Read: Paying For Sponsorship – Part I
Read: Paying For Sponsorship – Part II (You are here)
In our last article we discussing the all important ‘no payment for sponsorship’ requirement that is in any sponsored work visa and put in place to protect overseas workers from exploitation or extortion and to encourage fair recruitment practices. To recap, the visas affected by the ‘no payment for sponsorship’ requirement:
- Training (subclass 407)
- Temporary Activity (subclass 408)
- Temporary Work (Skilled) (subclass 457) (closed for applications)
- Temporary Skill Shortage (subclass 482)
- Employer Nomination Scheme (ENS) visa (subclass 186)
- Regional Sponsored Migration Scheme (RSMS) visa (subclass 187)
The requirement is that there should be no ‘asking for or receiving a benefit in return for the occurrence of a sponsorship related event’.
‘Benefit’ includes but is not limited to:
- One off lump sum payment
- Ongoing regular payments
- Underpayment of a visa holder’s wages or salary
- Repayment of a visa holder’s wage or salary
- Unpaid work
- Hours of work paid below the visa holder’s hourly wage or enterprise agreement arrangements
- Payment for goods or services above market value
Although it seems straightforward there is a chance one may be caught in a ‘borderline’ type situation in which you may be unsure if you are meeting the requirement or not. For example, a sponsor offering to nominate an applicant for an ENS 186 so long as the applicant pays for the visa application fees, or a family member of the applicant offering the sponsor a gift in return for sponsorship of the applicant.
Penalties and situations in which the line may be crossed falls under the two following categories
- Asking for or receiving a benefit in return for the occurence of a sponsorship related event
- Offering to provide a benefit in return for the occurence of a sponsorship related event
In this article we will continue to discuss what the possible actions are against visa holders
- The possible action against visa holders
- The possible defences for paying for visa sponsorship offences
- Liability of executive officers of bodies corporate and other partnerships and unincorporated associations
Possible action against visa holders
The Department of Home Affairs (DOHA) will pursue those who have engaged in or promoted paying for visa sponsorship activity. The could include potential visa applicants, current visa holders or third parties who actively seek potential sponsors to offer them a benefit in return for sponsorship and employment. The DOHA will however, not pursue visa holders if they have been subject to:
- Exploitation and extortion
- The use of coercion, violence or deception
- Slavery or human trafficking
If you have been put in a situation where you were not complicit in the arrangements for paying for sponsorship and/or was tricked into a situation, step forward. You will not be persecuted but will help the DOHA crack down those who are abusing the system as well as help prevent others who might be in or fall into a similar situation of exploitation and extortion.
Only if you are an innocent party however. The DOHA will still consider the circumstances and the intent of the visa holder in coming forward to provide information in regards to payment for sponsorship activity. The DOHA may still take action if the visa holder who has come forward had actively participated in:
- Initiating the arrangement
- Recruited others into the arrangement
- Actively covered or disguided the arrangement or otherwise abetted the arrangement
- Has misled investigations into the arrangement
If you were not complicit in the paying for visa sponsorship activity and the DOHA cancels the sponsorship agreement, you will still be able to find a new sponsor or apply for a new visa within 90 days.
If found to be complicit, you face penalties which could include being convicted on a criminal offence (possible imprisonment), civil action, an infringement notice (a fine), the cancellation of your visa and adverse information. The latter two would make it incredibly difficult to successfully apply for a further visa.
Read: Was Your Visa Is Refused Or Cancelled? The s48 Limitation May Apply To You
Read: Many Visas Are Subject To A ‘No Adverse Information’ Clause. What Is Adverse Information?
Possible defences for paying for sponsorship defences
This is specific to third party services who provide aid in the visa application/work arrangement process. Payment to recruitment, education, labour hire or migration agent services would not considered as payment for sponsorship as the payment is for professional services being provided.
This is not meant as a loophole for those who wish to exploit this visa. It is still important that the payment is of a reasonable amount for the service. ‘Reasonable’ fees are fees that commensurate with market rates or with the advice from professional bodies in regards to fees and service rates.
To be considered as a professional service, the person providing the service would, at the time, have to hold current registration and licencing (if applicable) in the occupation or service they are providing. For example, a migration agent should be registered with the Office of Migration Agents Registration Authority (OMARA).
It is important for those who are providing such services as well as applicants to keep a record of contracts and other documents that demonstrate that the fees requested/paid are for professional services. Examples of such documents include:
- Statement of services—showing a breakdown of services provided
- Quotes from other providers for similar services
- Other client contracts showing similar fees for similar services
- Survey data from peak bodies demonstrating fee costs
- Service agreements between the agent, visa applicant and sponsor in cases where the agent is working for both parties
As there have been cases where people have posed as migration agents and have asked for exorbitant fees in exchange for the arrangement of a work sponsored visa. These unfortunate victims paid in the tens of thousands and never received a job or their visas.
Liability of executive officers of bodies corporate and other partnerships and unincorporated associations
Sponsors, take care as well! If a body corporate is found to have committed an offence in regards to the payment of sponsorship, the executive officer of the body corporate may be criminally liable as well. When assessing if the executive officer is liable, the DOHA will consider:
- The level of awareness the executive officer had in the paying for visa sponsorship activity
- The executive officer’s ability to prevent the offence or contravention from occuring
- Whether the executive officer, whether through recklessness or negligence, allowed the offene or contravention to occur
The steps taken by the executive officer to present the offence or contravention from occuring
Partnerships and unincorporated associations could be found to have committed a criminal offence or civil penalty provision if they:
- Carried out the relevant paying for visa sponsorship conduct
- Aided, abetted, counselled or procured the relevant paying for visa sponsorship conduct
- Were knowingly concerned or party to the relevant paying for visa sponsorship conduct (whether direct or indirect).
The penalties in this situation include being convicted on a criminal offence (possible imprisonment), civil action, an infringement notice (a fine), the barring or cancellation of sponsorship, the cancellation of your employees visa and adverse information.
Location of offence
The severity of the penalty is also dependent on where the offence has taken place.
The no payment of visa sponsorship requirement is assessed at every stage of a sponsored visa application:
- At the time of visa application
- As part of the nomination application
- At the time of visa application
As you can see, this is requirement that is to be taken very seriously.
The sponsored work visa application have become more and more complex, especially now with the pathway to permanent residency visa a sponsored work visa limited only to those on the Long to Medium Term Skilled Occupation List. We highly recommend that you call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists. Our registered agents provide fair fees and have broad experience with sponsored work visas, including cancellations on the grounds for payment for visa sponsorship.