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Migration Nation: The Immigration Advice Landscape and the Future of Migration Practice
What area(s) of law does this episode consider? | The immigration advice landscape in Australia. |
Why is this topic relevant? | Australia is a migrant nation. Immigration is central to our national story, and the melting pot society that we take for granted is built on the backs of those who choose Australia to call home. There are whole industries dedicated to advising potential migrants and those who seek to sponsor or employ them. A subset of that advice is legal, and involves the interpretation and implementation of the continuously moving target that is the Migration Act 1958 (Cth). The landscape of who can give immigration advice is also subject to change and – in just one example – that landscape underwent significant change just a few years ago in 2021. From March of that year, Australian lawyers were no longer required under the Migration Act to be dual registered with the Office of the Migration Agents Registration Authority (or, MARA) in order to provide immigration advice in the course of legal practice. |
What legislation is considered in this episode? | Migration Act 1958 (Cth) (Migration Act) |
What are the main points? |
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What are the practical takeaways? |
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Show notes | Australian Government Department of Home Affairs, Outline of the Government’s Migration Strategy: A Migration System for a More Prosperous and Secure Australia (2023) |
David Turner: 1:00 | Hello and welcome to Hearsay the Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host David Turner. Hearsay the Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services and Hearsay the Legal Podcast is how we’re improving the experience of CPD. Australia is a migrant nation, and immigration is central to our national story. Our melting pot society that we take for granted is built on the backs of those who choose Australia to call home. And there are whole industries dedicated to advising potential migrants and those who seek to sponsor or employ them. And a subset of that advice is legal. It involves the interpretation and implementation of a moving target – the Migration Act 1958. And the landscape of who can give immigration advice is also subject to some change. In fact, in just one example, that landscape underwent significant change in 2021. Now, from March of that year, Australian lawyers were no longer required to be dual registered with the Office of the Migration Agents Registration Authority, MARA, in order to provide immigration advice in the course of legal practice. Now, as the pandemic and the certain infamous tennis star have demonstrated, the area of migration is one in which rapid changes are the norm. Joining me today on Hearsay the Legal Podcast to discuss the state of the immigration law advice industry and recent changes and proposed changes to the industry, is Marsha Bassily, Principal Immigration Solicitor at MB Lawyers. Marsha, thanks so much for joining me on Hearsay. |
Marsha Bassily: 2:00 | Thanks so much for having me. I’m so excited to be here and have a conversation with you about what I think is the underappreciated sister-in-law – pun intended – of immigration law. So, I’ve been practicing in immigration law for 18 years now. And I opened my practice MB: Lawyers around 2010-2011. I really enjoyed building on what I learned in my early career as a grad in immigration space, and I really wanted to spend and dedicate my time in this standalone body of law as a respectable body of law to practice in. So, I was first introduced to immigration law really by accident. I fell into it, and looking back, it’s interesting to know that two of my colleagues at College of Law are now exclusively practicing in immigration law. And I don’t remember any of us saying that we wanted to specialise in immigration. So, I think we all sort of fall into it to some extent, and it just shows how unloved it may be as an area of practice. |
DT: 3:00 | It’s so funny how common that experience is for lawyers, I think, of falling into the area that you come to really have a passion for and devote your career to. I mean, speaking personally, that was kind of my experience with financial restructuring and corporate law. But it comes up again and again where people say “oh, I wanted to be a criminal lawyer at university and I ended up doing this instead”. I’m sure if we were all doing what we plan to do at university, we’d all be human rights lawyers! |
MB: 4:00 | But yeah, actually that’s right. I think so. And I think that’s what a lot of people think immigration law really is as well, and that’s certainly a very large part of it. But there’s also the other parts that people are not really aware of, like corporate immigration and skilled migration that I enjoy working in as well. I’ve been really lucky to be surrounded by experienced migration professionals, and I use the word professionals quite deliberately because our industry includes both lawyers and migration agents and we share this space. And so, I was really lucky to be mentored and introduced to the space and grow in that space under both registered migration agents who had oodles of experience. So, no law qualification, but oodles of experience in the space and business prowess, and then also by accredited lawyers in this space or accredited specialists in this space. |
DT: | And that kind of duality or these parallel professions is really what we’re going to be talking about today, right? I kind of alluded to these changes in my intro to this episode. The Migration Act changed in 2021 and it had a big impact on those parallel professions. For someone who has been living under the immigration law rock and maybe hasn’t heard about this change, tell us a little bit about what it means. |
MB: 5:00 | Yeah, sure. So, it was a great change. It was on the 22 March where the law was introduced to basically say that lawyers who have a practicing certificate don’t need to be dually registered with the MARA, which, as you explained earlier, is the Migration Agents Review Authority. TIP: The amendments that Marsha and David are discussing are found in the Migration Amendment (Regulation of Migration Agents) Act 2020 (Cth). That Act amended the Migration Act to remove that dual registration requirement by – among other amendments – inserting section 289B, which provides that an unrestricted legal practitioner must not be registered with MARA. Keeping in mind here that MARA maintains a register of Migration Agents – that parallel profession that Marsha spoke about. And so basically, prior to that, all lawyers needed to be dually registered – The Law Society and the MARA. It’s a great change for our profession, but in order to really appreciate it, I really want to take you to the convoluted history of how we got there! |
DT: | I’d love to know that because it’s an unusual feature of your part of the profession. I don’t know that I can think of any other fields of law where there’s sort of parallel professionals and you sit alongside them. So, what was the thinking behind the dual registration requirement originally? |
MB: | Yeah, sure. So, I think, about dual registration, or – professions sitting against each other. It’s like the conveyancing area. |
DT: 6:00 | That’s a good point. |
MB: 7:00 | But again, as a lawyer, I don’t need to be registered as a conveyancer to do conveyancing work. So, for us as lawyers, to be regulated under both professional bodies is really a big ask. It’s been a hot issue that’s always been part of the landscape and it’s been going on for so long. So, I recall that when I first entered the industry 18 years ago, so in 2005 it was already a live issue and it was simmering for many years. And I say simmering because, as I said, it started well before I joined the industry… It heated up… the topic heated up in 2007 when an independent review took place and it was talking about the deregulation of lawyers. And that idea was floated again, and then they went back and forth, and then eight years later, the then-government said they would finally adopt this recommendation. That was in 2015 and we’re still to-ing and fro-ing. And finally, it came into play in 2021. So, you could see it was one of those areas; there’s a lot of negotiation, a lot of pros and cons. It was a live topic for many years. And so, I’m really glad that we’re finally able to be free of dual registration. You can see even by this example, it’s a pretty complex space. |
DT: | Yeah, absolutely. And I wanted to know a bit more about that because you said it’s a great change and I think from the practicing lawyer’s perspective absolutely. To not have that kind of dual regulation. But you did say it was controversial, pros and cons. What were some of the opposing? Why did people oppose the removal of dual registration? |
MB: 8:00 | I don’t think the legal profession opposed it. We actually were very much for it and the law council and various professional bodies in our space were really pro, getting us off the need to be regulated by a second body, the OMARA. Again, a lot of history in this predates me – a lot of emotion in this as well. We’re working alongside migration agents whose education is different from ours, their standards are different from ours. And so, there is a commonality in terms of some of the work we do, but there’s also this emotional side of professionalism. You could be perceived as attacking someone, not being professional enough to do that sort of work. So, it’s quite an interesting space where we have to sort of protect what we’ve learned as lawyers and respect the path that we’ve taken to get to a certain specialisation but also acknowledge another profession working alongside us in the industry that also have a lot to offer. |
DT: | I was going to say was that a position that MARA or migration agents generally took, that this change could reduce the quality of immigration advice? Because you’ve got lawyers who aren’t specialists in the area giving the advice. |
MB: 9:00 | Look, I don’t think any lawyer would go into immigration law blindly. It’s so complex and we’re so good at what we do and we also have very high professional standards. We wouldn’t risk it. Very similar to myself: I’m not a commercial lawyer. I wouldn’t touch it; I would refer it on. So, we are quite prudent in the type of works we’ll do. So, I don’t think a person who’s not an immigration lawyer or lawyer who doesn’t work in that space would just take it on. So, I don’t think that view (that they’re threatened that we would take over the industry), I don’t think it’s a fair view. |
DT: | Yeah, and we expect that level of responsibility and self-reflection on one’s scope of capabilities in other areas that there’s no separate registration I need to go and appear for someone in a criminal trial… but it would be very irresponsible of me to do it, given that I’m not a criminal lawyer. |
MB: | Correct. Absolutely. And we are trained to do that. We’re very smart people, but we’re so smart that we won’t touch something that we won’t get a good result. |
DT: | Yeah, absolutely. Now, with that change, does that mean that lawyers who are providing immigration advice, like yourself, is their relationship with MARA forever undone? Is it no longer part of your life, MARA, or is there still a current responsibility that MARA has in the immigration landscape? |
MB: 10:00 11:00 | No longer part of our lives. Look, MARA has a really important role to play in the industry, though, in all fairness. Their job is to regulate the migration agents and make sure they’re registered. And it protects the consumers. So, they have a really significant role in making sure our industry is world class. Again, we share that space, so we respect their presence and we appreciate their presence. But in terms of the lawyer, I no longer have to deal with them. My obligations are to my clients, obviously, but as a lawyer, I’m already regulated by the Law Society and Uniform Laws as well, and arguably to a higher standard. I mean, for example, the trust account rules are higher than the client account monies in the migration agent space, right. So, we’re asked to do something at a higher level, and we’ll always adhere to that and our duty to the court and duty to the clients. The fact that MARA is no longer part of our lives – or was part of our lives – really didn’t affect the way I did my work, because I was always adhering to the higher standard. I just needed it as, I guess, a process, and in order to practice, to follow the law. So, the Migration Act says that I needed to be dually registered in order to practice. I just needed to have that relationship and registration with MARA. But it certainly didn’t mean that I needed to behave any differently in terms of my ethical, professional responsibility. |
DT: | Yeah, absolutely. And is that kind of trust accounting requirement or I’m not familiar with the MARA equivalent, but that sort of client money account, I imagine that’s a fairly important responsibility for corporate immigration matters, where there might be money paid upfront into a trust account for a larger scope of engagement. Is that right? |
MB: 12:00 13:00 | Yeah. Look, so client money is very relevant to corporates and non-corporates. In fact, I think it’s more important for the individual client because, if we zoom right out, the type of clients that immigration lawyers can expect, we can classify them as corporate, as independent. So, families and skilled migrants, those are the little people who know nothing about Australia and can be quite vulnerable. And they’ve got the humanitarian space, who are very vulnerable. And when we deal with client monies, especially the vulnerable cohort, then the client monies rules are so important… and also charging fairly is so important. I mean, we hear of horror stories of applicants, very vulnerable applicants, paying hundreds of thousands of dollars for putting it in trust or client monies account for something that’s not – that shouldn’t be – charged that way. So, I think the trust account is really important for the way we practice, of course. And of course, we’ve got rules to adhere by, and we keep that. But immigration rules or the way visas work is that, of course, there’s the professional fees, but then there’s the application fees to the government as well. And they’re quite high. So, when you approach a client, it’s to respectfully understand where they’re coming from, how vulnerable they are, and to be fair in the way you deal with them. And yes, you collect money up front – yes, to go into a trust account. And so, one of the things that (when I was practicing and I was dually regulated up until 2021) is that what I noticed is my trust account with the Law Society is being audited annually. My client account for MARA is as applicable. It’s not an annual audit. And so, you could see again, it was a high standard to abide by the Law Society in that space. |
DT: | Now, to butcher a saying, every silver lining has its cloud. It sounds like this change has really removed a lot of red tape and allowed immigration lawyers to get back to what they do best, which is supporting their clients through immigration law challenges. But are there any risks or challenges that lawyers might be facing now in the immigration landscape when there isn’t this dual registration requirement? |
MB: 14:00 | No, not really. I think the Law Society looks after us in terms of the highest standard. We adhere to that standard. As lawyers, we’re trained to do that. And so, in my view, the compliance for MARA was a standard below what we have to do anyway. But in terms of risk, it’s about practicing in this space. Really, this space is so complex and it’s different from any other areas of law that I’ve ever practiced in. And it’s constantly changing. |
DT: | Yeah, absolutely. And we talked on the show before about the risk of practising outside of your field or dabbling when a friend or family member asks you for some help and the kind of professional indemnity challenges that can come up there. But it’s good to know that for those people who might practice in immigration law occasionally, that that professional indemnity risk isn’t also accompanied by a regulatory risk for not being registered with MARA. That’s a silver lining there. |
MB: | Absolutely. |
DT: 15:00 | Let’s zoom out now and talk a little bit more about the way migration law is changing today, because as you said, it’s changing constantly. And there are some exciting developments on the horizon. In fact, a little over a week ago, the government released their Outline of the government’s migration strategy. Exciting new announcement from the new government. So, what’s the purpose of that document, what does it say and what’s kind of the vision for the migration system that it outlines? |
MB: 16:00 17:00 | Yeah, sure. So, this document is an amazing document. I mean, I’m super happy, and I’m super happy for my clients and my corporate clients particularly. So, this Outline released last week is talking about an overhaul of the migration landscape. TIP: For the curious, that document is the Outline of the Government’s Migration Strategy: A Migration System for a More Prosperous and Secure Australia. Now, it’s not law. In fact, it’s an incredibly preliminary document which sets a high level strategy for the future of the migration system under the current government – and if you’re keen on getting involved in that future, the consultation on the outline of the migration strategy runs through May and June 2023 as at the time of the release of this episode. It’s a short document – a brief 9 pages – but well worth a read if you’re practising or interested in this space. We’ll leave a link to that in the show notes. Marsha will drill down into the politics around that document and also what the future looks like for regulation in the migration system in just a moment. And I think what I’d like to firstly say about it, it’s really a political document, too. We need to appreciate that when you practice in immigration law there is going to be a political agenda and you need to be across the politics to understand the direction of where a document is going. And when I listened to Minister give her speech and read the Outline, the Strategic Outline, it’s really saying in layman’s terms, “look how much the Liberal government stuffed up, stuffed up Australia. And now look at us, the Labor government. We’ve got a plan now and we’re going to fix this mess”. And the Minister used words like “gross neglect”, “a bowl of spaghetti”. It’s a “broken system”. So, the government is really, or the Labor government is really branding this Outline… |
DT: | … it is politicised area, isn’t it? |
MB: | Correct. |
DT: | You do need to have that ability to look past the political bluster, I guess, or the positioning and find the kind of the legal mechanisms or the substantive policy that sits underneath it. Right? |
MB: 18:00 | Correct. And there’s a lot of commentary about it. But what I can see, and a lot of my colleagues in this space can see, is it’s overwhelmingly positive. Positive for business and positive for skilled migrants and positive to keep the talent in Australia. And so, I think it’s a refreshing change. And I, and my clients are really looking forward to the implementation of the recommendations, which, as the Minister indicated, will be rolled out throughout the year, with some things to happen by the 1 July, other things to happen by the end of the year, and more to come. And so, again, being across the changes, being alert to what the government’s saying, where they’re advertising all these sorts of bits of news, and to put the pieces of the puzzle together is part of the art of what we do and what we can see. And what the Minister has said is that skilled migrants will be able to secure work visas in a way that is more sensible and sensitive to the current market. Businesses will be heard. They’re overhauling the work visa program, where (up until that is thrown out)… right now, our current system, there’s a very strict labour market testing element. A lot of businesses are saying, “that’s useless, it’s a toothless tiger, it’s ticking boxes. It doesn’t really achieve anything”. |
DT: | This is the kind of approach of advertising for the role to attempt to fill it from the Australian market before you can really sponsor a visa for someone. |
MB: 19:00 | Correct. But it was a fallacy because a lot of the times people found people – I mean, businesses found people. So, the fact that they had to advertise to a range of sponsorships was just, it was not workable especially… So, the common scenario I would have is a corporate client would say to me, “I have advertised the role and we’ve done extensive searches and guess what? We have found a non-Australian to fulfill that role”. But then when you prepare the visa application, you look at the legislation. What the legislation requires is evidence of that is not in line with what businesses have already done. So, businesses would then have to re-advertise to meet the requirements of the legislation. And so, it was just a delay driven sort of process that clients absolutely hate and didn’t achieve the objective of the government, which is look for an Australian first. They’ve already done that. |
DT: 20:00 | Yeah. Often, we look for law to guide behaviour in the market or law to reflect behaviour in the market and it sounds like there was an attempt to guide, but really the substantive work there of attempting to fill the position domestically was already being done. It was just not reflecting the practice in the market. |
MB: | Correct, absolutely. And they were not ready to change that. The government stuck to their guns about what the requirements were. And the funniest part of it, or the worst part of it, was that one of the advertising mechanisms for labour market testing was an Australian government website that was new to all employers. No one used it. |
DT: | Yeah, it’s a bit deaf to the realities in the market. |
MB: | 100% – so they were forced to use a platform they would not use to find their talent and so employers are going to love to see the back of that and the new policy is saying that they’re going to throw that out the window. So, we’re all celebrating that change. |
DT: 21:00 | And you talked about this being more sensitive to the current market – we’re talking about the endemic labour shortages that we’ve had in Australia as a result of reduced international travel following the pandemic. Can you tell us a little bit more about the kind of environmental conditions that have resulted in this change? |
MB: 22:00 | Yeah, sure. So, it’s not just not many travellers or people coming to Australia, it’s the fact that we kicked them out. When COVID happened, the then-government said go home and then it actually stopped Australians from coming in too (it’s another story)… but in terms of the skills, they told visa holders to go home, and so many people did. TIP: It’s a fair bet that many of you listening would have direct experience of the closure of the border during the COVID-19 pandemic and it’s fair to say that that particular policy touched all of us. It’s also a good time to remember that Australia was the only democratic nation to prohibit its citizens from leaving the country during the pandemic. But we didn’t stop there. In fact, for those Australians trapped overseas coming back to Australia from certain countries for certain periods was criminalised and subject to fines or imprisonment – notably the India travel ban in 2021. We could probably spend a whole podcast episode in review of those legal issues alone – and if you’d like to hear something along those lines please reach out to us. And it was a health response or health direction. It wasn’t necessarily strategic or skilled direction. They didn’t really think about that. It was more a panic. We need to keep everyone safe and afford to look after the priority. |
DT: | There was health and sort of the epidemic control. |
MB: 23:00 | Yeah, correct. So, they directly said go home. And I’ve said, a lot of people who are visa holders did. And then the irony of it, or just to again, explain or give a flavour of how immigration laws can sort of fluctuate and stretch and tighten to suit a government’s mandate, is that, a year later, the same government rewarded those who stayed. And they created a new visa category to allow them to keep lawful status and have work rights, and then they further rewarded them by opening up a permanent residence option for them. And so those that had left looking back and saying, “what a betrayal”. What a betrayal. So, we’re short on good skills here. And so, what the data is showing is that the highest skill level are nursing. And I think you could anticipate that. |
DT: | You mean in terms of need? |
MB: | In terms of need. The skills needed. We’re missing out on qualified nurses. |
DT: | It just makes sense. In terms of aging population. Yeah, absolutely. |
MB: | Yeah. And aged care workers. And then we’ve also got tech workers that we’re missing out on. So, we’re missing on a lot of skills here, because they’re not only coming (we didn’t invite them in) we also kicked them out. |
DT: 24:00 | Sure. Now, we talked a bit about what the previous system looked like in terms of those market testing requirements, the promise of a much better approach with this new strategy, appreciating that it is a political document, that’s a statement of policy, we’ve yet to see a bill that will make all this reality. And so, with all of those caveats appreciating that it’s a bit speculative at this time, if this policy is implemented, what would the new process look like for skilled migration? |
MB: | Sure. So, what we do know is that on 1 July, they’ll increase something called the TSMIT, which is the income threshold. How much can a company pay a skilled migrant? And it’s not really how much can they pay, it’s really a test that works hand in hand with market rates. It’s the sort of threshold requirements. So, does this role attract a base salary… (or guaranteed earnings, rather, is the correct terminology)… guaranteed earnings of minimum $70,000 AUD. And if it does, then you offer market rates, which could be more than that. But if it doesn’t, then you can’t sponsor them. |
DT: | Right. |
MB: | So, for example, mechanic – their guaranteed earnings might be a lot lower than 70. So even though mechanic is a skilled role and possibly in demand, you can’t put a sponsorship forward. That’s the way the market rules or the salary rules work. |
DT: 25:00 | And it’s guaranteed earnings. So even if the person is sales, for example, perhaps the guaranteed earnings is $65,000 in salary, but there’s 70,000 of commission… |
MB: | Bingo. |
DT: | Still can’t… |
MB: 26:00 | Bingo. Bingo. So, you can’t put those variables in there. So, it’s what’s guaranteed and it excludes super as well. So, when you look at the definition of guaranteed earnings, excludes super. So that’s the first change we know is definitely going to happen. That’s an increase from 53900. So that’s a significant jump. But that TSMIT space has not amended for years. And so, it’s a brave jump, but it’s actually in line with what’s really going on the ground. Anyway, most people do earn (and the research has shown) is that market rates are around there anyway for most occupations. Some trades, as I mentioned, might be an issue there. And that’s something that the government will still cater for because what they’ve introduced, or will introduce, is a three tier or tripartite system where one is that people who are very highly skilled with a very high salary. The idea is when an employer lodges such an application for such a candidate, that it’s a low touch from immigration that it should be quickly processed, minimum requirements to meet, so it should be in and out to facilitate that person joining the business in Australia. |
DT: | Yeah, it’s kind of a clear category where our immigration policy says these are the sort of people we really need coming into Australia. |
MB: 27:00 | Correct. And it’s a salary threshold that will be set. We don’t know what that is just yet. So once that figure comes in, we’ll have an idea about who’s really targeted. Is it CEOs? Are they executives? And then it deletes everyone else and it forces everyone else into a different tier. So, I think that benchmark will really make a difference. I was chatting about this with a client of mine who’s in the tech space and their guaranteed earnings are quite often above 100K, for example. Guaranteed earnings. So, if the threshold for tier one is set at 100K, then IT workers can get a doorway in really easily and obviously they’re non executives. It will make all the difference, that threshold. |
DT: | Absolutely. Yeah. It’s a space to watch. |
MB: 28:00 | Yeah, absolutely. So, we’re interested to hear what the government’s going to decide in that space. It’s interesting because as at the current laws, or historically, when we talk about high threshold salary benchmark, it’s usually according to the Fair Work income threshold and that’s set quite high. So, you can say again, if it’s that, if they reflect that, and they use that, then it’s grabbing a certain cohort. The second tier, it’s going to be a more agile response to business and skills needs. And so, the government is proposing that an organisation or a government department called Jobs and Skills Australia will be the primary organisation to report on the skills demand per quarter. And they’ve already released a report and that’s why I could tell you that the top of the list were nurses and tech roles, et cetera, and they’ve got the top 20 there. And so, the idea is they will test the market and they’ll give that report to the government to talk about needs and where the demand is. And then when you can sponsor what roles can be sponsored, will be aligned with that report. That’s what they’re saying. So, you can see that rather than having static lists that haven’t changed very often, this you can expect to be more responsive. So, your role may perhaps be agile or… what was it? |
DT: | Yeah, well, I was just thinking if these lists don’t change very often, we see artificial intelligence is going to be a hugely transformative technology for the Australian economy. But I’m sure that artificial intelligence engineer probably doesn’t appear on those, kind of, staid lists. |
MB: | 100%, and a lot of tech roles are not on there. A lot of… also another big space is security. |
DT: | Yeah, right. |
MB: | We do have some of those roles, but we need more of specialisations in terms of cyber. |
DT: | Cybersecurity. |
MB: 29:00 | So, spaces like that – that becoming more and more important to Australian business. And so having a JSA, an organisation which says this is what business needs, means that businesses can actually bring in the right workers for their needs, as at that time. |
DT: | Yeah. And I suppose that we can prioritise the right skilled migration every quarter really responsibly. |
MB: | Yes, we can. Look, in terms of the quarterly report, though, I don’t expect the top 20 to shift very much throughout the year. I don’t believe we’re going to have a landscape where every quarter we are going to have 20 new occupations. What we probably will have is that probably the last four or five might drop off and then they move around. |
DT: | Kind of see those early signals of change. |
MB: | Correct. So, it’s about keeping across labour market trends. And so again, working in immigration law, it’s that law side, but you also need to be across all the labour market information. |
DT: 30:00 | It’s interesting. I was just going to say from a policy perspective, it’s great that there’s this more responsive approach, but it does mean that for migration lawyers – of course, that list isn’t going to change dramatically every quarter – but you do have to really have your finger on the pulse of these macroeconomic trends and be aware of what skilled migration is prioritised at that particular time 100%. |
MB: | And when you’ve got some great corporate clients on your books and your job is to look after them and help them strategically plan and definitely that’s going to be part of your role because you’ll be then able to advise them about what to expect over the next six months. Because what you notice when you deal with or you assist corporates in this space is they’re planning ahead significantly. And they’ve got whole recruitment strategies that they review. And to respect the effort and time that they do in that space to make their business successful and to get the right people, you need to work hand in hand with them and to understand what their pressures are and how you can best assist them. And this is one of the ways to do that is to keep abreast of all these trends. |
DT: 31:00 | Now it sounds like, understandably, we’ve got a lot of detail in this policy document around that second category of skilled workers, because that was such a pain point for Australian businesses under the previous system – or I said previous, it’s the current system, isn’t it? |
MB: | That’s right. |
DT: | But you said there were three categories, so what’s that third category going to look like? |
MB: | Sure. So, the third category is targeted at lower skilled workers. We don’t have much information about what that could capture, but I imagine because tier two is regulated by the TSMIT, it would capture all those roles that would have lower income attractions or requirements for those roles. We’ll know more as the policy sort of developed and more consultations. I mean, the government has caveated their Outline by saying they’re still having ongoing consultations with business, with unions, other stakeholders. |
DT: | Yeah, but I suppose that returning to the kind of profound need that Australian businesses have for skilled workers from overseas at the moment. What’s really driving this policy is the changes in those top two tiers. |
MB: 32:00 | Correct. |
DT: | Now, you were just telling me before the show that there’s also something in this strategy around the skilled workers of the future for Australia. Not just migrants with the skills that our economy needs today, but the people who are learning the skills that we might need tomorrow. So, tell me a little bit about how the strategy deals with students, international students and migrants. |
MB: | Sure. So, the current landscape for persons in Australia who are studying for student visa holders, it’s a tough landscape for them because it’s very expensive to get student visas. First of all, because study is expensive and they’re paying thousands of dollars to better themselves and obtain qualifications. And under the current program, what happens next? The student visa is temporary. And so, what happens next is they need to then struggle to sort out how they would stay in Australia. Which permanent visa do I need to extend my student visa? And it’s this perpetual stressful situation for them and, as I said, expensive. |
DT: | How long is the student visa? |
MB: 33:00 | It depends on the course and it depends on the level. So, if it’s diploma, so at three level, higher education, et cetera, so it will depend on the visa usually matches plus or minus few on the period of the study. |
DT: | Got you. |
MB: 34:00 | And with that, student visas have work rights, but they’ve got part time work rights – and they’ve got full time work, so it varies as well. Being an Australian student visa is great, but it’s quite stressful if you know what the next step is. And so, they’ve had to really struggle to figure out the next step to stay in Australia and to make Australia their home. Under the new policy it’s this concept of keeping the skills here. Students are a great pool of talent and if we don’t give them a path to stay on in Australia, a proper visa path, then they’re going to leave because either it’s too stressful or too expensive to stay here or there’s just no clear path for them and they want certainty. So, the Outline talks about how do we streamline or create a path for students to move on to permanent residence and have that security? And look, the other thing is, when you practice in this area (and I don’t practice in student visas, but I have a lot of student visa holders who are close to qualifying or finishing their qualification that come see me to arrange a work visa or an employer hires a student visa and they need to arrange a work visa for them) and what I find is students are not who you think they may be. They’re often mums and dads with kids who’ve got the stresses of making sure their children are enrolled in schools. And if they don’t have visa stability, then what happens to their family? So, yes, you do have youngens of course, who are students here, but you also have a different demographic that you may not have contemplated who may have a degree from overseas. And this is their way into Australia through a student visa. And so, they’re very qualified, they’re more mature and they’ve already established overseas and they’re coming here to start a new life. |
DT: 35:00 | Don’t really think about that. The persona of the student visa holder is the school leaver, university students. But now that I think about it, that all the time in our profession, people who have a legal qualification from a jurisdiction where there isn’t that equivalent recognition and they’re redoing their qualification here. |
MB: | Correct. Under the Outline, it’s about keeping them here and I think it makes sense. They’re our biggest asset, not only as student visa holders (and there’s a lot of chatter and talk about this and discussions about how important the student visa market is to not only the way Australia presents to the globe, but economically, what it means to us as a nation), but in terms of skilling Australia, upskilling, we already have that here. Why are we not letting them stay? |
DT: | Yeah, we’re really investing in these bright young minds at our world class institutions and then they’re taking all that skill home. |
MB: 36:00 37:00 | Correct. So, there’s wisdom in this strategy from that point of view. So, I welcome that. A lot of my colleagues do as well. The other thing that the policy does or the Outline talks about is a new point system for skilled migration. What skilled migration is, just to zoom out and give some perspective, is that those people who either here or outside Australia who want to migrate permanently, generally speaking, based on their own skilled persona, so they’re not necessarily connected to an employer or they don’t they’re not sponsored. They’re not sponsored, they may not have a job offer. So, it’s literally someone out there who’s got a skill on demand and can meet the paradigm of what the government has said is their ideal migrant. And up until today, we’ve got a system which is points based and it allocates points for certain assets or identifiers. So, qualification. English language experience. And people compete on a points-based system. And that’s really what the Minister has said in her Outline, really doesn’t reward skilled people, in her view or the government’s view. It rewards the persistent applicant. |
DT: | Yeah, I see. |
MB: | Right. And I can see that because how the system currently works is that candidate or that skilled migrant shows how they meet the points test and they lodge an expression of interest and they keep lodging an expression of interest. And the expression of interest goes through Skillselect, which collects all this information. So, a person basically putting their CV to the government; “pick me, I’m an amazing migrant, I meet your criteria”. You can lodge as many as you want of those (it’s not wise to do). But if you’re doing this offshore and you really want to come to Australia, that’s what they’re doing. And they’re putting in their expression of interest and doing what they need to do to meet the criteria as a skilled migrant, and then they get invited to apply. And so, the Minister said that this is, again, rewarding the persistent, not necessarily the most skilled. So, I’m looking forward to see what the new program would look like. |
DT: 38:00 | Yeah, and I suppose that’s really the takeaway here. We’ve got a lot of hope and expectation and a lot of excitement about the goals that this policy is going to achieve. But as you and I know, as lawyers, it’s all in the detail, it’s all in the implementation, and we will have to wait and see what these proposed laws look like. |
MB: 39:00 | 100%. And it sounds very promising, as you say, very promising and so exciting and really fluffy, because when you think about what needs to be achieved – so the Minister said it’s one big spaghetti, the visa category is one big spaghetti. How do we connect the spaghetti piece – or the spaghetti strands, rather – knowing that immigration law is so complex that some temporary visas are sort of preliminary visas to qualify for permanent residence? So how do you make sure those connections are accurate and that a person’s eligibility is preserved? The other thing that the Outline does say that they want to do is reduce the visa categories significantly, and we’ve got hundreds at the moment, so they’re going to really rejig that. So how do you do that without, sort of, breaking anything? |
DT: | Yeah, it’s too easy to make a change that appears like a great solution in the short term, but has all sorts of unintended consequences down track. It’ll be interesting to see how it all plays out. |
MB: 40:00 | Yeah, we are so looking forward to this. And one of the other changes they’ve promised is that every sponsored worker will have access to permanent residence, which is not the case under current laws. So, there’s a promise that every sponsored temporary worker will have access to permanent residence. And that’s really amazing and quite a relief for a lot of skilled workers who are currently working in Australia because at present some don’t, some have a path, and some, by law, are not able to access a permanent residence through employer sponsorship. So, this promise is quite wonderful, really, and music to everyone’s ears because they’re putting in a rule that is about fairness and about employers feeling comfortable. About keeping, being able to retain staff… employees… being able to offer full time roles on a permanent basis. So, it’s really happy news, not only for the skilled worker who is quite anxious. I mean, we have to remember these are people as well who are new to a country, and visa status is really quite sensitive topic for them. |
DT: | Yeah, absolutely. Uprooting your whole life for what might be a temporary endeavour. |
MB: | Correct. And look, if you come out here knowing it’s a temporary visa and you’re here for a short period, you’re in and out, you’re here for a contract. |
DT: | And you’re out different the ambiguity, that’s really challenging. |
MB: | That’s right. But if you’re coming here to set up a new life and you’re bringing everyone along with you… even if you’re single, really. But if you are starting a new life, then you want to know what comes next in terms of stability… and so that promise that everyone will access PR… that’s a lovely, very welcome change. It used to be the case. So, it’s really reversing again something that the previous government did. |
DT: | Yeah. Really? A change that’s born out of our current circumstances. |
MB: | Correct. |
DT: 41:00 | Now, I’ve got in my notes here a question that I think our tennis nut producer Ross is going to make me ask. Some of our listeners will know our sister show Hearsay: Sidebar. One of our episodes in the last season of Sidebar was about a certain star tennis player. I don’t have to say a certain star tennis player – it was about Novak Djokovic, who had some run-ins with our immigration system during the COVID-19 pandemic. He was deported in fact. TIP: For the record, I don’t actually think I could make David do anything. And secondly, that episode is available on Spotify called The shot avoided around the world: Djokovic vs Australia by Sidebar by Hearsay the Legal Podcast. Definitely check that one out. Since we’ve got an immigration lawyer in the room, I’ve got to ask, what’s your hot take on that? What was your view on the situation? What happened with that case? And have there been any changes to our migration system as a result of what happened there? |
MB: 42:00 | I loved it. It was better than the tennis, the legal fighting over it. It was so thrilling and it really made everyone appreciate how complex immigration law really is. And immigration law is not just about a certain space. We see a lot in the media about humanitarian visas, et cetera, which is very important. But there’s other parts of immigration law that are very important to how Australia runs, who we let in, who we don’t, and how complex that really is. There’s been no changes in the migration law as a result of Djokovic. |
DT: | I think it’s a pretty extraordinary situation. |
MB: | It is very extraordinary. But what it does show pulls out some really important elements of how the immigration law landscape works and how much power the Minister has, how much power immigration obviously has in terms of controlling who comes in and out. But what was interesting for me is how easily he came back in. |
DT: | Yeah. |
MB: 43:00 | Because when you’re deported, the law – bang – just comes down and says you have a three-year ban. So, if you’d like to come in within that three-year ban (it’s called an exclusion period). If you’d like to come in within that three-year period, then you need to obtain a waiver to do that. And a waiver is very hard to get. A very strong, compelling case needs to be presented in order to be granted a temporary visa to enter the country again within that period. And so, the fact that he did within the three-year period really is a credit to his legal team, first of all, and also a reflection of the government being okay with him coming back in. They made their point about COVID rules and coming back in was in the best interest of the Australian community. |
DT: 44:00 | Yeah. I mean, to me, what it really shows is how different the experience of immigration law is for people at the level of Novak Djokovic and how different it is for people who maybe don’t have fame and notoriety and wealth on their side. I think access to that kind of level of ministerial decision making is probably not something a lot of clients see, right? I imagine it’s an easier process for Novak Djokovic to get that sort of waiver than it would be for any old person. |
MB: | Absolutely. And it isn’t easy to get a waiver. It’s very challenging to put forward a compelling case. It does happen, but it is quite difficult. But at the same time, Djokovic isn’t like anybody else either. He’s got characteristics and benefits to the Australian community and that’s what needs to be phrased as well. And I imagine that’s how the compelling circumstances would have been presented, is the benefit he has to the Australian community. So, it’s not really just about Djokovic, the person and the fact that he’s got funds and he is very important. It’s more about him as a persona and what he adds to the Australian community and the benefits he has. |
DT: 45:00 | What it does for us to allow him to play here. Absolutely. We’re nearly out of time today, but before you go, I did want to ask this because we’ve just talked in this episode about how important it is around the Jobs and Skills Australia, kind of, list of priority qualifications and other topics, how important it is to stay abreast of developments in this area. So, if you have any tips for migration lawyers who are listening, maybe lawyers who want to enter migration law, maybe even students who are thinking about it as a career on where to find information about migration law, how you stay up to date. We’d love to hear them. |
MB: 46:00 | Yeah, sure. Look, it’s a great time to join migration – immigration law, if you’re thinking about it. Because of the new changes that are coming in; then we can all start together, so we’re all going to learn together. But in terms of practicing in the area, you really need to be across it. You can’t risk not being across it. And the ways to be across it is get yourself an immigration library. We use LEGENDcom, which is an e-library. I can’t imagine doing a paper library for migration. They exist, but because of all the changes and the cross references, it’s really hard to. I find the e-version is really easy to navigate, but even better, the E version has something called Policy and Instructions. So, I highly recommend you get the E version. Policy and the Instructions and CPIs, et cetera, give you the insight into the way the government is thinking, how to interpret the law, or how they are interpreting the law. It’s not the law – they like to think it’s the law. It’s not. But you need to know that to be able to guide your client. |
DT: | … with any area where you’re dealing with administrative decisions, it’s so useful to have an insight into the administrative decision maker’s thought process. It’s a little like tax. The ATO issues all these sorts of directions and papers. They don’t have the force of law. But you’d certainly like to know the way the ATO is thinking before you make an application for a private determination or something like that. |
MB: | Absolutely. And especially if your role is to get a visa result – it’s not to challenge the law. |
DT: | That’s right. |
MB: 47:00 48:00 | And especially if you’re helping business, corporates and business just want a result. They don’t want to, like I said, challenge a law. So, I’ll give you an example. I had a CEO, God bless him, as a wonderful candidate. And he was a CEO of an exceptionally large conglomerate and he was very qualified law degree here and there, but he didn’t hold a magic passport for an English exemption. And the law required him to evidence English language. And we had so many conversations and he was so frustrated as to – and how humiliating, I should also add – to be able to sit an English language exam when he’s a CEO. And I had that conversation with him saying, “look do you want a visa or do you want to challenge and go to court? Like, which one do you want to do?”. So, it’s about getting results for clients, saying; “if you want a result – we can’t get you an exemption because the legislation doesn’t permit it – so, just get it done”. And so, knowing that and then understanding the policy where exemptions are available (if it’s not at law) then there might be some policy discussions around it. You need to know that to be able to get your business client a result really quickly. But again, my esteemed colleagues in this space who want to challenge things, it’s good to know what the Immigration Department is thinking, but not necessarily follow their policy either, because you want to turn the tables on them. |
DT: | It’s important to know the difference between that policy and what the law is. I think that’s probably an insight that all of our listeners can use, whether they’re working in migration law or not. Marsha, thanks so much for joining me today on Hearsay! |
MB: | Thank you for having me. |
Ross Davis: 49:00 | As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank our special guest, Marsha Bassily, for being a part of it. As you well know, if you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest this episode entitles you to claim a substantive law unit. More information on claiming and tracking your points on Hearsay can be found on our website. Hearsay the Legal Podcast is, as always, brought to you by Lext Australia, a legal innovation company that makes the law easier to access and easier to practice, and that includes your CPD. See you all on the next episode of Hearsay! |
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