The role of the board and senior management in visa and sponsorship compliance

This article was originally published 10 September 2019.

Companies recruiting overseas skilled workers, so as to meet their talent needs must be on constant alert to the rapidly changing regulatory framework which is part of a new and evolving order of border protection.

BDO Migration Services, an incorporated immigration legal practice, understands the challenges of the current regulatory environment focused on monitoring, compliance, enforcement and sanctions. Increasingly Human Resources operations must be part of the broader enterprise risk management approach where talent strategies are aligned with regulatory compliance.

The Australian Border Force as the operational enforcement arm of the Department of Home Affairs is responsible for the Subclass 457/482 sponsorship monitoring and related activities including compliance assessment, investigations, surveillance operations and targeted enforcement operations.

The Department of Home Affairs and the Australian Border Force work collaboratively with a range of partners and agencies within Australia and overseas to develop agreed processes and to share information. At a national level, a strong whole of government approach focuses on close liaison and cooperation with other government agencies.

The Department of Home Affairs continues to use and disclose personal and business information obtained under the Migration Act 1958 and the Migration Regulations 1994 to other government agencies for the purposes of enforcing Australia’s laws.

The Department has a Data Matching Program Protocol with the Australian Taxation Office (ATO) which provides extensive data relating to employers and visa holders to the ATO to detect and deal with noncompliance and fraud and to protect the integrity of the tax system.

The ATO provides tax file numbers, income tax returns and related data to the Department of Home Affairs to identify non-compliance with sponsorship obligations under the Migration and Other Legislation Amendment (Enhanced Integrity Act) 2018.

The prohibition against sponsoring an overseas worker to achieve a visa outcome has resulted in the implementation of the Migration Amendment (Charging for Migration Outcome) Act 2015.

It punishes visa applicants for paying or offering to pay as well as the sponsoring company for charging, for migration outcomes. It imposes strict liability penalty with heavy fines as well as a discretionary power to cancel any visa that the visa applicant holds, irrespective of whether such a payment or offer is related to a “sponsorship event”.

As not all visa holders in Australia have the right to work, or are lawfully in Australia, the obligation to check work rights must be part of the corporate culture.

Businesses engaging new employees need to check whether the person has the right to work, and if so, whether the right to work is unrestricted. If it is subject to any restrictions, these restrictions must be complied with. Failure to do so can leave the employer (and others) subject to strict civil and/or criminal sanctions.

The Migration Act 1958 contains a number of provisions prohibiting employers from allowing “unlawful non-citizens” and “lawful noncitizens” to work in Australia either without permission, or in breach of work related conditions on their visa.

Businesses which are subject to sanction because of visa and related breaches can face significant civil and criminal pecuniary penalties (and even jail). Such breaches, including the associated poor press which can undermine confidence in an organisation, damage its reputation and its brand.

Boards must have a thorough understanding of their risks, and how to mitigate against these so that these have the same level of importance as they would manage “traditional” risk such as cyber risk, occupational health and safety and reputational risks.