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Monitoring of Sponsors by Australian Border Force and subclass 457/482 Department of Home Affairs Sponsorship Obligations

27 November 2018

The Home Affairs portfolio and the Department of Home Affairs have been created to combat the increased complex security environment and the evolved threats from terrorism and organised crime, and to respond to the current arrangements of cooperation between Australia’s intelligence, security and law enforcement agencies.

The Home Affairs Portfolio supports a federation of independent security and law enforcement agencies, including the Australian Border Force, which is an operationally independent body of the Home Affairs Portfolio, the Australian Security Intelligence Organisation, the Australian Federal Police, the Australian Criminal Intelligence Commission1 and the Australian Transaction Reports & Analysis Centre (AUSTRAC).

The Department of Home Affairs includes the former Department of Immigration and Border Protection and the functions relating to multicultural affairs, emergency management, transport security, trans national serious and organised crime, criminal justice policy, national security and counter-terrorism co-ordination, cyber policy and countering foreign interference.

The Department of Home Affairs receives over 30,000 visa applications each day worldwide. In this financial year it is budgeted to raise some $3.25 billion in visa fees, fines and levies. This ever increasing level of demand for temporary and permanent entry, together with national security priorities, has justified the unprecedented changes to the way that Australia’s borders are managed.  In the Department’s own words, it continues to face “never before seen volumes of visa applications…forecast to increase by around 50 percent by 2026-27”.

The increasing whole-of-Government approach to delivering on national security, law enforcement, and security priorities will inevitably impact on all aspects of immigration, as the Department of Home Affairs and the Home Affairs Portfolio forge closer cooperation between all aspects of operations, as part of border security.

Few are aware of the new, highly restrictive regulatory environment with an increased focus on the security of the Department of Home Affairs’ systems, the increased use of biometrics, the analysis of metadata/data, the whole-of-Government approach, and the significant role of the Australian Border Force as an intelligence-led mobile and technologically enabled force working onshore and offshore, including with strategic partners.

The Australian Border Force as the operational enforcement arm of the Department of Home Affairs is responsible for a broad range of compliance and enforcement operations. It has significant powers and reach including to verify the claims made in an application and the documentary evidence used to support it. This includes claims as to the nature of the business and the visa applicant, including as to identity, work history, educational level, character and such like.

As the operational enforcement arm, the Australian Border Force, under Regional Command, is responsible for Sponsorship Monitoring and Migration Field Compliance.

The Australian Border Force works collaboratively with employers to identify emerging risks and to encourage sustained adherence to Australia’s regulatory requirements, so as to foster high levels of compliance. This is supported by the Australian Border Force’s significant monitoring, compliance, enforcement and sanctions powers under this complex legislative and regulatory scheme.

Sponsors and former sponsors can be monitored through interviews and site visits, desk auditing, referral to other agencies, and/or other sections of the Home Affairs Portfolio, as well as through education and awareness-raising activities.

Information sharing through the various Data Matching protocols (including with the Australian Taxation Office) allow the sharing of information with other agencies, including for the purposes of reducing visa fraud, fraudulent phoenix activity, unlawful employer and labour hire practices, and to detect, investigate, and prosecute in cases of breaches of law.

Reforming the Visa and Migration Framework

At the same time, the Government has embarked upon an ongoing restrictive reform program, ‘Reforming the Visa and Migration Framework’, focused on compliance and integrity.

The Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018, which is to come into effect on or before 1 March 2019, significantly strengthens the sanctions against employer sponsors who breach their obligations under the Subclass 457 and its replacement the Subclass 482 Temporary Skill Shortage (TSS) visas.

It will allow the Department of Home Affairs to publish details of sanctions against sponsors who breach their obligations from 18 March 2015 (effectively making this amendment retrospective in nature).

Also, it will allow the Department of Home Affairs to enter into an enforceable undertaking with sponsors who have been found to be in breach of their obligations and to collect tax file numbers and share data with the Australian Taxation Office as part of regulatory compliance.

The intent of this legislative reform is to increase the integrity of the immigration compliance system, with all businesses facing serious consequences, including reputational damage once an employer’s details are disclosed publicly.

In the last few years, we have already had significant legislative change, including the Migration Amendment (Charging for a Migration Outcome) Act 2015, which targets employers (sponsors and others) who seek to take advantage of visa applicants, and provides for strict civil and also criminal penalties in the event of breach.

It includes contraventions of civil penalty provisions, which impose no-fault or strict liability civil penalties on an employer who is found to be in breach.

The Migration Amendment (Employer Sanctions) Act 2013, imposes an obligation on employers to verify non-citizens’ lawful status and work rights using the Department’s Visa Entitlement Verification Online (VEVO) entitlement check.

It also imposes no fault or strict civil liability penalties on employers who are found to be in breach of its provisions.

Digitalisation, Global Digital Platform and Global Processing Model – Implications on Sponsorship Monitoring

The Australian Government is continuing to modernise the way it delivers visa and citizenship services to well over 9 million visa applicants each year. These new technologies and innovative solutions are part of the aim to design and build a Global Digital Platform.

The Department of Home Affairs has moved to a new Global Processing Model which means that all visa applications lodged online, can be processed anywhere in the world. This is already happening with Partner visas, as the demand for entry continues to outstrip the places available in the Partner Visa Program each year.

The integrating of the Departmental systems to provide and receive information including matters relevant to threat, identity, and biometrical capabilities are part of the focus on mitigating risk and applying rigour to visa service delivery.

The Department is building a network of analytics and visualisation capability and intelligence which supports risk management and capability in the entire visa system with automated analysis of data and advanced analytics underpinning business and visa processes.

These ongoing reforms to modernise Australia’s visa system and how it is delivered globally aligns with the whole-of-Government digital agenda.  Digitalisation of all aspects of visa and related applications and processes, mean there will be greater use of data matching allowing the sharing of information between the Department of Home Affairs and the Australian Border Force (and other agencies).  The Department of Home Affairs will continue its core functions as to visa making decision and security checks.  It will continue to refer information and documents to the Australian Border Force as an operationally independent body of the Home Affairs portfolio. 

The sharing of data between the Secretary of the Department, the Commissioner of the Australian Taxation Office, the Australian Border Force’s significant powers and reach in all aspects of compliance and regulation, the personal liabilities of executive officers and the need to continue to navigate a raft of complex regulatory changes, will see the growth of the role of the Australian Border Force well beyond that of monitoring of sponsors in respect of compliance with sponsorship obligations.

MARIA JOCKEL
Legal Principal
Accredited Specialist, Immigration Law
MARN 9802742

BDO Migration Services
Maria.Jockel@bdo.com.au


1 This includes the Australian Institute of Criminology.