Regulations clarify scope of new ‘Migration Outcome’ law

11 Dec 15

AUSTRALIA

IMPACT – MEDIUM

What is the change? Australia has adopted new regulations to specify which categories of visas and types of sponsors are covered by a new law that criminalises accepting payments for migration outcomes. The regulations also require both sponsors and visa applicants to state whether or not they have engaged in conduct involving ‘payment for visas’ during the nomination and application processes.

What does the change mean? The Charging for a Migration Outcome Act will apply to seven visa categories, including the Subclass 457 visa. The law will apply to eight types of sponsors, including standard business sponsors. Sponsors and applicants alike will be required to certify whether or not they have received, requested or offered payments in exchange for securing a migration outcome.

  • Implementation time frame: The regulations commence 14 December 2015.
  • Visas/permits affected:Subclass 186 (Employer Nomination Scheme), Subclass 187 (Regional Sponsored Migration Scheme), Subclass 401 (Temporary Work (Long Stay Activity)), Subclass 402 (Training and Research), Subclass 420 (Temporary Work (Entertainment)), Subclass 457 (Temporary Work (Skilled)), and Subclass 488 (Superyacht Crew) visas.
  • Who is affected: The classes of sponsors who will be affected by the new law are standard business, entertainment, superyacht crew, long stay activity, training and research, religious worker, sports and exchange sponsors.
  • Business impact: The new law introduces stiff civil and criminal penalties for companies and individual company officials who request or accept payments to secure migration outcomes.

Background: The Charging for a Migration Outcome Act was passed by the Australian Parliament in November.

The regulations are meant to specify whom the law applies to and, in some instances, clear up confusion. The regulations make clear, for example, that the ban on accepting payment for visa outcomes covers ‘labour contracts’ that are not considered ‘work contracts’. The regulations also require sponsors and applicants to certify that they have not received, requested or offered payments in order to affect a migration outcome. Those who run afoul of the law’s civil penalty provisions will be given the opportunity to pay a fine rather than go through court proceedings. Finally, the regulations specify that the Minister for Immigration and Border Protection should be satisfied before issuing visas that applicants have not engaged in ‘payment for visa’ conduct in the past three years, or that it is reasonable to disregard such conduct.

While the law prohibits accepting or soliciting payments for helping secure a migration outcome, it does allow for ‘payment of a reasonable amount for a professional service’ in the visa process.

BAL Analysis: The move toward adopting a stringent penalty regime for those who either pay or accept payment for migration outcomes began with Australia’s overhaul of its Subclass 457 visa programme, but encompasses several other visa categories, Sponsors and visa applicants covered by the law face enhanced penalties – including imprisonment – for violating the law.

This alert has been provided by BAL Australia. For additional information, please contact australia@balglobal.com.

MARN: 9683856

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