Subsection 140H(1) of the Migration Act 1958 (Act) provides that “… an approved sponsor must satisfy the sponsorship obligations prescribed by the regulations”.
Prescribed obligations include:
Click here to view table.
Proceed with caution
The obligations are relatively easy to follow, however, several points should be borne in mind by the sponsor and any person advising the sponsor.
- For certain obligations there are strict time limits for compliance.
- A sponsorship expiring or otherwise coming to an end does not mean the end of compliance obligations.
- Action can still be taken against the sponsor significantly ‘after the event’. If, for example, the Minister wishes to seek a civil penalty order against a sponsor under s486R of the Act, the Minister may seek this order at any time within 6 years of the time of the breach (s140Q).
- Read carefully
A careful reading of each Regulation is required. For example, a sponsor is required not only to make proper notification about the cessation of a primary sponsored person’s employment but also about the “expected cessation” of a primary sponsored person’s employment. Similarly, by r.2.82, a sponsor is not only obliged to keep a record of moneys paid to a primary sponsored person, but also (where r.2.79 applies to the sponsor) “a record of the non-monetary benefits provided to the primary sponsored person, including the agreed value and the time at which, or the period over which, those benefits were provided”.
- Look beyond the letter of the law
Not everything is written in the letter of the law. The Migration Review Tribunal has, for example, interpreted paying cash to the visa holder as a breach of the sponsor’s obligation to keep records. This follows the Department’s Procedures Advice Manuel, which provides:
… The Department’s position is that cash payments are generally not capable of being verified by an independent person. If a sponsor chooses to pay sponsored persons in cash, the onus is on the sponsor to ensure that they keep records of such payments. To avoid any doubt, sponsors are strongly encouraged to use salary payment methods which clearly meet the requirements of regulation 2.82, such as electronic funds transfers.
The Department considers an independent person is a person who is free from influence or authority of the sponsor, who can establish the correctness of a record on the basis of the presented facts.
It’s a minefield!
Failure to satisfy a sponsorship obligation
A number of actions can be taken where a sponsor fails to satisfy a sponsorship application. Under s140M of the Act these include the cancellation of sponsorship approval (in one or more classes) and barring a sponsor from sponsoring a visa applicant.
At the same time, s140Q of the Act sets breach of the obligations as breach of a civil penalty provision. The relevance of this lies in s486R, which allows the Minister to seek an order from the court that a sponsor pay to the Commonwealth a pecuniary penalty for the fact of breaching one or more of the sponsor’s obligations. The Minister may seek this order at any time within 6 years of the time of the breach and the maximum penalty that can be imposed where a civil penalty order is made is 60 penalty units.
An independent review of the 457 visa programme was announced by Senator the Hon Michaelia Cash on 25 February 2014. One aspect of this review is non-compliance among sponsors, with the aim of the review being the integrity of the 457 programme.
Watch this space!