The Migration Amendment (Charging for a Migration Outcome) Bill 2015 (the Bill) amends the Migration Act 1958 (the Act) to make it unlawful for a person to give or receive a benefit in return for a migration outcome in relation to certain skilled work visa programmes.
The Bill responds to recommendation 10.7 of the Independent Review into Integrity in the Subclass 457 Programme, in its report 'Robust New Foundations – A Streamlined, Transparent and Responsive System for the Subclass 457 Programme', which was released on 10 September 2014. Recommendation 10.7 is that it be made unlawful for a sponsor to be paid by visa applicants for a migration outcome and that this be reinforced by a robust penalty and conviction framework.
The report found that some sponsors in the 457 visa programme have been paid by visa applicants in return for a migration outcome. Currently, the Australian Government is not able specifically to take action against such "payment for visas‟ activity, which occurs where a benefit is asked for, received, offered or provided in return for a migration outcome.
The Government considers that "payment for visas‟ activity is unacceptable because it undermines the integrity of Australia's visa programmes. It is not acceptable for sponsors, employers or other third parties to make a personal gain from their position in a "payment for visas‟ arrangement and it is not acceptable for a visa holder to become an Australian permanent resident by engaging in "payment for visas‟ behaviour. Applicants who have paid for their visa are more vulnerable to exploitation and extortion by their sponsor, behaviour which endangers workers and undermines Australian workplace law.
The Bill therefore introduces a new criminal offence and civil penalty provision which will allow sanctions to be imposed on sponsors and other third parties who engage in "payment for visas‟ activity. These sanctions are not limited to the 457 visa programme but also extend to other temporary and permanent skilled visa programmes where there is potential for "payment for visas‟ activity to occur.
The Bill also introduces a new civil penalty provision which will provide for a fine to be imposed on visa applicants or holders, or other third parties, who offer to provide, or provide, a benefit as part of a "payment for visas‟ arrangement.
The Bill also introduces a new discretionary power to consider cancellation of a temporary or permanent visa where the visa holder has engaged in "payment for visas‟ activity.
In particular, the Bill amends the Act to:
- introduce a discretionary power to consider cancellation of a temporary or permanent visa where the Minister is satisfied that:
- a benefit was asked for, or received by, or on behalf of, the visa holder in return for the occurrence of a sponsorship-related event; or
- a benefit was offered or provided by, or on behalf of, the visa holder in return for the occurrence of a sponsorship-related event;
- define a “sponsorship-related event” to mean, broadly, a person entering into a sponsorship arrangement or making a nomination in relation to certain sponsored visas or classes of sponsor, employing or engaging a person in work or an activity, the grant of a visa, or an event prescribed in the regulations;
- define a “benefit” to include a payment or other valuable consideration, a deduction of an amount, any kind of real or personal property, an advantage, a service or a gift;
- introduce a criminal offence which applies to a sponsor or other third party who asks for or receives a benefit from another person in return for the occurrence of a sponsorship-related event, and which carries a maximum penalty of 2 years imprisonment or 360 penalty units, or both;
- introduce a civil penalty provision which applies to a sponsor or other third party who asks for or receives a benefit from another person in return for the occurrence of a sponsorship-related event, and which carries a maximum penalty of 240 penalty units;
- introduce a civil penalty provision which applies to a visa holder or other third party who provides, or offers to provide, a benefit in return for the occurrence of a sponsorship-related event, and which carries a maximum penalty of 240 penalty units;
- impose civil and criminal liability on executive officers of a body corporate, which have been found to be involved in "payment for visas‟ activity, in certain circumstances where the officer knew that (or was reckless or negligent as to whether) the activity was occurring;
- provide for extended extraterritorial application of the offence as per Category B of the Criminal Code 1995 and provide for equivalent extraterritorial application of the civil penalty provisions;
- clarify how the offence and civil penalty provisions apply to partnerships and unincorporated associations; and
- allow existing inspector powers and investigation powers to be used in relation to the offence and civil penalty provisions.
The amendments in the Bill are necessary for the Government to send a clear message that "payment for visas‟ activity is unacceptable and to provide for explicit sanctions to address this conduct.