The Subclass 457 Visa Program provides streamlined entry requirements for approved sponsors needing to recruit skilled personnel from overseas on a temporary basis. The streamlined entry arrangements are supported by a monitoring, compliance and sanctions scheme.
The law and policy in regard to monitoring, compliance, enforcement and sanctions provisions is complex. They give considerable scope to Departmental officers as to the course of action to be taken in particular circumstances.
Sponsors are monitored by the Department to ensure that they comply with their obligations in relation to the sponsored person (including any sponsored family members). Sponsors can be monitored routinely while their sponsored persons are in Australia.
Sponsors are monitored by the Department through interviews and site visits, desk auditing using monitoring forms, referral to other agencies and/or other sections of the Department, as well as education and awareness raising activities.
Sponsors are required to cooperate fully with the Department including by providing reports, as required, to establish that:
- the Department has been notified of prescribed information in accordance with the specified timeframe;
- there have been no significant changes in regard to the business ownership or the nature of the business since the sponsorship was approved;
- there are no adverse findings or penalties imposed against the business;
- the person is still employed in the business and is being remunerated in accordance with the details provided to the Department for the purposes of the approval of the nomination application;
- the person is still working in the nominated position and not a lower position; and
- documents are provided evidencing the remuneration paid to the sponsored person including pay slips, PAYG Payment Summary, Bank Statements and such like.
Sponsors must also provide evidence that they are complying with Australian Industrial Laws, levels of remuneration and conditions of employment, that the tax instalments and superannuation contributions in respect of the sponsored person have been made, and that the sponsor has an ongoing commitment to training its Australian citizen and permanent resident staff.
Sponsorship status allows certain personal information on the sponsored person to be disclosed to the sponsor.
Officers of the Sponsor Monitoring Unit are sworn, non-uniformed officers of the Australian Border Force, Immigration Compliance Branch.
Together with Work Fair Inspectors they have the powers to enter, inspect, interview and require the production of documents and things relevant to the monitoring process.
Site visits can be announced and unannounced (in industries of concern). Departmental inspectors can interview visa holders or others at site visits.
Failure to provide information or produce documents will be considered a contravention of a civil penalty punishable by a maximum penalty of $10,800 (60 penalty units) for individuals or $54,000 (300 penalty units) for a body corporate.
In conducting site visits, there is a right of entry to a sponsor’s premises under section 140XB of the Act and an information gathering power to assist with the administration of the Fair Work Act 2009, the Taxation Administration Act 1953, the Act and the Regulations, and compliance with the law generally.
Imposing sanctions is generally considered after the sponsor has been monitored or where a possible breach has been investigated.
Sponsors found to be in breach of their sponsorship obligations may have their sponsorship approval cancelled. The sponsor may also be barred from making future applications for approval as a sponsor of one or more visa classes.
The Act includes civil penalties that may apply to sponsors. These include infringement notices and civil penalties which impose a maximum penalty of $10,800 (60 penalty units) for an individual and $54,000 (300 penalty units) for a body corporate.
The Minister may disclose personal information about a visa holder or former visa holder to an approved sponsor or former approved sponsor.
The Department may request that an approved sponsor or former approved sponsor disclose personal information about a visa holder or former visa holder.
A person (other than the wrongdoer) may be required to give information relevant to an application for a civil penalty order, and to give all reasonable assistance in connection with such an application.
Except in the case of lawyer registered migration agents, this means that there is a waiver of the rule against self-incrimination as it provides that a person must give information or produce a document or thing when requested or required to do so in connection with an application for a civil penalty order. This waiver of the rule against self-incrimination does not apply to legal practitioners who are registered migration agents as legal professional privilege continues to apply.
Taxation Administration Act 1953
The Taxation Administration Act 1953 (Cth) at subdivision 355-55 of Part 5-1 allows the Commissioner for Taxation to disclose tax information relating to a holder or former holder of a visa, or an approved sponsor or former approved sponsor to the Department under certain circumstances.
This information can be used by the Department to monitor whether sponsors are in compliance with their sponsorship obligations as well as to assess whether a person should be approved as a sponsor.
Criminal prosecution may eventuate where it is determined that the general principles of criminal responsibility are met, in accordance with the strict liability provisions of the Criminal Code and the Crimes Act 1914 (Cth) which have been incorporated into the relevant provisions under the Act.
In June 2015 Taskforce Cadena was established to protect temporary visa holders against fraud and exploitation. Led by the Department and the Fair Work Ombudsman, Taskforce Cadena works with relevant agencies to detect, investigate and prosecute the exploitation of vulnerable visa holders in the workplace, including the exploitation of workers who perform unlawful unpaid work.
The Taxation Administration Amendment (Disclosure of Information) Regulation 2015 has been amended to list Taskforce Cadena as a prescribed taskforce enabling taxation officers to share protected taxation information with Taskforce Cadena officers and agencies on an ongoing basis.
The Exposure Draft and the Explanatory Materials make clear that Taskforce Cadena “was established for the purposes of reducing visa fraud, illegal work and the exploitation of foreign workers in Australia. A major purpose of Taskforce Cadena is to protect the public finances of Australia, including by deterring visa fraud, fraudulent phoenix activity, and unlawful employer and labour hirer practices.”
This is yet another example of the significant information sharing across relevant agencies to ensure compliance with the Act and Australia’s laws generally.
Compliance with visa conditions and visa cancellations
The cancellation of visas is part of the Department’s extensive compliance and enforcement regime. The sponsored persons (and secondary visa holders) visas may be cancelled under various sections of the Act including as a consequence of the cancellation of the business sponsorship or nomination or as a result of a breach of visa conditions by the sponsored person.
The sponsor may be liable to sanctions including substantial pecuniary penalties and/or imprisonment depending on the severity of the breach.
All sponsored Subclass 457 visa holders must comply with Condition 8107.
Condition 8107 is a work limitation and provides that the visa holder must not:
- cease to be employed by the sponsoring employer;
- work in a position inconsistent with the position in the visa application; and
- engage in work for another employer or on the visa holder’s own account while working for the sponsoring employer.
If a Subclass 457 visa holder is found to have become unemployed, ceased employment, changed employer or changed position or occupation with the sponsoring employer, to a position which is inconsistent with or lower than the approved occupation, then their visa may be cancelled, on the basis of failure to comply with condition 8107.
Also, the sponsor may be liable to sanction under the Migration Amendment (Reform of Employer Sanctions) Act 2013 (Cth) where the sponsor allows the Subclass 457 visa holder to work in breach of condition 8107.
BDO Migration Services, an incorporated immigration legal practice can assist and advise on all aspects of monitoring and sanctions including sponsorship monitoring and related matters.