Temporary skill shortage (Subclass 482 visa) program – Monitoring and sanctions
The law and policy in regard to sponsor monitoring, compliance, enforcement and sanctions provisions is complex.
In the case of sponsor monitoring, this is undertaken by officers of the Sponsor Monitoring Unit who are sworn, non-uniformed officers of the Australian Border Force, Immigration Compliance Branch.
As a matter of routine, Sponsors are monitored by the Australian Border Force to ensure that they comply with Sponsorship Obligations in relation to the sponsored person (including any sponsored family members).
Sponsors are monitored through interviews and site visits, desk auditing using monitoring forms, referral to other agencies and/or other sections of the Department of Home Affairs, as well as education and awareness raising activities.
A targeted risk-based approach to monitoring activities includes a focus on high-risk industries, Sponsors and occupations. Announced and unannounced site visits are undertaken in accordance with risk protocols and matrices.
Announced and unannounced site visits are undertaken with Sponsors and industries considered to be of concern or of “high risk”. Industries considered to be of concern are those where there is a high incidence of employing vulnerable workers or a high incidence of unsatisfactory monitoring such as hospitality, labour hire firms, agriculture, retail trade and construction.
Monitoring and compliance site visits are conducted on the basis of information available to the Department of Home Affairs and the Australian Border Force and assessments of ‘risk’ (including where adverse information on the Sponsor is received).
Sponsors are required to fully cooperate with the Australian Border Force, including by providing monitoring reports to establish that:
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 on the business.
- The person is still in the business’ employ and is being remunerated in accordance with the approved nomination application.
- The Sponsor is complying with Australian employment and industrial relations legislation, levels of remuneration and conditions of employment and that the tax instalments and superannuation contribution in respect of the person has been made.
Migration field compliance
These operations focus on:
- Locating and detaining unlawful non-citizens, or persons in breach of visa conditions
- Detection and prevention of illegal work
- Removal of unlawful non-citizens to their countries of citizenship.
The Migration Field Compliance and the Immigration Compliance Branch work collaboratively with employers to identify emerging issues, to encourage adherence to the regulatory requirements and to foster voluntary compliance.
The Australian Border Force, together with Fair Work Inspectors have the power 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.
In conducting site visits, there is a right of entry to a sponsor’s premises under section 140XB of the Migration Act 1958 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.
Graded approach to sanctions
Sponsors are required to provide information and records relevant to the monitoring process to establish that:
- The sponsored person is still working in the nominated position and not a lower position
- The sponsored person is being remunerated in accordance with the details provided to the Department of Home Affairs for the purposes of the approval of the nomination application, including pay slips, PAYG Payment Summary, bank statements and such like.
The consequences of a failure to comply with sponsorship obligations depends on the severity of the breach.
In cases of very minor and technical breaches of sponsorship obligations, including where the Sponsor has voluntarily rectified those breaches and since then put into practice arrangements to ensure compliance, a formal warning may be issued.
Significant sanctions, such as sponsorship cancellation and lengthy bars on sponsorship and nomination capacity are considered in serious or seemingly intentional and/or reckless abuses of the Subclass 482 visa program.
Australian Border Force officers have considerable power to impose a range of penalties against the sponsor for breach of obligations, including infringement notices and civil pecuniary orders.
Factors taken into account in determining the consequences of breach of sponsorship obligations include:
- The severity of the breach
- The Sponsor’s past conduct and whether the Sponsor has previously breached a sponsorship obligation
- Whether the Sponsor was aware of the breach
- The process, if any, that has been implemented to prevent further breaches
- The extent of cooperation by the Sponsor, including whether the Sponsor informed the Department of Home Affairs of the breach
- The time taken to complete the audit process to establish the breach
- The severity of any direct or indirect consequences of the breach
- The number of visa holders affected by the breach
- Community impact of the breach.
Sponsors are required to notify Sponsor Notifications, Australian Border Force of certain events occurring, including cessation or expected cessation of a primary sponsored person’s employment, a change to their work duties, the appointment of a new director or if the legal entity
of the Sponsor ceases to exist.
Sponsors must also provide evidence that they are complying with Australian Industrial Laws, levels of remuneration and conditions of employment, and that the tax instalments and superannuation contributions in respect of the sponsored person have been made, Sponsorship status allows certain personal information on the sponsored person to be disclosed to the sponsor.
The Migration Act 1958 includes civil penalties that may apply to sponsor who are found to be in breach of their sponsorship obligations. Failure to provide information or produce documents will be considered a contravention of a civil penalty punishable by a maximum penalty of $12,600 (60 penalty units) for individuals or $63,000 (300 penalty units) for a body corporate.
These include infringement notices and civil penalties which impose a maximum penalty of $12,600 (60 penalty units) for an individual and $63,000 (300 penalty units) for a body corporate.
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 Migration Act 1958.
The Minister of Home Affairs may disclose personal information about a visa holder or former visa holder to an approved sponsor or former approved sponsor.
The Department of Home Affairs 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 of Home Affairs under certain circumstances.
This information can be used by the Department of Home Affairs 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.
In June 2015 Taskforce Cadena was established to protect temporary visa holders against fraud and exploitation. Led by the Department of Home Affairs 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.”
Compliance with visa conditions and visa cancellations
The cancellation of visas is part of the Department of Home Affairs’ extensive compliance and enforcement regime. The sponsored persons (and secondary visa holders) visas may be cancelled under various sections of the Migration Act 1958 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.
All sponsored Subclass 482 visa holders must comply with Condition 8607.
Condition 8107/8607 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 457/482 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 8107/8607.
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 457/482 visa holder to work in breach of condition 8107/8607.
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.