Maria Jockel, BDO Migration Services National Leader, discusses how the establishment and operation of the Department of Home Affairs intersects with Sponsorship Obligations and the Monitoring of Sponsors by the Australian Border Force. Maria recently gave a presentation on this topic for Legalwise Seminars.
The establishment of the Department of Home Affairs and the Australian Border Force, as its operationally independent enforcement arm, have profound implications for the management of Australia’s borders and migration law and reflect a commitment to a strong regulatory and compliance regime.
The Department of Home Affairs is part of the Home Affairs portfolio. It supports the federation of independent security, law enforcement agencies, including the Australian Border Force, the Australian Security Intelligence Organisation, the Australian Federal Police, the Australian Criminal Intelligence Commission and the Australian Transaction Reports & Analysis Centre.
As the operational enforcement arm of the Department of Home Affairs, the Australian Border Force, under Regional Command, is responsible for Sponsorship Monitoring and Migration Field Compliance.
Both uniformed and non-uniformed sworn officers undertake Sponsorship Monitoring.
The Australian Border Force works collaboratively with employers to identify emerging risks so as to foster high levels of compliance. The Australian Border Force has extensive powers and reach including in regard to monitoring of sponsors and former sponsors. This includes through interviews, site visits, desk auditing, referral to other agencies and/or other sections of the Home Affairs Portfolio as well as for education and awareness-raising activities.
Sponsorship obligations apply to all approved sponsors and former approved sponsors and must include, but are not limited to the following:
- To ensure non-discriminatory employment practices.
- To cooperate with inspectors.
- To ensure equivalent terms and conditions of employment (namely to pay the market salary rate however described) to the primary Subclass 457/482 visa holder.
- To pay prescribed costs of the departure of the visa holder (or a former visa holder) from Australia.
- To pay prescribed costs to the Commonwealth in relation to locating the former visa holder, and removing the former visa holder from Australia.
- To keep records.
- To provide records and information to the Department of Home Affairs.
- To notify the Department of Home Affairs of prescribed changes in the circumstances of an approved sponsor, a former approved sponsor, visa holder or a former visa holder.
- To ensure that a visa holder works or participates in an occupation, program or activity nominated by an approved sponsor (including by preventing the on-hire of a visa holder).
- To require Sponsors not to recover, transfer or take actions that would result in another person paying for certain prescribed costs.
- To require Sponsors to meet (pre August 2018) prescribed training requirements where relevant.
The Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018
The Enhanced Integrity Act, which came into effect on 13 December 2018, significantly strengthens the sanctions against employer sponsors who breach their obligations under the Subclass 457 and its replacement, the Subclass 482 Temporary Skill Shortage (TSS) visas.
It allows the Minister of Home Affairs to publish details of sanctions against sponsors who breach applicable sponsorship obligations from 18 March 2015 (effectively making this amendment retrospective in nature).
It allows the Department of Home Affairs to collect tax file numbers and share data with the Australian Taxation Office as part of regulatory compliance.
The intent of this legislative reform is to increase the integrity of the immigration compliance system, with all businesses facing serious consequences, including reputational damage once an employer’s details are disclosed publicly.
The Department of Home Affairs’ digitalisation of Australia’s visa application system continues to shape the immigration landscape. New technologies and innovative solutions are part of building a modern visa system which facilitates data analytics and intelligence, and supports the Department’s risk management and capability in the entire visa system.
Digitalisation of all aspects of visa and related applications and processes, mean there is greater use of data matching. This allows the sharing of information between the Department of Home Affairs, the Australian Border Force, the Commissioner of the Australian Taxation Office and other agencies.
In turn, this enables the Australian Border Force to identify risks and undertake both ad hoc and targeted sponsorship monitoring and compliance activities.
The Australian Border Force has significant monitoring, compliance, enforcement and sanctions powers under Australia’s increasingly complex immigration laws and regulatory scheme.
The whole-of-government approach, digitalisation, and the automated analysis of data including in the context of the Department of Home Affairs Data Matching Program Protocols with the Australian Taxation Office will further expand the Australian Border Force’s significant powers and reach, including in the monitoring of sponsors.
Maria Jockel is the National Leader in charge of BDO’s national immigration law services to corporate and private clients. She is a Law Institute of Victoria Credited Specialist in immigration law and a registered migration agent in Australia and New Zealand. Acknowledged as one of Australia’s leading immigration specialists, Maria brings a unique depth and breadth of immigration law and corporate and commercial related legal experience from her years of experience. This is complemented by Maria’s former advisory and senior management roles while in government service. Regarded as an authority on immigration law, Maria is listed in “The International Who’s Who of Corporate Immigration Lawyers” (2010-2017) and has been recognised in the peer reviewed “Best Lawyers” in the areas of Immigration law (2008-2017). Maria is a sought after speaker and lecturer, and a prolific author on all aspects of immigration and citizenship law. Contact Maria at [email protected] or connect via LinkedIn