New Bill Prohibits "Payment for Visa" Schemes

This week the Australian Government introduced new legislation to make it unlawful for a sponsors to seek payment from visa applicants for providing sponsorship for a skilled work visa.

The Migration Amendment (Charging for a Migration Outcome) Bill 2015 amends the Migration Act to make it unlawful for a party, such as a sponsor, an intermediary, or visa applicant, to seek or offer payments for a migration outcome (called “payment for visa” activity).

The bill is in response to one of the recommendations of the Independent Review into Integrity in the Subclass 457 Program which found that some sponsors in the 457 visa programme have been paid by visa applicants in return for a migration outcome.

It also comes amid revelations brought to light at a Senate Committee inquiry into the exploitation of foreign workers at franchise chain 7-Eleven, that some franchisees had charged workers up to $70,000 for visa sponsorship. (Source: ABC Online  http://www.abc.net.au/news/2015-09-24/7-eleven-workers-paid-up-to-70k-for-visa-inquiry-told/6801194)

What is changing?

Under existing law, the Australian Government is not able to take action against “payment for visa” schemes, which occurs where a benefit is asked for, received, offered or provided in return for a migration outcome.

However, under the new legislation it will be a civil and in some cases criminal offence to engage in “payment for visa” activity. Payment can take the form of a charge or other valuable consideration, a deduction of an amount, any kind of real or personal property, an advantage, a service or a gift.The legislation applies to conduct by persons located in and outside of Australia.

The Explanatory Memorandum provides the following rationale:

“It is not acceptable for sponsors, employers or other third parties to make a personal gain from their position in a “payment for visas” arrangement and it is not acceptable for a visa holder to become an Australian permanent resident by engaging in “payment for visas” behaviour. Applicants who have paid for their visa are more vulnerable to exploitation and extortion by their sponsor, behaviour which endangers workers and undermines Australian workplace law.”

Which visas are covered?

The following visa subclasses are included in the definition of “sponsored visa” for the purposes of this legislation:

  • Subclass 457 Temporary Work (Skilled) visa
  • Subclass 401 Temporary Work (Long Stay Activity) visa
  • Subclass 402 Training and Research visa (Research stream)
  • Subclass 420 Temporary Work (Entertainment) visa
  • Subclass 488 Superyacht Crew visa
  • Subclass 186 Employer Nomination Scheme visa and
  • Subclass 187 Regional Sponsored Migration Scheme visa.

Penalties

It is criminal offence for a sponsor or third party to ask for or receive a benefit in relation to visa sponsorship. Penalties can include:

  • Fines of $64,800 for an individual and $324,000 for a company
  • Up to two years’ imprisonment for company officers who were “knowingly or recklessly” involved in the breach
  • Cancellation of business sponsorship and ban from sponsoring workers in future
  • Cancellation of visa and ban from applying for another visa for 3 years
  • Search and seizure action by Fair Work Investigators and Australia Border Force

It is also an offence for sponsors, visa applicants or any third party to ask for or receive, or provide or offer a benefit in relation to a “sponsorship related event”.  A “sponsorship related event” means an event associated with a sponsorship or nomination, such as applying for approval to become a sponsor, entering into a work agreement, employing a person to work in an occupation or position, or including a family member in a nomination. Penalties include:

  • Fines of up to $43,200 for an individual and $216,000 for a company.
  • Search and seizure action by Fair Work Investigators and Australia Border Force
  • Cancellation of business sponsorship and ban from sponsoring workers in future
  • Cancellation of visa and ban from applying for another visa for 3 years

The bill is expected to be complete formal processes and be passed into law in late 2015.

Leave a Comment





11 − nine =