Paying for visa sponsorship – certification requirement

On 14 December 2015 new criminal and civil penalties and visa cancellation provisions were introduced as part of a framework that allows for sanctions to be imposed on a person who asks for, receives, offers or provides a benefit in return for a visa sponsorship or employment that requires visa sponsorship (otherwise known as a 'sponsorship-related event').

The certification requirement

Following the introduction of these new laws, sponsors, nominators and visa applicants are required to provide a statement in relation to current or previous conduct that constitutes a breach of 'paying for visa sponsorship'.  For the purposes of sponsorship and nomination applications, this statement is referred to as a certification. See Certification form (137KB PDF).

The mandatory certification required from sponsors and nominators requires you to have an understanding of the relevant sections of the Migration Act 1958 (the Act), which you are making your certification.  As a sponsor or nominator, sections 245AQ and 245AR of the Act are applicable.

This information is presented below for your reference.

245AQ definitions

benefit includes:

  • a payment or other valuable consideration
  • a deduction of an amount
  • any kind of real or personal property
  • an advantage
  • a service
  • a gift.

sponsorship-related event means any of the following events:

  • a person applying for approval as a sponsor under section 140E in relation to a sponsor class
  • a person applying for a variation of a term of an approval as a sponsor under section 140E in relation to a sponsor class
  • a person becoming, or not ceasing to be, a party to a work agreement
  • a person agreeing to be, or not withdrawing his or her agreement to be, an approved sponsor in relation to an applicant or proposed applicant for a sponsored visa
  • a person making a nomination under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination
  • a person not withdrawing a nomination made under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa
  • a person applying under the regulations for approval of the nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination
  • a person not withdrawing the nomination under the regulations of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa
  • a person employing or engaging, or not terminating the employment or engagement of, a person to work in an occupation or position in relation to which a sponsored visa has been granted, has been applied for or is to be applied for
  • a person engaging, or not terminating the engagement of, a person to undertake a program, or carry out an activity, in relation to which a sponsored visa has been granted, has been applied for or is to be applied for
  • the grant of a sponsored visa
  • a prescribed event.

A prescribed event within 245AQ(l) of the Act, is defined at 5.19N of the Migration Regulations 1994 (the Regulations) and includes:

  • a person becoming, or not ceasing to be, a party to a labour agreement that is not a work agreement
  • a person nominating a position in accordance with such a labour agreement in relation to the holder of, or an applicant or proposed applicant for,  a sponsored visa, or including another person in such a nomination
  • a person not withdrawing a nomination of a position made in accordance with such a labour agreement in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa.

245AR Prohibition on asking for or receiving a benefit in return for the occurrence of a sponsorship-related event

  1. A person (the first person) contravenes this subsection if:
    1. the first person asks for, or receives, a benefit from another person; and
    2. the first person asks for, or receives, the benefit in return for the occurrence of a sponsorship-related event.
  2. To avoid doubt, the first person contravenes subsection (1) even if the sponsorship-related event does not occur.
  3. Subsection (1) does not apply if the benefit is a payment of a reasonable amount for a professional service that has been provided, or is to be provided, by the first person or a third person.

    Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

    Offence

  4. A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

    Penalty: Imprisonment for 2 years or 360 penalty units, or both.

    Civil penalty provision

  5. A person is liable to a civil penalty if a person contravenes subsection (1).

    Civil penalty: 240 penalty units.

  6. A person who wishes to rely on subsection (3) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.

    Note: It is not necessary to prove a person's state of mind in proceedings for a civil penalty order (see section 486ZF).