On 14 December 2015, new criminal and civil penalties and visa cancellation provisions were introduced as part of a framework that allows for sanctions to be imposed on a person who asks for, receives, offers or provides a benefit in return for a visa sponsorship or employment that requires visa sponsorship.
The new legislation signals a crackdown on rogue employers engaging in work visa scams.
The new laws regarding ‘charging for a migration outcome’ now require sponsorship and visa applications to be accompanied by a declaration or certificate form. For a sponsorship or nomination application, the statement is called a certification, and for the purposes of a visa application, it is called a declaration.Failure to provide the declaration/certification forms with an application may cause the application to be invalid.
Sponsors, nominators and visa applicants are required to provide a statement in relation to current or previous conduct that constitutes a breach in ‘paying for visa sponsorship’ activity.
This requirement to complete a declaration or certification form is applicable to sponsored visa applications lodged 14 December 2015 onwards.
What does this mean?
The changes aims to prevent sponsors or other parties from obtaining an inappropriate financial gain and competitive advantage through selling sponsorship, employment and permanent residence.
The new laws will also serve to clamp down on past offenders who may be prevented from further sponsorship of overseas workers.
Businesses cannot lodge new sponsorship or nomination applications without disclosing past or present conduct on the declaration form. Providing a false declaration in relation to “payment for visa” activity to the Department of Immigration is a criminal offence. .
Under the new laws, severe penalties apply to “payment for visa” conduct:
- criminal penalties include 2 years imprisonment and/or a fine equivalent to $64,000 for an individual person or $324,000 for a company and
- civil penalties of $43,200 for an individual person or $216,000 for a company.
Importantly, executive officers of companies can be liable where the person knew that – or was reckless or negligent as to whether – the conduct was occurring, but failed to take all reasonable steps to prevent the ‘payment for visas’ contravention or offence being committed.
Businesses should review their immigration compliance programs to ensure that there is no practice of charging a fee, passing on of costs or receiving any other benefits for sponsoring an employee for a visa to Australia.
Businesses and executive officers should have an understanding of the relevant sections the Migration Act 1958 (the Act), and you should ensure the business has policies and systems in place to meet the standard of the new laws prior to lodging a new application or renewing existing sponsorship or nomination.
Other sponsored visa classes such as partner visas and training and research visas are also captured by this legislation.
To understand the legal requirements or to determine whether your business is compliant, contact us at firstname.lastname@example.org for confidential, professional advice.
Download a copy of the new business sponsorship certification here: Business Sponsor Certification