Buying a Job

 
 

Allegations have been consistently made over the years that some employers were taking on the role of nomination in return for a hefty payment, in some cases even for the amount of wages the visa applicant would be paid.  In others, the visa applicant/holder would be paid the market rate of pay but the visa holder was in effect refunding that pay or a big part of that pay to the employer.

Payment from the visa applicant to the nominator may sap the genuineness out of the employer-employee relationship necessary to found the both the nomination and visa process.

On 16 September 2015, the Government introduced the Migration Amendment (Charging for a Migration Outcome) Bill 2015 in response to recommendations made by the Independent Review into Integrity in the Subclass 457 Programme.

The Bill passed both Houses of Parliament and has received Royal Assent. The amendments came into effect on 14 December 2015 as per the Migration Amendment (Charging for a Migration Outcome) Commencement Proclamation 2015.

The Migration Amendment (Charging for a Migration Outcome) Act 2015 introduces a criminal and civil penalty regime that makes it “unlawful for a person to ask for, receive, offer or provide payment or other benefits in return for a range of sponsorship-related events” as outlined below:

245AR  Prohibition on asking for or receiving a benefit in return for the occurrence of a sponsorship‑related event

(1)  A person (the first person) contravenes this subsection if:

(a)  the first person asks for, or receives, a benefit from another person; and

(b)  the first person asks for, or receives, the benefit in return for the occurrence of a sponsorship‑related event.

(2)  To avoid doubt, the first person contravenes subsection (1) even if the sponsorship‑related event does not occur.

(3)  Subsection (1) does not apply 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 first person or a third person.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

Offence

(4)  A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

Penalty:  Imprisonment for 2 years or 360 penalty units, or both.

Civil penalty provision

(5)  A person is liable to a civil penalty if a person contravenes subsection (1).

Civil penalty:          240 penalty units.

(6) A person who wishes to rely on subsection (3) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.

Note:          It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).

245AS  Prohibition on offering to provide or providing a benefit in return for the occurrence of a sponsorship‑related event

(1)  A person (the first person) contravenes this subsection if:

(a)  the first person offers to provide, or provides, a benefit to another person (the second person); and

(b)  the first person offers to provide, or provides, the benefit in return for the occurrence of a sponsorship‑related event.

Civil penalty:          240 penalty units.

(2)  To avoid doubt, the first person contravenes subsection (1) even if the sponsorship‑related event does not occur.

(3)  Subsection (1) does not apply 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.

(4)  A person who wishes to rely on subsection (3) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.

Note:          It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).

 

CRIMINAL PENALTY REGIME

OffencePenalties

Offence for a sponsor or other third party to ask for or receive a benefit in relation to a sponsorship-related eventMaximum of 2 years imprisonmentMaximum fine of $64,800 for individual persons

Maximum fine of $324,000 for a body corporate

CIVIL PENALTY REGIME

OffencePenalties

Offence for a sponsor, visa applicant or any other third party to ask for or receive or provide or offer a benefit in relation to a sponsorship-related eventMaximum fine of $43,200 for an individual personMaximum fine of $216,000 for a body corporate

The amendments define “benefit” and “sponsorship-related event” as follows:

benefit includes:

                     (a)  a payment or other valuable consideration; and

                     (b)  a deduction of an amount; and

                     (c)  any kind of real or personal property; and

                     (d)  an advantage; and

                     (e)  a service; and

                      (f)  a gift.

sponsorship‑related event means any of the following events:

                     (a)  a person applying for approval as a sponsor under section 140E in relation to a sponsor class;

                     (b)  a person applying for a variation of a term of an approval as a sponsor under section 140E in relation to a sponsor class;

                     (c)  a person becoming, or not ceasing to be, a party to a work agreement;

                     (d)  a person agreeing to be, or not withdrawing his or her agreement to be, an approved sponsor in relation to an applicant or proposed applicant for a sponsored visa;

                     (e)  a person making a nomination under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;

                      (f)  a person not withdrawing a nomination made under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa;

                     (g)  a person applying under the regulations for approval of the nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;

                     (h)  a person not withdrawing the nomination under the regulations of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa;

                      (i)  a person employing or engaging, or not terminating the employment or engagement of, a person to work in an occupation or position in relation to which a sponsored visa has been granted, has been applied for or is to be applied for;

                      (j)  a person engaging, or not terminating the engagement of, a person to undertake a program, or carry out an activity, in relation to which a sponsored visa has been granted, has been applied for or is to be applied for;

                     (k)  the grant of a sponsored visa;

                      (l)  a prescribed event.

The Government has flagged that the amendments will apply to “temporary sponsored work visas and skilled permanent employer sponsored visas, including the 457 visa”.

Historically, many employers have required employees to pay the cost of both the ENS nomination or have separate agreements permitting recovery of the ENS costs if the employee leaves the employment within a certain timeframe (i.e. 1 year). The question remains as to whether these sorts of practices will fall under the scope of the new criminal and civil penalty regime.

Note, the civil offence reads as follows:

Offence for a sponsor or other third party to ask for or receive a benefit in relation to a sponsorship-related event

A “sponsorship-related event” includes:

            (g)  a person applying under the regulations for approval of the nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination; 

(h)  a person not withdrawing the nomination under the regulations of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa;

Given the broad wording of the legislation, recovering the cost of the ENS nomination or asking the employee to pay for the cost of the ENS nomination may be an offence under the new criminal and civil penalty regime.

Note that while ‘applying for a nomination’ falls under the definition of a “sponsorship-related event”, simply ‘applying for a visa’ does not fall under the definition.

The amendments also cover changes to s 116 of the Act, introducing provisions for cancellation of visas where:

  • a benefit was asked for or received by, or on behalf of, the visa holder; or
  • a benefit was offered or provided by, or on behalf of, the visa holder.

As part of the new regime, the following amendment was also introduced to the ENS visa:

186.312A 

Either:

  • the Minister is satisfied that the applicant has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subsection 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act; or
  • both of the following apply:
  • the Minister is satisfied that the applicant has engaged in such conduct in that period;
  • the Minister considers that it is reasonable to disregard the conduct.

Note, the same provision was also brought in to the RSMS visa (refer to clause 187.312A).

 

Certification regarding s 245AR(1)

The Migration Amendment (Charging for a Migration Outcome and Other Measures) Regulation 2015 F2015L01961, Select Legislative Instrument No, 242, 2015 came into effect on 14 December 2015. The provisions support the amendments made in the Migration Amendment (Charging for a Migration Outcome) Act 2015 and includes the following amending to Reg 5.19:

 

5.19  Approval of nominated positions (employer nomination)

             (2)  The application must:

                   (aa)  include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

 

A copy of the certification declaration can be found on the Department’s website: https://www.border.gov.au/WorkinginAustralia/Documents/declaration-form-visa-applicant.pdf

Practitioners need to ensure that the written certification is provided (ideally at time of application) otherwise the nomination may be refused.

Must accrue 2 years on 457 visa prior to lodgement of the nomination

Under the Temporary Residence Transition stream, reg 5.19(c) specifies that “in the period of 3 years immediately before the nominator made the application” the 457 visa employee must have worked for a total of at least 2 years for the nominator (excluding any time spent outside of Australia). Nomination applications lodged prior to 457 employee working for 2 years on a 457 visa with the nominator will be refused.

As a practice point, it is important to ensure that the ENS visa applicant has accrued 2 years + 1 day prior to the ENS nomination under the Temporary Residence Transition stream being lodged.

Secondly the person must actually hold the subclass 457 visa. This is because of paragraph 186.223 which states :

 

(1)  The position to which the application relates is the position:

(a)  nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

(b)  in relation to which the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa; and

 

Of course the nomination cannot nominate a person unless that person holds a subclass 457 visa. Once that subclass 457 has expired, a person cannot apply for an ENS visa based on the Temporary Residence Transition Stream. A person could apply for an ENS under the Direct Entry Stream but the applicant then has to have competent English and a skill assessment at time of application. A person can apply for an ENS visa on the Direct Entry Stream even when holding a Bridging Visa A, B or C.

Barbara DavidsonBuying a Job