It isn’t just the applicant that can get into hot water with the Department of Home Affairs (DOHA). All approved business sponsors must abide by the Sponsorship Obligations, that are part of holding their sponsorship status.
Failure to satisfy Sponsorship Obligations may lead to the cancellation or barring of their sponsorship.
Standard and accredited business sponsors must notify the DOHA, within 28 calendar days, if any of the following occurs:
- The sponsor will be paying or has paid for return travel costs of the visa holder, or any of their dependents.
- The employment of the visa holder has ended or will end.
- The business no longer exists as a legal entity.
- The work duties that are carried out by the visa holder have changed.
- The sponsor is unable to pay debts (Within the meaning of the Subsections 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001).
You must also let DOHA know in writing if you have any changes in:
- Legal name
- Trading name
- Registration details
- Business structure
- Ongoing communication contact
- Owners, directors, principals or partners
- Business address
To inform the DOHA, you must:
- Send an email to [email protected], or
- Complete the Notification of sponsor changes form in ImmiAccount
If a sponsor fails to follow these Sponsorship Obligations than their sponsorship can potentially be barred or cancelled.
What happens if you breach your Sponsorship Obligations?
A breach of Sponsorship Obligation/s must be immediately rectified. For example, if the cessation of employment of the visa holder is not reported to the Department, then the sponsor should notify the Department as soon as the breach is identified. This gives the sponsor the opportunity to change their systems or processes so that similar breaches do not occur in the future. If the sponsor is a repeat offender, they may be further investigated by the Department.
After identifying the breach and notifying the Department, there are a variety of possible outcomes that could occur. Although first-time offenders are likely to avoid any severe penalties, repeat offenders are likely to receive a warning letter in relation to their sponsorship status. For serious cases, the sponsor may face the cancellation or barring of their sponsorship.
One of the main considerations the Department make on the sanction, is what effect it will have on the sponsor. The Department must be satisfied that:
- The sanction that has been put in place is commensurate with the failures that have happened.
- The sanction applied will deter the sponsor and other sponsors, that operate within the programme, from committing future non-compliance.
The Department will also take the size of the business, as well as the businesses’ reliance on the sponsorship of overseas workers, into account when implementing a sanction.
If the sponsorship is barred, they will no longer have the right to sponsor any TSS visa holders. This bar may also impact applications that have been made through the Employer Nomination Scheme. If the sponsorship is cancelled, the consequences will be far more serious, as any existing TSS visa holders within the business may be referred to the cancellation unit.
What are the types of sanctions that could be put in place?
If you do not meet your Sponsorship Obligations, you could be faced with one or more of the following actions:
The Department may:
- Bar you from sponsoring any additional visa holders for a specified time.
- Not approve your application for sponsorship for this or any other visa.
- Cancel existing sponsorship approvals
You may be asked to enter into an enforceable undertaking. This will require you to make a promise, in writing, in relation to completing certain actions to show you will rectify your failures and will make sure that the same mistake won’t happen again.
The Department may:
- Issue you an infringement notice which could be up to AUD12,600 for a body corporate and AUD2520 for an individual for each failure.
- Apply to a court for a civil penalty order of up to AUD63,000 for a body corporate and AUD12,600 for an individual for each failure.
How to avoid cancellation or barring of your business sponsorship:
In most circumstances, sponsors can prevent the cancellation or bar of sponsorship by putting in place systems and processes which ensure the sponsor is up to date with their obligations to the Department. Sponsors must:
- Ensure your employee works only within their nominated occupation
- Ensure equivalent terms and conditions of employment.
- Do not engage in discriminatory recruitment practices
- Consistently review your record keeping and make it easy to access visa grants and nomination.
- Pay return travel costs of your sponsored employee and any sponsored family members that allow them to leave Australia.
- Assume all costs of becoming a sponsor, nomination charges and migration agent costs that are commonly associated with sponsorship and nomination applications.
- Be ready to provide records or information to the Department.
- Make sure you monitor and review your sponsored population and stay on top of changes to the visa status of your sponsored employees.
- Seek professional advice if your current system is not working.
If you need assistance or advice with your visa application, Results Migration are the best in the field, with a team of experienced migration lawyers and registered migration agents that are available to guide you through this complex area of law. Call Results Migration on 1800 808 717 or email us on [email protected] and book your free consultation today!