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Sponsorship-benefit offences and civil penalties introduced

Validated finding · five-country-2010-20260922-v118-evidence-presentation-fix

CountryAustralia
Operative dateDecember 14, 2015
CategoryWork migration and sponsorship
Policy toolOffence and civil penalty prohibition
Affected groupParties exchanging benefits for covered australian sponsored-visa events, and executive officers meeting the statutory liability conditions

Policy effect

From December 14, 2015, new sections 245AR and 245AS of the Migration Act 1958 prohibited asking for, receiving, offering or providing a benefit in return for a prescribed sponsorship-related event. The prohibitions applied even if the event did not occur. A benefit included payment or other valuable consideration, deductions, property, advantages, services and gifts. A reasonable payment for a professional service already provided or to be provided by the recipient or a third person was excepted; the person relying on that exception bore an evidential burden. Asking for or receiving a benefit became a criminal offence and attracted civil penalties; offering or providing a benefit attracted civil penalties. The framework also provided conditional executive-officer liability where an officer knew, was reckless or negligent about the corporate contravention, could influence the conduct and failed to take reasonable preventive steps. Covered sponsor classes were standard business, entertainment, superyacht crew, long stay activity, training and research, exchange, religious worker and sport sponsors. Prescribed visas were subclasses 186, 187, 401, 402 in the Research stream, 420, 457 and 488. Covered events included sponsor approval applications or variations; becoming or remaining a work-agreement party; agreeing to sponsor or retaining that agreement; making, including a person in, or retaining covered person or position nominations; employing or engaging a person, or retaining employment or engagement, for the sponsored occupation, position, program or activity; and grant of a covered visa. Implementing regulations also covered non-work-agreement labour agreements and their position nominations. Statutory geographical conditions and foreign-conduct defences in section 245AW applied; the prohibition did not assert universal overseas jurisdiction. The Act separately introduced visa-cancellation powers, and the regulations added nomination and application declarations; these are not treated as additional effects of this single benefit-trading prohibition record. The record identifies the new statutory offence and civil-penalty framework, without claiming that every form of sponsorship-cost recovery had previously been lawful.

Conditions and exceptions

Validated condition or limit: the person relying on that exception bore an evidential burden.

Official source excerpt

Quoted verbatim from the official source below. Ellipses indicate omitted text.

Migration Amendment (Charging for a Migration Outcome) Act 2015 No. 161, 2015 An Act to amend the Migration Act 1958 , and for other purposes Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Amendments Migration Act 1958 Migration Amendment (Charging for a Migration Outcome) Act 2015 No. 161, 2015 An Act to amend the Migration Act 1958 , and for other purposes [ Assented to 30 November 2015 ] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Migration Amendment (Charging for a Migration Outcome) Act 2015 . 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 30 November 2015 2. Schedule 1 A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 14 December 2015 (F2015L01959) Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1 — Amendments Migration Act 1958 1 After subsection 116(1AB) Insert: (1AC) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa ) if he or she is satisfied that: (a) a benefit was asked for or received by, or on behalf of, the person (the visa holder ) who holds the current visa from another person in return for the occurrence of a sponsorship ‑ related event; or (b) a benefit was offered or provided by, or on behalf of, the person (the visa holder ) who holds the current visa to another person in return for the occurrence of a sponsorship ‑ related event. (1AD) Subsection (1AC) applies: (a) whether or not the visa holder held the current visa or any previous visa at the time the benefit was asked for, received, offered or provided; and (b) whether or not the sponsorship ‑ related event relates to the current visa or any previous visa that the visa holder held; and (c) whether or not the sponsorship ‑ related event occurred. 2 Subsections 116(2) and (3) Omit “(1AA) or (1AB)”, substitute “(1AA), (1AB) or (1AC)”. 3 At the end of section 116 Add: (4) In this section: benefit has a … affected by section 245AQ. sponsorship ‑ related event has the meaning given by section 245AQ. 4 Subsection 117(1) Omit “(1AA), or (1AB)”, substitute “(1AA), (1AB) or (1AC)”. 5 Paragraph 140X(aa) After “Subdivision C”, insert “or D”. 6 At the end of Division 12 of Part 2 Add: Subdivision D — Offences and civil penalties in relation to sponsored visas 245AQ Definitions In this Subdivision: benefit includes: (a) a payment or other valuable consideration; and (b) a deduction of an amount; and (c) any kind of real or personal property; and (d) an advantage; and (e) a service; and (f) a gift. executive officer of a body corporate means: (a) a director of the body corporate; or (b) the chief executive officer (however described) of the body corporate; or (c) the chief financial officer (however described) of the body corporate; or (d) the secretary of the body corporate. sponsor class means a prescribed class of sponsor. sponsored visa means a visa of a prescribed kind (however described). sponsorship ‑ related event means any of the following events: (a) a person applying for approval as a sponsor under section 140E in relation to a sponsor class; (b) a person applying for a variation of a term of an approval as a sponsor under section 140E in relation to a sponsor class; (c) a person becoming, or not ceasing to be, a party to a work agreement; (d) a person agreeing to be, or not withdrawing his or her agreement to be, an approved sponsor in relation to an applicant or proposed applicant for a sponsored visa; (e) a person making a nomination under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination; (f) a person not withdrawing a nomination made under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa; (g) a person applying under the regulations for approval of the nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination; (h) a person not withdrawing the nomination under the regulations of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa; (i) a person employing or engaging, or not terminating the employment or engagement of, a person to work in an occupation or position in relation to which a sponsored visa has been granted, has been applied for or is to be applied for; (j) a person engaging, or not terminating the engagement of, a person to undertake a program, or carry out an activity, in relation to which a sponsored visa has been granted, has been applied for or is to be applied for; (k) the grant of a sponsored visa; (l) a prescribed event. 245AR Prohibition on asking for or receiving a benefit in return for the occurrence of a sponsorship ‑ related event (1) A person (the first person ) contravenes this subsection if: (a) the first pe …
Federal Register of LegislationC2015A00161 Schedule1item6 (sections245AQ–245AW); F2015L01961 Schedule1item17; F2015L01959 commencement proclamationOpen official source
Retrieved from https://www.legislation.gov.au/C2015A00161/asmade/2015-11-30/text/original/epub/OEBPS/document_1/document_1.html

Review method

Source-based draft with independent Gemini 3.8 Flash verification

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Other Australia changes operative in 2015