Australia’s special relationships: NZ character woes; employer sponsored concessions for the UK?

This past week has seen reports on Australian immigration relating to a couple of countries who have close ties to Australia, namely New Zealand and the United Kingdom. As the NZ’s Prime Minister expressed concerns regarding citizens who have had their Australian visas cancelled, the UK have been seeking concessions for Australian visas in Free Trade Agreement (FTA) negotiations. Australia has long had a special relationship with both countries although only one currently enjoys prvileges over all others.

NZ’s Special Category Visa and visa cancellations

NZ PM Jacinda Ardern discussed the treatment of NZ citizens being deported from Australia due to failing the character test. The character test comprises of several elements for which most cancellations occur due to the visa holder possessing a substantial criminal record. Back in December 2014, new laws were passed that required visas to be cancelled should any person in Australia holding a temporary or permanent visa serve or be convicted of an offence in Australia with a term of imprisonment of 12 months or more. This law strengthened the character test substantially and captured many who otherwise would not have had their visas cancelled. There may well be further strengthening of the character test in the coming months.

One nationality that saw many cancellations were NZ citizens who overwhelmingly have the highest number of visa cancellations last year by a factor of at least four over the next country, the UK.

PM Ardern brought up this issue with Australia’s PM Scott Morrison, the minister responsible for immigration at the time of this legislative amendment, due to some citizens having little connection to NZ, spending the majority of their lives in Australia.

While some have labelled her criticism of the effects of these laws hypocritical, the fact remains that this situation has been exacerbated due to a special relationship between the two countries and regulation changes going back to 2001.

NZ has long had a visa available only to their citizens who are not Australian permanent residents: a Subclass 444 - Special Category visa (SCV). This visa has no visa application charge and provided the applicant does not have any behaviour or health concerns, they can be granted an indefinite visa with nil visa conditions. No other Australian temporary visa comes remotely close to these benefits.

A salient feature to this visa is that it is not a permanent one. Only eligible NZ citizens have rights similar to permanent visas as they are considered protected SCV holders as defined in the Social Security Act 1991 (Cth) and are considered permanent residents for the purposes of applying for Australian citizenship. While the definition of a protected SCV holder is long-winded, basically, those not residing in Australia or temporarily absent from Australia for a certain duration on 26 February 2001 will not be a protected SCV holder and need to apply for a permanent visa or Australian citizenship as any other nationality is required to do.

What all this means is that it is rather obvious that NZ citizens have beared the brunt of cancellations for a number of reasons, including that:

  • many NZ citizens come to Australia compared to those from other nationalities. According to statistics provided by the Department of Home Affairs, New Zealanders enter Australia on a SCV 1.7 times the number of the next biggest nationality entering Australia on a temporary visa in the 2017-18 program year (page 9);

  • as above, they have access to an indefinite temporary visa with very few requirements and nil visa conditions;

  • because of the relatively easy criteria to be granted a SCV compared to other temporary visas, many will not be protected SCV holders as they were not residing in Australia on 26 February 2001 and cannot satisfy the requirements for an Australian permanent visa and thereafter Australian citizenship. This is partly why a New Zealand stream was added to the Subclass 189 – Independent – Skilled visa; and

  • obviously, once someone is granted Australian citizenship, their visa cannot be cancelled because they no longer hold a visa. If not granted Australian citizenship, non-citizens must spend more time holding a visa and in this case it is a SCV. Axiomatically, the longer someone hold a visa, the higher the chances they can have their visa cancelled.

All the above contribute to the perception that NZ citizens appear to be so disadvantaged despite character cancellations laws applying to every non-citizen regardless of nationality. One wonders if the SCV was abolished, whether NZ citizens would proportionally continue to have more visas cancelled than any other nationality.

What is unequivocal though is that NZ’s special relationship to Australia and their special Australian visa contributes to this phenomenon.

Australia-UK FTA negotations and employer sponsored visa concessions

Australia and the UK have always had a special relationship. Being a former colony however does not provide UK nationals with any visa similar to NZ. Years ago, immigration to the UK was discussing in Parliament with the possibility of easing visa restrictions to citizens of their former dominions.

While this did not appear to have made any progress, the negotiations between Australia and the UK (spurred on no doubt by Brexit) on a FTA brought up a range of concerns. On the topic of Australian immigration, the UK have urged for:

  • more visa pathways for the movement of temporary workers and professionals for business reasons,

  • cuts to visa fees,

  • lowering experience thresholds for intra-corporate transfers, and

  • “extending the Australia skilled occupations visa eligibility list”.

While no specific visa subclass was mentioned it seems that these requests refer to the Subclass 482 – Temporary Skill Shortage (TSS) visa and potentially the permanent Subclass 186 – Employer Nomination Scheme visa and Subclass 187 – Regional Sponsored Migration Scheme visa (before it is all but abolished in November 2019) and its replacement in the 494 – Skilled Employer Sponsored Regional (Provisional) visa.

If Australia agrees to these arrangements, just how these concessions can be incorporated into existing 482 visa regulations without applying to all nationalities is difficult to comprehend.

It might just call for another “special” visa…