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Character Assessment of Australian Sponsors of Partner Visa Applications
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New Worker Protection Act Legislation - effective 14 September 2009

The contents of this article are correct as at
30 June 2009

Migration Legislation Amendment (Worker Protection) Act 2008

The Migration Legislation Amendment (Worker Protection) Act 2008 will come into effect on 14 September 2009.

The Migration Amendment Regulations 2009 (No.5), which will commence on 14 September 2009, gives effect to various provisions in the Worker Protection Act.

Detail on some of the requirements, will not be available until the publication of other legislative instruments, such as gazette notices.

Below is an outline of some of the important changes.

Background and applicability

The Migration Amendment Regulations apply to sponsors of subclass 457, subclass 470 visas as well as parties to a labour agreement.

The new regulations will apply from 14 September 2009 to work agreements. The amended provisions relating to criteria to become an approved sponsor and for nomination applications will apply to applications not decided by 14 September 2009 and applications made on or after 14 September 2009.

The new sponsorship obligations and related provisions imposing penalties, bars and sanctions will apply to all sponsors from 14 September 2009.

The new obligations will apply to all subclass 457 visa holders who are working in Australia on or after 14 September 2009, including those working under a labour agreement.

As a matter of compliance, employers should review all employment arrangements for all existing subclass 457 visa holders to ensure that they meet the proposed changes.

Sponsorship obligations - general

The regulations refer to nine obligations for sponsors effective from 14 September 2009.

They include the requirements to:

  • Supply information to the Government when requested
  • Employ the sponsored visa holder in the occupation for which he/she has been sponsored
  • Cooperate with inspectors
  • Not to recover recruitment costs for sponsored persons
  • Pay costs to enable sponsored persons to leave Australia and the obligation to pay costs incurred by the Commonwealth in locating and removing non-citizens.

The existing obligation to pay public health costs to the visa holder and accompanying family members by the sponsoring organisation has been removed and it will not form part of the sponsorship obligations.

Draft regulations and policy guidance regarding health costs should be available prior to 14 September 2009.

Sponsorship obligations – further details

Obligation to ensure equivalent terms and conditions of employment
  • A sponsor or party to a work agreement will need to ensure that the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions the sponsor provides or would provide to an Australian citizen/permanent resident to perform the work in an equivalent position in the sponsor’s workplace. The terms and conditions will be no less favourable if they are at or above the terms and conditions as set out in an instrument in writing made for the purpose of this regulation.

  • This obligation will cease either on the day on which the primary sponsored person is granted a non 457 visa or on the day on which the visa holder ceases employment with the sponsor, whichever occurs first.
Obligation to pay travel costs to enable visa holders to leave Australia
  • Applies to both primary and secondary sponsored visa holders as well as those who are sponsored through a work agreement.
  • The travel costs are economy class air travel or equivalent from the primary sponsored person’s usual place of residence in Australia to the country which is specified in the request to pay travel costs as the country for which the primary or secondary sponsored person (whichever is applicable) holds a passport or if multiple passports are held, the country specified in the request.
  • The costs must be paid within 30 days of receiving the request for costs. If the sponsor has already paid travel costs and such costs are reasonable and necessary then the obligation is considered to be met.
  • The obligation will cease where a new nomination and/or visa application relating to the primary visa holder is approved through a different employing sponsor or if another Australian visa is obtained independently of an employer.
Obligation to keep records
  • This requirement covers the types of records that must be kept, and the manner they must be kept and made available.
  • The records include: the written request for payment of return travel costs; notification to DIAC of certain defined events (see below); and tasks performed by the visa holder and at which location(s) they were performed.
Obligation to provide information to the Department when certain events occur
  • The regulations set out over 10 notifiable events to be notified to DIAC within 10 working days of the event occurring. Some of the events include, to notify DIAC:
  • When a sponsored employee ceases or will cease to be employed;
  • Of the appointment of new directors, partners or members in sponsoring legal entity;
  • The payment of return travel costs to subclass 457 visas holders;
  • Insolvency or similar situations as prescribed under provisions in the bankruptcy legislation or Corporations Act; and
  • Where the sponsoring entity ceases to exist.

Sponsorship restrictions and cancellations

There are regulations setting out circumstances in which a sponsor’s approval may be barred or cancelled.

The decision to impose such a penalty, and which one, will depend upon the circumstances giving rise to the concern.

Such penalties may result following:
  • Failure to satisfy a sponsorship obligation;
  • Provision of false or misleading information;
  • Circumstances giving rise to an approval no longer exist; or
  • Contravention of the law by the sponsor.
However, DIAC officers may waive a bar on a sponsor.

This would be possible where Australia’s interests would be significantly affected, a significant trade opportunity would be lost, there would be detriment to the Australian community or damage to Australia’s relations with the Government of another country would result if the bar was not waived, or where new evidence comes to light that was not previously available.

Term of sponsorship

Currently a sponsorship agreement is for a period of two years or when the nominated position number has been filled (whichever occurs earlier). Under the new regulations the term of approval may be specified as a period of time ending on a particular date or ending on the occurrence of a particular event.

The new regulations seem to also allow for a variation in the terms of standard sponsorships approved on or after 14 September 2009 where a business has operated for greater than 12 months or more and training of staff and a commitment to recruitment of local staff are evident. It therefore appears that a longer period of sponsorship approval may be possible where the prescribed criteria are met.

Further articles concerning the changes will be posted as soon as the various aspects of the legislation become available.

If you are an employer with questions concerning the proposed changes, please click Visa Lawyers Australia to contact us.