The Migration Act 1958 outlines offences and civil penalties in relation to sponsored visas. Sponsoring visas in Australia comes with both offences and civil penalties. Major offences involve:
- Unauthorised activity
- Sponsoring ineligible people; and
- People smuggling.
Civil penalties target the following:
- Impaired sponsors prohibited employers; and
- Non-compliance with reporting requirements
Read on to learn more about offences and civil penalties for sponsored visas.
Section 245AQ of offences and civil penalties in relation to sponsored visas defines key terms used in the regulations surrounding sponsored visas and work/family sponsorships. Here’s a breakdown:
- Benefits: Anything valuable, from payments and property to services and advantages.
- Executive Officer: Anyone holding a key leadership role in a company, like directors, CEOs, CFOs, or company secretaries.
- Sponsor Class: A specific group of work or family sponsors designated by the government.
- Sponsored Visa: A specific type of visa granted based on sponsorship.
- Sponsorship-Related Event: Any action related to sponsorship, including:
- Applying for sponsor approval (work or family)
- Modifying sponsor approval terms
- Joining/leaving a work agreement
- Becoming/withdrawing an approved sponsor
- Making/withdrawing a nomination for a sponsored visa holder/applicant
- Approving/withdrawing position nominations for sponsored visa holders/applicants
- Employing/engaging someone for a sponsored visa position
- Engaging someone for a sponsored visa program/activity
- Granting a sponsored visa
- Any other event prescribed by the regulations
Section 245AR: Prohibition on Asking for or Receiving a Benefit in Return for the Occurrence of a Sponsorship-Related Event
Section 245AR of offences and civil penalties about sponsored visas says it’s illegal to pay or receive any kind of “benefit” (money, property, favours, etc.) in exchange for helping someone get a sponsored visa. Here’s a breakdown:
- You can’t ask for or get anything in return for helping someone with their sponsored visa (work or family sponsorship).
- This applies even if the visa isn’t granted.
You can still get paid for professional services you provide, like legal advice or immigration assistance, as long as the price is reasonable.
The Burden of Proof:
- If you’re accused of breaking the rule, you’re responsible for proving that any payment you received was for legitimate services.
- The other person doesn’t need to prove you had bad intentions.
Breaking this rule is a crime punishable by up to 2 years in jail or a hefty fine. You can also face a separate civil penalty of 240 penalty units.
Section 245AS: Prohibition on Offering to Provide or Providing a Benefit in Return for the Occurrence of a Sponsorship-Related Event
Section 245AS of offences and civil penalties in relation to sponsored visas slams the door on any shady deals involving sponsored visas. Let’s break it down:
Don’t even think about offering or giving someone anything of value (money, gifts, favours) in exchange for help with your sponsored visa. This includes work and family sponsorships.
This rule applies even if your visa dreams don’t come true. No “quid pro quo” allowed, even if it doesn’t work out.
Legitimate professional services are still fair game. Need legal advice or immigration help? No problem, as long as you’re paying a reasonable price.
The Burden of Proof:
If you’re accused of bribery, the onus is on you to prove the payment was legit. You need to show it was for genuine services, not a shady visa deal.
The other person doesn’t need to read your mind; they just need to show you offered or gave something of value.
Bribery attempts come with a hefty fine of 240 penalty units. That’s a hefty price to pay for a shortcut.
Section 245AT: Criminal Liability of Executive Officers of Bodies Corporate
Section 245AT of offences and civil penalties in relation to sponsored visas establishes a critical principle: executive officers of bodies corporate hold significant responsibility for ensuring compliance with sponsored visa regulations. This formalises a standard of due diligence and accountability to prevent violations within their organisations.
Executive Officer Liability:
This section stipulates that an executive officer may be held criminally liable if:
- The body corporate commits a sponsored visa offence under this subdivision.
- The officer was aware of the potential offence or acted recklessly or negligently regarding its likelihood.
- The officer held a position to influence the company’s conduct relating to the offence.
- The officer failed to take all reasonable steps to prevent the offence.
An executive officer found guilty of contravening Section 245AT of Offences and Civil Penalties About Sponsored faces a penalty of 360 penalty units.
Reasonable Steps Framework:
To determine if an officer adequately fulfilled their duty of prevention, the court considers two key factors:
- Employee and Contractor Training: Did the officer ensure employees, agents, and contractors possessed sufficient knowledge and understanding of sponsored visa compliance requirements relevant to their roles?
- Response to Offences: Once aware of a potential offence, what actions did the officer take to address and rectify the situation?
- Subsections (2) and (3) clarify the court’s assessment framework without diminishing the core responsibility outlined in subsection (1).
- This section reinforces the importance of corporate governance and internal compliance measures for businesses involved in sponsored visa programs.
Section 245AU: Civil Liability of Executive Officers of Bodies Corporate
Section 245AU of offences and civil penalties about sponsored visas establishes a critical safeguard against corporate negligence within the sponsored visa program. This section explicitly holds executive officers of organisations accountable for their role in preventing civil penalty violations related to sponsored visas.
Executive Officer Culpability:
An executive officer is liable for a civil penalty if:
- The organisation commits a civil penalty violation under this subdivision related to sponsored visas.
- The officer was aware of the potential violation or acted recklessly or negligently regarding its likelihood.
- The officer held a position to influence the company’s conduct concerning the violation.
- The officer failed to take all reasonable steps to prevent the violation.
Note: Unlike other civil penalty provisions, proof of the officer’s state of mind is required in this case.
Executive officers found liable to face a hefty civil penalty of 240 penalty units.
Reasonable Steps Framework:
Employee and Contractor Training: Did the officer ensure employees, agents, and contractors possessed sufficient knowledge and understanding of sponsored visa compliance requirements relevant to their roles?
Response to Violations: Once aware of a potential violation, what actions did the officer take to address and rectify the situation?
- Negligence: Conduct involving a significant departure from the standard of care expected of a reasonable person, coupled with a high risk of causing the violation.
- Recklessness: Awareness of a substantial risk of the violation, combined with an unjustifiable decision to allow it to occur despite known circumstances.
Section 245AV: Contravening Civil Penalty Provisions
Section 245AV offences and civil penalties about sponsored visas makes things clear: if a sponsored visa rule specifies a civil penalty for breaking it, then breaking that rule automatically means you’ve also violated the civil penalty provision. Think of it like a double whammy: break a sponsored visa rule, and you’ll face both the consequences of the rule itself and a hefty fine. In short:
- Sponsored visa rules can come with civil penalties attached.
- Breaking the rule equals breaking the civil penalty provision.
- Double the trouble for double the rule-breaking.
Section 245AW: Geographical Scope of Offence and Civil Penalty Provisions
Section 245AW of the Australian Migration Act lays out the legal boundaries where penalties for sponsored visa violations apply. Let’s break it down:
1. Where the Penalty Bites:
- Australia and beyond Penalty applies if your conduct (partially or fully) occurs in Australia, on Australian aircraft/ships, or if you’re an Australian citizen/resident/relevant entity abroad.
- Special case: Penalty also applies if your overseas conduct indirectly violates an Australian visa rule (called an “ancillary contravention”).
2. Defence for Overseas Conduct:
- No penalty abroad: If your violation and its related “main” violation (called “primary contravention”) happen entirely outside Australia (except on Australian aircraft/ships), and you’re not an Australian citizen/resident/relevant entity, and there’s no local penalty for your actions, you’re off the hook.
- Burden of proof: You need to prove you meet these conditions.
3. Attorney-General’s Approval Needed:
Overseas cases require consent: If you’re neither an Australian citizen/resident/relevant entity and your violation occurred entirely abroad, legal proceedings against you need the Attorney-General’s approval.
4. Technical Details:
- Sending things/communications: These count as partly occurring in Australia if sent from/to Australia.
- Defined terms: “Australian aircraft/ship,” “electronic communication,” “foreign country,” etc., have specific legal meanings.
5. Key Takeaways:
- Sponsored visa rules can trigger penalties even for overseas actions.
- Defenses exist for specific scenarios.
- Attorney-General’s approval needed for some overseas cases.
Section 245AX: Treatment of Partnerships
Section 245AX of offences and civil penalties about sponsored visas makes it clear: partnerships play by the same sponsored visa rules as individuals. Here’s the gist:
- Partnerships are treated as “people”: They have the same obligations and face the same consequences as individuals under this section and related provisions of the Act.
- Individual partners get held accountable:
- For offences: Any partner who commits, helps commit, advises, or encourages a violation of a sponsored visa rule within this subdivision is considered personally liable.
- For civil penalties: Any partner who engages in, helps with, advises, or encourages conduct that breaks a civil penalty provision related to sponsored visas is personally liable.
Section 245AY: Treatment of Unincorporated Associations
Section 245AY of offences and civil penalties about sponsored visas delivers a clear message: if you’re on the committee of an unincorporated association (like a club or society), sponsored visa rules apply directly to you. Don’t think the association shield protects you from personal consequences.
Committee members on the hook:
- Breaking the rules: Any committee member who commits, helps commit, advises, or encourages a sponsored visa violation can be personally charged with an offence.
- Facing the fines: If a committee member engages in, helps with, advises, or encourages conduct that breaks a civil penalty provision related to sponsored visas, they can be personally fined.
Committee members can’t wash their hands of responsibility with sponsored visa issues. This ensures everyone plays by the rules and protects the integrity of the visa program.
Our Visa Lawyers
JB Solicitors can provide tailored advice and representation to ensure you navigate sponsored visa matters with confidence. They can walk you through the intricacies of the Migration Act, assess potential risks, and develop strategies to minimise your liability.
Don’t hesitate to contact JB Solicitors today for a comprehensive understanding of your rights and obligations.