Migration Amendment (Charging for a Migration Outcome) Act 2015

Overview

The Migration Amendment (Charging for a Migration Outcome) Act 2015 was enacted by the Parliament of Australia on 30 November 2015, to address issues of integrity and compliance within the migration sponsorship system. This Act amended the Migration Act 1958 by introducing provisions that allow the Minister to cancel visas if a benefit was asked for, received, offered, or provided by or on behalf of the visa holder in return for the occurrence of a sponsorship-related event. It aims to prevent corrupt practices associated with migration sponsorship by imposing penalties for soliciting or providing benefits in return for sponsorship-related events, with particular attention to the responsibilities of executive officers of bodies corporate. The Act also enhances the powers of investigation in relation to these offences and provisions, ensuring that the integrity of the migration sponsorship system is upheld.

Scope and Application

The Migration Amendment (Charging for a Migration Outcome) Act 2015 amends the Migration Act 1958 to introduce new provisions aimed at preventing the solicitation or receipt of benefits in exchange for certain migration-related actions. The Act applies to any person who asks for, receives, offers, or provides a benefit in return for a sponsorship-related event, which includes activities such as applying for or being approved as a sponsor, making or not withdrawing a nomination, or employing a person for a position related to a sponsored visa. The Act also imposes criminal and civil penalties on executive officers of corporate bodies who fail to prevent these actions. The Act's geographical scope extends to conduct occurring partly in Australia, on Australian aircraft or ships, or involving Australian citizens or residents, as well as actions occurring outside Australia if connected to activities intended to occur in Australia. Additionally, the Act extends to partnerships and unincorporated associations, treating each member or partner as responsible for the entity's actions. The Act came into force on 30 November 2015, with further provisions commencing on 14 December 2015.

Key Provisions

• The Migration Amendment (Charging for a Migration Outcome) Act 2015 amends the Migration Act 1958 to introduce new provisions aimed at preventing the improper exchange of benefits in relation to migration sponsorship. Key amendments include the insertion of subsections 116(1AC) and (1AD) in the Migration Act 1958, which empower the Minister to cancel a visa if a benefit was asked for, received, offered, or provided in return for the occurrence of a sponsorship-related event. Additionally, the Act introduces a prohibition on asking for or receiving a benefit in return for such events (section 245AR), as well as a prohibition on offering to provide or providing a benefit in return for such events (section 245AS). These provisions are supplemented by definitions in section 245AQ, which clarify terms such as "benefit" and "sponsorship-related event."
• The Act imposes several obligations on parties involved in migration sponsorship. These include ensuring that no benefits are asked for, received, offered, or provided in return for sponsorship-related events. For corporate entities, executive officers are mandated to take all reasonable steps to prevent the commission of sponsorship-related offences or civil penalties by the body corporate. This includes ensuring that employees, agents, and contractors are adequately informed about compliance requirements and taking appropriate action upon discovering potential non-compliance.
• Breaches of the Act can result in both criminal and civil penalties. For instance, contravening the prohibition on asking for or receiving a benefit (section 245AR) can lead to an offence with a penalty of up to 2 years imprisonment or 360 penalty units, or both. Additionally, a civil penalty of 240 penalty units can be imposed. Similarly, offering or providing a benefit in return for a sponsorship-related event (section 245AS) can also result in a civil penalty of 240 penalty units. Executive officers of bodies corporate who fail to prevent sponsorship-related offences or civil penalties can be liable for criminal penalties of up to 360 penalty units (section 245AT) or civil penalties of up to 240 penalty units (section 245AU). These provisions underscore the importance of compliance and the potential consequences of non-compliance in the context of migration sponsorship.

Legal classification tags

Area of Law

Immigration & Refugee Law

Instrument

Act

Concepts

Commencement Provisions

Offence Provisions

Civil Penalty Provisions

Reporting & Disclosure Obligations

Enforcement Powers