Sponsorship Obligations

 
 

MARKET SALARY RATES

Unless the employee earns more than $250,000 per annum the employer must match the market in pay conditions:

Reg 2.79(2)

the person must ensure that the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment that the person provides, or would provide, to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

 

PAY RETURN TRAVEL OF VISA HOLDER

 

Reg 2.80 applies to:

(d) a standard business sponsor of a primary sponsored person or a secondary sponsored person (the sponsored person), if:

(i) the sponsored person holds a Subclass 457 (Business (Long Stay)) visa; or

(ii) the last substantive visa held by the sponsored person was a Subclass 457 (Business (Long Stay)) visa.

The obligations are set out as follows:

(2) The person must pay the travel costs of the primary sponsored person or the secondary sponsored person:

(a) if the costs have been requested in writing by:

(i) the Minister on behalf of the primary sponsored person or the secondary sponsored person; or

(ii) the primary sponsored person; or

(iii) the primary sponsored person on behalf of the secondary sponsored person; or

(iv) the secondary sponsored person; or

(v) the secondary sponsored person on behalf of the primary sponsored person; and

(b) that have not already been paid in accordance with this regulation; and

(c) that are reasonable and necessary.

(3) The request to pay travel costs must:

(a) specify the person or persons whose travel will be funded by the costs; and

(b) specify the country that the person, whose travel will be funded, holds a passport for and will travel to; and

(c) if the person is a multiple passport holder — specify the country that the person holds a passport for and wants to travel to; and

(d) be made while the person whose travel will be funded is the holder of …..the Subclass 457 (Business (Long Stay)) visa.

(4) Without limiting paragraph (2)(c), a person is taken to have paid reasonable and necessary costs if:

(a) the costs include the cost of travel from the primary sponsored person’s usual place of residence in Australia to the place of departure from Australia; and

(b) the costs include the cost of travel from Australia to the country the person specifies in accordance with subregulation (3); and

(c) the costs are paid within 30 days of receiving the request for costs; and

(d) the costs are for economy class air travel or the equivalent of economy class air travel.

(5) The obligation mentioned in subregulation (2):

(a) starts to apply:

 (i) …

(ii) if the primary sponsored person or secondary sponsored person holds a …Subclass 457 (Business (Long Stay)) visa:

(A) on the day on which the Minister approves a nomination by the person that identifies the primary sponsored person; or

(B) if the primary sponsored person does not hold the visa on the day the Minister approves the nomination — on the day on which the primary sponsored person is granted the visa on the basis of being identified in an approved nomination by the person; and

(b) for a primary sponsored person — ends on the earliest of:

(i) the day on which the Minister approves a nomination under section 140GB of the Act by another approved sponsor in which the primary sponsored person is identified; and

(ii) the day on which the primary sponsored person is granted a further substantive visa that:

(A) is a visa of a different subclass to the last substantive visa held by the primary sponsored person; and

(B) is in effect; and

(iii) the first day on which each of the following has occurred:

(A) the primary sponsored person has left Australia;

 

(B) …. the Subclass 457 (Business (Long Stay)) visa has ceased to be in effect;

 (C) if:

(I) the primary sponsored person held a Subclass 020 (Bridging B) visa when the primary sponsored person left Australia; and

(II) the last substantive visa held by the primary sponsored person was a .. Subclass 457 (Business (Long Stay)) visa;

the bridging visa has ceased to be in effect; and

(c) for a secondary sponsored person — ends on the earliest of:

(i) the day on which the Minister approves a nomination by another approved sponsor in which the primary sponsored person is identified; and

(ii) the day on which the secondary sponsored person is granted a further substantive visa that:

(A) is a visa of a different subclass to the last substantive visa held by the secondary sponsored person; and

(B) is in effect; and

(iii) the first day on which each of the following has occurred:

(A) the secondary sponsored person has left Australia;

 (B) …. the Subclass 457 (Business (Long Stay)) visa has ceased to be in effect;

 (C) if:

(I) the secondary sponsored person held a Subclass 020 (Bridging B) visa when the secondary sponsored person left Australia; and

(II) the last substantive visa held by the secondary sponsored person was a … Subclass 457 (Business (Long Stay)) visa;

the bridging visa has ceased to be in effect.

  

COSTS OF LOCATING OR REMOVING AN UNLAWFUL NON-CITIZEN

Reg 2.81 Obligation to pay costs incurred by the Commonwealth to locate and remove unlawful non-citizen

(1) This regulation applies to a person who is or was an approved sponsor.

(2) The person must pay costs incurred by the Commonwealth:

(a) if the costs were incurred by the Commonwealth in taking either or both of the following actions in relation to the primary sponsored person or secondary sponsored person:

(i) locating, as an unlawful non-citizen, the primary sponsored person or the secondary sponsored person;

(ii) removing, as an unlawful non-citizen, the primary sponsored person or the secondary sponsored person from Australia; and

(b) if the Minister has requested the payment of the costs by written notice in the manner specified in subregulation (5); and

(c) if the costs were incurred by the Commonwealth within the period mentioned in subregulation (6).

(3) However, if the person has already paid the costs of return travel in accordance with the sponsorship obligation mentioned in regulation 2.80 (the return costs), the person is liable to pay to the Commonwealth only the difference between:

(a) the lesser of:

(i) the actual costs incurred by the Commonwealth in taking 1 or more of the actions mentioned in paragraph (2)(a); or

(ii) the costs up to the limit prescribed under paragraph 140J(1)(a) of the Act, as prescribed in subregulation (4); and

(b) the return costs that have already been paid by the person.

(4) For paragraph 140J(1)(a) of the Act, the limit in relation to the obligation at subregulation (2) is $10 000.

(5) ….

(6) For paragraph 2(c):

(a) in relation to a primary sponsored person — the period within which the Commonwealth must incur the costs:

(i) starts on the day on which the primary sponsored person becomes an unlawful non-citizen; and

(ii) ends at the moment when the primary sponsored person leaves Australia; and

(b) in relation to a secondary sponsored person — the period within which the Commonwealth must incur the costs:

(i) starts on the day on which the secondary sponsored person becomes an unlawful non-citizen; and

(ii) ends at the moment when the secondary sponsored person leaves Australia.

(7) The obligation mentioned in subregulation (2):

(a) in relation to a primary sponsored person:

(i) starts to apply on the day on which the primary sponsored person becomes an unlawful non-citizen; and

(ii) ends 5 years after the time at which the primary sponsored person leaves Australia; and

(b) in relation to a secondary sponsored person:

(i) starts to apply on the day on which the secondary sponsored person becomes an unlawful non-citizen; and

(ii) ends 5 years after the time at which the secondary sponsored person leaves Australia.

(8) In this regulation:

costs, in relation to the removal of a former primary sponsored person or a former secondary sponsored person from Australia, has the same meaning as in paragraph (b) of the definition of costs in section 207 of the Act.

 

WORKING IN NOMINATED OCCUPATION

2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity

             (1)  This regulation applies to:

                     (a)  a person who is or was an approved sponsor in relation to a primary sponsored person if:

                              (i)  the primary sponsored person holds a visa in relation to which the primary sponsored person was required to be nominated by an approved sponsor; or

                             (ii)  an occupation, a program or an activity was required to be nominated in relation to the primary sponsored person by an approved sponsor; and

                     (b)  a person who is or was an approved sponsor in relation to a person who was a primary sponsored person if:

                              (i)  the last substantive visa held by the primary sponsored person was a visa in relation to which the primary sponsored person was required to be nominated by an approved sponsor; or

                             (ii)  an occupation, a program or an activity was required to be nominated in relation to the primary sponsored person by an approved sponsor.

             (2)  If the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa, or the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa, the person must ensure that the primary sponsored person:

                     (a)  does not work in an occupation unless both of the following apply:

                              (i)  the occupation was nominated by the person for the primary sponsored person under subsection 140GB(1) of the Act;

                             (ii)  the nomination was approved by the Minister under subsection 140GB(2) of the Act; or

                     (b)  is not employed in an activity unless both of the following apply:

                              (i)  the activity was nominated by the person for the primary sponsored person under regulation 1.20G or 1.20GA (as in force immediately before 14 September 2009);

                             (ii)  the nomination was approved by the Minister under regulation 1.20H (as in force immediately before 14 September 2009); or

                     (c)  is not employed in an activity unless both of the following apply:

                              (i)  the activity was nominated by the person for the primary sponsored person under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009;

                             (ii)  the nomination was approved by the Minister under subsection 140GB(2) of the Act.

          (2A)  Subject to subregulation (2B), if:

                     (a)  the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa; or

                     (b)  the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa;

the person must ensure that:

                     (c)  if the person is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the person’s approval as a standard business sponsor, or at the time of the last approval of a variation to the person’s term of approval as a standard business sponsor—the primary sponsored person is engaged only as:

                              (i)  an employee of the person; or

                             (ii)  an employee of an associated entity of the person; or

                     (d)  if the person is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the person’s approval as a standard business sponsor, or at the time of the last approval of a variation to the person’s term of approval as a standard business sponsor—the primary sponsored person is engaged only as an employee of the person; or

                     (e)  if the person is or was a party to a work agreement—the primary sponsored person is engaged only as an employee of the person.

        (2AA)  In addition to subregulation (2A), if the person is, or was, a standard business sponsor, the person must ensure that, if the nominated occupation is not an occupation specified by the Minister in an instrument in writing for sub‑subparagraph 2.72(10)(e)(iii)(B):

                     (a)  the primary sponsored person is employed under a written contract of employment; and

                     (b)  if the person is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the person’s approval as a standard business sponsor, or at the time of the last approval of a variation to the person’s term of approval as a standard business sponsor:

                              (i)  the person does not engage in activities that relate to the recruitment of a visa holder, an applicant for a visa or a proposed applicant for a visa for the purpose of supplying the holder, applicant or proposed applicant to a business that is not associated with the person; and

                             (ii)  the person does not engage in activities that relate to the hire of a visa holder to a business that is not associated with the person; and

                     (c)  if the person is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the person’s approval as a standard business sponsor, or at the time of the last approval of a variation to the person’s term of approval as a standard business sponsor:

                              (i)  the person does not engage in activities that relate to the recruitment of a visa holder, an applicant for a visa or a proposed applicant for a visa for the purpose of supplying the holder, applicant or proposed applicant to any other business; and

                             (ii)  the person does not engage in activities that relate to the hire of a visa holder to any other business.

        (2AB)  The person’s obligation in subregulation (2AA) applies only in relation to:

                     (a)  a primary sponsored person:

                              (i)  who holds a Subclass 457 (Temporary Work (Skilled)) visa; or

                             (ii)  whose last substantive visa held was a Subclass 457 (Temporary Work (Skilled)) visa; and

                     (b)  a primary sponsored person:

                              (i)  who holds a Subclass 457 (Temporary Work (Skilled)) visa on the basis of satisfying the criteria in subclause 457.223(4) of Schedule 2; or

                             (ii)  whose last substantive visa was a Subclass 457 (Temporary Work (Skilled)) visa held on the basis of satisfying the criteria in subclause 457.223(4) of Schedule 2.

          (2B)  For subregulation (2A), if the Minister specifies an occupation in an instrument in writing for this subregulation, a primary sponsored person may be engaged in that occupation as an independent contractor by:

                     (a)  the person; or

                     (b)  the person an associated entity of the person.

          (2C)  …

             (3)  The obligations mentioned in subregulations (2), (2A) and (2C):

                     (a)  start to apply:

                              (i)  on the day on which the Minister approves a nomination by the person that identifies the primary sponsored person; or

                             (ii)  if the primary sponsored person does not hold a visa mentioned in subregulation (1) on the day the Minister approves the nomination—on the day on which the primary sponsored person is granted the visa on the basis of being identified in an approved nomination by the person; or

                            (iii)  if the primary sponsored person was not identified in an approved nomination—the day on which the primary sponsored person is granted a Subclass 457 (Temporary Work (Skilled)) visa on the basis of the person agreeing in writing to being the approved sponsor in relation to the primary sponsored person; and

                     (b)  end on the earliest of:

                              (i)  the day on which the Minister approves a nomination under section 140GB of the Act by another approved sponsor in which the primary sponsored person is identified; and

                             (ii)  the day on which the primary sponsored person is granted a further substantive visa that:

                                        (A)  is a visa of a different subclass to the last substantive visa held by the primary sponsored person; and

                                        (B)  is in effect; and

                            (iii)  the first day on which each of the following has occurred:

                                        (A)  the primary sponsored person has left Australia;

                                        (B)  the visa granted to the primary sponsored person on the basis of being identified in an approved nomination by the person has ceased to be in effect;

                                        (C)  if:

                                                     (I)   the primary sponsored person held a Subclass 020 (Bridging B) visa when the primary sponsored person left Australia; and

                                                    (II)   the last substantive visa held by the primary sponsored person was the visa granted to the primary sponsored person on the basis of being identified in an approved nomination by the person;

                                               the bridging visa has ceased to be in effect.

 

RECOVERY OF COSTS

Reg 2.87 sets out the obligations for the sponsor not to recover costs associated with the 457 sponsorship and nomination. Costs which cannot be recovered include the government statutory charges in relation to the sponsorship and nomination applications and any migration agent costs.

 

The writer has come across a number of cases where sponsors have been monitored by the Department and found to be breach of Reg 2.87, where service agreements with migration agents have been used as evidence that a breach has occurred. In addition, the Sponsor Monitoring Unit (which operates as part of the Australian Border Force) will often examine bank account statements of employers and its employees to determine if there is any financial paper trail indicating that the sponsor has been recovering costs from its 457 visa workers.

 

It is worth pointing out that while Reg 2.87 prevents a sponsor from recovering the costs of the sponsorship and nomination, it does not prevent a sponsor from recovering the costs of the visa application. In other words, a sponsor would not be breach its obligations by requiring its employees to be fully responsible for the cost of their 457 visa application (including any migration agent costs in relation to the visa application).

 

2.87  Obligation not to recover, transfer or take actions that would result in another person paying for certain costs

             (1)  This regulation applies to a person who is or was an approved sponsor.

          (1A)  The person:

                     (a)  must not take any action, or seek to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs:

                              (i)  associated with the person becoming an approved sponsor; or

                             (ii)  associated with the person being an approved sponsor; or

                            (iii)  associated with the person being a former approved sponsor; or

                            (iv)  that relate specifically to the recruitment of a non‑citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

                     (b)  must not take any action, or seek to take any action, that would result in another person paying to the person some or all of the costs, including migration agent costs:

                              (i)  associated with the person becoming an approved sponsor; or

                             (ii)  associated with the person being an approved sponsor; or

                            (iii)  associated with the person being a former approved sponsor; or

                            (iv)  that relate specifically to the recruitment of a non‑citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

                     (c)  if the person has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:

                              (i)  a Subclass 402 (Training and Research) visa; or

                             (ii)  a Subclass 416 (Special Program) visa; or

                            (iii)  a Subclass 488 (Superyacht Crew) visa;

                            must not take any action, or seek to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder; and

                     (d)  if the person has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:

                              (i)  a Subclass 402 (Training and Research) visa; or

                             (ii)  a Subclass 416 (Special Program) visa; or

                            (iii)  a Subclass 488 (Superyacht Crew) visa;

                            must not take any action, or seek to take any that would result in another person paying to the person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder.

          (1B)  The person:

                     (a)  must not recover from another person some or all of the costs, including migration agent costs:

                              (i)  associated with the person becoming an approved sponsor; or

                             (ii)  associated with the person being an approved sponsor; or

                            (iii)  associated with the person being a former approved sponsor; or

                            (iv)  that relate specifically to the recruitment of the primary sponsored person, or a non‑citizen, for the purposes of a nomination under subsection 140GB(1) of the Act; and

                     (b)  must not seek to recover from another person some or all of the costs, including migration agent costs:

                              (i)  associated with the person becoming an approved sponsor; or

                             (ii)  associated with the person being an approved sponsor; or

                            (iii)  associated with the person being a former approved sponsor; or

                            (iv)  that relate specifically to the recruitment of the primary sponsored person, or a non‑citizen, for the purposes of a nomination under subsection 140GB(1) of the Act; and

                     (c)  if the person has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:

                              (i)  a Subclass 402 (Training and Research) visa; or

                             (ii)  a Subclass 416 (Special Program) visa; or

                            (iii)  a Subclass 488 (Superyacht Crew) visa;

                            must not recover from another person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder; and

                     (d)  if the person has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:

                              (i)  a Subclass 402 (Training and Research) visa; or

                             (ii)  a Subclass 416 (Special Program) visa; or

                            (iii)  a Subclass 488 (Superyacht Crew) visa;

                            must not seek to recover from another person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder.

          (2A)  In addition to subregulations (1A) and (1B), if:

                     (a)  the person is or was:

                              (i)  a domestic worker sponsor in relation to a primary sponsored person or a secondary sponsored person (the sponsored person); or

                             (ii)  a religious worker sponsor in relation to a sponsored person; or

                            (iii)  a long stay activity sponsor in relation to a sponsored person; and

                     (b)  either:

                              (i)  the primary sponsored person holds a Subclass 401 (Temporary Work (Long Stay Activity)) visa in the Religious Worker stream or the Domestic Worker stream; or

                             (ii)  the last substantive visa held by the primary sponsored person was a Subclass 401 (Temporary Work (Long Stay Activity)) visa in the Religious Worker stream or the Domestic Worker stream; or

                            (iii)  the sponsored person holds a Subclass 427 (Domestic Worker (Temporary)—Executive) visa or a Subclass 428 (Religious Worker) visa; or

                            (iv)  the last substantive visa held by the sponsored person was a Subclass 427 (Domestic Worker (Temporary)—Executive) visa or a Subclass 428 (Religious Worker) visa;

the person must not recover or seek to recover from the sponsored person any expenditure by the person in relation to financial support of the sponsored person in Australia.

             (3)  If the person is or was approved as a sponsor in a class of sponsor under subsection 140E(1) of the Act, the obligations mentioned in subregulations (1A), (1B) and (2A):

                     (a)  start to apply on the day on which the person is approved as a sponsor; and

                     (b)  end on the day on which each of the following has occurred:

                              (i)  the person ceases to be an approved sponsor;

                             (ii)  there is no primary sponsored person or secondary sponsored person in relation to the person.

             (4)  If the person is or was a party to a work agreement, the obligations mentioned in subregulations (1A), (1B) and (2A):

                     (a)  start to apply on the day on which the work agreement commences; and

                     (b)  end on the day on which each of the following has occurred:

                              (i)  the person ceases to be a party to a work agreement;

                             (ii)  there is no primary sponsored person or secondary sponsored person in relation to the person.

 

TRAINING OBLIGATION


2.87B Obligation to provide training

             (1)  This regulation applies to a person who was lawfully operating a business in Australia at the time of:

                     (a)  the person’s approval as a standard business sponsor; or

                     (b)  the approval of a variation to the person’s approval as a standard business sponsor.

             (2)  If, during all or part of:

                     (a)  the period of 12 months commencing on the day the person is approved as a standard business sponsor; or

                     (b)  a period of 12 months commencing on an anniversary of that day;

the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.

             (3)  If, during all or part of:

                     (a)  the period of 12 months commencing on the day the terms of the person’s approval as a standard business sponsor are varied; or

                     (b)  a period of 12 months commencing on an anniversary of that day;

the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.

             (4)  The obligations referred to in subregulations (2) and (3) start to apply on the day the person is approved as a standard business sponsor.

             (5)  If the period of the person’s approval as a standard business sponsor is less than 6 years, the obligation referred to in subregulation (2) or (3) ends 3 years after the person is approved as a standard business sponsor.

             (6)  If the period of the person’s approval as a standard business sponsor is at least 6 years, the obligation referred to in subregulation (2) or (3) ends 6 years after the person is approved as a standard business sponsor.

Barbara DavidsonSponsorship Obligations