On 30 November 2015, the Migration Amendment (Charging for a Migration Outcome) Act 2015 received Royal Assent and came into effect of that date. The Bill introduced 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)(otherwise known as a ‘sponsorship-related event’).
It will be a criminal offence for a sponsor or other third party to ask for or receive a benefit from a sponsorship related event and will be punishable by a maximum of 2 years imprisonment or a fine equivalent to $64,000 for an individual person or $324,000 for a body corporate.
Civil penalties applicable to the sponsor, visa applicant or other third party who received or provides or offers a benefit related to a sponsorship related offence will equate to $43,200 for an individual person or $216,000 for a body corporate.
A discretionary power to consider cancellation of visas where any person who engages in this conduct will also be introduced.
Sponsor and visa subclasses covered by this Act
Sponsor classes prescribed in section 245AQ of the Act:
- a standard business sponsor;
- an entertainment sponsor;
- a superyacht crew sponsor;
- a long stay activity sponsor;
- a training and research sponsor;
- an exchange sponsor;
- a religious worker sponsor;
Sponsored visas prescribed in s245AQ of the Act:
- a Subclass 186 (Employer Nomination Scheme) visa;
- a Subclass 187 (Regional Sponsored Migration Scheme) visa;
- a Subclass 401 (Temporary Work (Long Stay Activity)) visa;
- a Subclass 402 (Training and Research) visa in the Research stream;
- a Subclass 420 (Temporary Work (Entertainment)) visa;
- a Subclass 457 (Temporary Work (Skilled)) visa;
- a Subclass 488 (Superyacht Crew) visa.
- a sport sponsor.
‘Reasonable’ amount for a professional service
Sections 245AR(3) and 245AS(3) deems that a person does not contravene the Act if “the benefit is a payment of a reasonable amount for a professional service that has been provided, or is to be provided, by the second person or a third person.”
Accordingly, as far as it is lawful and compliant with Sponsorship Obligations, visa applicants may pay for the ‘reasonable’ amount for a Registered Migration Agents’ professional fee in preparing, lodging and advising of an outcome on an immigration application.
Following the introduction of these new laws, sponsors, nominators and visa applicants are required to provide a statement in relation to current or previous conduct that constitutes a breach in ‘payment for visas’ activity. This statement is known as a “Certification”.
The mandatory declaration requires sponsors, nominators and visa applicants to have an understanding of the relevant sections the Migration Act 1958 (the Act), to which you are making your certification against.
The Certification is a ‘Time of Application’ requirement. The immigration department’s intention is to incorporate the Certification into the relevant online application forms. To date, this has only been implemented into subclass 457 position nomination application.
Accordingly, to comply with the legislative requirement sponsors, nominators and visa applicants must sign Certifications which have been published by the immigration department.
We note that the Certification was not made available until some time after this new legislation came into force, so some applications have been lodged without the Certification. We will reach to affected client individually to comply with this requirement.