Regulation amendments to strengthen the integrity of the temporary skilled visa program

14 September 2009 Legislation Change

Client summary

From 14 September 2009, the Migration Regulations 1994 (‘the Regulations’) are amended to support commencement of the Migration Legislation Amendment (Worker Protection) Act 2008 (the Worker Protection Act), which enhances the framework for the sponsorship of non-citizens seeking entry to Australia for the purposes of work.

The new sponsorship framework strengthens the integrity of the temporary skilled migration programs (both business and non-business) to ensure they are responsive to market needs, while protecting the employment and training opportunities of Australians and the rights of overseas workers through heightened enforcement measures.

The objectives of the reforms are to ensure that Australia’s temporary skilled migration programs:

are simple for Australian employers and visa holders to understand;
do not permit exploitation of workers from overseas;
include equitable remuneration arrangements; and
ensure that Australian workers are not disadvantaged.

The reforms seek to achieve these objectives by:

providing defined and enforceable sponsorship obligations for employers;
expanding powers to monitor and investigate possible non-compliance by sponsors;
introducing meaningful penalties for sponsors who are found to have failed to satisfy their sponsorship obligations; and
improving information sharing across the government

Affected legislation

The following provisions of the Regulations are amended:

Regulation 1.03 – definition of approved professional development sponsor – omitted
Regulation 1.03 – definitions of professional development sponsor and standard business sponsor – inserted
Regulation 1.03 – definition of approved special student sponsor – amended
Regulation 1.03 – definition of domestic worker sponsor, entertainment sponsor, exchange sponsor, foreign government agency sponsor, occupational trainee sponsor, special program sponsor, sport sponsor and superyacht crew sponsor – inserted
Regulation 1.03 – definition of labour agreement - amended
Regulation 1.03 – definition of net employment benefit – omitted
Regulation 1.03 – definition of religious institution – amended
Regulation 1.03 – definition of religious worker sponsor – inserted
Regulation 1.03 – definition of primary sponsored person and secondary sponsored person – inserted
Regulation 1.03 – definition of temporary work sponsor and visiting academic sponsor – inserted
Regulation 1.08 – amended
Regulation 1.12A – definition of net employment benefit – omitted
Division 1.4, heading – substituted
Regulation 1.20, heading – substituted
Paragraph 1.20(2)(b) – amended
Paragraph 1.20(2)(e)(ii) – amended
Paragraph 1.20(2)(f) – omitted
Paragraph 1.20(4)(h) – amended
Subregulation 1.20(4), note – omitted
Subregulation 1.20(5) – omitted
Subregulation 1.20AA(1) – amended
Subregulation 1.20AA(2) - amended
Division 1.4A – omitted
Division 1.4B, heading – substituted
Divisions 1.4C and 1.4D – omitted
Regulation 2.12F – amended
Regulation 2.15 – amended
Paragraph 2.43(1)(ia) – inserted
Paragraph 2.43(1)(l), (la) and (lb) – substituted
Subregulation 2.43(1A) and (1B) – inserted
Part 2A: Sponsorship applicable to Division 3A of Part 2 of the Act – inserted, including:
- Division 2.11 – Introductory
- Division 2.12 – Classes of sponsor
- Division 2.13 – Criteria for approval of sponsor
- Division 2.14 – Application for approval as sponsor
- Division 2.15 – Terms of approval of sponsorship
- Division 2.16 – Variation of terms of approval of sponsorship
- Division 2.17 – Nominations
- Division 2.18 – Work agreements
- Division 2.19 – Sponsorship obligations
- Division 2.20 – Circumstances in which sponsor may be barred or sponsor’s approval may be cancelled
- Division 2.21 – Process to bar sponsor or cancel sponsor’s approval
- Division 2.22 – Waiving a bar on sponsor’s approval
- Division 2.22A – Inspectors
- Division 2.23 – Disclosure of personal information
Subregulation 4.02(1) – omitted
Subregulation 4.02(1A) - substituted
Paragraphs 4.02(4)(a) to (d) – substituted
Paragraphs 4.02(4)(g) to (i) – substituted
Paragraph 4.02(4)(m) – inserted
Subregulation 4.02(4A) to 4.02(4C) – inserted
Paragraph 4.02(5)(b) – omitted
Paragraphs 4.02(5)(c), (f) and (g) – substituted
Paragraph 4.02(5)(j) – omitted
Paragraph 4.02(5)(l) – amended
Paragraph 4.02(5)(m) – inserted
Regulation 5.20, heading – substituted
Regulation 5.20A – inserted
Subregulation 5.21, definition of prescribed penalty – substituted
Subregulation 5.21(1) – various amendments to notes
Regulation 5.22 – substituted
Paragraph 5.23(1)(b) – substituted
Paragraph 5.23(1)(c) – amended
Paragraph 5.23(1)(g) - amended
Paragraph 5.23(1)(h) – inserted
Regulation 5.25 – substituted
Subregulation 5.26(2) – substituted
Regulation 5.28 – substituted
Regulation 5.29, heading – substituted
Regulation 5.29 – amended
Regulation 5.31 – substituted
Item 1205 of Schedule 1 – various amendments
Item 1207 of Schedule 1, paragraph 1207(3)(ba) – inserted
Item 1208 of Schedule 1 – various amendments
Item 1208 of Schedule 1, paragraph 1208(3A) – inserted
Item 1220B of Schedule 1, subparagraph 1220B(3)(a)(i) and (ii) including the note – substituted
Item 1223A of Schedule 1 – various amendments
Item 1227A of Schedule 1, paragraph 1227A(3)(ca) – inserted
subparagraph 303.212(a)(ii) of Schedule 2 – substituted
Subclass 406 of Schedule 2 – inserted
Subclass 411 of Schedule 2 – various amendments
Subclass 415 of Schedule 2 – various amendments
Subclass 416 of Schedule 2 – various amendments
Subclass 419 of Schedule 2 – various amendments
Subclass 418 of Schedule 2 – omitted
Subclass 420 of Schedule 2 – various amendments
Subclass 421 of Schedule 2 – various amendments
Subclass 422 of Schedule 2 – various amendments
Subclass 423 of Schedule 2 – various amendments
Subclass 427 of Schedule 2 – various amendments
Subclass 428 of Schedule 2 – various amendments
Subclass 442 of Schedule 2 – various amendments
clause 456.311 of Schedule 2 – substituted
Subclass 457 of Schedule 2 – various amendments
Subclass 470 of Schedule 2 – various amendments
Clause 488.222 of Schedule 2 – substituted
Schedule 8, condition 8107 - substituted
other minor and technical amendments.

Additional information

The amended Regulations support the enforceable sponsorship framework in the Migration Act 1958 (as amended by the Worker Protection Act) by specifying:

that the enforceable sponsorship framework applies to sponsorship for:
- Subclass 457 (Business (Long Stay)) visa;
- Subclass 411 (Exchange) visa;
- Subclass 415 (Foreign Government Agency) visa;
- Subclass 416 (Special Program) visa;
- Subclass 419 (Visiting Academic) visa;
- Subclass 420 (Entertainment) visa;
- Subclass 421 (Sport) visa;
- Subclass 423 (Media and Film Staff) visa;
- Subclass 427 (Domestic Worker (Temporary) — Executive) visa;
- Subclass 428 (Religious Worker) visa;
- Subclass 442 (Occupational Trainee) visa;
- Subclass 470 (Professional Development) visa;
- Subclass 488 (Superyacht Crew) visa;
the process and criteria for approval as a sponsor;
the process and criteria to vary a term of approval as a sponsor;
the process and criteria for approval of a nomination made by an approved sponsor of an occupation, program or activity in relation to a proposed visa holder or visa applicant (noting, however, not all visa types require a nomination – these include Subclass 415 (Foreign Government Agency) visa, subclass 416 (Visiting Academic) visa, Subclass 442 (Occupational Trainee) visa (only where the sponsor is the Commonwealth), Subclass 470 (Professional Development) visa, and Subclass 488 (Superyacht Crew) visa);
sponsorship obligations which an approved sponsor must satisfy;
circumstances in which approved sponsors may be barred or have their approval as a sponsor cancelled, and the criteria which the Minister must consider before taking barring or cancelling action if the circumstance exists;
the process to cancel a person’s approval as an approved sponsor, or bar an approved sponsor from sponsoring more people or applying for further approval as a sponsor;
the circumstances in which a bar placed on an approved sponsor may be waived, and the process and criteria for waiving the bar;
the kinds of personal information about a sponsored person or approved sponsor which the Minister is authorised to disclose and the circumstances in which that information may be disclosed;
the kinds of personal information which an approved sponsor is authorised to disclose to the Minister;
merits review by the Migration Review Tribunal for a decision made under the enforceable sponsorship framework;
an infringement notice regime that allows a pecuniary penalty to be paid for an alleged failure to satisfy sponsorship obligations in lieu of the Minister seeking a court order that the approved sponsor pays a pecuniary penalty;
prescribe additional powers for which inspectors can exercise their powers under the Fair Work Act 2009;
amendments to the criteria for grant of a visa in order to complement changes made to the enforceable sponsorship framework, including amendments to certain visa conditions; and
prescribed grounds for visa cancellation.

Key elements of the reform package are the obligations that apply to sponsors and the sanctions that may apply where these obligations are not satisfied.

The sponsorship obligations set out in the amended Regulations are as follows:

Approved sponsors must:

cooperate with inspectors;
ensure equivalent terms and conditions of employment for their sponsored persons;
pay travel costs to enable sponsored persons to leave Australia (and in the case of a (Subclass 427 (Domestic Worker) visa) pay all travel costs);
pay costs incurred by the Commonwealth to locate and remove sponsored persons who have become unlawful non-citizens;
keep records, and provide records and information to the Minister when required;
provide information to the Department of Immigration and Citizenship when certain events occur;
in certain cases, secure an offer of a reasonable standard of accommodation for a sponsored person;
ensure the primary sponsored person works or participates in nominated occupation, program or activity;
not recover certain costs from a sponsored person; and
in certain cases, make the same or equivalent position available to Australian exchange participants.

The application of the sponsorship obligations, by visa subclass, is specified in the amending Regulations as follows:

Sponsorship obligations by visa subclass table

** Note: except for Subclass 470 (Professional Development) visa, the obligation to secure an offer of a reasonable standard of accommodation only applies if the occupation, program or activity in relation to which a primary or secondary sponsored person has been nominated is a volunteer role.

If the business sponsor fails to satisfy a sponsorship obligation, the Minister may take one or more of the following actions:

Cancel one or more of the sponsor’s existing approval as a sponsor;
bar the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing approvals as a sponsor for different kinds of visas;
bar the sponsor, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes of sponsor;
apply to a Court for a civil penalty order of up to $33,000 for a corporation and $6,600 for an individual for each failure;
issue an infringement notice of up to $6,600 for a body corporate and $1,320 for an individual for each failure;
require and take a security; or
enforce a security already taken.

Transitional provisions

The amendments apply in relation to:

a work agreement entered into before 14 September 2009 and continuing in effect on 14 September 2009; or entered into on or after 14 September 2009;
an application for approval as a sponsor under section 140E of the Migration Act 1958 as in force immediately before 14 September 2009, made but not finally determined (within the meaning of subsection 5(9) of the Act) before 14 September 2009; in relation to an applicant for a Subclass 457 or a Subclass 470 visa;
an application for approval as a standard business sponsor or a professional development sponsor made on or after 14 September 2009;
an application for approval as a temporary worker sponsor (within the meaning given in regulation 1.03 of the Migration Regulations 1994) made on or after 14 September 2009;
an application for approval of a nomination of an activity made under regulation 1.20G or 1.20GA of the Migration Regulations 1994 as in force immediately before 14 September 2009, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 14 September 2009;
a nomination of an occupation, program or activity made on or after 14 September 2009;
an application for a Temporary Business Entry (Class UC) visa made but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 14 September 2009;
an application made on or after 14 September 2009 for one of the following visas:
- Subclass 411 (Exchange) visa;
- Subclass 415 (Foreign Government Agency) visa;
- Subclass 416 (Special Program) visa;
- Subclass 419 (Visiting Academic) visa;
- Subclass 420 (Entertainment) visa;
- Subclass 421 (Sport) visa;
- Subclass 422 (Medical Practitioner) visa;
- Subclass 423 (Media and Film Staff) visa;
- Subclass 427 (Domestic Worker (Temporary) — Executive) visa;
- Subclass 428 (Religious Worker) visa;
- Subclass 442 (Occupational Trainee) visa;
- Subclass 470 (Professional Development) visa;
- Subclass 488 (Superyacht Crew) visa;
- Subclass 571 (Schools Sector) visa;
- Subclass 572 (Vocational Education and Training Sector) visa;
- Subclass 573 (Higher Education Sector) visa; and
- Subclass 574 (Postgraduate Research Sector) visa.

The amendments do not apply in relation to an application for approval as a sponsor under regulation 1.20AA made on or after 14 September 2009 if the sponsorship is in relation to a visa application made before 14 September 2009.

The amendments in relation to Schedule 8, condition 8107, apply in relation to a Subclass 457 (Business (Long Stay)) visa on which condition 8107 is imposed and is in force on 14 September 2009, and to a visa that is granted on or after 14 September 2009 and on which condition 8107 is imposed.

The amendments made in relation to regulation 4.02 apply in relation to a decision subject to merit review made by the Minister on or after 14 September 2009.

In addition the transitional provisions clarify that the earliest date from which a person can be required to satisfy a sponsorship obligation is from 14 September 2009.

Forms

The following paper and online forms have been amended, and will be available from 14 September 2009:

1066 - Application for a Subclass 457 – Business (Long Stay) visa (updated)
1196 (internet) – Sponsoring or Nominating overseas employees to work temporarily in Australia (updated)
1196N – Nominating overseas employees to work temporarily in Australia (new)
1196S – Sponsoring overseas employees to work temporarily in Australia(new)
1226 – Application for approval as a professional development sponsor (updated)
1227 – Application for a professional development visa (updated)
1228i – Professional development (updated)
1283 – Acknowledgement of unpaid placement – visa applicant (updated)
1284 – Acknowledgement of unpaid placement – sponsor (updated)
1366 – Application for approval as a superyacht crew sponsor (updated)
1377 – Application for approval as a temporary residence sponsor (new)
1378 – Nomination for a temporary position (new)
1379 – Nomination for an entertainment visa or a media and film staff visa (new)
1381 – Sponsoring a medical practitioner (new)

Instructions

PAM3 has been amended to reflect these changes.

Departmental Information