Non-compliant business sponsors will be on notice as new regulations were passed last week that will require the Minister of Immigration, Citizenship and Multicultural Affairs (presumably through the Department of Home Affairs’ website) to publish information on sanctioned business sponsors from 13 December 2018. Also from this date, the Secretary of the Department of Home Affairs will be able to request the tax file number from certain people to verify compliance with visa conditions and sponsor obligations, which may result in an increase in the number of visa refusals and cancellations. Technical amendments have also been made to give more transparency on the review rights of sponsored or nominated applicants who have their visa refused.
Publishing sanctioned business sponsors obligation
An update to this article can be found here: https://www.peakmigration.com.au/news/2019/day/1/data-matching-for-457-and-tss-visa-on-its-way.
For the purposes of deterrence and for public awareness, approved sponsors and former approved sponsors who have received a sanction for sponsor obligations breaches will have their information published on what can only be described as a shame list. The information published will identify:
the sponsor entity, including information such as business name, trading name, and Australian Business Number (ABN), and in some circumstances limited personal information;
the particular sponsor obligation breach; and
the action taken, which may include barring or cancelling their sponsorship, civil penalty orders, accepting an enforceable undertaking, serving an infringement notice, and taking or enforcing a security.
These regulations have been made as relevant amendments to the Act, which was assented to on 31 August 2018 will come into force by way of a proclamation made last week setting 13 December 2018 as the roll out date.
What may be of concern to sponsors is that they will be afforded no procedural fairness when publishing this information, and aggrieved businesses cannot seek civil liability if the information was published in good faith. It is expected, though, that this register will be updated if a decision to sanction is appealed to the Administrative Appeals Tribunal (AAT), and again if that decision is varied or set aside.
It is unknown for how long a sanction will remain in the public domain as there is no expiry limit in the regulations, nor an indication from how far back a sanction must have occurred for it to be published. While the intention may be to keep business sponsors complaint, this list will hopefully provide transparency and public accountability as to whether the Department of Home Affairs treats non-compliant sponsors alike.
Tax file number requests
A further measure to ensure compliance is that the Secretary may request the tax file number of any applicant, visa holder or former holder of a number of temporary and permanent skilled visas. The request can be made to the visa applicant or holder, sponsor or former sponsor, or nominator or former nominator. The provision in the Act provides for the Secretary to request the tax file number directly from the Commissioner for Taxation, which may become the default position.
The list of visas is extensive:
Subclass 124 – Distinguished Talent visa;
Subclass 132 – Business Talent visa;
Subclass 186 – Employer Nomination Scheme visa;
Subclass 187 – Regional Sponsored Migration Scheme visa;
Subclass 188 – Business Innovation and Investment (Provisional) visa;
Subclass 189 – Skilled—Independent visa;
Subclass 190 – Skilled—Nominated visa;
Subclass 457 – Temporary Work (Skilled) visa;
Subclass 476 – Skilled—Recognised Graduate visa;
Subclass 482 – Temporary Skill Shortage visa;
Subclass 485 – Temporary Graduate visa;
Subclass 489 – Skilled—Regional (Provisional) visa;
Subclass 858 – Distinguished Talent visa;
Subclass 887 – Skilled—Regional visa;
Subclass 888 – Business Innovation and Investment (Permanent) visa;
Subclass 890 – Business Owner visa;
Subclass 891 – Investor visa;
Subclass 892 – State/Territory Sponsored Business Owner visa; and
Subclass 893 – State/Territory Sponsored Investor visa.
There are numerous purposes for collecting tax file numbers, the most important of which will be to ensure compliance of sponsor obligations and visa conditions. This should make it easier for the Department of Home Affairs to consider refusing and cancelling visas for which they may have been ineffective in the past judging from recent cancellation statistics. It would not be surprising to see these numbers rise.
The information obtained is also allowed to be used to develop policies relating to these visa subclasses along with identifying trends and risks.
Review rights for refused sponsor or nominated visas
Following from a period in 2015 of chaos after judicial determinations left many refused sponsored visa applicants without review rights, the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) have been amended to clarify that a refused visa applicant can apply to the AAT if a corresponding nomination has been approved, or has been refused and an application to the Migration and Refugee Division of the AAT has been lodged. For visas where a nomination is not required, the applicant has been sponsored by an approved sponsor.
There are also amendments to allow certain visa applicants who are onshore at the time of application and who did not seek to meet the requirements as a primary applicant (subsequent temporary visa applicants and secondary visa applicants) to be able to seek review if they are refused a visa on the basis on not meeting a secondary visa criterion. This has been done to avoid the any unfair determinations that they must have been sponsored or nominated, which is an impossibility if they are not primary applicants.
Of course, whether a refusal can be reviewed depends on many factors including what visa application was made and where the applicant was at the time of application and decision. Further information can be found on a page dedicated for this situation.