As a standard business sponsor, you must understand your obligations to prevent having your sponsorship cancelled or barred. In 2009, the sponsorship compliance framework was introduced. The purpose of the framework is to ensure that the working conditions of the visa applicants meet Australian standards, and the visa programs are not exploited. A sponsor who does not meet their sponsorship obligations may be issued a notice (NOITTA) and subsequently be barred or have their sponsorship cancelled.
Circumstances when DoHA may impose sanctions
Department of Home Affairs (DoHA) may impose sanctions and penalties in the following circumstances:
- Failure to satisfy sponsorship obligations
- Provision of false and misleading information
- Sponsor no longer meets approval criteria
- Contravention of the law
Failure to satisfy sponsorship obligations
A standard business sponsor has to meet numerous obligations. Some of the responsibilities of a sponsor include:
- Keep records
- Provide records and information to delegates upon request
- Notify DoHA of changes to the sponsor’s directors or registered address
- Ensure that the visa applicant works in the nominated occupation
- Ensure that the visa applicant works in activities in relation to which the visa was granted.
- Notify DoHA of any changes to position title, tasks, or duties within 28 days of the change
- Ensure that equivalent terms and conditions of employment are offered and they are no less favourable than the terms and conditions the sponsor provides, or would provide, to an Australian citizen or Australian permanent resident to perform work in an equivalent position in the sponsor’s workplace at the same location.
Failure to comply with the obligations may lead to severe sanctions.
Provision of false and misleading information
Regardless of whether the sponsor provides the information knowingly or not, if the information provided is false or misleading, the DoHA may decide to cancel the sponsorship.
DoHA will consider information provided during:
- Current monitoring events
- Previous monitoring events
- Recent or previous sponsorship applications
- Nomination applications
- Visa applications
Therefore, it is essential to ensure consistency in all the applications.
Sponsor no longer meets approval criteria
If a sponsor no longer satisfies the criteria required for approval, DoHA has the authority to cancel the sponsorship. For example, the lawful operation of a business is a criterion to become an approved sponsor. If a sponsor cease to operate, the sponsorship can be cancelled.
Contravention of law
DoHA may consider barring or cancellation if the sponsor has been found by a court to have breached a Commonwealth, State or Territory law. DoHA will take into account the past and present conduct of the person, the nature of the law that the sponsored has contravened, the gravity of the unlawful activity, and any other relevant factors.
In our experience, some of the most common breaches are:
- Failing to notify DoHA of a change to the nominated position title, tasks, or duties of a sponsored employee
- Failing to notify DoHA of a change to the company’s registered address
- Failing to notify DoHA of a change to the company’s Directors
- Failure to notify DoHA of cessation of employment of a sponsored employee
As a sponsor, you have the obligation to notify DoHA within 28 days of change.
Possible Enforcement Actions
If the sponsorship obligation has been breached, the DoHA can take the following actions:
- Cancelling the business sponsorship
- Barring sponsor from sponsoring other workers
- Issuing infringement notice (up to $1332 for individuals and $6660 for bodies corporate per obligation breach for a first notice. Up to $2,664 for individuals and $13,320 for bodies corporate per obligation breach for subsequent notices.)
- Commencing civil litigation
- Issuing informal or formal warnings.
When a sponsorship is cancelled, the Subclass 457 or Subclass 482 visa holders cannot be sponsored for permanent residency. Visa applicants can also have their visa cancelled if the sponsorship is cancelled.
DoHA may impose more than one of the above penalties.
Notice of intention to take action (NOITTA)
If an audit is conducted by the Department and their monitoring officers believe a breach has occurred, then they may issue what is called a Notice of Intention to Take Action (NOITTA) to consider barring or cancelling a sponsor. The NOITTA will:
- Specify details of the circumstances which has resulted in NOITTA being issued
- Specify details of the action(s) that may be taken
- Specify a date for a response
The sponsor will be given an opportunity to respond to the NOITTA after which the DOHA will make their decision
Waiver of a bar
The Department may consider waiving a bar. DoHA will look at:
- whether the interests of Australia would be significantly affected if the bar were not waived and
- whether a substantial trade opportunity would be lost if the bar were not waived and
- whether there would be a significant detriment to the Australian community if the bar were not waived and
- whether the person’s inability to sponsor a proposed primary sponsored person would significantly damage Australia’s relations with the government of another country; and
- whether significant new evidence or information has come to light which was not available at the time the decision to place the bar was made; and
If you are subject of a NOITTA, VisaEnvoy can assist you in preparing a response or defence.