This article will discuss the effects of the sponsor’s failure to satisfy sponsorship obligations. Furthermore, it explores the actions that the Minister may take against a sponsor. Sections 140K to 140O of the Migration Act outline these points.
The Migration Act 1958 sets out the sponsorship obligations. Individuals and businesses who sponsor a visa holder to come to Australia must meet these obligations. Moreover, these obligations ensure that employers treat sponsored visa holders fairly. It also ensures that the sponsored employees have the opportunity to succeed in Australia.
It is important to understand the sponsorship obligations and the consequences of non-compliance. This is because sponsors can then help ensure their sponsored visa holders have a successful experience in Australia.
Section 140K: Sanctions for Failing to Satisfy Sponsorship Obligations
This Section enumerates the actions that the Minister may take against an approved sponsor for failure to satisfy sponsorship obligations. The Minister may do the following acts:
- Bar the sponsor from doing certain things under section 140M (1) if Section 140L prescribes regulations.
- Cancel the person’s approval as a work sponsor or family sponsor under section 140M(1) if Section 140L prescribes regulations.
- Apply for a civil penalty order.
- Accept an undertaking under section 114 of the Regulatory Powers Act from the person.
- Apply for an order under section 115 of the Regulatory Powers Act if the Minister considers that the person has breached such an undertaking.
What if the Person Was a Former Approved Sponsor?
If the person was an approved sponsor, there are still sanctions that the law imposes upon them. The Minister can take the following actions against them for failure to satisfy sponsorship obligations:
- Bar the person under subsection 140M(2) from making future applications for approval as a work sponsor or family sponsor.
- Apply for a civil penalty order.
- Accept an undertaking under section 114 of the Regulatory Powers Act from the person.
- Apply for an order under section 115 of the Regulatory Powers Act if the Minister considers that the person has breached such an undertaking.
Moreover, the approved sponsor or the former approved sponsor may be issued with an infringement notice under regulations made for the purposes of section 506A as an alternative to proceedings for a civil penalty order.
Also, an authorised officer may require and take a security under section 269 or enforce a security already taken under that section.
Can the Minister Publish Information About These Sanctions?
Yes. The Minister must publish the information. This includes personal information, prescribed by the regulations if an action is taken under this section concerning an approved sponsor or former approved sponsor who fails to satisfy an applicable sponsorship obligation.
Such action does not require the Minister to observe any natural justice hearing requirements in publishing such information. Moreover, no civil liability arises from action taken by the Minister in good faith in publishing information.
Section 140L: Regulations May Prescribe Circumstances in Which Sponsor May Be Barred, or Sponsor’s Approval Cancelled
Section 140L answers the question: may the regulations prescribe the circumstances in which the Minister may take action against an approved sponsor or a former approved sponsor? The answer is yes.
The regulations may (or must) prescribe circumstances in which the Minister may take one or more of the actions under section 140M concerning a person who is or was a sponsor if the Minister reasonably believes that the person failed to satisfy a sponsorship obligation.
Moreover, such regulations may prescribe the criteria that the Minister must take into account in determining what action to take under section 140M. The criteria that the regulations prescribe are merely directory in character because section 140L uses the word “may” only.
Section 140M: Cancelling Approval as a Sponsor or Barring a Sponsor
This section stipulates the actions that the minister may take against a sponsor:
- Cancel a sponsor
- Bar a sponsor.
If regulations are prescribed, the Minister may (or must) take one or more of the following actions concerning an approved sponsor. Here are the actions under section 140M:
- Cancel the approval of a person as a work sponsor or family sponsor in relation to a class to which the sponsor belongs.
- Cancel the approval of a person as a work sponsor or family sponsor for all classes to which the sponsor belongs;
- Bar the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals as a work sponsor or family sponsor for different kinds of visa (however described);
- Bar the sponsor, for a specified period, from making future applications for approval as a work sponsor or family sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).
On the other hand, if it is a former approved sponsor, the Minister may (or must) bar the person, for a specific period from making future applications for approval as a work or family sponsor.
Sections 140N and 140O: Process for Cancelling Approval or Barring Approved Sponsor and Waiving a Bar
Section 140N states that the regulations may establish a process for the Minister to:
- Cancel the approval of a person as a work sponsor or family sponsor.
- Place a bar on such a person.
Moreover, the regulations may establish various processes depending on the kind of visa and classes in relation to which a person may be, or may have been, approved as a work sponsor or family sponsor.
Also, Section 140O states that the Minister may waive the bar placed on a sponsor in accordance with the criteria in determining whether the waiver is proper.
Seek Legal Help From a Migration Lawyer
Migration lawyers can help sponsors who have faced sanctions due to their failure to satisfy sponsorship obligations under the Migration Act 1958 in many ways, including:
- Providing legal advice on the sponsorship obligations under the Migration Act and the consequences of failing to meet these obligations.
- Assisting with the sponsorship application process.
- Representing sponsors before immigration authorities if a sponsor is facing an investigation or enforcement action by immigration authorities, a lawyer can represent the sponsor and protect their interests.
- Negotiating with immigration authorities if a sponsor is having difficulty meeting their sponsorship obligations.
If you are a sponsor considering sponsoring a visa holder to come to Australia or are already a sponsor and you need help meeting your obligations, it is a good idea to consult with JB Solicitors. We can help you understand your legal obligations and ensure you comply with the law.
Contact us now.
