Subclass 457: Skilled - Sponsorship Obligations

From 14 September 2009, following the amendments to the Migration Act made by the Migration Legislation Amendment (Worker Protection Act) 2008, the sponsorship obligations apply to an approved sponsor by operation of law.

Regn	Sponsorship Obligations	Comments
2.78	Must cooperate with inspectors. Obligation starts: on the day the standard business sponsorship (SBS) is approved. Obligation ends: 5 years after the approved SBS ceases.	A person is deemed not to have cooperated with inspectors if the person: hinders or obstructs the inspector; conceals, or attempts to conceal, relevant information, people or thing from the inspector; prevents, or attempts to prevent, another person from assisting the inspectors; assaults, threatens or intimidates (or attempts to do so) the inspector or a person assisting the inspector
2.79	Must provide equivalent terms and conditions of employment to primary sponsored person, including Market Salary Rate. Obligation starts: the day the Nomination is approved if existing 457 holder; or the day the visa is granted if not an existing 457 holder. Obligation ends: when the visa holder ceases employment.	Employers must provide terms and conditions of employment no less favourable than those applying to an Australian employee. High income ceiling where market rates does not apply - $180,000 Temporary Skilled Migration Income Threshold (TSMIT) Transitional arrangement for existing workers until 21/12/2009. Effect essentially is that obligation commences when employment starts.
2.80	Must pay travel costs to enable sponsored primary and secondary persons to leave Australia. Obligation starts: the day the Nomination is approved. Obligation ends: the day sponsored person granted another visa; the day the Nomination is approved for the sponsored person to another sponsor; Sponsored person leaves Australia and no longer holds a visa.	Pay travel costs from Australia: must pay the travel costs of the sponsored primary and secondary persons, costs are for economy class airfares or equivalent costs are to be paid within 30 days of receiving request by either visa holder or DIAC. Note: The sponsor is only to pay on a written request from either a sponsored person or DIAC. The sponsor should notify DIAC when the travel cost is paid, so DIAC may cancel the visa to ensure the sponsored person does not return on the same visa and seek to take advantage of the sponsor by requesting payment of return travel costs again.
2.81	Must pay costs incurred by the Commonwealth to locate and remove unlawful non-citizen (include primary and secondary sponsored persons). Obligation starts: on the day the sponsored person becomes an unlawful non-citizen. Obligation ends: 5 years after the sponsored person leaves Australia. The sponsor is only liable for costs up to the point the sponsored person leaves Australia.	The sponsor is only to pay: if the Minister has requested the payment by written notice. These cost will be capped at $10,000 (less any amount paid under travel costs obligation).
2.82	Must keep records of its compliance with the other obligations. Obligation starts: on the day the SBS is approved. Obligation ends: two years after: the approved SBS ceases; and there is no primary or secondary sponsored persons in relation to the sponsor. (No record needs to be kept for more than five years under this obligation.)	Keeping records: All of the records must be reproducible and some must be capable of verification by an independent person. A list of the records that must be kept, including the manner in which the records should be kept Records include and are not limited to: detail of payments of travel costs and notifications to DIAC; DIAC notifications of certain events, e.g. cessation of employment, other changes. Nominated positions/tasks & locations where tasks performed. Salaries paid and other terms and conditions provided to sponsored persons.
2.83	Must provide records and information. Obligation starts: on the day the SBS is approved. Obligation ends: two years after: the approved SBS ceases; and there is no primary or secondary sponsored persons in relation to the sponsor.	The sponsor must provide records or information that goes to determining whether: a sponsorship obligation is being, or has been, complied with; and other circumstances, in which the Minister may take administrative action, exist or have existed; on request and in the manner and timeframe requested.
2.84	Must notify Immigration when certain events occur. Obligation starts: on the day the SBS is approved. Obligation ends: two years after: the approved SBS ceases; and there is no primary or secondary sponsored persons in relation to the sponsor.	This information must be provided by registered post or email, and within 10 days of the event occurring. Examples of these include: cessation, or expected cessation, of the sponsored person's employment; sponsor's change of circumstances - e.g. change address, business name, legal structures, becomes insolvent etc. (pls contact our office for detail.)
2.86	Must ensure primary sponsored person does not work in an occupation other than an approved occupation. Obligation starts: the day the primary sponsored person is granted a 457 visa; or if the primary sponsored person already holds a 457 visa, the day the Nomination is approved. Obligation ends: the day on which the Minister approves a nomination by another sponsor in relation to the primary sponsored person; the day on which the person is granted a further substantive visa; the day the person has left Australia and no longer holds a visa.	The sponsor must ensure that the primary person does not work in an occupation other than the occupation most recently approved - new nomination is required in respect of new occupation. No independent contractors. (This obligation will be strictly monitored and enforced. Sponsor should check with DIAC if the duties of a 457 holder have changed to ensure strict compliance, or apply for a new nomination.)
2.87	Must not recover, or seek to recover, certain costs from a primary sponsored person or secondary sponsored person. Obligation starts/ends: As per Regulation 2.86 above.	Not to recover all or part of the costs (including migration agent costs): that relate specifically to the recruitment of the primary sponsored person; associated with becoming or being a sponsor or former approved sponsor.

Monitoring
From 14 September 2009, DIAC is given expanded powers under the Migration Act to monitor and investigate non-compliance incorporating powers from the Fair Work Act. These powers include:

1. Without force, enter business premises or another place and
• inspect any work, process or object;
• interview any person;
• require a person to tell the whereabouts of a record or document;
• require a person to produce the record or document inspect, and make copies of, any record or document
2. require a person, by notice, to produce a record or document
3. A person is not excused from producing a record or document on ground of self-incrimination.

Monitoring is further supported by Improved Information Sharing amongst Commonwealth, State/Territory government agencies, including:

• Taxation
• Industrial Relations
• Fair Trading
• Registration & Licensing
• Law enforcement
• and others

All 457 visas granted on or after 14/8/2009 are subject to Condition 8501 requiring visa holders to maintain adequate arrangements for health insurance for the duration of their stay in Australia. DIAC officers will use information provided by health insurers to monitor compliance with Condition 8501 and visa holders who fail to comply may have their visas cancelled.

Sanctions
Action the DIAC can take if a 457 sponsor fails to satisfy a sponsorship obligation or other circumstances.

Sanctions for failing to satisfy sponsorship obligations

If the sponsor fails to satisfy a sponsorship obligation, the Minister may take one or more of the following actions: Administrative bar the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing approvals as a sponsor for different kinds of visas; bar the sponsor, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes of sponsor; or cancelling one or all of the sponsor's existing approvals as a sponsor. Civil apply to a Court for a civil penalty order of up to AUD33 000 for a corporation and AUD6600 for an individual for each failure; or issue an infringement notice of up to AUD6600 for a body corporate and AUD1320 for an individual for each failure.

Other circumstances

There are a number of other circumstances (besides failure to satisfy a sponsorship obligation) in which the Minister may take the administrative actions described in the dot points above. provision of false or misleading information to the Department of Immigration and Citizenship or the Migration Review Tribunal; the sponsor no longer satisfies the criteria for approval as a sponsor or for variation of a term of that approval; the sponsor has been found by a court or competent authority to have contravened a Commonwealth, state or territory law; a primary sponsored person is found to have contravened a law relating to the licensing,registration or membership required in order to work in the nominated occupation;

Source: DIAC

An adverse finding by DIAC may incur one of the above penalties, and is therefore a significant management risk to a business. You are strongly advised to contact us should you have any questions regarding the 457 Sponsorship Obligations and related issues.