Onshore Compliance - Visa Overstayers and Non-Citizens Working Illegally
This audit examined DIMIA's administration of onshore compliance under rhe Migration Act 1958 (Cth) as amended (the Act). In particular, it focused on whether DIMIA had implemented appropriate onshore compliance strategies in regard to people who enter Australia lawfully but whose presence becomes unlawful through: - the expiry of their visa; or - a breach of visa conditions and cancellation of their visa.
How many people overstay their visas each year?
Relative to the number of people who visit Australia each year, visa overstayers represent a small proportion (0.2%).1 The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) estimates that around 20 000 people stay in Australia each year after their visa has expired. Not all of the 20 000 people overstaying their visas are added to the pool of estimated unlawful non-citizens, as many of them voluntarily leave the country following a short overstay or are located2 by DIMIA.
How many overstayers are currently in Australia?
DIMIA uses its national overstayers file to estimate the total number of non citizens in Australia who have overstayed their visa. The file holds cumulative records dating back to 1981. DIMIA estimates that the total number of overstayers at 30 June 2003 was approximately 59 800.3
Which non-citizens can work in Australia?
Most temporary visitors to Australia do not have the right to work in Australia. Some classes of visas, for example the working holiday-maker visa, provides for limited work rights that allow visitors to work for a limited length of time. Other classes of temporary visas allow non-citizens to work in Australia, for example, those non-citizens who enter Australia on employer-sponsored business visas.4
How many people work in breach of their visa conditions?
Although DIMIA publishes its estimate of overstayers, it is unable to provide an estimate of the number of non-citizens who are likely to be in breach of their visa conditions, for example, by working illegally.
How many unlawful non-citizens does DIMIA locate?
In 2002–03 DIMIA located 21 465 non-citizens who had either overstayed their visa or were in breach of visa conditions. Some 12 185 (57%) of these were self referrals. The remaining 9 280 locations were made by DIMIA field teams (43%).5 These locations relate to non-citizens arriving in Australia in any year since 1981. Of the total number of locations in
2002–03, 14 935 breaches of the Act were resolved.6 Of the remaining unresolved cases, some were in detention awaiting removal, while the majority were granted bridging visas to arrange their own departure.7
DIMIA advised the ANAO as follows:
Compliance with visa conditions in Australia is treated by DIMIA as an integrity continuum. A critical aspect of this approach is treating some of the risk of people breaching visa conditions by reflecting, in selection requirements, actual country performance. It also involves the use of intelligence, dealing with those facilitating illegal movements or abusing the system, through prosecution or sanctions, and locating and removing those in breach of visa condition. Over the three financial years to 30 June 2003, there was an increase of almost 50 per cent in locations with the estimated level of over-stayers remaining relatively constant.8
Audit objective and scope
This audit examined DIMIA's administration of onshore compliance under the Migration Act 1958 (Cth) as amended (the Act).9 In particular, it focused on whether DIMIA had implemented appropriate onshore compliance strategies in regard to people who enter Australia lawfully but whose presence becomes unlawful through:
- the expiry of their visa; or
- a breach of visa conditions and cancellation of their visa.
The audit did not examine DIMIA's administration of all types of breach of visa conditions. Instead, the audit analysed DIMIA's administration of a significant type of breach, that is, non-citizens working contrary to their visa conditions.
Under DIMIA's outcomes and outputs framework, Output 1.1.5 ‘Students' is resourced separately to Output 1.3.3 ‘Detection Onshore'. The administration of student visas may be considered in a future ANAO audit but was outside the scope of this audit.
Key audit findings
Reporting onshore compliance (Chapter 2)
How reliable is DIMIA's estimate of the number of unlawful non-citizens (overstayers) in Australia?
DIMIA and the Minister for Immigration and Multicultural and Indigenous Affairs annually report to Parliament on the estimated number of unlawful non citizens within Australia and DIMIA's strategies for reducing this number.
DIMIA has systems that produce counts of the number of people whose visas have expired and where there is no record of these people leaving the country. This count is referred to as the ‘raw count'. DIMIA is aware that there are erroneous records on the systems that produce the raw counts, although the extent of the errors is not known. To compensate for errors in the overstayers file, DIMIA has statistically calculated an error rate of around 30 per cent, which it applies to the raw count (approximately 90 000 overstayers) before the overstayer estimates are released publicly (approximately 59 800 overstayers).
To test the reliability of DIMIA's overstayers estimates, the ANAO contracted the Australian Bureau of Statistics (ABS) Statistical Consultancy Unit to carry out a methodological review of the estimation of overstayers. A full copy of the report is provided at Appendix 3. Overall, the Statistical Consultancy Unit found DIMIA's methodology for estimating the number of overstayers to be generally sound. However, the Unit also found that improvements could be made in key areas of the methodology. These are discussed in Chapter 2.
The ANAO suggests that DIMIA could assist users in interpreting the overstayer estimate and enhance transparency and clarity in its external reporting by monitoring and reporting the error rate.
Is DIMIA's overstayers file useable for compliance activities?
DIMIA has implemented its Overstayers Project to perform, among other things, data cleansing 10 to improve the accuracy of its overstayers file. This would, in turn, improve the error rate in calculating the overstayers estimate. In addition, DIMIA's ability to pro-actively target overstayers would be facilitated by improved data matching capability with a range of agencies (such as the Australian Tax Office (ATO). A ‘clean' overstayers file could also enhance the performance of compliance field teams through the provision of more timely, accurate information.
Is DIMIA able to effectively measure and report its onshore compliance performance?
DIMIA has two outcome measures to monitor its effectiveness in achieving onshore compliance under the Act. The audit found that DIMIA's measure to monitor and report its performance in reducing overstayer numbers was relevant and useful. However, DIMIA's effectiveness indicator for measuring its performance in locating people in breach of their visa conditions is of limited value. This is because no comparison is made between the number of non citizens in breach of their visa conditions located by DIMIA, relative to the total number of non-citizens likely to be in breach of their visa conditions in Australia. Despite this, the ANAO considers that DIMIA's measure could be useful in assessing performance, if used in context within a broader performance management framework.
Compliance risk assessment (Chapter 3)
How effectively does DIMIA use its existing data sources for compliance risk assessment?
DIMIA uses its performance information for high level reporting purposes, but the ANAO found no evidence of ongoing systematic analysis of these data for compliance risk assessment purposes. For example, although self referrals form 57 per cent of compliance locations, DIMIA does not routinely analyse, or profile its self-referral data, to identify which policies and processes work and why, and to support ongoing improvements in performance including risk management and business planning.
Does DIMIA effectively prioritise its onshore compliance risks?
DIMIA is using compliance risk assessment in its NSW State Office, where compliance activities are prioritised based on risk profiles of specific industries and labour markets. However, the ANAO considers that DIMIA's overall onshore compliance response could be improved through:
- further developing an understanding of its onshore compliance population, through a more effective integration of its intelligence capability, with a consistent national approach to onshore compliance target group profiling11 ; and
- prioritising risks associated with different components of the onshore compliance target groups and identifying appropriate compliance responses.
Education as a compliance strategy (Chapter 4)
Is educational information provided to non-citizens entering Australia relevant, clear and timely?
DIMIA advised that there is generally no letter or information kit provided to successful visitor visa applicants who apply using Form 48, ‘Application to visit Australia for tourism'12. Because clear, relevant printed information is not made available to all visitors in a timely way, applicants may not be fully aware of what they can and cannot do in Australia, and the consequences of overstaying their visa or working contrary to their visa conditions.13
The audit found that the relevance, clarity and timeliness of information provided to visa applicants electronically is of a high standard.
The audit also found that Electronic Travel Authority (ETA) visa holders form approximately 25 per cent of the overstayer population. Providing information to ETA holders is a compliance strategy that would enhance DIMIA's overall management of the risk of this category of visa holder overstaying, or otherwise not abiding by the legitimacy of their visas.
How effectively is DIMIA targeting its Employer Awareness Campaign?
In regard to DIMIA's Employer Awareness Campaign, the ANAO found that DIMIA did not:
- gather and analyse employer feedback to monitor the effectiveness of its strategies to assist employers to comply with the law;
- undertake ongoing analysis and evaluation of the performance information available from the work rights faxback facility and the employers' work rights checking line; and
- profile employer groups and labour suppliers who are likely to employ or refer workers with no authorisation to work (except in its NSW State Office).
Inter-agency arrangements (Chapter 5)
Is DIMIA effectively maintaining strategic relationships with key partners to achieve better compliance outcomes?
Previous ANAO performance audits into DIMIA's onshore compliance function found that the development of data transfer arrangements with other agencies at the State/Territory and local authority level had been slow, and noted the importance of effective coordination.14
The audit found that DIMIA had developed a data sharing Memorandum of Understanding (MoU) with the ATO that included a section on how outcomes will be measured by both MoU partners. For DIMIA this includes the number of unlawful non-citizens located in Australia as a result of data exchange and the frequency of data exchange. However, it does not provide any indication as to how, when or to whom this performance information will be conveyed. The data sharing MoU with the ATO could be enhanced by including robust performance reporting measures for each of the MoU partners to allow for transparency and improved accountability for performance. The improved MoU could form the basis of any future data sharing MoUs entered into by DIMIA State and Territory offices for compliance purposes.
Compliance operations (Chapter 6)
How well developed is DIMIA's approach to managing onshore compliance intelligence?
DIMIA's onshore intelligence network, based in its State and Territory offices, was put in place to focus the department on identifying emerging trends that could potentially impact on its core business. DIMIA now has available to it a centrally coordinated information gathering and analysis structure. The Intelligence Analysis Section was formed in January 2000. The offshore Principal Migration Officer (Compliance) network was integrated with the Intelligence Analysis Section in early 2000 and, in late 2002, DIMIA's onshore intelligence network of State Intelligence Officers was established.15
In June 2001, DIMIA's Board of Management approved the development of IMtel to cover all Border Control and Compliance Division (BCC) programs, including compliance, investigations, airport operations and intelligence functions. IMtel is designed to be a web based national intelligence database. It went into production as of 28 April 2003 to a limited number of users.
The audit found that IMtel is not linked to any DIMIA systems offshore or to any external agencies, for example, the Australian Customs Service to facilitate intelligence sharing. DIMIA has not conducted any cost-benefit analysis concerning such linkage.
IMtel is designed to, among other things, capture data relating to community tip-offs about the compliance target population. However, the audit found that tip off information is currently captured at State/Territory office level and keyed into stand-alone databases and spreadsheets. DIMIA advised that part of the implementation of IMtel involves integrating approximately 3 000 to 5 000 localised databases or spreadsheets.16 This has not been achieved to date.
Is DIMIA effectively managing its tip-off data to support targeted compliance responses?
Tip-offs are a significant source of information for DIMIA that may lead to the location of non-citizens who are either unlawful or in breach of their visa conditions. DIMIA estimates that in 1999–2000, community information assisted in around 19 per cent of priority locations.17 DIMIA does not analyse its tip-off data and was unable to provide the ANAO with a national aggregate of the number of community tip-offs it received last financial year, including the number acted upon and the results of these compliance actions.
Is DIMIA effectively monitoring and analysing its performance on search warrant outcomes achieved?
The audit found that DIMIA does not aggregate, analyse and evaluate State and Territory office outcomes of search warrants issued for performance evaluation on a national basis. A central monitoring function could undertake this work. Factors to consider could include: the number of warrants issued, the number of non citizens intended to be located, and the number actually located.
Does DIMIA have effective quality assurance mechanisms to monitor the quality of its onshore compliance processes and systems?
Under the deliverable of quality assurance in DIMIA's compliance operational plan, DIMIA commits to: developing a process for identifying and sharing better practice across States; developing a national overview of standard and quality assurance; implementing quality assurance processes; and using a review of quality assurance outcomes to improve reporting and performance monitoring. The ANAO found no evidence that any of the above quality assurance processes are in place or are being considered for development.
DIMIA uses a variety of onshore compliance strategies to locate unlawful non-citizens (overstayers) and non-citizens in breach of their visa conditions. Its NSW State Office, for example, prioritises compliance activities based on risk profiles of specific industries and labour markets. Such a model can identify industries likely to employ both overstayers and non-citizens working contrary to their visa conditions.
DIMIA also pursues an ‘intelligence-driven' model that relies on information about individuals contained in its records (for example, DIMIA's overstayer file) and tip-offs from the community. This model focuses on identifying individual overstayers or non-citizens working illegally, so that appropriate compliance action can be taken.
The integrity of DIMIA's overstayer file is crucial in supporting the department's intelligence-driven model. DIMIA advised that it is seeking to reduce the estimated 30 per cent error rate in its overstayer records through its ‘Overstayers Project'. The ANAO considers that improvements in the quality of DIMIA's overstayer file would provide the following benefits:
- improve the quality of its reporting to key stakeholders concerning the likely number of overstayers in Australia;
- facilitate DIMIA's data matching activities with a range of agencies (such as the ATO) to assist it in pro actively targeting overstayers; and
- enhance the performance of compliance officers at the State and Territory level through the provision of a reliable and current overstayers' file.
Tip-offs from members of the general community are a valuable source of intelligence for DIMIA that may, for example, lead to the location of an overstayer. However, DIMIA does not gather and analyse its tip-off data to improve its intelligence capability. Such analysis would: support DIMIA's onshore compliance target group profiling; assist in setting onshore compliance priorities; and facilitate the allocation of DIMIA's onshore compliance resources.
More consistent integration of compliance target group profiling with DIMIA's intelligence gathering and analysis capability, could further assist DIMIA's ongoing development of its national compliance program. Such an approach would assist DIMIA to prioritise the risks presented by the onshore compliance target population.
DIMIA's NSW State Office is unique in its approach of implementing industry-based, multidisciplinary compliance teams. This approach may not be appropriate for all State and Territory Offices. However, DIMIA could benefit by analysing the merits of introducing appropriate aspects of its NSW State Office model into its other State and Territory Offices.
More generally, DIMIA could enhance its onshore compliance activities by undertaking the following:
- providing better information to make sure that non-citizens are fully aware of what they can and cannot do in Australia, and the consequences of any breaches of their visa conditions;
- enhancing the targeting of its Employer Awareness Campaign through: the regular analysis of employer feedback and of the performance information arising from the various aspects of the campaign; and profiling employer groups and labour suppliers who are likely to employ or refer workers with no authorisation to work;
- developing and maintaining inter-agency arrangements with key partners such as federal, State and Territory police services; and
- implementing its commitments relating to quality assurance systems and processes, contained within its Compliance Section operational plan to enable a consistent, national approach to compliance operations.
Recommendations and agency response
The ANAO made seven recommendations concerning DIMIA's administration of onshore compliance. DIMIA agreed with six recommendations and agreed with qualification to one recommendation. DIMIA's full response to the audit is provided at Appendix 9. The following was DIMIA's summary response.
The Department notes that the audit has validated the cornerstones of Australia's onshore immigration compliance program. The audit covers a complex and sensitive area of public administration that is of considerable interest to the Australian community. Australia has long been a migration destination and will continue to be so. However to have an effective and fair migration program brings with it the responsibility to deal with those who might seek to avoid normal requirements by living or working illegally in Australia.
Australia's overall immigration compliance arrangements are arguably the most effective of any country in the world. This has been achieved in part by its tiered approach to entry. This involves offshore screening informed by the way people comply with visa conditions; checking people against lists of concern; placing obligations and potential sanctions on sponsors; screening at the border and then locating in Australia those not conforming with visa conditions. The ANAO audit provides some helpful guidance on how further refinements could be made onshore.
1 DIMIA, 2000 edition, Protecting the Border, Canberra, p. 57.
2 An unlawful non-citizen or person in breach of visa conditions is located as a consequence of organised field activity and where the location can be traced back to a field operation—for instance, a search warrant. Self referrals also count as locations. Anexample of a self-referral is an unlawful non citizen or lawful non-citizen who is in breach, and presents voluntarily to animmigration office so that their status can be regularised, or they are responding to a DIMIA letter and have been asked to attendan interview.
3 DIMIA, Annual Report 2002–03, p. 59.
4 DIMIA, 2000 edition, Population Flows–Immigration Aspects, Canberra, p. 48.
5 DIMIA, Annual Report 2002–03, p. 59.
6 Individual cases may be ‘resolved' in a number of ways. Examples include: departure from Australia (including deportation and removal); granting of citizenship; or by ministerial intervention.
7 The grant of a bridging visa does not count as ‘resolving' a case. This is because the grant is an interim step towards resolving the case.
8 DIMIA letter of 23 April, 2004.
9 DIMIA's management of offshore measures to prevent and detect unlawful entry to Australia has previously been considered by the Australian National Audit Office (ANAO) in Audit Report No.57, 2001–02, Management Framework for Preventing Unlawful Entry into Australian Territory. The 2002 audit made four recommendations for improvement. DIMIA agreed with all recommendations made.
10 Data cleansing is the act of detecting and removing and/or correcting a database's data that is incorrect, out of date, redundant, incomplete or formatted incorrectly. Data cleansing is also referred to as data scrubbing.
11 Compliance target group profiling involves the systematic analysis of information to enable an organisation to predict which segments of a population are not likely to comply with a regulatory environment. It is an essential predictive tool, aiding the identification of the causes of non-compliance and opportunities for compliance improvement strategies.
12 The ANAO notes that DIMIA does provide assistance in the application process through the Family Visitor Network Information Kit. The object of the kit is to furnish the onshore client with as much information as possible to enable them to assist their offshore relative to lodge a visitor application overseas.
13 DIMIA advises that they would need to carefully consider how to deliver the compliance message as it would not like to convey an overly oppressive first impression, particularly given the miniscule overstay/breach rate for visitors.
14 ANAO Audit Report No.7, 1997–98, Immigration Compliance Function–Follow-up Audit, p. 31.
15 Five State intelligence officers were appointed in the mainland State capitals, with officers in Melbourne and Adelaide covering Tasmania and the Northern Territory respectively. Support for the Australian Capital Territory Office is provided by the Intelligence Analysis Section in BCC.
16 For example, in Sydney (Gateway) NEXUS, a database, is used while in Brisbane a spreadsheet is used.
17 DIMIA, 2000, Protecting the Border, p. 64.