Payment for Visas an Offence under Proposed Changes to Migration Law
Written By Dion Hawkins
Wed, Sep 23, 2015
The Australian Parliament has introduced a new bill that would make it a criminal offence for a person to receive a benefit, including payment, in return for a sponsorship related event.
The bill, entitled the Migration Amendment (Charging for a Migration Outcome) Bill 2015, was introduced on 16 September and is intended to prevent ‘payment for visa’ arrangements that leads to exploitation of visa applicants and undermines the Australian migration framework. The proposed changes reflect some of the recommendations made in the Independent Review into Integrity in the Subclass 457 Programme released last year.
A complete list of the amendments can be found here
Sponsorship Related Event
Although law currently exists that prohibits sponsors from recovering costs relating to sponsorship and nomination of visa applicants, there is no law in force currently that would prevent a visa applicant from making payments to a person to secure the following events:
• the opportunity of employment;
• the continued support of a sponsor, i.e. coercion payments to guarantee employment will not be terminated;
• agreeing to engage service providers with whom the benefited person has some referral for payment arrangement;
• the grant, or issue of the visa itself;
• any other prescribed event.
The specific benefit to the person does not need to be in the form of a monetary payment, and may extend to:
• property: real and personal;
• an advantage;
• a service; and
Penalties and Liabilities
The new law makes payment for visas a criminal offence, with fines of up to $64,800 for individuals and $324,000 for a body corporate, and criminal convictions of up to 2 years’ imprisonment.
Where criminal conduct is not shown, a civil penalty of $43,200 for individuals, and $216,000 for body corporates, may still be applied.
Criminal and civil liability will also extend to executive officers of bodies corporates, unincorporated associations, and all partners within a partnership.
Payment for visas excludes professional services provided in the assistance of a person obtaining a sponsorship related event. This may include advice and services provided by migration agents, lawyers, education and recruitment consultants. However, a defendant accused of benefiting bears the onus of proving that the payment was a reasonable amount.
One concern with the amendments is in the power given to the Minister to cancel a visa where the visa holder provides a benefit in return for the grant of the visa. Australian migration law is complex and it is common for visa applicants and visa holders to not fully understand the rules around obtaining a visa.
An incomplete understanding of the fees payable in respect of obtaining an Australian visa may result in an applicant or visa holder falsely believing they are required to make some form of payment to another person, such as an employer or service provider, in order to secure their visa. In that case the Minister will be able to cancel the visa, without taking into account the knowledge or fault element of the visa holder. This will clearly disadvantage individuals acting in good faith.
It will be interesting to see how these changes are applied in context if the proposed measures are passed by the Australian Parliament.
For more information on how these changes may effect you, as a business owner or visa holder, please contact a TSS Migration Agent on (03) 9421 1020.
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