Standard Business Sponsors and other Temporary Activities Sponsors are routinely monitored by Australian Border Force to ensure compliance with the sponsorship obligations. Monitoring activities in some circumstances may be instigated in response to allegations received from the community, including from sponsored and formerly sponsored visa holders.

Sponsorship obligations are monitored through the assessment of information obtained through written requests, announced and unannounced site visits, interviews with visa holders, referral from external agencies as well as data matching activities undertaken with other government departments.

Business Monitoring Units apply a targeted and risk-based framework to monitoring activities with emphasis on industry sectors of concern and specific high-risk occupations. Risk protocols guide the monitoring process in respect to undertaking both announced and unannounced site visits.

Site visits are undertaken for a number of reasons. This includes education and awareness raising for the sponsorship obligations set out in Division 2.19 of the Migration Regulations (Cth) and to obtain documentary evidence and interview statements for the assessment of the sponsorship obligations.

Industries sectors of concern are those where Federal Government data reveals a high incidence of unsatisfactory monitoring findings or recruitment of vulnerable workers. One only needs a cursory examination of the published sanction decisions on the Australian Border Force webpage to identify hospitality, labour hire, agriculture and construction, amongst others as industry sectors of concern.

Sponsors are required to cooperate with inspectors to sufficiently establish that:

• No significant changes have occurred in regard to the business structure (including director appointment) of sponsors since sponsorship was approved;
• No adverse information is available in respect to the sponsor or associated persons;
• Sponsored visa holders remain in the sponsor’s employment and are being remunerated no less that the amounts identified in the relevant approved nomination;
• Sponsors are compliant with employment and industrial relations legislation in Australia, including in regard to appropriate remuneration levels and employment conditions;
• That appropriate tax instalments and superannuation contributions are being made in respect to sponsored persons;
• Sponsored visa holders and other visaed persons are employed consistent with applicable visa conditions.

Australian Border Force field compliance activities additionally focus on the:

• Location and detention of persons who are unlawful non-citizens in Australia;
• Detection of visaed persons in breach of visa conditions, including those persons engaging in illegal work activities;
• Status resolution of unlawful non-citizens, including removal from Australia.

The consequence of a breach in sponsorship obligations is contingent on the severity of the particular breach along with any mitigating circumstances including remedial actions undertaken by a sponsor.

Minor and technical breaches where the sponsor has rectified the breach and subsequently put into place arrangements to ensure ongoing compliance may result in a formal warning being issued.

More severe sanctions, including sponsorship cancellation and sponsorship bars may result from serious or apparent reckless or intentional abuses by approved work sponsors.

Australian Border Force maintains the power to impose a range of penalties against approved work sponsors for breach of obligations. These include infringement notices and civil pecuniary orders.

Factors considered in determining the consequences of breach of sponsorship obligations include:

• Severity of the breach;
• Sponsor past conduct, including any history of sponsorship non-compliance;
• Whether sponsor was aware of the breach;
• Mitigating factors and process that may have been implemented to prevent further breach;
• Extent of cooperation with Australian Border Force, including whether sponsor notified of the breach upon identification;
• Severity of any direct or indirect consequences resulting from the breach;
• Number of sponsored visa holders affected by the breach;
• Impact on the community and reflection on the migration program of the breach.

It is important that sponsors of overseas workers recognise that they are obligated to provide formal notification upon certain events occurring. This includes, inter alia, the cessation or expected cessation of a primary sponsored person’s employment, any change to a sponsored person’s work duties, the appointment of a company director or where the sponsor’s legal status as a company ceases to exist.

The Migration Act 1958 (Cth) contains civil penalty powers that may be applied to sponsors found to have breached their sponsorship obligations. This includes where failing to provide information or produce documents. Criminal prosecution may follow where it is determined that criminal responsibility principles are met as per the strict liability provisions of the Criminal Code Act 1996 (Cth) and the Crimes Act 1914 (Cth).

Lex Lawyers can assist and advise on all aspects of Business Sponsor Monitoring or the recruitment or transfer of sponsored persons.

Our principal lawyer and legal practice director, Jonathon Trainer is a former immigration officer who served for many years as a Business Monitoring Officer. Jonathon is operationally familiar with all aspects of the monitoring process, the sponsorship obligations framework and the circumstances in which sponsors may avoid the consequences of adverse actions by the Australian Government.

Lex Lawyers can assist you if you are:

• Sponsoring overseas workers or other temporary visa holders in Australia;
• Working as sponsored visa holder in Australia.

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