Yesterday, the Australian government announced its response to the Rapid Review into the Exploitation of Australia’s Visa System undertaken by Christine Nixon, AO, APM earlier this year. That review identified significant gaps and weaknesses in Australia’s visa system and made 34 recommendations.
A large number of the recommendations of the Review related to the strengthening the regulation of migration agents to stop unscrupulous conduct. In Australia, migration agents who are not lawyers can be registered to provide immigration advice and visa services, and the government accepted many of the recommendations to increase regulation of this industry. Lawyers, like those employed by Ajuria Lawyers, are separately regulated by the various legal practitioner boards of each State or Territory and were not the subject of the Review or any of these recommendations.
Other recommendations that have been accepted by the government include: increasing data matching between government agencies including the ATO, increased use of biometrics as a means of identification of visa applicants, reviewing work rights and visas of those in Australia to study or train and barring employers from hiring visa holders where they have been found to have been breaching immigration laws or exploiting overseas workers.
As a law firm, Ajuria Lawyers welcomes any change that creates or increases confidence in our legal system and supports the vast majority of employers and individuals that do the right thing. We do not have all of the information available to government or the author of the Review, but we have no doubt that the system has been rorted and abused by some. We have turned away clients, companies and individuals that wanted to do that very thing. That needs to be cleaned up and stopped. However, the vast majority of companies and individuals want to do the right thing and they need meaningful changes to the visa system that will support their business needs. Hopefully, those announcements are imminent. “Crackdowns” need to take into account those who are compliant with the law, not increase the complications in the system for them.
So, what should employers do about all this?
Use a trusted professional legal adviser
Australia’s immigration rules are some of the most complex and litigated areas of law.
Founded in the Constitution, and overseen by the Federal and High Courts of Australia, the Migration Act and Regulations and the thousands of pages of policy that support it, attempt to codify some of the most difficult problems of our society: who comes and who does not, population control, economic growth and the need for infrastructure, populating regional Australia and movement of migrants between and amongst the States and Territories.
The preparation and lodgement of a visa application is not an administrative task but a legal one. It involves: ethical decisions requiring a deep understanding of the importance of the rule of law, the duty to act in the best interest of the client while not breaching the law, analysis of the Act, Regulations and policy, the ability to frame legal arguments and ensuring complete compliance with all regulatory requirements.
Those skills are the bread and butter of the lawyers trained as legal professionals. Using a lawyer for your immigration matters will ensure that your interests and reputation remain protected.
Accept legal advice even when it does not meet the business requirements
Saying no is our hardest job. When we assess whether a person is eligible for a visa, or whether a company should act in a particular way, we apply all of our legal training and look out to protect the best interests of the company and its officers to ensure that all applications and actions fully comply with the law. Getting that wrong is a very serious thing, and can result in potentially damaging outcomes – sponsorship bars, visa cancellation, fines and, in the worst cases, even imprisonment. If we say no to a client we are not doing so for our interest, but theirs. If we say no to you, this is to ensure that you do not become one of the companies or individuals now being investigated.
Develop and implement strong compliant policies within the business
Whether it is training to remind your managers about the importance of immigration compliance, ensuring proper work rights checking processes, or just saying no to an employee who wants a reference that is not completely truthful or is misleading – having strong sponsorship policies in the business to avoid immigration breaches is critical to maintaining your company’s standing with the Department. It will ensure bad practices do not end up as negligent or criminal conduct.
Ajuria Lawyers will keep a close eye on the outcomes of the Review and will advise our clients of anything that might impact you. Until then do not hesitate to reach out to any of our lawyers if you have questions or concerns or would like to review any of your company’s practices or policies.
Disclaimer: This information is current as of 5 October 2023 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information.