 2013).

[2] See generally Fact Sheet 1 – Immigration: The Background Part One, DIAC, http://www.immi.gov.au/media/fact-sheets/01backgd.htm (last reviewed May 2012).

[3] See generally Fact Sheet 1 – Immigration: The Background Part Two, DIAC, http://www.immi.gov.au/media/fact-sheets/01backgd_01.htm (last reviewed May 2012).

[4] See generally Fact Sheet 29 – Overview of the Family Stream, DIAC, http://www.immi.gov.au/media/fact-sheets/29overview_family.htm (last reviewed Sept. 2012).

[5] See generally Fact Sheet 40 – Special Eligibility Stream, DIAC, http://www.immi.gov.au/media/fact-sheets/40special.htm (last reviewed Apr. 27, 2011).  This stream makes provision for former permanent residents who meet certain criteria to remain in or return to Australia as permanent residents.

[6] See Demetrios G. Papademetriou & Madeleine Sumption, Rethinking Points Systems and Employer-Selected Immigration 5 (Migration Policy Institute, June 2011), http://www.migrationpolicy.org/pubs/rethinking pointssystem.pdf.

[7] Fact Sheet 24 – Overview of Skilled Migration to Australia, DIAC, http://www.immi.gov.au/media/fact-sheets/24overview_skilled.htm (last reviewed July 2012). 

[8] See generally Employer Sponsored Workers, DIAC, http://www.immi.gov.au/skilled/skilled-workers/permanent-employer-sponsored-visa-whats-new.htm (last visited Feb. 27, 2013).  See also DIAC, Permanent Employer Sponsored Program, http://www.immi.gov.au/skilled/skilled-workers/_pdf/skilled-migration-diagrams.pdf (providing an overview of the current visa streams under this program) (last visited Feb. 28, 2013).

[9] See generally Fact Sheet 27 – Business Migration, DIAC, http://www.immi.gov.au/media/fact-sheets/27business.htm (last reviewed July 2012).

[10] Distinguished Talent Visa (Offshore) (Subclass 124): About this Visa, DIAC, http://www.immi.gov.au/ skilled/specialist-entry/124/; Distinguished Talent Visa (Onshore) (Subclass 858): About this Visa, DIAC, http://www.immi.gov.au/skilled/specialist-entry/858/ (both last visited Feb. 27, 2013).

[11] See generally Fact Sheet 46 – Temporary Entry: An Overview, DIAC, http://www.immi.gov.au/media/fact-sheets/46temporary_entry.htm (last reviewed Nov. 2012).

[12] See Student Visa Conditions for the Primary Visa Holder, DIAC, http://www.immi.gov.au/students/visa-conditions-students.htm (last visited Feb. 21, 2013).

[13] See generally Fact Sheet 48b – Temporary Work (Skilled) (Subclass 457) Visa, DIAC, http://www.immi.gov.au/ media/fact-sheets/48b-temporary-business-visa.htm (last reviewed Nov. 2012).

[14] See, e.g., Employer Nomination Scheme (Subclass 186), DIAC (SkillSelect), http://www.immi.gov.au/skills/skill select/index/visas/subclass-186/ (last updated Dec. 12, 2012); Mei Hoong, Changes to the Permanent Employer Sponsored Program, DIAC Migration Blog (May 7, 2012), http://migrationblog.immi.gov.au/2012/ 05/07/changes-to-the-permanent-employer-sponsored-program/

[15] See Fact Sheet 17 – New Zealanders in Australia, DIAC, http://www.immi.gov.au/media/fact-sheets/17nz.htm (last reviewed Oct. 2012); New Zealand Citizens Entering Australia, DIAC, http://www.immi.gov.au/allforms/ travel-documents/new-zealand.htm (last visited Feb. 25, 2013). New Zealanders automatically receive a Special Category visa (SCV) when they enter Australia.  Migration Act 1958 (Cth), s 32; Migration Regulations 1994 (Cth), sch 2, subclass 444.

[16] See also DIAC, Trends in Migration: Australia 2010-2011 (Annual submission to the OECD’s Continuous Reporting System on Migration (SOPEMI)) 22, http://www.immi.gov.au/media/publications/statistics/trends-in-migration/trends-in-migration-2010-11.pdf.

[17] See, e.g., Press Release, Chris Bowen MP, Skilled Migration Reform to Support Australia’s Growing Economy (May 10, 2011), http://www.minister.immi.gov.au/media/cb/2011/cb165287.htm.

[18] See Fact Sheet 22 – The Health Requirement, DIAC, http://www.immi.gov.au/media/fact-sheets/22health.htm (last reviewed May 2010).

[19] See Fact Sheet 79 – The Character Requirement, DIAC, http://www.immi.gov.au/media/fact-sheets/79character.htm (last reviewed Jan. 2013); Migration Act 1958 (Cth), s 501; Migration Regulations 1994 (Cth), reg 1.03 & sch 4 pt 1 (Public Interest Criterion 4001).  

[20] See Australian Values, DIAC, http://www.immi.gov.au/living-in-australia/values/ (last visited Feb. 21, 2013); Migration Regulations 1994 (Cth), sch 4, pt 3.

[21] Population Clock, Australian Bureau of Statistics, http://www.abs.gov.au/ausstats/abs%40.nsf/94713ad4 45ff1425ca25682000192af2/1647509ef7e25faaca2568a900154b63?OpenDocument (last visited Feb. 25, 2013).

[22] Australia’s Population by Country of Birth, Australian Bureau of Statistics, http://www.abs.gov.au/ ausstats/abs@.nsf/Products/84074889D69E738CCA257A5A00120A69?opendocument (last updated Dec. 17, 2012).  See also Fact Sheet 15 – Population Growth, Department of Immigration and Citizenship (DIAC), http://www.immi.gov.au/media/fact-sheets/15population.htm (last reviewed June 2012).

[23] Australia’s Population by Country of Birth, supra note 22.

[24] Id.

[25] DIAC, The Outlook for Net Overseas Migration 3 (Sept. 2012), http://www.immi.gov.au/media/ publications/statistics/immigration-update/nom-sep12.pdf.

[26] See Fact Sheet 21 – Managing the Migration Program, DIAC, http://www.immi.gov.au/media/fact-sheets/21managing.htm (last reviewed Sept. 2012).

[27] The Australian government’s fiscal year runs from July 1 to June 30.

[28] Janet Phillips & Harriet Spinks, Skilled Migration: Temporary and Permanent Flows to Australia 3 (Australia Parliamentary Library, updated Dec. 6, 2012), http://parlinfo.aph.gov.au/parlInfo/download/ library/prspub/1601351/upload_binary/1601351.pdf;fileType=application%2Fpdf.

[29] This is about 5,000 more than the 2011-2012 planning level.  Of the additional places, 3,400 were allocated to the Skilled stream to “help meet demand for skilled migrants.”  Fact Sheet 2 – Key Facts About Immigration, DIAC, http://www.immi.gov.au/media/fact-sheets/02key.htm (last reviewed June 2012).

[30] Fact Sheet 20 – Migration Program Planning Levels, DIAC, http://www.immi.gov.au/media/fact-sheets/20planning.htm (last reviewed May 2012).

[32] Fact Sheet 2 – Key Facts About Immigration, supra note 29.

[33] DIAC, Current Country Rankings, http://www.immi.gov.au/media/statistics/country-profiles/_pdf/country-ranking.pdf (last visited Feb. 27, 2013).

[34] Id.

[35] Annual Report 2011-12, supra note 31, at 112.

[36] DIAC, 1 July 2011 – Points Test for Certain Skilled Migration Visas (June 2011), http://www.immi. gov.au/skilled/general-skilled-migration/pdf/points-test.pdf.

[37] Id.

[38] Note that graduates of Australian institutions may be eligible for temporary visas that enable them to gain work experience or improve their English skills in Australia before applying for a permanent General Skilled Migration visa.  Skilled – Graduate (Temporary) Visa: About this Visa, DIAC, http://www.immi.gov.au/skilled/general-skilled-migration/485/; Skilled – Recognised Graduate (Temporary) Visa (Subclass 476), DIAC, http://www.immi.gov.au/ skilled/general-skilled-migration/476/ (both last visited Feb. 27, 2013).

[39] See infra, Section III(C).  The various factors in the points test must be demonstrated at the time that a person is invited to apply for a visa.

[40] See Fact Sheet 21 – Managing the Migration Program, supra note 26.

[41] Migration Regulations 1994 (Cth), regs 2.26AC-2.27D & sch 6D.  The full points test table is attached as an appendix to this report.

[42] Skills Assessment and Assessing Authorities, DIAC, http://www.immi.gov.au/skilled/general-skilled-migration/skilled-occupations/skills-assessed.htm (last visited Feb. 27, 2013).

[43] See Fact Sheet 21 – Managing the Migration Program, supra note 26.

[44] Migration Act 1958 - Specification under subsections 96(1) and 96(2) - Pass Marks and Pool Marks in relation to applications for General Skilled Migrations Visas (Classes VE, VC, VF, VB, SI, SN and SP) - June 2012 (Cth), pt 3, http://www.comlaw.gov.au/Details/F2012L01317.

[45] Id.  See also What is the Points Test, DIAC, http://www.immi.gov.au/skilled/general-skilled-migration/points-test.htm (last visited Feb. 27, 2013).

[46] DIAC, Changes to Points Tested Skilled Migration Visas 2 (June 2012), http://www.immi.gov.au/ skilled/general-skilled-migration/pdf/points-tested-visas.pdf.  Competent English is defined as “an International English Language Test System (IELTS) score of at least six in each of the four components of the IELTS test; or at least B in the Occupational English Test (OET); or being a citizen and passport holder of the UK, Canada, New Zealand, Ireland or the USA.”  Id. at 3.

[47] Id. at 3.

[48] See Press Release, Chris Bowen MP, Migration Program Gives Priority to Those with Skills Most Needed (Dec. 17, 2008), http://www.minister.immi.gov.au/media/media-releases/2008/ce08123.htm.

[49] Phillips & Spinks, supra note 28, at 4.  See also Mark Cully, Skilled Migration Selection Policies: Recent Australian Reforms (2012), http://www.immi.gov.au/media/publications/research/_pdf/skilled-migration-policies.pdf.

[50] Id.  See also Fact Sheet 24a – Priority Processing for Skilled Migration Visas, http://www.immi.gov.au/ media/fact-sheets/24apriority_skilled.htm (last reviewed July 2012).

[51] Phillips & Spinks, supra note 28, at 4.

[52] Id. at 5.  See generally Do You Have a Skilled Occupation?, DIAC, http://www.immi.gov.au/skilled/general-skilled-migration/skilled-occupations/skilled-occupations.htm (last visited Feb. 27, 2013).

[53] Press Release, Chris Bowen MP, General Skilled Migration Points Test Review (Feb. 17, 2010), http://www.minister.immi.gov.au/media/media-releases/2010/ce10012.htm; DIAC, General Skilled Migration (GSM) Points Test Review, http://www.immi.gov.au/skilled/general-skilled-migration/pdf/faq-points-test.pdf (last visited Feb. 27, 2013).

[54] See Press Release, Chris Bowen MP, New Migration Points Test to Better Address Australia’s Skills Needs (Nov. 11, 2010), http://www.minister.immi.gov.au/media/media-releases/2010/cb10078.htm; DIAC, Frequently Asked Questions – New Points Test (Nov. 2010), http://www.immi.gov.au/skilled/general-skilled-migration/pdf/points-testfaq.pdf.

[55] Press Release, Chris Bowen MP, New Migration Points Test to Better Address Australia’s Skills Needs, supra note 54.

[56] Id.

[57] DIAC, 1 July 2011 – Points Test for Certain Skilled Migration Visas, supra note 36, at 1.

[58] DIAC, Frequently Asked Questions – New Points Test, supra note 54, at 1.

[59] Id.

[60] Annual Report 2011-12, supra note 31, at 43.

[61] See Press Release, Chris Bowen MP, Budget 2011-12: Skilled Migration Reform to Support Australia’s Growing Economy (May 10, 2011), http://www.minister.immi.gov.au/media/cb/2011/cb165287.htm; Phillips & Spinks, supra note 28, at 5-7.

[62] SkillSelect, DIAC, http://www.immi.gov.au/skills/skillselect/ (last visited Feb. 27, 2013).

[63] See generally, New Skilled Visa and Points Test Arrangements, http://www.immi.gov.au/skilled/general-skilled-migration/new-skilled.htm (last visited Feb. 27, 2013); Robert, Changes to Points-tested Skilled Migration Visas, DIAC Migration Blog (Apr. 24, 2012), http://migrationblog.immi.gov.au/2012/04/24/changes-to-points-tested-skilled-migration-visas/

[64] Trends in Migration: Australia 2010-2011, supra note 16, at 9-10.

[65] Id. at 10.

[66] The visa subclasses for which applications are now no longer being accepted are 175, 176, 475, 487, 885, and 886.

[67] See DIAC, Points Based Skilled Migration (Subclasses 189, 190 and 489) Visa (Booklet 6, Nov. 2012), http://www.immi.gov.au/allforms/booklets/1119.pdf (providing detailed information on these visas).

[68] SkillSelect: Skilled Independent (Subclass 189) Visa, DIAC, http://www.immi.gov.au/skills/skillselect/index/ visas/subclass-189/ (last updated Aug. 7, 2012).

[69] SkillSelect: Skilled – Nominated (Subclass 190) Visa), DIAC, http://www.immi.gov.au/skills/skillselect/ index/visas/subclass-190/ (last updated Aug. 7, 2012).

[70] SkillSelect: Skilled – Nominated or Sponsored (Provisional) (Subclass 489) Visa, DIAC, http://www.immi.gov.au/ skills/skillselect/index/visas/subclass-489/ (last updated Aug. 7, 2012).

[71] Id.; Skilled – Regional (Residence) Visa (Subclass 887): About this Visa, DIAC, http://www.immi.gov.au/skilled/ general-skilled-migration/887/ (last visited Feb. 27, 2013).

[72]  DIAC, Changes to Points Tested Skilled Migration Visas, supra note 46, at 1. 

[73] Press Release, DIAC, Change to the Skilled Migration Pass Mark (June 15, 2012), http://www.newsroom. immi.gov.au/channels/Visas/releases/Change-to-the-skilled-migration-pass-mark.  

[74] Trends in Migration: Australia 2010-2011, supra note 16, at 10.

[75] Id.

[76] DIAC, Fact Sheet: The Continuous Survey of Australia’s Migrants, http://www.immi.gov.au/media/ publications/research/_pdf/csam-info.pdf (last visited Feb. 27, 2013).  See generally, Continuous Survey of Australia’s Migrants, DIAC, http://www.immi.gov.au/media/research/surveys/csam/ (last visited Feb. 27, 2013).

[77] DIAC, The Continuous Survey of Australia’s Migrants: Cohorts 1 to 5 Report 2009-11, http://www.immi.gov.au/media/publications/research/_pdf/continuous-survey-aus-migrants.pdf.

[78] Id. at 3.

[79] Id. at 12.

[80] Id.

[81] Id. at 14.

[82] Id. at 4.

[83] Id. at 12.

[84] Id. at 13.  See also DIAC, Table 1: Employment Outcomes for Recent Migrants, Compared with Australian Population, Additional Results from the Continuous Survey of Australia’s Migrants, http://www.immi.gov.au/ media/publications/research/_pdf/csam-additional-results.pdf (last visited Feb. 27, 2013) (providing  a breakdown of figures by visa types after six months); and Trends in Migration: Australia 2010-2011, supra note 16, at 98 (setting forth 2010 results).

[85] The Continuous Survey of Australia’s Migrants: Cohorts 1 to 5 Report 2009-11, supra note 77, at 13.

[86] Trends in Migration: Australia 2010-2011, supra note 16, at 108.  The Model considers fiscal impacts over a twenty-year period, examines the first generation of migrants, and is not a “life cycle” model. 

[87] Id. at 109.

[88] Id. at 110.

[89] Labour Agreements, DIAC, http://www.immi.gov.au/skilled/skilled-workers/la/ (last visited Feb. 25, 2013).

[90] Enterprise Migration Agreements, DIAC, http://www.immi.gov.au/skilled/enterprise-migration-agreements.htm (last visited Feb. 25, 2013); Fact Sheet 48a – Enterprise Migration Agreements, DIAC, http://www.immi.gov. au/media/fact-sheets/48a-enterprise.htm (last reviewed June 2012). 

[91] Regional Migration Agreements, DIAC, http://www.immi.gov.au/skilled/regional-migration-agreements.htm (last visited Feb. 25, 2013); Fact Sheet 48c – Regional Migration Agreement, DIAC, http://www.immi.gov.au/media/ fact-sheets/48c-rma.htm (last reviewed Sept. 2012).

[92] See Press Release, Chris Bowen MP, Visa for Pacific Island Seasonal Worker Scheme (Sept. 23, 2008), http://www.minister.immi.gov.au/media/media-releases/2008/ce08090.htm; Pacific Seasonal Worker Pilot Scheme, Department of Education, Employment and Workplace Relations (DEEWR), http://deewr.gov.au/pacific-seasonal-worker-pilot-scheme (last visited Feb. 25, 2013).

[93] See Seasonal Worker Program, DIAC, http://www.immi.gov.au/skilled/seasonal-worker/; Seasonal Worker Program, DEEWR, http://deewr.gov.au/seasonal-worker-program (both last visited Feb. 25, 2013).

[94] The program is currently only available for citizens of East Timor, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu who have been sponsored by an employer.

[95] Seasonal Worker Program – Eligibility, DIAC, http://www.immi.gov.au/skilled/seasonal-worker/eligibility.htm (last visited Feb. 11, 2013); Migration Regulations 1994 (Cth), sch 2, subclass 416.

[96] Seasonal Worker Program: How This Program Works, DIAC, http://www.immi.gov.au/skilled/seasonal-worker/how-program-works.htm (last visited Feb. 25, 2013).

[97] Seasonal Worker Program – About This Program, DIAC, http://www.immi.gov.au/skilled/seasonal-worker/swp.htm; How This Program Works, DIAC, http://www.immi.gov.au/skilled/seasonal-worker/how-program-works.htm (both last visited Feb. 25, 2013).

[98] See Work and Holiday Visa (Subclass 462), DIAC, http://www.immi.gov.au/visitors/working-holiday/462/; Working Holiday Visa (Subclass 417), DIAC, http://www.immi.gov.au/visitors/working-holiday/417/ (both last visited Feb. 25, 2013).

[99] Trends in Migration: Australia 2010-2011, supra note 16, at 11.

[100] Migration Act 1958 (Cth), s 14.

[101] Annual Report 2011-12, supra note 31, at 163.

[102] Expired Visas, DIAC, http://www.immi.gov.au/managing-australias-borders/compliance/staying-legally/ expired.htm (last visited Feb. 27, 2013); see generally Compliance, DIAC, http://www.immi.gov.au/managing-australias-borders/compliance/ (last visited Feb. 25, 2013).

[103] Fact Sheet 82 – Immigration Detention, DIAC, http://www.immi.gov.au/media/fact-sheets/82detention.htm (last reviewed May 2012).

[104] Fact Sheet 86 – Overstayers and Other Unlawful Non-citizens, DIAC, http://www.immi.gov.au/media/fact-sheets/86overstayers-and-other-unlawful-non-citizens.htm (last revised Mar. 2012).

[105] Fact Sheet 87 – Initiatives to Combat Illegal Work in Australia, DIAC, http://www.immi.gov.au/media/fact-sheets/87illegal.htm (last reviewed Sept. 2010).

[106] Annual Report 2011-12, supra note 31, at 179.

[107] Community Status Resolution Service, DIAC, http://www.immi.gov.au/managing-australias-borders/ compliance/community-status-resolution/ (last visited Feb. 25, 2013).

[108] Bridging Visas, DIAC, http://www.immi.gov.au/visas/bridging/ (last visited Feb. 25, 2013); Migration Act 1958 (Cth), s 37 & pt 2, div 3, subdiv AF; Migration Regulations 1994 (Cth) pt 2, div 2.5 & sch 2, subclasses 010, 020, 030; see also sch 3 (additional criteria applicable to unlawful noncitizens and certain bridging visa holders).

[109] Visa Entitlement Verification Online (VEVO), DIAC, http://www.immi.gov.au/e_visa/vevo.htm (last visited Feb. 11, 2013).

[110] Id.; see also About Your Visa, DIAC, http://www.immi.gov.au/visas/about-your-visa.htm (last visited Feb. 25, 2013).

[111] Immigration Dob-In Service, DIAC, http://www.immi.gov.au/contacts/dob-in/ (last visited Feb. 25, 2013).

[112] Migration Act 1958 (Cth), pt 2, div 12, subdiv C.  See About the Employer Sanction Legislation, DIAC http://www.immi.gov.au/managing-australias-borders/compliance/employer-obligations/about.htm; see also 2010 Howells Review of Employer Sanctions, DIAC, http://www.immi.gov.au/media/publications/compliance/review-employer-sanctions/  (last visited Feb. 11, 2013).

[113] See Migration Amendment (Reform of Employer Sanctions) Bill 2012, Parliament of Australia, http://aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r4889See also Press Release, Chris Bowen MP, New Legal Sanctions Against Noncompliant Employers (Sept. 18, 2012), http://www.minister.immi.gov.au/media/cb/2012/cb189943.htm.

[114] Annual Report 2011-12, supra note 31, at 163.

[115] DIAC, Population Flows: Immigration Aspects 2010-11 Edition 71, http://www.immi.gov.au/media/ publications/statistics/popflows2010-11/pop-flows-chapter3.pdf; Trends in Migration: Australia 2010-2011, supra note 16, at 178.

[116] Population Flows: Immigration Aspects 2010-11 Edition, supra note 115, at 71.

[117] Id.

[118] Annual Report 2011-12, supra note 31, at 178.

[119] Id. at 179.

[120] Id. at 174.

[121] Id.

[122] Id.

[123] Id. at 197.

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Last Updated: 02/28/2014