New Legislation: Prohibition On Receiving “Payment For A Visa”

The contents of this article are correct as at 18 December 2015.

On 14 December 2015, the Australian Government introduced new criminal, civil and administrative sanctions, and visa cancellation provisions as part of a framework that makes “payment for visas” behaviour illegal.

The purpose of the new law is to prohibit:

Sponsors, nominators, employers or other third parties from making a personal gain from their position in a payment for visas arrangement; and
Current or prospective visa holders obtaining temporary or permanent residency in Australia or having the opportunity to work in Australia by paying an employer for a job.

Which visas are affected?

The new provisions apply to the following visa pathways:

Subclass 186 (Employer Nomination Scheme) visa
Subclass 187 (Regional Sponsored Migration Scheme) visa
Subclass 401 (Long Stay Activity) visa
Subclass 402 (Training and Research) visa in the Research stream
Subclass 420 (Temporary Work (Entertainment)) visa
Subclass 457 (Temporary Work (Skilled)) visa
Subclass 488 (Superyacht Crew) visa

The new provisions also require sponsors, nominators, and visa applicants to state whether or not they have actively participated in conduct that contravenes the new laws.

The requirement to provide a certification, declaration, or statement of the above is mandatory.

At the time of writing of this article, the Immigration Department has indicated that the declarations will be incorporated within the relevant application forms within the following timeline:

Within the online application form from 14 December 2015:
- Subclass 457 (Temporary Work (Skilled)) visa
Within the paper application form from 14 December 2015:
- Subclass 488 (Superyacht Crew) visa
Within the paper application form by end of January 2016:
- Subclass 401 (Long Stay Activity) visa
- Subclass 402 (Training and Research) visa in the Research stream
- Subclass 420 (Temporary Work (Entertainment)) visa
Within the online application form during 2016:
- Subclass 186 (Employer Nomination Scheme) visa
- Subclass 187 (Regional Sponsored Migration Scheme) visa

If you are lodging one of the above applications and the declaration has not yet been incorporated into the application form, it is strongly recommended that:

Sponsors and Nominators include a separate declaration with their application certifying whether they have/have not engaged in conduct in relation to the application that constitutes a contravention of s245AR of the Migration Act 1958; and
Visa applicants include a separate declaration with their application certifying whether they have/have not engaged in conduction in relation to the application that constitutes a contravention of s245AS of the Migration Act 1958.

What type of conduct is caught?

In general terms, “payment for visas” conduct relates to the asking for, receiving, offering to provide, or providing a benefit in return for a sponsorship-related event.

A “sponsorship-related event” is defined in s245AQ of the Migration Act 1958 (Cth) and covers a broad range of events including, but not limited to:

A person entering into a sponsorship arrangement, including a labour agreement or work agreement, or making a nomination in relation to a visa affected by this new law
The employment or engagement of a person in work or an activity with the sponsor
The termination or withdrawal of the sponsorship and/or the nomination that is associated with the employment of the sponsored visa holder or visa applicant in an approved position or activity, including threats to withdraw.

A “benefit” is defined to include a payment, the deduction of an amount, real or personal property, an advantage, a service or a gift.

According to the Immigration Department, in the “payment for visas” context, this would cover salary deductions, inflated payments for goods or services and work undertaken by family members for free or at below-award rates.

Where a “benefit” is asked for, received, offered or provided in association with a “sponsorship-related event”, this is considered to be participation in “payment for visas” activity and contravenes the new laws that prevent “payment for visas” conduct.

Application charges

Under pre-existing Migration Regulations 1994 (Cth):

There is already a prohibition on sponsors (under the 457, 402 and 420 regimes) passing on sponsorship and nomination charges (and any related migration agent fees) to visa applicants or third parties.
These sponsors are not expressly required to pay Department visa application charges (and any related migration agent fees) that relate to the visa application charge.
Rather a sponsor and visa applicant are able to reach agreement on who would be responsible for the visa application fees.

A question arises whether the new provisions require sponsors and employers to pay for visa application charges (and any related migration agent fees).

While further clarification is required from the Department, it is our view that the pre-existing position remains the same. That is, a sponsor/employer is entitled to negotiate with the prospective visa concerning the party that will be required to pay the visa application charges (and, if needed, any related migration agent fees).

It is expected the Department will be providing further commentary on this point.

Please click this link to contact Visa Lawyers Australia if you have any questions concerning this article.