EXPLANATORY STATEMENT
Select Legislative Instrument 2013 No. 145
Issued by the Minister for Immigration and Citizenship
Migration Act 1958
Migration Amendment Regulation 2013 (No. 5)
Subsection 504(1) of the Migration Act 1958 (‘the Act’) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
In addition, regulations may be made pursuant to the provisions of the Act in Attachment A.
The purpose of the Regulation is to amend Migration Regulation 1994 (‘the Principal Regulations’) to strengthen the integrity of temporary skilled visa programs by refining the obligations and requirements of the sponsor in the sponsorship framework at Division 3A of Part 2 of the Act. The Regulation also strengthens the requirement for holders of a Subclass 457 (Temporary Work (Skilled)) visa (‘Subclass 457 visa’) to work directly for the sponsor.
Application of the Principal Regulations has highlighted the need for some minor amendments to tighten the operation of two of the existing sponsorship obligations to ensure the Principal Regulations operate as originally intended.
The Regulation ensures that a sponsor does not transfer, recover or require payment of certain costs, including migration agent costs, including:
- associated with the person becoming an approved sponsor; or
- associated with the person being an approved sponsor; or
- associated with the person being a former approved sponsor; or
- that relate specifically to the recruitment of a non-citizen for the purposes of a nomination.
This Regulation has been prompted by concerns that sponsors currently may circumvent regulation 2.87 by requiring a visa holder to pay certain costs up front (before being sponsored), thereby avoiding the act of ‘recovery’. In such cases, the Department cannot evidence a failure of regulation 2.87. The Regulation ensures that sponsors are solely responsible for meeting certain costs, building on the current sponsorship obligation on sponsors not to recover certain costs.
The Regulation also addresses issues in determining whether a person is an ‘employee’. Subregulation 2.86(2A) obliges standard business sponsors to ensure primary sponsored persons are engaged only as an employee of the sponsor (or if the sponsor is operating a business in Australia, an associated entity of the sponsor). This does not necessarily prevent, however, certain unintended employment arrangements. For example, where an employment relationship is disguised as, or has elements of, an independent contracting arrangement, the Subclass 457 visa holder may still be an ‘employee’ of the sponsor. Similarly, it is intended that a Subclass 457 visa holder not be on-hired to another business (unless permitted by an approved work agreement or in an exempt occupation). The current Principal Regulation does not necessarily prevent such practices.
The Regulation clarifies for standard business…
Overview
The Migration Amendment Regulation 2013 (No. 5), issued by the Minister for Immigration and Citizenship, amends the Migration Regulations 1994 to enhance the integrity of temporary skilled visa programs, particularly the Subclass 457 (Temporary Work (Skilled)) visa. The Regulation was enacted to address issues such as sponsors transferring or recovering certain costs from visa holders and ensuring that sponsored workers are engaged as direct employees under a written contract of employment. The policy objective of the Regulation is to strengthen the sponsorship framework and prevent the exploitation of temporary skilled visa holders. The Regulation requires sponsors to bear certain costs, prevents cost recovery from visa holders, and mandates that sponsored workers be engaged under a written contract of employment, thus clarifying their employment status and ensuring they work directly for the sponsor.
Scope and Application
The Migration Amendment Regulation 2013 (No. 5) applies to all approved sponsors under the Migration Act 1958 and specifically targets standard business sponsors involved in the Subclass 457 (Temporary Work (Skilled)) visa program. The regulation mandates that standard business sponsors must engage sponsored individuals under a written contract of employment and prohibits them from on-hiring sponsored individuals to other businesses, unless permitted by an approved work agreement or in an exempt occupation. It also requires sponsors to be solely responsible for certain costs related to becoming a sponsor or the recruitment of a non-citizen for nomination purposes. These amendments aim to strengthen the integrity of the Subclass 457 visa program by ensuring that sponsored individuals are employed directly by the sponsor in a clear employer-employee relationship, and by preventing the recovery or transfer of certain costs from the sponsored individual. The regulation also clarifies that the sponsored individual must work in the business of the sponsor or an associated entity if the sponsor lawfully operates a business in Australia. The regulation is applicable nationwide across Australia and commenced on 1 July 2013.
Key Provisions
- The Migration Amendment Regulation 2013 (No. 5) amends the Migration Regulations 1994 to strengthen the integrity of the Subclass 457 visa program and other temporary skilled visa programs. Key provisions of the regulation include requirements for sponsors to engage primary sponsored persons under a written contract of employment, prevent on-hiring arrangements, and clarify that Subclass 457 visa holders must work directly for the sponsor or an associated entity if the sponsor is operating a business in Australia. Additionally, the regulation strengthens the requirement for sponsors to bear certain costs related to becoming a sponsor or the recruitment of a non-citizen for the purposes of a nomination, prohibiting them from recovering, charging or transferring these costs from any person.
- Sponsors are required to ensure that primary sponsored persons are engaged as direct employees and not on-hired to another business unless permitted by an approved work agreement or in an exempt occupation. Standard business sponsors must engage Subclass 457 visa holders under a written contract of employment, while approved sponsors must be solely responsible for the payment of certain sponsorship and recruitment-related costs, prohibiting them from recovering, charging or transferring these costs from any person.
- The regulation imposes various obligations and requirements on parties governed by it. For example, standard business sponsors must engage Subclass 457 visa holders as direct employees under a written contract of employment, and approved sponsors must be solely responsible for the payment of certain sponsorship and recruitment-related costs. Moreover, Subclass 457 visa holders must work in a position in the business of the standard business sponsor and cannot be on-hired to work for another business.
- Failure to comply with the provisions of this regulation may result in civil or criminal consequences. However, the regulation does not specify any particular offences, penalties, or civil/criminal consequences for breach. The maximum penalties for breaches of the Migration Act 1958 and the Migration Regulations 1994 vary depending on the nature and severity of the breach and are determined by the courts. Possible penalties include fines, imprisonment, or both.
- Area of Law
- Immigration & Refugee Law
- Instrument
- Regulation
- Concepts
- Definitions & Interpretation
- Licensing & Registration
- Enforcement Powers
- Compliance Obligations
- Prohibited Conduct
- Reporting & Disclosure Obligations
