Charging for a Migration Outcome Bills Receives Royal Assent

On the 30 November 2015, a Parliamentary Bill that has been in the process of approval since it was introduced and read the first time on 16 September 2015, finally received Royal Assent. The legislative changes to Australian immigration law is implementing one of the recommendations from last year’s independent review of the 457 visa programme.

It was no doubt that “paying for a visa” was excellent grounds for a visa refusal because such a position was not genuine, however, this legislation goes further.

In essence these amendments establishes a criminal and civil penalty regime for anyone to give or receive a benefit in return for a migration outcome, and also provides provisions to cancel a visa should the visa holder have engaged in such conduct. It recognises that it is unacceptable for such practices to occur and that exploitation is the inevitable outcome.

This does not just target unscrupulous employers, but also visa applicants or any third parties who offer or provide a benefit for a “sponsorship-related event”. A “sponsorship-related event” encompasses a person entering into a sponsorship arrangement or nominating a person in relation to certain sponsored visas. In the Explanatory Memorandum, and at present, this includes the following visa subclasses:

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

It also considers that exploitation, and therefore a situation where a benefit may be extracted, could be foreseen where a visa applicant or holder is threatened with their employment being terminated, where their nomination is withdrawn, or to simply nominate a family member. Maximum criminal penalties are 2 years imprisonment or a fine equivalent to $64,000 for an individual person or $324,000 for a body corporate. Civil penalties applicable to the sponsor, visa applicant or any third party who received, provides or offers a benefit related to a sponsorship related offence will equate to $43,200 for an individual person or $216.000 for a body corporate.

The question, besides why it took so long, is why has this not been extended to all visas that involve sponsorship? Any visa that requires sponsorship or nomination, and therefore reliance on another person is open to abuse. It seems strange that family visas (and partner visas especially) did not receive the same treatment.