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As 27,000 Australians remain stranded overseas, the Home Affairs Department has moved to allow wealthy foreign investors to enter Australia without needing special permission. By Karen Middleton.

Millionaire visa-holders exempt from border ban

More than 10,000 wealthy foreign investors have won special concessions to come to Australia during the Covid-19 pandemic, leapfrogging other visa-holders and potentially pushing stranded Australians further back in the “queue”.

The Home Affairs Department recently added business investor visa-holders to the categories of people who qualify for automatic exemptions from the inbound travel ban on non-Australians.

To qualify for this visa, individuals must have invested at least $1.5 million in Australia, with more elite subcategories requiring $5 million and $15 million at a minimum.

The move reflects the government’s push to attract to Australia what acting Immigration minister Alan Tudge calls “super-talented” foreign nationals with funds to invest.

The 10,500 people who are currently overseas holding these investor visas can now enter Australia without applying for permission.

Given their wealth, they are more likely to be able to afford the high fares airlines are demanding for the few seats available on Australia-bound flights than most of the 27,000 Australians still stranded overseas.

During a hearing of the senate’s Covid-19 committee late last week, shadow Home Affairs minister Kristina Keneally asked Australian Border Force commissioner Michael Outram if those on investor visas could be taking the seats that Australians were trying to access.

“That’s possible,” Outram replied.

Keneally said later that the special provisions undermined the value in holding an Australian passport.

“It used to be that it meant something,” she said. “Well, frankly, significant investors and wealthy business people don’t need a passport, they can just spend and buy their way into the country.”

The government has also relaxed the rules around obtaining and retaining investor visas – which are pathways to permanent migration – and others related to graduate and skilled employment.

The changes mean foreign investors can keep coming to Australia during the pandemic and extend their visas more easily. They are also now able to withdraw some of the investment that first qualified them for the visa without the usual time limit for reinvesting or jeopardising their status.

The regulations making the changes declare the pandemic a “concession period” within which they will apply. But the concession period is open-ended and could continue indefinitely.

Combined with the travel ban exemption, they form part of the government’s picking-winners migration strategy, an attempt to revive the national economy while still battling Covid-19.

The travel ban applies to all foreign citizens, other than New Zealanders, people with permanent residency in Australia, diplomats, maritime and air crew, transit passengers staying less than 72 hours, and pre-approved participants in the seasonal worker and Pacific labour programs who are needed for agricultural harvest. The business investor exemption was added on September 2.

Special individual exemptions are available for those who have designated critical skills or are enrolled in the final two years of high school in Australia, as well as people who have state or territory government support to enter the country and those who can make a case for compassionate or compelling circumstances. Commissioner Outram is responsible ultimately for making these decisions.

The government has also restricted overall passenger arrivals by capping the number allowed on inbound flights each week, something it says is necessary because of limits to hotel quarantine capacity.

The passenger cap affects both the exempted foreign visa-holders and Australians trying to get home. It has created a bottleneck, prompting airlines to favour those who can pay either business-class or first-class fares.

The cap is imposed via the government’s power to restrict airline capacity under the Air Navigation Act.

However, The Saturday Paper confirmed this week that the inbound travel ban preventing non-Australians from coming to Australia isn’t underpinned by any specific legislative instrument.

The government could have made a legislative instrument to cover the ban, but it chose not to do so, prompting questions about its legality.

Instead, it is enforcing the ban by way of threat: telling travellers their visas will be cancelled if they come to Australia in the face of the declared ban and airlines that they will be penalised if any passengers are found to be ineligible to enter.

The government is essentially calling the visa-holders’ bluff and relying on already financially stretched airlines’ risk aversion to enforce its ban. There is no specific law preventing them from boarding a plane.

Under section 116 of the Migration Act, the government can stop people entering Australia during the pandemic on the grounds they pose a threat to public health. But those already holding valid visas are not a threat to health in Australia while they are offshore, meaning there are no automatic grounds to cancel their visas until they arrive.

To get around that, the government has set up a catch 22 for visa-holders without an exemption. They can defy the ban and come to Australia on a valid visa but face the risk it will be cancelled on arrival. This would see them deported and banned from returning for three years. Alternatively, they can stay away and retain the visa but will be unable to use it.

Should travellers be willing to chance it, the government’s extra insurance is that airlines are unwilling to bring them.

Border Force told The Saturday Paper this week that 16 visas had been cancelled on arrival since the travel ban was announced on March 20.

Karyn Anderson, managing partner at Clothier Anderson Immigration Lawyers, says those people may have a legal case against the government but were “generally held incommunicado or unable to access legal assistance before being removed”.

Anderson says the government’s approach was “to pick and choose who they most want to enter, with no oversight”.

“As there is no legislative framework for the decisions on border exemptions, decision-makers are largely unrestrained and this has [led] and will continue to lead to capricious, unfair and poor-quality decisions,” she says.

Investor visa-holders are now among the few who can sidestep the travel ban.

In answer to questions, the ABF said these people were valuable to Australia.

“Applicants providing critical or specialist skills in support of the government’s response to Covid-19 and economic recovery have been prioritised throughout the application of travel restrictions,” the agency said.

It added that the investor program targeted migrants with “a demonstrated history of success or talent in innovation, investment and business” who could make “a significant contribution” to both innovation and the economy.

The concessions contrast with the tough rules being applied to other visa-holders.

While immediate family members of Australians are also automatically exempt, they must first prove the status of their relationship, which is not always easy for those without a marriage certificate.

People engaged to marry do not necessarily qualify as “immediate family” without proof of previous de facto status, even if they hold a prospective marriage visa.

The ABF confirmed no special provisions have been made for the 548 people overseas holding marriage visas, which are time-limited and will expire if not used by their deadline. There is no provision to refund the $7715 fee.

“The government will ease travel restrictions once it is safe to do so and consider options for Prospective Marriage (subclass 300) visa holders who were unable to travel to Australia during this period,” the ABF said.

Commissioner Outram and his delegates in the ABF and Home Affairs have the power to decide, case by case, who can enter the country.

But the ABF was also unable to cite a specific legislative authority for that power, other than that the government had decided Outram “would exercise discretionary decision-making about exemptions”.

The agency also said the ban was being implemented on medical advice.

“By reducing the number of people travelling to Australia, the opportunities to introduce new sources of infection into the country have been minimised,” it said.

Restricting non-citizens also ensured “increased quarantine availability”.

Greens senator Nick McKim, who has been advocating for families and couples separated by the ban, is concerned that the pandemic arrangements are making the system increasingly unfair, relegating foreigners who can’t afford an investor visa to a second class.

“Why should super-wealthy people be able to buy their way into the country when so many others miss out?” he asks.

“There are still tens of thousands of Australians stranded overseas and temporary visa-holders’ close families are still being ripped apart and yet the wealthy get the inside running.”

He says applications should be assessed based on “need, rather than the size of people’s pockets”.

Significant policy changes made during the pandemic have highlighted gaps in government powers but also the sweeping nature of those it does have, especially under the Biosecurity Act.

The legislation authorises the Health minister to make almost any kind of directive in the protection of public health and specifies the directions override all other existing Australian law.

The Australian Border Force Act also contains extremely broad powers. These allow the Home Affairs minister to direct the ABF commissioner to undertake virtually any task.

Section 23 of the act says the minister may direct the commissioner in writing “about policies that should be pursued or priorities that should be followed” and that he is required to comply, regardless of his status as an independent statutory officer.

The act also authorises the commissioner to do “all things necessary or convenient to be done, for or in connection with” performing his duties.

University of New South Wales law professor George Williams says the pandemic is highlighting the gradual “creep” in the transfer of power from parliament to individual ministers.

“They have extraordinarily broad powers to deny entry to – or exit from – Australia, but in some cases they may not even need to use their powers if the airlines are prepared to fall into line,” Williams tells The Saturday Paper.

He says it is possible they could face a High Court challenge but that it would be “an uncertain and difficult path, a hard case to mount”.

“The powers under these acts are typical in giving remarkable scope to ministers to control who enters this country. And the Biosecurity Act, in particular, allows new rules to be made without parliamentary oversight, even when they override existing laws.”

A raft of new laws are sliding through largely unchecked under other legislation too, such as those reshaping Australia’s migrant intake.

While the pandemic has delivered twin health and economic crises, it also gives the government an opportunity to make changes that may outlast them.

This article was first published in the print edition of The Saturday Paper on Oct 3, 2020 as "Millionaire visa-holders exempt from border ban".

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Karen Middleton is The Saturday Paper’s chief political correspondent.