457 SPONSOR OBLIGATIONS

The migration team at Nevett Ford Lawyers can provide advice on all aspects of the following 457 sponsorship obligations, including the monitoring and reporting procedures to ensure compliance.  The team of 5 immigration lawyers includes an accredited immigration law specialist and all team members are registered migration agents.

Please let us know if you would like us to provide your organization with a quotation to conduct an audit to determine your current level of compliance with the sponsor obligations.

SPONSOR OBLIGATIONS

All employers of subclass 457 visa holders have obligations as sponsors. Some obligations apply beyond the term of an employer's approval as a sponsor.

As a sponsor you must:

• cooperate with inspectors
• ensure equivalent terms and conditions of employment
• keep records
• not participate in discriminatory recruitment practices
• provide information to Immigration when certain events occur
• ensure that the skilled worker works or participates in the nominated occupation, program or activity
• not recover certain costs from a skilled worker or their family
• pay travel costs to enable sponsored people to leave Australia upon cessation of employment if they are not transferring their 457 visa to another sponsor (if a request is made in writing by the 457 visa employee)
• pay costs incurred by the Commonwealth to locate and remove unlawful non-citizens.

MONITORING

You must comply with your obligations as a sponsor. Immigration monitor how well you are complying and whether the visa holders are keeping their visa conditions.

Immigration monitor you while you are a sponsor and for up to five years after you cease being a sponsor. Immigration do this routinely and in response to information provided to Immigration, and in three main ways:

• exchanging information with other Commonwealth, state and territory government agencies, including the Department of Education, Employment and Workplace Relations and the Australian Taxation Office
• writing to you to ask for information in accordance with the obligation to provide records and information
• site visits, usually to the sponsored business premises, with or without notice.

You could also be investigated by Commonwealth inspectors who have investigative powers under the Migration Act 1958. Failure to cooperate with inspectors is a breach of the sponsorship obligations.

SANCTIONS FOR NOT MEETING YOUR SPONSOR OBLIGATIONS

If you do not meet your obligations, Immigration could take one or more of the following actions:

Administrative

• you could be barred from sponsoring more people for a specified time
• you could be barred from applying for approval to be a sponsor, in relation to this visa or another one

• all of your existing approvals as a sponsor could be cancelled.

Civil

• Immigration can apply to a court for a civil penalty order of up to AUD33 000 for a corporation and AUD6 600 for an individual for each failure
• Immigration can issue an infringement notice of up to AUD6 600 for a body corporate and AUD1 320 for an individual for each failure.

Other circumstances in which administrative action might be taken

In addition, you could also have sanctions imposed if:

• you provide false or misleading information to Immigration or the Migration Review Tribunal
• you no longer satisfy the criteria for approval as a sponsor or for variation of a term of that approval
• you have been found by a court or competent authority to have contravened a Commonwealth, state or territory law
• the person you have sponsored breaks a law relating to the licensing, registration or membership needed to work in the nominated occupation.

THE SPONSOR OBLIGATIONS

1. Cooperate with inspectors

You must cooperate with inspectors appointed under the Migration Act 1958 in determining whether:

• a sponsorship obligation is being, or has been, complied with
• there are other circumstances in which Immigration could take administrative action in relation to your other obligations.
• This obligation:
• starts on the day the sponsorship is approved
• ends five years after the day the approved sponsorship ceases.

A workplace inspection could include:

• a desk audit or a visit in person, announced or unannounced, by our officers to your workplace
• officers performing a number of checks, such as examining financial and payroll records and interviewing sponsors, company directors and staff, including sponsored workers and Australian employees.

The role of an inspector is to determine whether:

• you are complying (or have complied) with your sponsorship obligations
• there are other circumstances in which Immigration could take administrative action.

Cooperating with inspectors can include (but is not limited to):

• providing access to premises
• producing and providing documents within the requested timeframe 
• providing officers with access to a person who has custody of, or access to, a record or documents
• providing officers with access to interview any person.

2. Ensure equivalent terms and conditions of employment

If you are a standard business sponsor, you must show that you are providing no less favourable terms and conditions of employment to the skilled worker than you would provide to an Australian performing equivalent work in the same workplace.

This obligation does not apply to a sponsor if the annual earnings of their sponsored visa holder are equal to, or greater than AUD250 000.

Sponsors who are parties to a labour agreement must ensure that overseas workers receive remuneration as specified in the agreement.

This obligation applies from the day a skilled worker is granted a subclass 457 visa.

If the skilled worker already holds a subclass 457 visa, this obligation starts to apply on the day their nomination is approved.

This obligation ends on the day the skilled worker stops working for you or on the day they are granted a further substantive visa (other than a subclass 457 visa). If the skilled worker is granted another subclass 457 visa to continue to work for you, this obligation continues.

3. Keep records

You must keep records that show your compliance with your sponsorship obligations. All of the records must be kept in a reproducible format and must be capable of verification by an independent person. Records that must be kept, in addition to records that must be kept under other Australian Government, and state or territory laws, include the following:

• records of written requests for payment of outward travel costs for a skilled worker or their family, including when the request was received
• records of how the outward travel costs were paid
• records of notifying Immigration of an event required to be reported to Immigration, including the date and method of notification and where the notification was provided
• records of tasks performed by the skilled worker in relation to the nominated occupation and where the tasks were performed
• records of money paid to the skilled worker
• records of money applied or dealt with in any way on behalf of the skilled worker or as the skilled worker directed
• records of non-monetary benefits provided to the skilled worker, including the agreed value and the time at which, or the period over which, those benefits were provided
• if there is an equivalent worker in your workplace, a record of the terms and conditions that apply to the equivalent worker, including the period over which the terms and conditions applied
• if you are a party to a labour agreement, the records required to be kept under the labour agreement.

The obligation to keep records applies from the day the sponsorship is approved or labour agreement commences.

It ends two years after both:

• the approved standard business sponsorship or the labour agreement ceases
• you cease to be a sponsor.

You do not need to keep any records for more than five years.

You must provide these records or information to Immigration in the format and timeframe that Immigration specify.

4. Provide information to the department when certain events occur

You must provide information to Immigration when certain events occur. This information must be provided by registered post or electronic mail to a specified address and within certain timeframes of the event occurring.

This obligation starts to apply on the day the standard business sponsorship is approved or the labour agreement commences.

It ends two years after both:

• the approved standard business sponsorship or the labour agreement ceases
• you cease to be a sponsor.

Changes or events that all sponsors must notify within 10 working days

You must notify Immigration within 10 working days if:

• the skilled worker’s employment ceases, or is expected to cease (the sponsor must notify Immigration if a cessation date changes)
• there are changes to the work duties carried out by the skilled worker
• you are a standard business sponsor and there is a change to the information in the sponsorship application or the application to vary a term of sponsorship approval relating to the training requirement and the sponsor’s address and contact details
• if you are a party to a labour agreement and a change to the address and contact details or the training information provided in the labour agreement
• you have paid the return travel costs of a skilled worker or any of their family members in accordance with the obligation to pay return travel costs
• you have become insolvent within the meaning of subsections 5 (2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001
• your business ceases to exist as a legal entity.

If your business is a company

A company must also notify Immigration of the following changes or events within 10 working days if:

• a new director is appointed
• an administrator is appointed for the company under Part 5.3A of the Corporations Act 2001
• the company resolves by special resolution to be wound up voluntarily under subsection 491(1) of the Corporations Act 2001
• a court has ordered that the company be wound up in insolvency under Part 5.4, or on other grounds under Part 5.4A, of the Corporations Act 2001
• a court has appointed an official liquidator to be the provisional liquidator of the company under Part 5.4B of the Corporations Act 2001
• a court has approved a compromise or arrangement proposed by the company under Part 5.1 of the Corporations Act 2001
• the property of the company becomes subject to a receiver or other controller under Part 5.2 of the Corporations Act 2001
• procedures are initiated for the deregistration of the company under Part 5A.1 of the Corporations Act 2001.

If you are an individual

If you operate your business as an individual, you must also notify Immigration of the following changes or events within 10 working days:

• you enter into a personal insolvency agreement under Part X of the Bankruptcy Act 1966
• you enter into a debt agreement under Part IX of the Bankruptcy Act 1966
• a sequestration order is made against your estate under Part IV of the Bankruptcy Act 1966
• you become a bankrupt by virtue of the presentation of a debtor’s petition under Part IV of the Bankruptcy Act 1966
• you present a declaration of intention to present a debtor’s petition under Part IV of the Bankruptcy Act 1966
• a composition or scheme of arrangement is presented in relation to you in accordance with Division 6 of Part IV of the Bankruptcy Act 1966.

If your business is a partnership

You must also notify Immigration of the following changes or events within 10 working days:

• a new partner joins the partnership
• any of the events listed for an individual or a company occurs.

If your business is an unincorporated association

An unincorporated association must also notify Immigration within 10 working days if:

• a new member is appointed to the managing committee of the association
• any of the events listed for an individual or a company occurs.

Where to send a notice of an event or change

You must send details of these events to one of our offices in the state or territory in which the head office of your business is located.

• Australian Capital Territory
  Email: ACT.sponsor.monitoring@immi.gov.au
  Sponsor Monitoring
  GPO Box 717
  Canberra ACT 2601
• New South Wales
  Email: NSW.sponsor.monitoring@immi.gov.au
  Sponsor Monitoring
  GPO Box 9984
  Sydney NSW 2001
• Queensland
  Email: QLD.sponsor.monitoring@immi.gov.au
  Sponsor Monitoring
  GPO Box 9984
  Brisbane Qld 4001
• Northern Territory
  Email: NT.sponsor.monitoring@immi.gov.au
  Sponsor Monitoring
  GPO Box 864
  Darwin NT 0801
• South Australia
  Email: SA.sponsor.monitoring@immi.gov.au
• Sponsor Monitoring
  GPO Box 2399
  Adelaide SA 5001
• Tasmania
  Email: TAS.sponsor.monitoring@immi.gov.au
  Sponsor Monitoring
  GPO Box 794
  Hobart Tas. 7001
• Victoria
  Email: VIC.sponsor.monitoring@immi.gov.au
  Sponsor Monitoring
  GPO Box 241
  Melbourne Vic. 3001
• Western Australia
  Email: WA.sponsor.monitoring@immi.gov.au
  Sponsor Monitoring
  Locked Bag 7
  Northbridge WA 6865     

5. Ensure that the skilled worker works in the nominated occupation

You must ensure that the skilled worker does not work in an occupation other than what was identified in the most recently approved nomination for that person.

If you want to employ a skilled worker in a different occupation, you must have a new nomination approved. You must also ensure that you do not engage the skilled worker's services other than as a direct employee.

There are two exceptions to this rule:

• a standard business sponsor operating in Australia can employ the skilled worker in an associated entity

This obligation applies from either:

• the day the skilled worker is granted a subclass 457 visa
• the day your nomination for the skilled worker is approved, if the skilled worker already holds a subclass 457 visa.

It ends on the earliest of the following:

• the day your application to nominate a skilled worker is approved
• the day the skilled worker is granted a further substantive visa (other than a subclass 457 visa). The obligation continues if the skilled worker is granted another subclass 457 visa to continue to work for you
• the day the skilled worker has left Australia and no longer holds a visa.

6. Recovery of certain costs from a skilled worker or their family

You must not recover, or seek to recover, from the person you have sponsored for this visa, all or part of the costs (including migration agent costs):

• of recruiting the person you sponsored for the position
• of becoming or being a sponsor or former approved sponsor
• of providing financial support to the person you have sponsored while they are in Australia.

This obligation:

• starts on the day the sponsorship is approved
• ends on the following two events:
• the approved sponsorship ceases, and
• you are no longer sponsoring anyone.

7. Pay travel costs to enable sponsored people to leave Australia

You must pay reasonable and necessary travel costs to enable the person you have sponsored and their family members to leave Australia. The person or their family must ask in writing for you to pay the costs. Immigration can also ask on their behalf.

The costs will be considered reasonable and necessary if they include all of the following:

• travel from the sponsored persons’ usual place of residence in Australia to their place of departure from Australia
• travel from Australia to the country (for which the person holds a passport) specified in the request
• economy class air travel or, where that is not available, a reasonable equivalent.

Travel costs must be paid within 30 days of receiving the request.

This obligation starts on the day:

• the visa is granted (if the person does not already hold a visa in this subclass)
• your nomination is approved (if the person already holds a visa in this subclass).

This obligation ends on the day (whichever is the earliest):

• another sponsor has their nomination application for the same person approved
• the person you have sponsored is granted a further substantive visa of a different subclass to the one they last held, and their new visa does not require them to work for you
• the person you have sponsored has left Australia and the relevant visa (and any subsequent bridging visa) is no longer valid.

8. Pay costs to remove an unlawful non-citizen

You are liable for any cost if the person you have sponsored or any of their family members go missing or will not voluntarily leave the country. In such cases, they will be unlawful non-citizens, and you will have to pay the costs of locating and removing them from Australia.

Immigration will make a written request for these costs. You will be liable to pay the Australian Government the difference between the actual costs and any amount you have paid towards the obligatory travel costs. The maximum amount payable is AUD10 000.

This obligation starts on the day on which the person you have sponsored becomes an unlawful non-citizen.

This obligation ends five years after the person you sponsored leaves Australia, but you are liable only for these costs while they are in Australia.

The types of actions that could be taken varies depending on whether the sponsor is a standard business sponsor or a party to a labour agreement.

If you have sponsored someone under a labour agreement, Immigration could suspend or terminate it in accordance with the clauses of the particular labour agreement.

Nevett Ford Lawyers is a general practice law firm practising in the areas of migration, commercial, family, litigation & property law.  The migration team comprises six dedicated immigration lawyers who are all registered migration agents.

Please contact us if you have any questions.