It isn’t only the applicant who can get into trouble with the Department of Home Affairs (DOHA). A sponsor who doesn’t follow the rules can have their sponsorship barred or cancelled. Whether or not you are in trouble, it is important to understand how the DOHA considers the circumstances under which they will consider barring or cancelling a sponsorship so that you may avoid it. If you are facing a bar or cancellation, you will better be able to take actions and/or present your case or to the DOHA for a better result.
Barring
- Barring the sponsor for a specified period, from sponsoring more people and/or
- Barring the sponsor or former sponsor for a specified period, from making future applications for approval as a sponsor in relation to one or more classes
Generally if the DOHA decides to bar a sponsor from making future applications, the bar will be for at least 3 months but no more than 5 years.
Former sponsors are approved sponsors whose approval has ceased to be in effect, but has not been cancelled.
Cancelling
- Cancelling the approval of a person as a sponsor in relation to a class to which the sponsor belongs and/or
- Cancelling the approval of a person as a sponsor for all classes to which the sponsor belongs
In the case of cancellation, existing sponsored persons of the sponsor may also be up for having their visas cancelled. Consideration will also be given to bar the sponsor from further approvals as a sponsor.
Circumstances
These regulations were put in place to prevent abuse of the visa program and protect the working conditions of sponsored persons. What are the circumstances may a barring or cancelling happen?
- Failure to satisfy sponsorship obligation
- Provision of false or misleading information
- Application or variation criteria no longer met
- Contravention of law
Some common considerations that you will notice is that the DOHA will give credit to sponsors who, to their best effort, try to rectify an error and are upfront in their communications with the DOHA.
Failure to satisfy sponsorship obligation
A sponsor’s role doesn’t end when the visa is granted. There are a number of obligations that a standard business sponsor must adhere to so long as the 482 visa holder is in employment and through their sponsorship validity period.
Read: What Obligations Does a Sponsor Have?
DOHA will consider the following factors:
- The past and present conduct of the person in relation to immigration
- The number of occasions on which the person has failed to satisfy the sponsorship obligation
- The nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred
- The period of time over which the person has been an approved sponsor
- If applicable, the extent to which the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person
- If applicable, the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
- If applicable, the extent to which, the person has cooperated with immigration, including whether the person informed the DOHA of the failure
- Steps, if any, that has been taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of the DOHA
- Any processes that have been implemented to ensure future compliance with the sponsorship obligation
- The number of other sponsorship obligations that the person has failed to satisfy and the number of occasions on which the person has failed to satisfy other sponsorship obligations
- Any other relevant factors
Provision of false or misleading information
Information may be considered to be false or misleading even if it was unintentionally provided to the DOHA. Information may arise from:
- Current monitoring events (monitoring of the sponsor due to failure to meet sponsorship obligations)
- Previous monitoring events including previous information that has been identified to be false or misleading
- Most recent and previous sponsorship applications
- Information provided at nomination stage that indicated a lower annual turnover, to avoid paying the higher/correct Skilling Australians Fund (SAF) levy
- Nomination applications associated with current and previous sponsorship agreements
- Information provided in relation to an ENS/RSMS application lodged by a person when they are a current or former sponsor
When considering false or misleading information, the DOHA will consider:
- The purpose for which the information was provided
- The past and present conduct of the person in relation to immigration
- The nature of the information
- Whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person; and
- Whether the information was provided in good faith
- Whether the person notified immigration immediately upon discovering that the information was false or misleading
- Any other relevant factors
Application or variation to criteria no longer met
This is where the sponsor no longer satisfies the criteria for being an approved sponsor, or if the criteria for approval as a sponsor has changed and the sponsor no longer meets the requirements. Reasons a sponsor may no longer satisfy criteria as a sponsor may include :
- Adverse information
- Adverse associations
- No longer lawfully operating a business
- Change in business structure
- Liquidation, voluntary administration and receivership
DOHA will factor in:
- The nature of the applicable sponsorship criteria that the person no longer meets
- Whether, and the extent to which, the failure to continue to satisfy the criteria for approval as a sponsor, or to continue to satisfy the criteria for approval of a variation, has had a direct or indirect impact on another person
- The reason why the person no longer satisfies the applicable sponsorship criteria, including whether the failure to satisfy the criteria is within the person’s control
- Any steps that have been taken to ensure that the applicable criteria will be met in the future
- Any other relevant factors
Contravention of law
Barring or cancellation will be considered if the sponsor has been found by a court or competent authority to have contravened a Commonwealth, State or Territory law, in particular laws related to:
- Workplace discrimination
- Immigration law
- Industrial relations
- Occupational health and safety
- People smuggling and related offences
- People trafficking and debt bondage
- Slavery, sexual servitude and deceptive recruiting
- Taxation
- Terrorism
Factors in determining the severity of the situation are:
- The past and present conduct of the person
- The nature of the law that the person has contravened
- The gravity of the unlawful activity
- Any other relevant factors
The sponsor is also liable if the sponsored person, has whilst in their employment, contravened the law in relation to licensing, registration or membership that is mandatory for their nominated occupation. In these circumstances, the DOHA will also consider if:
- The sponsor took reasonable steps to prevent the sponsored person from contravening a law relating to the licensing, registration or membership requirements
- If the sponsored person was convicted of doing so
- Any processes that were put in place to ensure future compliance
- Any other relevant factors
Notice of intention to take action
If the DOHA is considered barring or cancelling a sponsor they will issue a Notice of intention to take action (NOITTA). The NOITTA will:
- Specify details of the circumstances which has resulted in action being considered
- Specify details of the action(s) that may be taken
- Specify a date for a response not earlier than seven days after the date a person is taken to have received the notice
The sponsor will be given an opportunity to respond to the NOITTA after which the DOHA will make their decision. If the decision is not a positive one and cancellation action is the be take, the Notice of Decision letter will provide information on if a review application may be made. If the decision is a barring, the Notice of Decision will contain information on how you may apply for a waiver of the bar.
Waiver of a bar
The DOHA may consider waiving a bar if:
- A substantial trade opportunity would be lost if the bar were not waived
- There would be a significant detriment to the Australian community if the bar were not waived
- If the inability to sponsor a proposed person would significantly damage Australia’s relations with the government of another country
- There is significant new evidence or information has come to light which was not available at the time the decision to place the bar was made
You may reapply for a waiver if you are unsuccessful but this must come with substantially new circumstances.
Can you believe that this is only the introduction? Our next article will delve into the details on reach of above four circumstances. If you have received a NOITAA, we strongly suggest you contact a migration specialist right away.
