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Citizenship Pathways and Border Protection: Australia

  12/26/2013

Summary

Australia has a universal visa system with various visa options available for visitors, students, skilled workers, business people, and investors.  The work visa system is primarily focused on enabling skilled workers to live in the country either temporarily or permanently and includes avenues for such workers to meet the needs of different regions in the country.  The main visa for temporary employer-sponsored skilled workers allows for accompanying family members and provides a pathway to permanent residence.  Permanent residence for at least twelve months during at least four years of legal residence is one of the requirements for people to obtain Australian citizenship.  A program for seasonal workers from certain countries is in place, but does not allow participants to apply for further visas while in Australia and requires that they leave at the end of their employment period.  New Zealand citizens can work in the country indefinitely, but must obtain a permanent visa to gain certain rights and in order to apply for Australian citizenship.
Persons in the country unlawfully are required to leave and could face immigration detention and removal.  Bridging visas are available to provide time for people to resolve visa issues.  Movement and visa records are maintained in databases, with both incoming and outgoing passenger information being recorded.  A range of other border management measures are used to prevent and deter illegal entry into the country, including alert lists, the use of biometric technology, and advance passenger processing.

Australian Immigration Law

Overview of the Visa System
Australia’s immigration system is governed by the Migration Act 1958 and associated regulations.[1] The laws provide for a universal visa system with visas divided into two main types (temporary and permanent), several classes, and multiple subclasses.[2] Visa subclasses are set out in Schedule 2 of the Migration Regulations 1994, which also includes the criteria for each subclass.[3] Under the Migration Act, the Minister of Immigration and Citizenship is able to “‘cap’ or limit the number of visas which can be granted each year in a particular visa subclass.”[4]
Tourist and other visitor visas are available for short-term visitors to Australia.[5] There are a range of student visas available depending on the level or type of study.[6] “Working Holiday”[7] and “Work and Holiday”[8] visa programs are also available for passport holders from various countries.[9] These visas allow people aged between eighteen and thirty years to stay in Australia for up to twelve months and study or work for a limited number of months within that period.  The “Work and Holiday” program involves agreements with certain countries (including the United States) with criteria and conditions dependent on those agreements.[10] Working holiday visas do not allow for family members to be included in applications.
Australia’s work visa system is primarily focused on providing avenues for skilled workers in various occupations to work in the country.[11] In recent years, there has been particular focus on meeting the needs of different regions in the country for migrants to fill skilled positions.[12] There is a range of temporary[13] and permanent[14] visa options available, including for independent workers,[15] those with employer sponsorship,[16] or workers nominated by a state or territory.[17] Different visas are also available for businesspeople and investors.[18]
Skilled worker visas generally allow for family members (partners and dependents) to be included in the relevant application, with such people therefore also able to work in the country.[19] There are also visa options that allow Australian citizens and permanent residents to sponsor family members for permanent residence.[20] There are pathways to permanent residency for holders of temporary skilled visas,[21] with recent changes made to simplify the process for employer-sponsored temporary workers.[22]
The management of the skilled worker programs involves the maintenance of lists of skilled occupations by the government.[23] One list “determines which occupations are eligible for independent and family sponsored skilled migration.”[24] A further consolidated list sets out occupations in relation to both state and employer nomination schemes.[25] These lists are relevant to the points system that applies to some types of visas.[26] A new electronic system that allows applicants to submit online expressions of interest for “General Skilled Migration” points-based visas and some other visas was launched in July 2012.[27] People using this system can then be invited to apply for the relevant visas where their skills and experience match with the needs of Australian employers and states or territories and where they meet any necessary point requirements.
Between September 2008 and June 2012, Australia piloted a guest worker program that enabled people from certain Pacific Island countries to come to Australia for seasonal horticultural work.[28] Following the pilot, the Seasonal Worker Program came into effect in July 2012.[29] The program involves agreements with several countries[30] where people aged between twenty-one and forty-five years can apply for special visas[31] to work for approved employers for a set period.  Under this program, seasonal workers are able to work in Australia for fourteen weeks to six months and can return to Australia to work in future years if they comply with visa conditions.  Individual visa holders must work for the specific employer on their visa and pay for their own living expenses and part of their travel costs.  They are not permitted to apply for another visa while in Australia and cannot bring family members with them to the country.[32]
New Zealand citizens are able to remain in Australia indefinitely owing to special reciprocal arrangements between the two countries.[33] New Zealanders automatically receive a Special Category visa (SCV) when they enter Australia.[34] This is a temporary visa that provides rights to live, work, and study in Australia but does not confer the same rights and benefits as those possessed by Australian citizens or permanent residents.[35] Eligible New Zealand citizens can apply for a permanent residence visa.[36]
Illegal Immigrants
Unlawful noncitizens must leave (or be removed from) Australia, unless they are granted a visa.[37] The Migration Act 1958 provides for persons who are in Australia unlawfully to be detained in immigration detention facilities.[38] According to the Department of Immigration and Citizenship website, “[c]ompliance officers locate people who have become ‘unlawful non-citizens’ or who are commonly known as ‘overstayers’.  If there is no legal entitlement for them to remain, they are expected to depart Australia.”[39]
The Department of Immigration and Citizenship, Centrelink (the agency that disburses social security payments), and the Australian Taxation Office share information in order to locate noncitizens who are illegally employed or who claim welfare payments to which they are not entitled.[40] The Department also works with the Australian Federal Police and state police authorities to locate illegal workers, and has a range of initiatives aimed at addressing noncompliance in the agriculture sector.[41]
In recent years, the Australian government has increased its emphasis on encouraging voluntary compliance with immigration laws.  For example, people who have overstayed their visa can contact the Department’s Community Status Resolution Service in order to seek to resolve their status.[42] The CSRS can grant bridging visas, which allow people to remain in the country (or to leave and return) after their substantive visa expires and while their application for a new substantive visa is being processed.[43]
The Department also operates a system called “Visa Entitlement Verification Online,” which employers can use to check a person’s work rights.[44] Individual visa holders can also check their visa status online using the system.[45] Organizations and individuals must register and be approved to access this system.  The Department also runs an “immigration dob-in service,” which enables members of the public to provide information on persons who they think are in the country illegally.[46]
Employers face sanctions under the Migration Act 1958 for recruiting illegal workers.[47] Proposed amendments to the law introduced in the federal Parliament in 2012 include new nonfault-based civil penalty provisions and would allow the Department to issue infringement notices and penalties.[48]

Australian Citizenship Law

The Australian Citizenship Act 2007 sets out the requirements for the recognition and granting of Australian citizenship.  Persons born in the country will automatically be Australian citizens by birth only if one parent is an Australian citizen or permanent resident.[49] In addition, a person will be a citizen by birth if he or she was born in Australia and is “ordinarily resident” in the country throughout the first ten years of his or her life, regardless of the immigration status of his or her parents.[50] Persons born outside of Australia to an Australian citizen parent can apply for recognition as an Australian citizen by descent.[51]
Holders of permanent residence visas who satisfy residence requirements, are of good character, possess a “basic knowledge of the English language,” and have “an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship” can obtain Australian citizenship.[52] Passing a citizenship test that is designed to assess the latter two criteria is required by law.[53] A pledge of commitment is made by the person following their citizenship application being approved by the Minister.[54]
The general residence requirements are that the person was legally present in the country for at least four years before applying for citizenship, including as a permanent resident for at least twelve months immediately before the day the application is made.[55] A special, shortened residence requirement may be applied where the applicant is engaged in particular kinds of work that are of benefit to Australia and for which citizenship is required.[56] In addition, overseas lateral recruits in Australian defense forces can satisfy a “defence service requirement” in place of the general residence requirements.[57] As a result of an amendment to the law in 2012, accelerated citizenship is also available for family members of such recruits.[58]
Prior to February 2001, New Zealand citizens holding Special Category visas could apply for Australian citizenship if they met the general requirements that applied at the time.  Currently, however, such people must first acquire permanent resident status in order to apply for citizenship under the standard rules.[59] Children who are born in the country to New Zealand citizen parents would become citizens after ten years of residence under the provisions described above.

Border Management and Security

Australia’s overarching approach to meeting current and future border protection and security challenges is included alongside other areas in an integrated National Security Strategy that was launched in January 2013.[60] The Strategy states that key aspects of the response to the security outlook relating to * increasing movement of people and goods to Australia, growth in transnational crime, and “ongoing irregular migration patterns” include the following:
Increasing use of risk-based systems to target threats
* Enhancing cooperation across border security, law enforcement and intelligence agencies
* Cooperating with our regional partners to counter people smuggling
* Implementing the recommendations of the Report of the Expert Panel on Asylum Seekers[61]
The Strategy also states that an Australian Border Management Strategy currently being developed by relevant agencies will be released.[62]
People smuggling, particularly through the use of boats to carry asylum-seekers into Australian waters, has become a major concern in Australia in recent years.  The Australian government has introduced stricter laws to deter people smugglers[63] and implemented various initiatives aimed at curbing smuggling and other unauthorized arrivals.[64] These include onshore and offshore intelligence officers and operations,[65] immigration services and monitoring in remote areas,[66] joint operations involving the Australian Federal Police and other agencies as well as funding for dedicated liaison positions in certain countries,[67] and engagement in bilateral and regional cooperation efforts.[68]
In terms of specific measures relating to border management, Australia currently has various systems in place “to ensure people are authorised to travel across Australia’s borders and to deter or prevent those who try to enter Australia illegally.”[69] The different layers of the system include the following:
Visas
* Continuous checking of all visa applicants against a Central Movement Alert List (CMAL), which is a “watch list contributed to by security and law enforcement agencies as well as other Commonwealth [federal] agencies.”[70] The list includes biographic information on criminals; people who pose a security risk; people barred from entering Australia because of immigration breaches or health issues; and details of lost, stolen, and fraudulent travel documents;[71]
* A Security Referral Service, which “allows electronic processing between the department [of Immigration and Citizenship] and the Australian Security Intelligence Organisation (ASIO)”;[72]
* Advance Passenger Processing (APP) for both air and sea arrivals, which involves carriers checking whether travelers have current valid authority to enter Australia;[74]
* A Regional Movement Alert System, which is integrated with the APP system, that provides checks on all U.S. and New Zealand passports used to travel to Australia;[75]
* Increasing use of biometric technology at borders, including facial recognition and fingerprint-matching technology;[76]
* Various automated entry processing systems, including SmartGate for Australian and New Zealand passport holders and U.S. Global Entry Program members;[77] an Electronic Travel Authority system for passport holders of a number of countries;[78] eVisitor, which allows for multiple entries over a twelve-month period by passport holders from European countries for tourism or business purposes;[79] and an electronic tourist visa system for eligible tourists;[80]
* A requirement for all people entering Australia to fill out an Incoming Passenger Card and present this along with their travel documents to an immigration officer;[81]
* A requirement for all people leaving Australia to fill out Outgoing Passenger Cards and provide them to an immigration officer;[82]
* Maintenance of arrival and departure records in a Movement Reconstructions database, which is strictly protected.  Information-sharing arrangements are in place with various government agencies in relation to border security, law enforcement, entitlement and identity verification, etc.[83]





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