457 Visa Changes and Updates 2016 – Employer and Visa Holder’s Rights and Obligations
Following a review of the 457 visa program, many changes were proposed during the last half of 2015 and some have now been enacted and are in effect.
The following are the important updates that pertain to employer sponsors and visa holders:
Charging Visa Applicants for ANY Employer Sponsorship
From 14 December 2015, it is now illegal for a benefit to be given by a visa applicant to another person in return for a "sponsorship-related event". This means that if a visa applicant pays an employer to sponsor them, the following can happen:
- Refusal of a visa application - applicants must now declare that they have not paid for sponsorship, and this could result in 4020 refusal and a 3 year ban.
- Cancellation of the visa applicant's visa - even if this did not require employer sponsorship
- Significant fines to the employer - up to $324,000 for a corporation
- Jail sentence of up to 2 years for the visa applicant, as well as a fine of up to $64,800 for individuals
- Fines for company officers and directors who allow payment for sponsorship to occur due to recklessness or negligence, or if they know about it
Although this is a result of the 457 review, the offences and consequences apply to all the following visa types:
- 457 visas
- ENS Subclass 186
- RSMS Subclass 187
- Temporary Work (Long Stay Activity) Subclass 401
- Training and Research Subclass 402 (Research stream)
- Entertainment Subclass 420
- Super Yacht Crew Subclass 488
Because the above offences are both criminal offences and civil offences, they do not require proof that the person acted knowingly.
What are "benefits"?
Benefits that are prohibited include:
- Payments or valuable consideration
- Deductions - for example from a person's salary
- Real or Personal Property
- An advantage, service or a gift
- Payment of reasonable fees to a migration advisor is exempt from the above provisions
What is a "sponsorship-related event"?
Sponsorship-related events that are prohibited include:
- Applying for approval as a sponsor, renewing this, or not withdrawing an application
- Applying for nomination
- Employing or engaging a person to work or perform an activity, or not terminating a person
What does this mean for you?
That there are very severe and significant consequences for paying for sponsorship.
Employers will be taking a very big risk for accepting payments from people wishing to be sponsored and applicants also face risking their future in Australia if they're caught paying for sponsorships.
Employers and applicants alike should be vigilant.
Self-sponsorship for 457 visas are now more difficult to obtain
Policy document changes have signalled that the Department will be looking quite closely to the "genuine position" requirement when assessing nominations for 457 visas. In the context of self-sponsorships, this would mean that the nomination could be refused on the basis that the position has been created just to facilitate a visa application.
There are several "risk factors" that have been prescribed as indicating that the position is not genuine:
- Visa applicant is a director or owner of the sponsoring business
- Visa applicant is a relative or personal associate of an officer of the sponsoring business
Amongst documents necessary for the application, the Department will now be requesting an ASIC historical extract that would give information on the company owners and directors. In doing so, this will establish whether the visa applicant is associated with a company officer. As an additional measure, sponsors must also declare the company officers and shareholders in the sponsorship application.
Applications that involve an overseas business to sponsor the business owner to establish a branch in Australia are being flagged for extra scrutiny.
Whilst we agree with the reasons for doing so, such as to stop people from circumventing the Business Innovation and Investment program (subclass 188 visa), there are unintended effects that could affect Australia's attractiveness to do business. For instances, this will make it much harder for temporary residents to start their own businesses, thereby hampering the innovation and the start up culture in this country. Working Holiday visa holders are the first ones that come to mind as the group that could be most disadvantaged by this change.
Appeal rights for 457 refusals
The Lee case determined that the AAT had no jurisdiction to review 457 visa refusals unless there was an approved nomination at the date the appeal was lodged.
However the Full Federal Court overturned the Lee case in Ahmad v Minister for Immigration and Border Protection  FCAFC 182, making it possible to lodge an appeal for 457 refusal where at the date of appeal:
- There is an approved nomination; or
- A nomination application is still pending; or
- There is a refused nomination, but the nomination has also been appealed to the MRT
But it would not be possible to appeal a 457 visa refusal if:
- A nomination has been refused, but not appealed to the MRT; or
- A nomination has previously been approved, but has now expired