Demand for skilled international healthcare professionals continues to exist across all areas of Australia, and even globally. Australia’s latest Skilled Occupation List, orchestrated by the Department of Immigration and Citizenship (DIAC), recognises that Australia still needs more registered nurses and doctors, skilled in both general and specialist health care areas.

This means that many Australian health care providers seek to sponsor overseas workers skilled in these areas to temporarily live in Australia and work in these occupations. Most often, this is achieved under the Temporary Business (Long Stay) - Standard Business Sponsorship subclass 457 visa program, which allows Australian employers to sponsor overseas skilled workers to Australia to fulfil a nominated skilled position for a temporary period of up to four years. 

This arrangement is heavily utilised not only by the Australian health care industry but by many other industries and businesses throughout Australia. This is primarily because the subclass 457 visa program provides Australian businesses with the opportunity to quickly recruit key personnel with skills not available within Australia’s own labour market.

Sponsorship Obligations:

The subclass 457 visa program is subject to strict monitoring aimed at ensuring the integrity and fairness of the program. The Migration Legislation Amendment (Worker Protection) Act 2008 set out a series of amendments to the Migration Act 1958 clearly defining the obligations and responsibilities Australian sponsors of skilled overseas workers must meet in regard to each employee recruited internationally.

In brief, sponsors are obliged to ensure that;

• overseas workers work in Australia under the same conditions of employment and salary as Australian workers possessing the same skills and qualifications,
• they pay return travel costs, where requested in writing by the primary sponsored person and/or secondary sponsored person,
• the sponsored person works in the approved nominated position during their time in Australia,
• they cooperate with inspectors,
• they keep certain records regarding their approval as a sponsor and regarding all visa holders sponsored and that all information is provided to DIAC as required, as requested or when certain events occur,
• they pay the Australian Commonwealth for locating and removing visa holders who have breached their visa conditions,
• they do not seek to recover certain costs.

Monitoring Inspectors:

In order to ensure these obligations are met by Australian employers sponsoring overseas workers, the Migration Legislation Amendment (Worker Protection) Act 2008 ascribes and defines DIAC’s powers to monitor, investigate, enforce and sanction breaches of these obligations. Accordingly, DIAC has instituted ‘monitoring inspectors’ of Australian sponsors for 457 visas. These inspectors have considerable powers to ensure that sponsors have and continue to meet their sponsorship obligations and to give effect to the law when it is found they have not.

Monitoring inspectors have the power to enter a place of business or any other place relevant to a sponsor of a 457 visa holder without force, where the inspector believes there is information, documents or anything else relevant to inspection, and they may inspect any work, material, machinery, article, appliance or facility for this purpose.

Furthermore, inspectors may conduct site visits at the sponsor’s workplace, home, accountant’s office, migration agent’s office or any other site relevant to upholding the law regarding sponsorship obligations.

It is important to note that monitoring inspectors may legally require that sponsors give information or produce documentation, or anything relevant to their upholding the law even if doing so would incriminate the sponsor or subject them to a legal sanction or penalty.

This also applies to the sponsor’s servants and agents, including a non-lawyer migration agent. Any person or agency holding documents, information or correspondence relating to a subclass 457 visa matter must produce records and/or information when requested by a monitoring inspector, even if so doing would expose them to a penalty. 

However, the Migration Legislation Amendment (Worker Protection) Act 2008 provides an exemption for immigration lawyers who are registered migration agents from this requirement, due to ‘legal professional privilege.’ Thus migration agents who are also immigration lawyers do not have to produce documentation relevant to a subclass 457 visa matter on request.

Sponsorship Breaches and Non Compliance:

In the event of any breach of sponsorship obligations or a failure to cooperate with a monitoring inspector, DIAC may impose sanctions in one of three ways, depending on the severity of the breach. DIAC may take administrative action, which may include cancelling sponsorship approval or banning the business from further accessing the subclass 457 visa program. DIAC may also issue an infringement notice consisting of a fine, or the Department may pursue a civil penalty order through the Australian court system.

Where a breach of sponsorship obligations is found to exist or there had been a failure to cooperate with a monitoring inspector, an individual may be liable for a fine of up to $6,600 and a body corporate for a fine of up to $33,000.

Ensuring Compliance and Risk Reduction:

Given these extensive powers granted to monitoring inspectors of the subclass 457 visa program, and the heavy sanctions which may be imposed for breaching sponsorship obligations or for failing to cooperate with inspectors, it may be that in many cases traditional risk management processes are no longer appropriate to protect Australian organisations participating in subclass 457 visa international recruitment, both in the health care industry and others.

Traditionally, health care providers have relied on internal staff and in many instances migration agents to act on their behalf regarding subclass 457 visa sponsorship, nomination and visa applications. Yet the risk to the health care organisations (or any Australian organisation) and it’s managerial agents, is now so potentially damaging that there is a clear need to revaluate policies, procedures and practices associated with subclass 457 visa sponsorship. 

Most obviously, risk can be reduced by ensuring that all information and documentation relevant to any 457 sponsorship is accurate and legal. This can be assured by appointing more experienced staff to organise and enact such sponsorships. Considering the significant obligations of sponsorship, along with the penalties for breaching these obligations, it would seem unnecessarily hazardous to allow inexperienced internal staff or unprotected and/or under experienced migration agents to handle matters involving a subclass 457 visa sponsorship.

It therefore seems pertinent to employ protected experts in this field, namely, immigration lawyers who are also migration agents. This will help to ensure that all necessary legalities are followed in any sponsorship matter as well as offering further protection to the sponsor through their right to claim legal professional privilege where they have retained the services of a migration lawyer. Measures such as these should help to ensure that all Australian businesses and their managerial agents act in full compliance with the Migration Legislation Amendment (Worker Protection) Act 2008.

We have extensive experience in the area of subclass 457 visa sponsorship applications.  Contact our office today to find out how we can help take the stress and guess work out of the 457 sponsorships process.