If you are a Standard Business Sponsor, you need to understand what could get you into trouble with the Department of Home Affairs (DOHA). Don’t take the risk of getting your sponsorship approval barred or cancelled. If you are already facing this unfortunate situation, this article will help you understand how the DOHA makes their assessments.
Read: Introduction to the barring and cancellation of sponsorship
There are four circumstances under which you are liable to having your sponsorship approval barred or cancelled:
- Failure to satisfy sponsorship obligation
- Provision of false or misleading information
- Application or variation criteria no longer met
- Contravention of law
The DOHA can decide if to bar and/or cancel a sponsorship approval and if they choose to bar, the period of the bar can range from 3 months to 5 years. Our earlier article covered the factors that will contribute to their decision. We will expand on how exactly they assess these factors.
Failure to satisfy sponsorship obligation
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?
The DOHA will consider the following when deciding on if there is a justification on the bar or cancellation of a sponsorship.
Past or present conduct
Naturally a bad history with the DOHA will aggravate your situation whilst a good history will work in your favor. In determining past or present conduct, the DOHA will consider:
- Any previous monitoring undertaken in relation to the sponsor and the outcome of that monitoring. (Monitoring refers to the activities of the DOHA in checking up on the sponsor for compliance after the discovery of previous failure(s) to satisfy sponsorship obligations)
- A history of failure to satisfy the sponsorship obligations
- A demonstrated sustained period of compliance with the requirements of the sponsorship programs
- Any past adverse civil or administrative findings not related to monitoring but of relevance including, but not limited to, sanctions, infringements or Illegal Workers Warning Notices
- Provision of false or misleading information
Number of occasions on which the person has failed to satisfy the sponsorship obligation
Having failed to satisfy a sponsorship obligation isn’t considered by period or by sponsored person, but by the obligation itself. For example, underpayment of wages to a sponsored person 20 times is a failure to satisfy obligations on 20 occasions.
Nature and severity of the circumstances relating to the failure as well as period over which it occurred
In assessing this the DOHA will look at the following factors:
- Whether each failure identified is considered a minor, significant or serious
- If there was deliberate disregard shown towards meeting sponsorship obligations
- If the action unduly impacts on a sponsored person’s welfare or interests, especially when these actions are motivated by profit or gain for the sponsor
- If the same failure occured during previous monitoring
- If the actions are not in line with and hurt the visa program’s intentions
- Any mitigating circumstances presented by the sponsor including circumstances that led to the failure
For example, if a sponsor has underpaid a sponsored person but it was due to an accounting error and was not deliberate, this would weigh in the sponsor’s favor.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person
Impact on the sponsored person, Australian citizens or Australian permanent residents due the failure to satisfy a sponsorship obligation will hurt the sponsor’s case.
- Failure to pay ‘market salary rates’ may adversely impact the affected sponsored person(s) and Australian citizens or permanent residents in the labour market
- Failure to ensure that a sponsored person remained employed in their nominated occupation hurts their ability to comply with visa condition 8607, which leaves them liable to the cancellation of their TSS 482 visa. It may be taken to have also had impact on the Australian labour market, as another Australian citizen or permanent resident may have been employed
Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
Intentional: Done with intention or on purpose
Reckless: Careless of the consequences of action and done without caution.
Inadvertent: Not attentive; unintentional.
- If there were relevant circumstances outside the sponsor’s control and the failure was inadvertent. An example would be if the sponsor had outsourced payroll duties that resulted in administrative error
- Failure to put proper structures or procedures in place to prevent a breach would likely be seen as reckless
- Failure to satisfy sponsorship obligation after a warning or having been education on the obligation would be taken to be intentional
Whether, and the extent to which, the sponsor been cooperative
- Has there been deliberate attempts to obstruct the DOHA?
- Has the sponsor failed to engage with monitoring?
- Has the sponsor provided all requested information?
- Has the sponsor willingly cooperated in a timely manner?
- Did the sponsor advise the DOHA of the failure before monitoring commenced?
- Did the sponsor discover the failure as a result an audit process and voluntarily informed the DOHA?
Voluntary disclosure by a sponsor of a failure to satisfy a sponsorship obligation would demonsrate a willingness to accept responsibility and ensure future compliance, however if the severity of the failure is significant, cooperation may not be sufficient to prevent a bar or cancellation.
Steps to rectify the failure to satisfy the sponsorship obligation
Willingness to rectify a failure to satisfy a sponsorship obligation such as voluntary repayment of any underpayment or redefining tasks to ensure the sponsored person works in their nominated occupation may help the sponsor in their case with the DOHA.
Processes implemented to ensure future compliance
A demonstration that processes have been implemented to ensure future complicance will will be an advantage to the sponsor. Examples include but are not limited to:
- Developing processes in line with the obligation to provide information to the DOHA on certain events
- Action taken to ensure that the sponsored person only works in their nominated occupation, such as assigning tasks that do not fit within the ANZSCO description to other employees or the employment of additional staff for the tasks that are not meant to fall under the sponsored person’s role
The number of different sponsorship obligations and number on occations on which they have been failed to be satisfied
This considers if not just how often one sponsorship obligation has been failed to be met but how many other different sponsorship obligations the sponsor has failed to satisfy, and the frequency of those failures.
Any other relevant factors
These include but are not limited to:
- The period of time over which the monitoring has taken place, especially if monitoring activities have prevented the sponsor from having any applications approved
- Relevant considerations raised by the sponsor
Provision of false or misleading information
In determining the severity of offense and therefore the resulting sentence, the DOHA will consider these factors.
The purpose for which the information was provided
- Was false or misleading information was provided to achieve a favourable visa outcome?
- Were documents misrepresenting salary payments to sponsored persons?
- Were misleading documents provided to encourage a favourable monitoring outcome?
- Were documents provided to prevent the DOHA or ABF from making a full assessment of the sponsorship obligations or to hinder monitoring?
Understandly, false or misleading information due to an administrative error where the sponsor received no gain would likely result in leniency from the DOHA.
The past and present conduct of the person in relation to Immigration
Factors that may be considered include, but are not limited to:
- WIllingness to rectify issues raised by the Department or ABF
- Sponsor’s compliance with sponsorship obligations or other requirements
- Degree of cooperation with departmental or ABF monitoring
- Previous findings relating to the provision of false or misleading information
- Previous situation in which circumstance(s) to bar or cancel existed
- History of obligations breaches
- Any relevant investigations and findings
The nature of the information
The kind of false content information provided was will also be looked into. If a payslip was altered for work hours it would result in a more severe penalty than a payslip with a falsified pay date. How far did the sponsor intend to mislead the DOHA and how serious was the intention to mislead?
Whether, and the extent to which, the provision of false or misleading information has directly/indirectly impacted another person
The DOHA will take into account any impact on the sponsored person’s welfare, other visa applicants and holders for the same visa program, Australian citizens or permanent residents, and other businesses in the same industry in the case the sponsor has deliberately undercut the market.
False information regarding pay (sponsored person actually being underpaid) and false information on the role that the sponsored person is perfoming for the purposes of a positive visa decision and during the period of sponsorship all negatively impact the sponsored person and/or the labour market.
Whether the information was provided in good faith
If information provided to the DOHA was false and misleading but had been given in good faith, meaning that the sponsor had believed it true at that point, the DOHA may offer some leniency on the severity of the action against the sponsor that is taken. It will bode well for the sponsor if on recognising that false or misleading information was provided, they voluntarily corrected it and notified the DOHA.
Whether the person notified Immigration immediately upon discovering that the information was false or misleading
Following the previous point, it would bode well for the sponsor if on recognising that false or misleading information was provided, they voluntarily corrected it and notified the DOHA.
Any other relevant factors
Other relevant factors could include and are not limited to:
- The number of instances a sponsor was found to have provided false or misleading information. Multiple occasions on which false or misleading information was provided would appear as deliberate or reckless
- The period of time over which monitoring has taken place. If it has impacting the processing of applications it may impact the length of the penalty imposed
Criteria no longer met
The following are situations in which a standard business sponsor would no longer meet the requirements for sponsorship approval.
A sponsor is required not to be found to have adverse information related to them. If a sponsor is responsible for a number of companies and one company was found to have been underpaying their sponsored persons, the other companies under the sponsor are considered to no longer meet sponsorship requirements and action may be taken against the other companies.
Read: Defintion of ‘associated with’
No longer lawfully operating a business
An Australian Business Number (ABN) is used by the ATO for tax purposes but having an active ABN does not automatically mean a business is lawfully operating. Vice versa, a business can still be operate without an ABN and a change of ABN may be due to a change in business structure.
Change in business structure
Where a sponsor has validly altered their business structure and continues to legally trade, this should not adversely affect their sponsorship approval. Where there is significant change, the sponsor may need to lodge a new sponsorship application and associated nominations.
Liquidation, voluntary administration and receivership
It is not until the company had formally liquidated that it will be considered as no longer be lawfully ‘operating a business’ in Australia.
In both external and voluntary administration, the company may continue to trade while in the process of winding up. Further assessment in required in such events as it it could be possible to have a lawful entity that is no longer in operation.
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. The following factors will contribute to how severe an action the DOHA will decide to take on the sponsor.
Past and present conduct
- Has the sponsor had multiple instances of non-compliance with Commonwealth, State or Territory laws?
- Has the sponsor taken actions to rectify previous contraventions?
- How is the sponsor’s history in dealings with the DOHA ?
The nature of the law that was contravened
The DOHA will take into consideration what and how the law was contravened, especially if it hurts the objectives ofa visa program. An example of this are contraventions of the Fair Work Act 2009 that arerelated to the exploitation of workers.
If the contravention has minimal effect on the ability to sponsor, the DOHA may not decided action is necessary
The gravity of the unlawful activity
‘Gravity’ refers to the seriousness of the contravention. The DOHA measues this in terms of the consequences the unlawful activity could, or had, on visa applicants and holders or the Australian community.
If the sponsor shows remorse and has complied with an enforceable undertaking by the Fair Work Ombudsman, the DOHA may choose to dole out a lighter penalty
Contravention of a law by sponsored person relating to licensing and registration
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. The DOHA will 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
Some examples of reasonable steps to ensure compliance and future compliance include, but are not limited to:
- Contractual clauses that require the sponsored person to maintain their registration and licensing requirements
- Demonstration that the sponsor has verified the licensing requirements
- Demonstration of processes established to ensure future verification
Our best advice is to be educated on the topic whether you are a sponsor or a sponsored person and to share this valuable information!