17 October 2014 BY ELECTRONIC SUBMISSION Stuart Bett Director Skilled Visa Review and Deregulation Taskforce Department of Immigration and Border Protection PO BOX 25 BELCONNEN ACT 2616 Dear Mr Bett, Please find attached our submissions in response to Discussion Paper: Reviewing the Skilled Migration and 400 Series Visa Programmes. Fragomen is pleased to have had the opportunity to contribute to this review. If I can assist your deliberations any further, please do not hesitate to contact me on (02) 8224 8595 or by email [email protected]. Yours faithfully Robert Walsh Regional Managing Partner – Asia Pacific Fragomen Global LLP
Transcript
17 October 2014 BY ELECTRONIC SUBMISSION Stuart Bett Director Skilled Visa Review and Deregulation Taskforce Department of Immigration and Border Protection PO BOX 25 BELCONNEN ACT 2616 Dear Mr Bett, Please find attached our submissions in response to Discussion Paper: Reviewing the Skilled Migration and 400 Series Visa Programmes. Fragomen is pleased to have had the opportunity to contribute to this review. If I can assist your deliberations any further, please do not hesitate to contact me on (02) 8224 8595 or by email [email protected]. Yours faithfully
Robert Walsh Regional Managing Partner – Asia Pacific Fragomen Global LLP
1. Executive summary 400-Series Visas Multinational businesses have a need for two patterns of intra-corporate assignment to Australia that are not sufficiently catered for in the migration program:
1. Short term assignments of three to 12 months. These short stays arise particularly in project-based industries, requiring a concentrated period of work in Australia, but not an ongoing position in the Australian business.
2. Short visits of only a few days or weeks each time, but: • constantly or regularly over a long term period; and • involving substantive work.
These travel patterns are not suited to the business visitor visa program as they involve substantive work. Due the current policy settings of the subclass 400 visa, these travel patterns are directed to the 457 program, the policy settings for which are too onerous for the length of stay involved. At the same time, processing of subclass 400-series visa applications is slow and convoluted. For these reasons, in our submission:
• The period of stay for the subclass 400 visa be extended to a period of stay of six months, with a validity period of 12 months from the date of first entry.
• Lodgement of subclass 400 visa applications should be moved universally online. • ImmiAccount should be further developed to create an application ‘one stop shop’. • Processing times should be reduced by:
• adopting a risk-tiering approach to processing applications that negates the need for assessment of every aspect of every application.
• implementing a ‘Trusted User’ status across multiple visa programs for businesses with a sound compliance history.
Skilled Migration Program The current demand-driven skilled migration framework is limited in its ability to provide the skills Australia needs for future growth and runs the risk of recruiting the wrong skills while denying entry to those who could add value to Australia if given the opportunity. Building an industrious, innovative and competitive economy involves the creation of an environment that is conducive to entrepreneurship and business development. The role for skilled migration in this national policy objective is to be able to attract and recruit prospective talent, to capture this potential for growth in its early stages. In our view, to work effectively for the Australian economy in the coming decades, the program should make better use of provisional graduate visas to attract prospective talent to Australia, and allow individuals to demonstrate their ‘value-add’ prior to transitioning to permanent residency.
4
2. About Fragomen 2.1 Fragomen is one of the world's leading global immigration law firms, providing
comprehensive immigration solutions to its clients. Operating from over 40 offices in 18 countries (with capabilities in more than 160 countries), Fragomen provides services in the preparation and processing of applications for visas, work and resident permits worldwide and delivers strategic advice to clients on immigration policy and compliance.
2.2 In Australia, Fragomen is the largest immigration law firm with over 175
professionals and support staff nationally, including qualified lawyers, Registered Migration Agents, Accredited Specialists in Immigration Law and other immigration professionals. With offices in Brisbane, Melbourne, Perth and Sydney, Fragomen assists clients with a broad range of Australian immigration services from corporate visa assistance, immigration legal advice, audit and compliance services, litigation and individual migration and citizenship applications. In the 2013-2014 financial year, we assisted clients with lodgement of more than 14,000 applications to the Department of Immigration and Border Protection (‘Department’).
2.3 Further information about Fragomen, both in Australia and globally, is available
3. The 400-Series Visas 3.1. Our submissions in this section focus primarily on the employer-linked visa
subclasses within the 400-series visas. The submissions draw on earlier contributions we have made to previous Departmental, parliamentary and independent reviews of migration programs.1
How business uses the 400-series visas 3.2. In the context of a globalised economy, the ability of business to move key
personnel into short-term specialised roles has become increasingly important to Australia’s economic development. To remain globally competitive, Australian businesses must have access to cutting edge technology and global best practice. In a world economy that operates as a single economic space, early adapters to new ways of doing business and engaging customers have a significant competitive advantage.2
3.3. While business use of Australian-developed innovations should only be
encouraged, the imperatives of success in a global economy mean that cutting-edge innovations cannot always be sourced within the Australian domestic market. It would be remiss of any business not to conduct a global search for products and services that would provide a competitive advantage. This necessitates the ability of the businesses that are developing these innovations offshore to be able to make short term visits to Australia to service Australian clients.3 The reverse is equally true, of course, for Australian businesses seeking access to clientele in markets overseas.
3.4. Multinational businesses utilise visa programs such as the subclass 400
Temporary Work (Short Stay Activity) Visa, 402 Training and Research Visa, and 457 Temporary Work (Skilled) Visa primarily as part of the delivery of products and services to Australian clients, and in the routine rotation of staff. These businesses have operations that are regional, if not global, in scope; and organise their business units horizontally across multiple jurisdictions, rather than siloed vertically per country. They view their multinational workforce as one coherent group that can be deployed as they are needed, wherever that may be around the world. Team members collaborate on projects across borders, and team managers oversee their area of operation across multiple markets.
1 These include the Senate Legal and Constitutional Affairs Committee Inquiry into the Framework and Operation of Subclass 457 Visas, Enterprise Migration Agreements and Regional Migration Agreements (May 2013); the Independent Review into Integrity in the Subclass 457 Programme (May 2014); and in response to the Department’s proposal to extend the validity period of the subclass 400 visa (October 2014). 2 Newland, K., Agunias, D.R. et al, 2008, Learning by Doing: Experiences of Circular Migration. Insight, September 2008. Washington D.C.: Migration Policy Institute; Brynjolfsson, E. and McAfee, A., 2014, The Second Machine Age: Work, Progress and Prosperity in a Time of Brilliant Technologies. New York: W. W. Norton & Company. 3 Chellaraj, G., Maskus, K.E. and Aaditya Mattoo, 2006, ‘Skilled Immigrants, Higher Education, and U.S. Innovation’, in Ozden, C. and M. Schiff (eds.), International Migration, Remittances and the Brain Drain. Washington: The International Bank for Reconstruction and Development/ The World Bank.
6
3.5. The nature and structure of multinational operations mean that business needs short-term, intra-corporate transfer processes that are simple and quick. Most commonly, these transfers allow businesses to organise effectively across multiple locations while responding effectively to dynamic market conditions, and are part of routine operations such as the following:
• Resourcing specialised proprietary projects (or particular stages of such projects) from an existing pool of employees who are deployed around the world. When negotiations commence for the sale of proprietary products or services to an Australian client, business need to quickly assign specialists with proprietary knowledge to assist with those negotiations. If the Australian business then signs up for the product or service following a period of negotiation, they invariably want delivery as soon as possible: contracts for such services can often incorporate penalties for project delays. This requires rapid deployment of professional expertise to deliver the project to the client. These projects do not always fit into a three-month timeframe, and may require the person to spend extended periods outside Australia between tranches of work performed in Australia.
• Collaboration between professionals whose ongoing role sits outside Australia, directly with an Australian client at the client site for a number of months. This on-site work is often needed at critical stages of projects to ensure proper delivery and installation of the product or service. Once the project is completed, the professional returns to their ongoing role offshore.
• Visits to Australia by senior managers on a regular basis, as part of their supervision of Australian operations and client relationship management. Activities while in Australia may include ‘business visitor activities’4 as well as substantive work (that is, duties that are a regular part of their ongoing role in the business and which would normally attract remuneration when performed in Australia).5
• Rotating future leaders through management training programs with components delivered in different locations. Aside from the diversity of experience that working in different locations can provide, Australia is a particularly attractive destination for these management training programs due to the maturity of the Australian market relative to emerging economies in the Asia-Pacific region.
• Resourcing a sudden increase in demand due to an upturn in work; or a spike in demand for one particular skill set that will only be required only for a matter of months.
• Assigning individuals to different roles in different countries as part of the normal course of doing business, or consistent with internal career progression programs.
3.6. For the following reasons, it is our submission that the patterns of work-related
entry identified above do not have an adverse effect on the Australian labour market:
4 Migration Regulations 1994 (Cth) (hereafter ‘Regulations’), r. 1.03 ‘business visitor activity’. 5 Regulations, r. 1.03 ‘work’.
7
• A person entering Australia for a specific, short term project requiring proprietary knowledge is not competing with Australians for the role. Because it is proprietary, this knowledge and experience cannot generally be sourced from the Australian labour market because the skills and expertise are simply not available in Australia outside the business.
• A manager whose offshore role incorporates responsibility for Australian operations, and who is required to visit for days or weeks at a time on a regular basis, is not entering – or even seeking entry – to the Australian labour market despite performing work while in Australia.
• Short-term projects delivered by overseas specialists who then depart Australia mean that Australian businesses do not need to maintain the unworkably large scale of operations that would otherwise be required to ensure that all possible niche skills are permanently able to be provided by Australians. Maintaining a reserve pool of Australians in all skills sets would result in periods of downtime between available work that would be unacceptable to Australian workers and the Australian community. Targeted matching of skills to demand through short-term assignments of overseas specialists allows Australian business to draw on the global pool of available talent in a way which optimizes the labour market in Australia.6
• While training and skills development opportunities are critical to the health of both the Australian economy and Australian society, the development of domestic capability in certain highly specialised skill sets would be significantly less cost effective (given that most tertiary education is paid for by taxpayers) than allowing specialised professionals to enter Australia on a short term assignment to deliver those skills to an Australian client, and then leave.
3.7. These ordinary business operations give rise for two common patterns of travel to Australia: 3. Short term assignments of three to 12 months. These short stays arise
particularly in project-based industries, requiring a concentrated period of work in Australia, but not an ongoing position in the Australian business.
4. Short visits of only a few days or weeks each time, but: • constantly or regularly over a long term period; and • involving substantive work.
3.8. A visa stream which facilitates these business travel patterns is essential to supporting effective international trade and investment, as it would: • ensure Australia remains an active player in the global economy; • demonstrate that Australia is “open for business and investment”; • reflect Australia’s commitments under various international agreements; • be consistent with the practice in other developed economies; • be of economic benefit to Australia and Australians; and • by assisting Australian business to compete globally, create job opportunities
for Australians in Australia.
6 Fargues, F., 2008, Circular Migration: Is it Relevant for the South and East of the Mediterranean? CARIM Analytic and Synthetic Notes 2008/40, Florence: Robert Shuman Centre for Advanced Studies, European University Institute, ‘Abstract’.
8
Interaction between 400-series visa programs 3.9. The patterns of short-term business entry to Australia identified above are not
sufficiently catered for in the migration program, because they tend to fall into a ‘gap’ between: • the subclass 400 visa, which is generally approved for stays of up to 6 weeks;
and • the subclass 457 Temporary Work (Skilled) Visa, which has become too costly
and cumbersome a process to go through for a three to six month assignment, or regular visits of a few days’ duration;
• the 402 visa, the current processing time for which is impractical from a business planning perpective; and
• the 600/601 business visitor visa subclasses, which do not allow work.
3.10. The scope for the migration program to better cater for short-term work assignments depends partly on the outcome of the concurrent reviews into the operation of the 457 program7 and the validity period of the subclass 400 visa. Nonetheless, the interaction of subclasses 400, 402, 457 and the 600/601 visas creates a cumbersome and difficult short-term business entry program which is long-winded, complex and limited in its scope even when dealing with fairly common Australian business scenarios.
3.11. Experience with the operation of the subclass 400 visa perhaps best illustrates
the limited capacity of the visa program in its current policy settings to sufficiently accommodate short-term intra-corporate transfers. The overseas posts that process subclass 400 visa applications are reluctant to grant subclass 400 visas for more than six weeks, even when specifically requested and the reason for the longer stay is supported by evidence from the business. Current policy settings guide officers to consider whether the 457 visa may be more appropriate to longer assignments. The issue that seems to arise is that the longer an assignment extends beyond six weeks, the greater the apprehension by the case officer that the role is ‘ongoing’ and therefore not suited to the subclass 400 visa program. This places a significant, and subjective, barrier on the efficacy of the subclass 400 visa program to facilitate the business travel patterns we have identified.8
3.12. Challenges also arise in the use of the subclass 400 program for short but regular
visits that do not fit within the business visitor classes because the intended activities in Australia involve substantive work. Departmental policy guides officers to be wary of serial short-term visits to Australia when processing visa applications or immigration clearance. This is to prevent the use of short-term temporary visas to establish de facto residence in Australia, or work in circumvention of the more onerous requirements of the 457 visa. This means that officers’ suspicions are often raised by exactly the type of travel patterns we have identified above.
7 Azaria, J, et al, 2014, Robust New Foundations: A Streamlined, Transparent and Responsive System for the 457 Programme. 8 Home > Migration > 2014 > 06/10/2014 - > P. 06/10/2014 - > PAM3 - MIGRATION REGULATIONS - SCHEDULES > PAM - Sch2 Visa 400 - Temporary Work (Short Stay Activity) > GA-400 - Main applicant.
9
3.13. The effect of these policy settings is that as soon as a work assignment requires the person to be in Australia for more than three months (and at some Department posts, six weeks), or to travel to Australia regularly for work, they are redirected to the 457 visa program. In our view, the requirements of the 457 program are too onerous for the patterns of travel we have identified in this submission: • Depending on the occupation involved, the business may be required to
undertake labour market testing for the role, even though: o the person is not seeking entry to the Australian labour market; and o the position requirements mean that it cannot be sourced in the Australian
labour market. • The business would be required to provide evidence that the proposed
remuneration is commensurate with Australian labour market rates. In the case of regular visits of only a few days or weeks’ duration, the pro rata adjustment required to make that assessment would render the comparison virtually meaningless.
• The visa applicant would be required to provide evidence of English language and qualifications, possibly including a skills assessment, in circumstances where the business could perhaps be given the benefit of the doubt as to the skills of their assignee while on a short-term work project.
• The business may be required to transfer employment and payroll to the host entity in Australia, if the corporate group is structured such that it is not an ‘associated entity’ of the sending entity under Australian corporate law.9
• The processing time for a 457 visa is at least two to three months, taking into account the time needed to prepare and obtain the necessary documentation.
• The reporting and recording obligations are too onerous given the length of the assignment.
• The visa holder will often spend only short periods of time in Australia and may be required to leave and enter on many occasions giving rise to issues about whether the employment in Australia has ‘ceased’ and whether a new visa may be required on each occasion.
For these reasons, the current policy settings of the 457 program make that visa program too expensive and cumbersome for assignments of a short period. In our submission, the triggers for redirection to the 457 program for stays of over three months or repeat visits are set prematurely.
Recommendations 3.14. Businesses have indicated to us that for the 400-series visa program to be
effective at providing a responsive intra-corporate transfer facility, turnaround times should be consistent with an Electronic Travel Authority (‘ETA’) in the business visitor stream. Systemic requirements aside, there does not appear to be any policy reason why subclass 400-series visa application processing could not be done within a 48 hour timeframe.
9 Regulations r.2.72; Corporations Act 2001 (Cth) s. 50AAA.
10
3.15. In our view, changes to certain visa criteria, or re-alignment of the current roster of visa subclasses into new groups, will do little to deliver the responsiveness that business is demanding from the visa program. Rather, the development of the 400-series visas into an effective short-term work visa program requires significant systemic change, both in terms of: • the way that visa applications are lodged; and then • how those applications are processed by the Department.
Lodgement 3.16. We support the Department’s determination to move towards universal online
lodgement of visa applications, including the planned transition of subclass 402 visas to online lodgement in November 2014. Previous experience with programs that have moved online is that this initiative helps to standardise and expedite the visa application process. To that end, we would encourage the progressive extension of online lodgement facilities for the subclass 400 visa, beyond the current roster of ETA- and eVisitor-eligible nationalities.
3.17. We are also of the view that the functions of ImmiAccount should be further
developed in order to create a ‘one stop shop’ in which all actions required in relation to a visa application, including correspondence from and to the department, can be performed in one central location. We respectfully draw your attention to the significant reforms due for introduction under the World Trade Organisation Agreement on Trade Facilitation. 10 These reforms will be fundamental in reducing the number of steps that are required in order to process and clear the importation of goods into Australia. Naturally the movement of people entails a distinct set of considerations that do not arise in the movement of goods. Nonetheless, in our view these systemic changes in the area of customs control can be adapted and adopted to immigration and border protection also.
Processing 3.18. In our submission, the Department:
• should move towards a risk-tiering model of application processing, rather than requiring case officers to examine every aspect of every application; and/or
• should develop a ‘Trusted User’ model of engagement with clients so that businesses with a demonstrated history of sound use of the migration program are ‘pre-cleared’ and receive application processing that is light-touch and expedited.
These recommendations are expanded on below.
Option 1: Risk Tiering 3.19. Due to the interrelationship between migration and other issues of federal
concern such as health, employment, taxation and national security, Department operations would benefit greatly from the implementation of predictive analytic systems which access, search and analyse metadata quickly. Analytic systems would provide Departmental officers with information they need to make a decision quickly, obviating the need for officers to examine and assess every
10 World Trade Organisation, Agreement on Trade Facilitation (December 2013) [WT/MIN(13)/36 WT/L/911].
11
piece of information provided by a sponsor company or a visa applicant. ‘In the background’ analytic systems would allow sophisticated analysis of large volumes of data from multiple sources, as well as case-specific information, to develop risk-tiering models, identify patterns, pinpoint profiles, and calculate risk. Employment of such systems would reduce risk, improve processing times and allow the Department to allocate resources more dynamically to areas of need. Importantly, reducing the labour intensity of visa application processing would allow greater allocation of resources to compliance monitoring and detection, at the same time supporting those areas of operation with improved information and analysis.
3.20. We note that the Department has in recent years started to adopt risk-tiering
technology particularly in relation to the identification of sponsors to monitor for compliance. The introduction of this technology has allowed the Department to focus its efforts on sponsors that fit certain risk parameters, rather than the previous random or ‘scatter-gun’ approach. This is a welcome development of the processing efficiency of the Department and has improved the Department’s ability to better educate, and then sanction, organisations and individuals who do not comply with their legal obligations.
3.21. With the benefits of this new technology having been realised on the compliance
side of Department operations, it is our submission that such systems must be comprehensively deployed across all areas of the Department. In our view, this is key to significantly reducing processing times by reducing the work involved in processing an application, while maintaining (and likely improving) the identification of risks which threaten the integrity of the migration program.
Option 2: Trusted User program 3.22. We recognise, of course, that the implementation of data analytic systems would
require significant systemic change and this is subject to budgetary constraints and considerations. Until such time as more sophisticated technology can be deployed, moving to a light touch processing regime can be counterbalanced by reform to the role of business sponsorship in the temporary work-related visa streams. We note that the 457 Integrity Review panel11 and the Department have recommended a consolidation of the different classes of temporary visa sponsor, including 457 and Training and Research Visa sponsors, into one universal form of business sponsor. It was the review panel’s view that businesses should be required to qualify as a sponsor only once, with that approval then allowing access to multiple visa programs.
3.23. In our view, this consolidation could go further, by developing criteria for approval of sponsors as Trusted Users of immigration programs, similar to the current Accredited Sponsor status unique to the 457 visa program, and the gazetted list of organisations that were able to sponsor the repealed Sponsored Business Visitor subclass 459 visa. Factors to qualify as a Trusted User might include: • the number of years the business has been an approved sponsor; • a clean compliance record;
11 Azarias, J., et al, above.
12
• the volume of applications lodged per year; • the amount of global revenue of the corporate group; • whether the business in multinational, and if so the number of employees
globally; • the occupations the business fills with temporary visa holders. The specific criteria for Trusted User status could determine the way in which these considerations interact to limit access to the stream to businesses with the characteristics desired. The considerations above could be calibrated against each other or used as alternative criteria to allow a holistic assessment of trustworthiness of the business.
3.24. The establishment of Trusted User status, with approval to sponsor multiple temporary visa classes, would place the Department in the position where it could: • allow Trusted Users to sponsor multiple classes of visa; • adopt a light touch and low-document approach to application processing from
such users; • accept at face value the sponsor’s declaration that criteria have been met,
unless further investigation is warranted; and • conflate into one step either the sponsorship and nomination stages, or the
nomination and visa stages, of temporary visa processes as they currently stand. For example, graduation to Trusted User status could include a ‘pre-approval’ of the occupations and internal salary bands used by that sponsor. This would negate the need for a separate nomination application, instead requiring a visa applicant only to quote the sponsor’s Trusted User number in the visa application form.
3.25. In our submission, these changes to the way applications are lodged and processed would have a greater positive effect on the key areas of business concern – burdensome process and slow turnaround times – than changes to visa criteria or the way that the 400-series visas are grouped together in the overall migration program structure.
13
4. Skilled Migration 4.1. In this section, we respond to the proposals for change in the skilled migration
program. The program is currently calibrated to select for highly skilled individuals with a demonstrated history of achievement. In our submission, to work effectively for the Australian economy in the coming decades, the program should make better use of provisional visas to attract prospective talent to Australia and allow them to demonstrate their ‘value-add’ prior to transitioning to permanent residency.
Skilled Migration in the Twenty-First Century 4.2. Over the last 20 years, Australia’s skilled migration programs have evolved from
the recruitment of a broad spectrum of highly skilled workers with good prospects of successful settlement in Australia, to a system that seeks to directly match prospective clients to specific skills shortages in the current Australian labour market. This is often referred to as a shift from a ‘supply-driven’ to a ‘demand-driven’ migration program.12 In particular, changes to General Skilled Migration and the Employer Nomination Scheme since 2010 have refocused those programs on: • recruitment of migrants who stand ready to make an immediate contribution
to the workforce;13 and • ensuring as best as possible that Australian business is not hampered in
operating at maximum capacity due to an inability to source the workers it needs.
4.3. As a result, prospective skills-based migrants are extensively screened ‘at the
gate’ through a complex combination of metrics to ensure as best as possible that they fit the profile of workers that are currently in demand in Australia. The criteria for skilled migration are set based largely on the following parameters: • occupations in current shortage that require long and/or arduous training and
which are not being delivered by the domestic education system (such as medical professionals); and
• areas of predicted or desired future growth (such as biotechnology, and medical research and development).14
• Although many of the skilled visa programs are now ‘demand-driven’ in the sense that they require employer sponsorship or nomination, the government is still heavily involved in regulating the entry of skilled migrants by the way in which factors such as lists of eligible occupations and the criteria for visas are centrally determined.
12 Cully, M., 2012, Skilled Migration Selection Policies: Recent Australian reforms. This terminology is also used in the discussion paper itself. 13 Commonwealth of Australia, Department of Immigration and Citizenship, 2010, How New Migrants Fare: Analysis of the Continuous Survey of Australia’s Migrants, p. 1. 14 See for example the criteria that the (disbanded) Australian Workforce and Productivity Agency used to compile the Specialised Occupations List and Skilled Occupations Lists for use in the migration program: http://www.awpa.gov.au/our-work/labour-market-information/specialised-occupations-list/Pages/default.aspx
4.4. Earlier reviews of Australia’s skilled migration programs have identified global migration is a “defining phenomenon of the twenty-first century”.15 The global race for talent is becoming increasingly competitive as countries recognise the importance of, and get smarter at, recruiting the best and the brightest internationally. Certainly, these challenges to the continued supply of skilled migrants to Australia are coming from other traditional net-immigration countries such as Canada, the United Kingdom and the United States, as they reform and recalibrate their own skilled migration systems. However, a growing source of competition also arises from historically net-emigration countries.
4.5. This second challenge presents itself in two ways. Firstly, as economies such as
China and India develop and mature, highly skilled individuals are increasingly less likely to seek emigration.16 This narrows the flow of migration from countries that have historically been sources of skilled migration to Australia. Secondly, emerging economies including China are themselves developing their own skilled migration program. This then diverts the stream of migrants that might otherwise flow to Australia, instead flowing to the economic powerhouse of a massive and rapidly developing economy.17 We are already seeing a significant increase in migration among Asian countries. 18 This gravitational pull also increases the permanent emigration of Australians seeking work and career opportunities abroad.19 Put simply, the accessibility and attractiveness of an increasing number of other immigrant-receiving countries will have a much greater effect on skilled migration to Australia over the coming decades than ever before. 20 Given the cultural and linguistic affinity that many in the Asian region would have with either China or India, an Australian skilled migration program which is overly restrictive ‘at the gate’ may become self-defeating.
4.6. Earlier reviews of the way in which skilled migration works in Australia also seem
to suggest that skilled migration is a binary process: the skilled person ‘self-selects’ to emigrate because of the comparative advantage that doing so would provide that person; the destination state then ‘skills selects’ migrants who meet the government’s stipulated combination of criteria. 21 But there is a critical intermediary step that is overlooked in these analyses and which is becoming an increasingly important variable: the selection by the migrant of destination state. Implicit in historical studies of Australia’s skilled migration program is an assumption that skilled migrants will be sufficiently attracted and fulfilled by sun, sand and surf alone. 22 However, global studies of migration flows show that
15 Birrell, B., Hawthorne, L. and Richardson, S., 2006, Evaluation of the General Skilled Migration Categories Report, p. 128. http://www.immi.gov.au/media/publications/research/gsm-report/ 16 Hugo, G., 2008, ‘Trends in Asia that will Influence Its Future as a Source of Skilled Migrants’, CANADIAN DIVERSITY (6) 3: 4-47; White, M.J. and Subedi, I., ‘The Demography of China and India: Effect on Migration to High-Income Countries through 2030’, in The Transatlantic Council on Migration, 2009, Talent, Competitiveness and Migration. Verlag Bertelsmann Stiftung: Guetersloh, pp. 100 – 128, at p. 104. 17 ‘Australia’s beacon status waning, say experts’, Special Broadcasting Service, 13 September 2014. http://www.sbs.com.au/news/article/2014/09/12/australias-migration-beacon-status-waning-say-experts 18 Hugo, G., 2009, ‘Emerging Demographic Trends in Asia and the Pacific: The Implications for International Migration’, in The Transatlantic Council on Migration, 2009, above at p. 61. 19 Commonwealth of Australia, Department of Immigration and Border Protection, 2014, The Outlook for Net Overseas Migration June 2014, p. 7. 20 Birrell, B., Hawthorne, L. and Richardson, S., 2006, above, p. 128. 21 Cully, M., 2012, above, p. 5. See also Borjas, G., 1987, ‘Self-selection and the earnings of migrants’, AMERICAN ECONOMIC REVIEW, 77 (4), pp. 531-553 22 Birrell, B., Hawthorne, L. and Richardson, S., 2006, above, p. 11.
factors such as lifestyle and social mores are only secondary factors in the migration decision-making process. As depicted in Figure 1, the primary decision-making determiners are those related to the prospective return on investment that the skilled person has made in their own human capital: the opportunity to maximize the realisation of professional goals.23
Figure 1: Migration Decision-Making Drivers24 4.7. In an increasingly competitive race for global talent, acknowledging and
understanding the selection by the migrant of which country to make their home is critical to the development of a policy framework for skilled migration for the coming decades. ‘Skills selecting’ only those individuals who ‘self-select’ for migration may no longer suffice: as talented individuals are offered more opportunities at home and become disinclined to emigrate, it is imperative that Australia is able to continue to offer advantages from immigration; not only relative to other possible destinations but also to the country of origin.
23 Papdemetriou, D.G., Somerville, W., and Tanaka, H., 2009, ‘Talent in the Twenty-First Century Economy’, in The Transatlantic Council on Migration, 2009, above, pp. 215 – 266, at p. 244-245. 24 Papademetriou, D.G., Somerville, W., and Tanaka, H., 2009, above, at p. 244.
16
4.8. The need to make changes to our own skilled migration program does not just arise in the context of increased competition for qualified and experienced skilled workers. Matching skilled migrants precisely with the Australian labour market means that the Australian economy overall has nothing much to lose; but it also has very little to gain from recruiting skills from overseas that are similar to the existing skills base in Australia. Economies grow from innovations which enhance productivity. This requires a combination of ‘trial and error’ and then market competition to select for the best solutions. Over the last 25 years, developed economies including Australia have seen a shift from secondary industry to tertiary, and quaternary. In this transition, the big job creators have been innovative new businesses in emerging industries. Between 1994 and 2006, the fastest-growing companies in the USA represented 3% of all businesses, but generated almost all US employment and revenue growth. 25 Furthermore, talented immigrants are responsible for a disproportionate number of these start-up businesses.26 It is therefore equally important to attract talented individuals with entrepreneurial and innovation skills who are able to ‘value add’ by creating novel solutions to complex problems.27
4.9. The effect of these global migration dynamics is that Australia’s skilled migration
program needs to perform better than simply screening migrants for their prospects of immediate employment. While delivery of skilled labour into identified areas of shortage is important, the skilled migration program must also be part of a holistic government approach to lure talented people away from the ‘bright lights’ of economic centres in North America, Europe and North Asia. A whole-of-government approach is needed to create an environment which attracts and supports talented people from around the work to develop, and then work in, innovative and emerging industries so that the fruits of their talents remain in Australia.
4.10. Highly skilled individuals with a choice of destination make decisions based on a
range of factors, but most important is the human and physical infrastructure and the presence of talented workers. A recent study of successful entrepreneurs in the United States 28 provides some insight into what type of environmental conditions are conducive to attracting and retaining entrepreneurs, and thereby business growth and innovation: • a cluster economy, to which highly skilled workers are naturally attracted; • world class infrastructure to support both business and the large skilled
populations that staff them; and • access to capital, most critically in the embryonic stages of business
development and innovation.
25 Acs, Z.J., Parsons, W and S. Tracy, High-Impact Firms: Gazelles Revisited. Washington: Small Business Administration Office of Advocacy, 2008, p. 2. 26 Papademetriou, D.G., Somerville, W., and Tanaka, H., above, at p. 241. 27 Hall, P., 1998, Cities in Civilisation. London: Weidenfeld & Nicholson. Quoted in Legrain, P., 2006, Immigrants: Your Country Needs Them. London: Little, Brown, p. 117. 28 Endeavor Insight, 2014, What Do the Best Entrepreneurs Want in a City? Lessons from the Founders of America’s Fastest-Growing Companies. http://www.issuu.com/endeavorglobal1/docs/what_do_the_best_entrepreneurs_want
Clusters 4.11. In order to maximize economies of scale and return on investment, newly
emerging industries tend to congregate in close proximity to each other. Once established, it is more economical for the business to remain in the same location. Where businesses have established and maintained operations, this attracts other businesses in the same industry, creating ‘cluster economies’ which become the pre-eminent and ‘best in field’ global centres. The development of London as a global financial centre and Silicon Valley as an information technology powerhouse are cases in point. These ‘cluster economies’ induce swarming behavior among similar businesses, and the crossroads of knowledge, creativity and transformation create ecosystems and synergies that result in innovation breakthroughs. 29 Joining the cluster is of benefit to new entrants due to the critical mass of businesses already operating there; while the addition of new entrants makes the cluster more valuable.30
4.12. The survey found that most entrepreneurs set up their business in a different
location from their place of birth.31 Many of Silicon Valley’s success stories were founded by people born outside the US: • Google • Yahoo! • Intel • eBay • Hotmail • Oracle • Solectron • Cirrus Logic • Sun Microsystems
4.13. London and Silicon Valley have been such successful examples of clustering in
part due to the high level and diversity of talent congregated in those centres through immigration. More importantly from an Australian perspective, people starting businesses are usually resident in the location for at least two years prior to starting their business; 32 but once the business is established, neither the entrepreneur nor the business are likely to relocate again.33 This creates the imperative of: • attracting the young and the restless soon after the completion of their
university studies; and • creating an environment which encourages them to stay to develop
businesses and innovate; to participate in research and development; or to find opportunities to work in highly skilled employment. 34
29 Papademetriou, D.G., Somerville, W., and Tanaka, H., above, at p. 245. 30 Legrain, P., 2006, above, at pp. 97 - 116. 31 In the case of native-born Americans, this may be due to the propensity to move away from home for university studies. 32 Endeavor Insight, 2014, above, p. 6. 33 Endeavor Insight, 2014, above, p. 4. 34 Endeavor Insight, 2014, above, p. 3.
18
Infrastructure 4.14. To be able to grow and flourish, business needs access to both human and
physical infrastructure. An environment which is conducive to entrepreneurship is one to which skilled workers will naturally gravitate because of world class infrastructure in transport, communications and education, 35 simultaneously supporting business through access to clients, markets, suppliers, and other global centres of business. Readily identifiable infrastructure challenges that impact on the attractiveness of Australia as a global business centre include the east coast air, road and rail transport corridors; major city airport capacity; telecommunications networks; the quality and cost of education; the quality and affordability of housing; and child care availability. Initiatives like the recent COAG National Partnership Agreement on Land Transport Infrastructure announced in October 2014 are therefore critical to the prospect of cluster economies in the future.36
Capital 4.15. In its nascent stages, any start-up business or technological innovation requires
capital investment. In this regard, Australia is disadvantaged because it is no able to raise domestically the capital required to meet domestic demand. 37 In the same way that technology is driving entrepreneurship and innovation, it is also providing new ways of raising capital. Entrepreneurs with new inventions or business ideas are able to connect to a global pool of potential investors, who are each prepared to invest a small amount in the development of the concept but who collectively provide the large sums of money to get that idea off the ground. This ‘crowd-sourced funding’ is an increasingly common method of resourcing start-up projects. A regulatory environment which facilitates this type of funding arrangement is therefore of particular importance to the emergence of new technologies and industries. In Australia, allowing bright ideas to connect with willing investors in this way requires financial and prudential regulatory reform to align Australia with countries that have already moved in this area including the USA, Canada, the UK and New Zealand. Similarly, microcredit funding originally used in developing countries to assist with self-employment is becoming more common in developed countries, especially through the internet via peer-to-peer lending. Australian lenders are willing to provide small loans to borrowers lacking capital, collateral, steady income or credit history. However, the regulation of such financing needs to be carefully calibrated to ensure that the price of capital and transactions is not prohibitive; and that interest rates are reasonable. To that end, we look forward to the forthcoming legislative agenda relating to capital raising following the principles set out government’s National Industry Investment and Competitiveness Agenda released in October 2014.38
35 Endeavor Insight, 2014, above, p. 8. 36 Council of Australian Governments, 2014, National Partnership Agreement on Land Transport Infrastructure Projects: Intergovernmental Agreement on Federal Financial Relations. https://www.google.com.au/search?q=coag&oq=coag&aqs=chrome..69i57j5l3j69i60j69i59.929j0j8&sourceid=chrome&es_sm=93&ie=UTF-8#q=national+partnership+land+transport+infrastructure 37 ‘Foreign capital helps economy withstand external shocks’, The Australian, 12 November 2013. http://www.theaustralian.com.au/opinion/columnists/foreign-capital-helps-economy-withstand-external-shocks/story-fn5r96n6-1226757668980. 38 http://industry.gov.au/industry/Pages/Industry-Growth-Centres.aspx#header
4.16. The environmental factors needed to stimulate entrepreneurship and innovation show that the skilled migration program is only a part – but a critical part – of this policy imperative. The factors set out in Figure 1 point to at least three roles that skilled migration can play in attracting talent: • providing opportunity for individuals to demonstrate their ‘value-add’; • creating a critical mass of talented professionals and entrepreneurs; and • the immigration process itself.
For the skilled migration program to be successful in the future, it must operate as an invitation to prospective migrants to participate in ‘the next big thing’. Key to this role is how the skilled migration program is calibrated to act as a selection mechanism for prospective talent and success, as well as those who can demonstrate a history of talent and success. These aspects are explored further in the following section.
The Role of Skilled Migration 4.17. For the reasons set out in the previous section, we are of the view that a
comprehensive reevaluation of the role of skilled migration is needed to ensure that it can deliver two key outcomes in the future: 1. To provide workers with skills in high demand in relation to current and
foreseeable shortages. Arguably, better calibration of employer-linked migration to this goal has been the outcome of reforms over the last five years.39
2. To attract talented individuals to Australia who are provided with an opportunity to demonstrate how they can ‘value-add’ prior to transitioning to permanent residency. In our view this is the more important role for the skilled migration program in the coming decades.
4.18. In this section, we discuss why a policy framework based on an ‘at the gate’
assessment of skills may be geared towards the first outcome, but is unlikely to deliver the second. The outcomes of various longitudinal studies demonstrate that setting a high benchmark for skilled migration ensures that the calibre of successful primary applicants for skilled migration is very high.40 What the studies are not able to measure is the prospective talent that Australia may be missing out on by selecting only for current skills shortages, based on rigid criteria.
4.19. The first issue that arises in an ‘at the gate’ assessment process is the
information used to formulate the assessment itself. The metrics used as screening criteria in skilled migration programs have historically been based on information garnered from studies and observations of migration outcomes and other factors such as labour market dynamics. This is problematic principally because this information is always retrospective in nature. Government agencies tasked with setting migration eligibility criteria take time (sometimes years) to collect, review, analyse, and report such information, before formulating a policy response. An examination of the evolution of skilled occupation lists over the years perhaps demonstrates this problem. The occupation of Cook was included
39 Commonwealth of Australia, Department of Immigration and Border Protection, 2014, Continuous Survey of Australia’s Migrants – Cohort 1, August 2014, pp. 8 – 12. 40 Cully, M., 2012, above, p. 5.
20
on the Skilled Occupation List for use in the General Skilled Migration program from 1999 until 2010. That occupation experienced a 600% increase in skilled migration applications between 2001-2 and 2004-5, and numbers in subsequent years continued to rise exponentially.41 It took until 2010 for Cook to be removed from the independent skilled migration program, by which time there were so many pending skilled migration applications nominating the occupation of Cook that the Minister had already made the decision to delay processing of any applications for Cook that had been lodged onshore; and ‘cap and kill’ any such overseas-lodged applications altogether.
4.20. More important to the design of a skilled migration program that allows for
prospective talent is that policy settings based on historical studies is limited in the ability to predict what skills may be needed more than a few years into the future. Certainly, patterns of supply and demand over time may give some indication of developments in the labour market. What retrospective studies are unable to do, of course, is predict emerging industries and business innovations, and how the digital disruption to the economy may affect the labour market as a consequence.
4.21. Furthermore, by setting metrics based on historical data, and then testing for
these metrics ‘at the gate’, the skilled migration program is not set up to allow migrants the opportunity to demonstrate how they can ‘value-add’; nor to test how skilled migrants are performing once having had that provisional opportunity. Longitudinal studies of migrant outcomes are really only of academic interest once a person has already been granted permanent residency.
4.22. Setting rigid criteria can also skew the behavior of prospective applicants. The
queuing, ‘capping and killing’ of skilled migration applications in 2009 was considered necessary in part due to an overly large proportion of the skilled migration caseload nominating the occupations of Accountant, Cook and Hairdresser. An earlier iteration of the skilled migration points test had provided a hefty 60 points for these occupations, and for a time, bonus points as well.42 International students responded to this ‘market signal’ by studying these three occupations in droves. At first, attempts were made to reduce the volume of Accountant applicants by introducing the two-year Australian study requirement, given that most graduate level Accounting courses were 18 months’ duration. To cater for this new demand, universities simply changed their Master of Professional Accounting degree courses to two years. 43 Recent longitudinal migrant studies reveal that, despite best efforts to set criteria that engineer positive outcomes, this is not always the case. The most recent Continuous Survey of Australian Migration shows that 23% of those migrants surveyed were underemployed, and 9% were unemployed.44
41 Evaluation of the General Skilled Migration Categories, 2006, p. 25. 42Birrell, B., Hawthorne, L. and Richardson, S., 2006, above, p. 30. 43Birrell, B., Hawthorne, L. and Richardson, S., 2006, above, p. 31. 44 Commonwealth of Australia, Department of Immigration and Border Protection, 2014, above, pp. 12-13.
21
4.23. While the post-migration outcomes are positive for the few that are eligible to be ‘skill selected’ by Australia for permanent migration, the selection process itself is problematic for at least two reasons: 1. The points test system must necessarily trade off desirable characteristics
against each other: do you award more points for youthful exuberance, or for a wealth of experience? Do you target those with a sound business history, or those with a great business idea?45
2. A high threshold ‘at the gate’ also means a high rejection rate, and longitudinal studies are not able to tell us who Australia is missing out on as a result. How can a points-test based entry requirement measure ‘soft skills’ that are critical to business and innovation like entrepreneurship, a go-getting attitude, and adaptability? 46 These talents are critical to entrepreneurial success, but are best demonstrated by a provisional period of time in Australia to put these talents to the test.
4.24. One example of prospective talent that is currently overlooked by the skilled
migration program is the disproportionately low number of female primary skilled applicants. While the Australian skilled migration criteria do not discriminate on the basis of sex or gender, women in countries with fewer career opportunities may never be in a position to meet the high threshold skills-based criteria that are currently used. Notable but often glossed over in the longitudinal studies of Australian migration is the relatively low successful career outcomes for migrant women: only 35% of primary skilled migrants to Australia are female.47 By far the majority of women migrating to Australia do so as spouses – either of primary male applicants or of an Australian partner, with relatively poor employment and income experiences post-migration.48 Of some concern is the suggestion in the most recent Continuous Survey of Australia’s Migrants that this differential is an acceptable policy outcome:
The high proportion of females in the Partner Migrant category and males among the Skill Stream Primary Applicants helps maintain an even gender distribution in the Migration Program.49
At the recent B20 Business Leaders’ Summit in Sydney in July 2014, the Human Capital taskforce identified improvement of the workforce participation of women as a global key concern.50 A migration program which recruits for potential as well as for demonstrated talent would unlock this pool of talent and improve migration outcomes for women, and consequently would have a marked effect on productivity and growth. In this regard, the skilled migration program can and should do better at attracting talented individuals to Australia and allowing them the opportunity for professional and/or business development: • after arriving Australia; but • before transitioning to permanent residency.
45 Birrell, B., Hawthorne, L. and Richardson, S., 2006, above, p. 34. 46 Legrain, P., 2006, above, p. 117. 47 Commonwealth of Australia, Department of Immigration and Border Protection, 2014, above, p. 15. 48 Commonwealth of Australia, Department of Immigration and Border Protection, 2014, above, p. 10. 49 Commonwealth of Australia, Department of Immigration and Border Protection, 2014, above, p. 15. 50 B20, Human Capital Taskforce, 2014, B20 Human Capital Taskforce Policy Summary July 2014. http://www.b20australia.info/Documents/B20%20Human%20Capital%20Taskforce%20Report.pdf
International Comparisons 4.25. Standing in contrast to the ‘demand-driven’ model of skilled migration currently
used in Australia is the ‘human capital’ model: allowing permanent migration based on general work skills and the aptitude to be flexible and ‘complex problem solvers’, rather than careful screening for recognised qualifications in particular occupations. 51 This migrant selection model is reminiscent of the Australian migration program prior to 1996. It is also the model currently in use in Canada, until it is replaced in January 2015 with a model very similar in nature to Australia’s SkillSelect. The reform of Canada’s skilled migration program in that direction has been prompted by a deterioration of migration outcomes over the last decade, particularly in relation to employment entry and attainment, underutilisation of skills, and variable recognition of overseas qualifications.52 The Canadian experience accords with Australian migration outcomes prior to 1996, and demonstrate the dangers of casting the net too broadly ‘at the gate’.
4.26. To the extent that the Australian skilled migration program is recalibrated to
attract and recruit talent more widely than is currently the case, it must also have safeguards in place to ensure that permanent migrants have suitably demonstrated their ‘value add’ to Australia. In the case of those people who would already qualify for skilled migration, employer-nomination permanent residency, or the business investment and innovation steam, the policy settings have been refined over the last few decades to target precisely those aspects of seasoned professionals and business people who have demonstrated how they can add value. Further development is needed in the way in which a provisional period in Australia to pursue work and business opportunities might dovetail with those well-established programs.
4.27. In this regard, the UK’s Tier 1 (Graduate Entrepreneur) visa might provide some
prototype as to how a system which selects for prospective as well as demonstrated talent might recruit more effectively. The Graduate Entrepreneur visa allows international students who have started a business while in the UK, or who are engaged in cutting-edge research and development, the opportunity to remain in-country following their studies in order to pursue these entrepreneurial opportunities further. Applicants are supported by UK Trade and Investment both in terms of endorsing the visa application and by providing start-up packages including office space, assisted access to seed funding, and mentoring by seasoned entrepreneurs. The Graduate Entrepreneur visa allows a stay of up to two years, with the possibility of transitioning to a Tier 1 (Entrepreneur) visa if the business is successful.
51 Birrell, B., Hawthorne, L. and Richardson, S., 2006, above, p. 132. 52 Hawthorne, L., 2008, ‘The Impact of Economic Selection Policy on Labour Market Outcomes for Degree-Qualified Migrants in Canada and Australia’, INSTITUTE FOR RESEARCH ON PUBLIC POLICY CHOICES, 14 (5).
23
Recommendations
A Hybrid Approach 4.28. In our view, the key to being able to capture prospective talent before it settles
elsewhere is the expansion of the 476 Skilled - Recognised Graduate and Temporary Graduate visas programs, by: • casting accessibility to the subclass 476 visa more broadly; • easing the application and processing requirements at provisional visa stage,
and deferring a more robust assessment process to a permanent residency application process;
• creating a provisional entrepreneurial visa pathway that is avala ble to both onshore and offshore graduates; and
• lengthening the validity period of these provisional graduate visas to three years.
These changes would enhance opportunities for talented individuals to move to Australia in the early stages of their professional or business career. The studies of entrepreneurs discussed at [4.9.–4.16.] above demonstrate that attracting people with high potential for success early, and allowing them an opportunity to develop, is the best chance for Australia to access and recruit the talent it needs to develop and prosper over the coming decaes. Though not able to do so at the time of entry, individuals allowed entry to Australia on a prospective visa can use their time in Australia to demonstrate their ‘value-add’, by: • establishing and growing a business; • engaging in cutting-edge research and development; and • finding employment in highly skilled occupations.
4.30. Those who successfully achieve one of the above outcomes will be able to
transition to one of the current skills-based permanent residency streams. Below, we have suggested some changes to those streams to facilitate that transition. Those who are not able to make the most of the opportunity and whose provisional migration outcome is poor, would not be eligible to migrate permanently. Broadening the opportunity to come to Australia, and then testing the outcome of that move prior to grant of permanent residency, is the counterbalance necessary for a ‘hybridised system’ of international talent recruitment to operate.
4.31. Figure 2 sets out how a provisional visa scheme can play a greater role in the
recruitment of talent from overseas. The upper sections of the graphic show the current ‘demand-driven’ focus of the program. Those with a demonstrated history of business, vocational or distinguished skills are able to apply for permanent residency directly. A significant secondary pathway to permanent residency is the transition to the ENS and RSMS schemes following a period of time working on a subclass 457 visa. The ‘human capital’ modes of skilled migration appear in the lower part of the graphic. At entry stage, criteria are cast broadly, to allow entry to study; having recently completed study; or on the basis of a business idea. Crucially for both the individual migrant and the Australian economy, the ‘human capital’ pathway leads to permanent residency only after the person has had an opportunity to ‘value-add’ in a two-stage migration process.
24
EN
TRY
PERM
ANEN
T R
ESID
ENCY
BIIP Distinguished talent
Skilled Migration ENS/ RSMS
457 457
Student
Temporary Graduate/ Graduate Entrepreneur
Recognised Graduate
Graduate Entrepreneur
Figure 2: Skills based pathways to permanent residency
Accessibility of subclass 476 visa 4.32. The entry of recent overseas graduates to Australia will become more important if
the quality of educational institutions in emerging economies increases and the attractiveness of coming to Australia to study wanes. 53 The subclass 476 visa allows recent overseas graduates to live and work in Australia for 18 months. While the recently introduced Post-Study Work stream in the subclass 485 visa seems to be retaining international students after graduation,54 the subclass 476 visa has regrettably experienced very low take up rates. In our estimation the disappointing level of interest in the subclass 476 is not least due to the current restrictions on accessibility. Eligibility for the subclass 476 is restricted by field of degree qualification and institution of study. Currently, engineering is the only occupation that is gazetted for this visa, with eligible institutions in 30 countries. In our view, this program presents a sound platform for an Australian migration program that recruits more aggressively, but provisionally, for recent graduates from overseas universities.
4.33. While the government’s Industry, Innovation and Competitiveness Agenda places
priority on enhanced capability of Science Technology Engineering and Mathematics (STEM) skills as a national development imperative,55 a migration program focussed on STEM skills alone runs the risk of limiting the diversity of talent that is allowed an opportunity to demonstrate, and be held to account for, their ‘value-add’. The broadest setting would be for the subclass 476 visa to allow recent graduates from any Bachelor degree or higher qualification, from an expanded list of overseas institutions. A more focussed assessment against employer-driven needs, high net worth benchmarks, or targeted occupations would be deferred to the permanent residency stage. Setting an entry benchmark of a Bachelor degree would provide some surety as to prospective talent, and would exclude trades, crafts and associate professions.
53 Hugo, G., ‘Emerging Demographic Trends in Asia and the Pacific: The Implications for International Migration’, in The Transatlantic Council on Migration, 2009, above at p. 66. 54 Commonwealth of Australia, Department of Immigration and Border Protection, 2014, p. 7. 55 http://www.dpmc.gov.au/publications/Industry_Innovation_and_Competitiveness_Agenda/stem.cfm
Direct permanent residency for those who demonstrate value at entry
Facilitated Processing 4.34. In our view, another reason for the limited interest in the subclass 476 visa is the
onerous processing requirements that result in a processing time of seven months. 56 A provisional visa program that is facilitative and attractive to the young and restless would involve processing closer in gravity to the Working Holiday and Work & Holiday visa programs, rather than skilled migration permanent residency. In this aspect, the lodgement and processing recommendations set out at [3.14.-3.25] above in relation to business travel might also provide some insight into processing forms that would be beneficial to all visa categories. Certainly, if a more robust assessment is to be undertaken at permanent residency stage, this might allow a simplified entry process at provisional visa stage.
Provisional Graduate Entrepreneur Visa 4.35. We are also of the view that recruitment of global talent to Australia would
benefit greatly from the introduction of a Graduate Entrepreneur visa, available for both onshore and offshore applicants. Thie visa cold operate in similar ways to the UK version, including the requiremtn of endorsement by AusIndustry, Austrade or a higher research institution. One aspect of this proposal which differs from the UK visa program is the availability to overseas applicants. To distinguish this provisional pathway from the Business Innovation and Investment Program, access to a provisional entrepreneur visa could be limited by: • age, similar to the Working Holiday and Work 7 Holiday visas; and • recent graduation, similar to the subclasses 476 and 485.
4.36. For onshore applicants, the practical outcome would be very similar to the
opportunity currently provided in the Post-Study Work stream of the subclass 485 visa in terms of allowing a period of time to establish a career following graduation. In our view, transition to permanent residency could be better facilitated in the following ways: • In the skilled migration stream:
o providing more points in the points test for Australian work experience, in recognition of the value of having established a professional career in Australia; and
o providing more points in the points test for spouse skills, in recognition of the way in which this doubles the positive migration outcome for hat family unit.
• In the ENS and RSMS streams, including holders of provisional graduate visas among those who are able to transition to permanent residency after two years’ employment with the employer in Australia, similar to the policy settings for subclass 457 and 444 visa holders.
4.37. Similarly, a provisional graduate program that better recognises the value of budding entrepreneurs among recent graduates would provide time to establish a business following graduation, with a transitional pathway into the subclass 188 visa. To better facilitate that transition, some concessions to the financial and asset requirements might appropriately recognise that a promising but relatively new business would likely not have acquired the assets that would normally be required for the BIIP.
We are pleased to provide these submissions to the Department. If we can assist with policy development in this area in any other way, please do not hesitate to contact Simon Haag on direct line (02) 8224 8561 or by email to [email protected], or myself on direct line (02) 8224 8595 or by email to [email protected]. Yours sincerely,
Robert Walsh Regional Managing Partner - Asia Pacific Fragomen Global LLP MARN 9256939
