If you’re a TSS Business Sponsor, a new piece of legislation has just been passed by Parliament which may seriously affect you and your business, and in particular your business’s reputation if you have not complied with your Sponsorship Obligations.
What has changed in the new legislation?
The new legislation enables the Minister to publish information about your business, including personal information about you if an action is taken against you as an approved sponsor or a former approved sponsor as a result of a finding by DHA that you failed to satisfy your sponsorship obligations. This is in addition to the other sanctions which may be applied to your business, listed below.
Even worse the Minister is not required to afford you natural justice prior to publishing your information (i.e. forewarn you or ask for reasons why he should not publish the information) and if the Minister publishes incorrect information about your business or you, he has no civil liability for his actions i.e. you cannot sue him for damages or other civil sanctions.
When does the legislation commence?
Even though the legislation was only passed this week, it applies to all actions taken against sponsors since 18 March 2015.
Your Sponsorship Obligations
As we hope you are aware, an approved Business Sponsor must comply with its Sponsorship Obligations. By way of reminder these obligations are to:
- Inform the Department of Home Affairs (DHA) of certain events such as a change in business name, change in business structure, change of directors etc.
- Inform the DHA when one of your TSS employees leaves, or has their employment terminated.
- Inform the DHA of such changes within 28 days of the event occurring.
- Ensure that your TSS employee only works in his or her nominated occupation.
- Ensure the TSS employee has equivalent terms and conditions of any Australian citizen or Australian permanent resident employee and is performing equivalent work.
- Not engage in discriminatory recruitment practices.
- Keep appropriate business and migration records, and produce such records upon request of the DHA.
- Co-operate with inspectors appointed under the Migration Act, which includes DHA inspectors and Fair Work inspectors.
- Pay all costs of becoming a sponsor; all nomination costs and migration agents’ costs associated with the sponsorship and nomination applications, and any associated recruitment costs.
- Pay reasonable and necessary travel costs of your sponsored employee and their family back home at the visa holder’s request when he/she leaves their employment or their visa expires.
Most sponsorship obligations commence on the day your sponsorship is approved or when your first nominee (i.e. TSS or 457 visa holder commences employment) and end two years after your sponsorship ends, or when your last TSS visa holder ceases working for you.
How does the DHA know that I have complied with my Sponsorship Obligations?
The DHA monitors your compliance with your sponsorship obligations when your sponsorship approval commences and for up to 5 years after your sponsorship approval ends. The DHA also monitors your sponsored employees.
You will be aware you’re being monitored when you receive either:
- a site visit from the DHA/FWA inspectors (generally unannounced) and/or
- receive a letter or email from the DHA requesting information and records from you.
Monitoring may also take place via the data exchange program that the DHA has with other Commonwealth agencies such as the the ATO and other State/Territory agencies.
What happens if I haven’t complied with my Sponsorship Obligations?
If you are found not to have complied with your obligations, you may be subject to the following sanctions:
- Being barred from sponsoring further visa holders.
- Cancelling your sponsorship approval (If this happens all of your TSS/457 visa holders visas will be cancelled as well).
- Requiring you to enter into an enforceable undertaking i.e. that you give a written promise to rectify the breaches.
- Civil fines up to $12,600 or court imposed civil penalties up to $63,000.
What do I do if I think I may have breached my sponsorship obligations, or I’m not sure whether or not I have?
Contact an immigration law firm such as AHWC Immigration Law which has expertise dealing with DHA business monitoring and compliance. We have helped many businesses ranging from large global enterprises, small and large franchisors, and small to medium size business entities. We are able to quickly and nimbly respond to DHA requests on your behalf, and any notices from the Department indicating their intention to take action against you. We will assist you to collate relevant evidence in the correct format and prepare formal written submissions to support your case.