On 14 December new legislation was introduced which makes provision for criminal, civil and administrative sanctions and visa cancellation where payment has been made or a ‘benefit’ obtained in exchange for sponsored work under a range of temporary and permanent employer sponsored visas.
Sponsors, nominating employers and visa applicant’s applying for specified visas will be required to certify (in the case of employers) and declare (in the case of visa applicants) whether or not they have engaged in conduct which would contravene these new provisions.
These provisions affect the following visas:
Temporary (Long Stay Activity) (subclass 401) visa
Training and Research (subclass 402) visa (Research stream)
Temporary Work (Entertainment) (subclass 420) visa
Temporary Work (Skilled) (subclass 457) visa
Superyacht Crew (subclass 488) visa
Employer Nomination Scheme (subclass 186) visa
Regional Sponsored Migration Scheme (subclass 187) visa
What is Payment for Visas?
The new provisions may consider a contravention to have occurred where a party has requested, received, offered or provided a benefit in exchange for a ‘sponsorship-related event’.
A 'sponsorship-related event' may include, but is not limited to:
entering into a sponsorship arrangement which may cover a labour or work agreement, or making a nomination in relation to a visa affected by this new law
employment or undertaking an activity with a sponsor
the threat and/or actual termination or withdrawal of a sponsorship and/or nomination of a visa-holder or applicant.
A 'benefit' can include a payment, the deduction of an amount (eg, salary deductions), real or personal property, an advantage, a service or a gift.
Contravention of the new provisions may give rise to the following penalties:
The maximum civil penalty for individuals is 240 penalty units, which currently amounts to $43,200. The maximum criminal penalty for individuals is two years imprisonment and/or 360 penalty units, which amounts to $64,800.
The maximum fine for bodies corporate amounts to $324,000 for each criminal conviction. The maximum criminal penalty for bodies corporate currently amounts to $216,000
Visa-holders or applicants involved in this conduct may have their visas cancelled. Sponsors may have their sponsorship cancelled or barred as a result of contravention of the 'payment for visa' provisions.