Australian Immigration Law – is your business complying?

Australian Immigration Law compliance is fast becoming a high priority in the boardroom for Australian businesses given the serious penalties imposed by the Migration Act 1958 both for individuals and companies.

Protecting your business starts with knowing your immigration law compliance obligations.

Here are some of the key ways to ensure your business is compliant.

Employers have a positive obligation to check the immigration status of all employees

In a global world with a substantial number of people present in Australia on visas, it is more important than ever for employers to know the status of their employees at all times.  Employers found to have employed a foreign national who does not have permission to work or is working in breach of their visa conditions could face penalties of up to AUD3,780 to AUD126,000 per illegal worker (See: https://www.homeaffairs.gov.au/busi/Empl/Empl/employing-legal-workers )

The work-related civil penalty provisions in the Migration Act 1958 under which an infringement notice may be issued are:

  • allowing an unlawful non-citizen to work (s245AB)
  • allowing a lawful non-citizen to work in breach of a work-related condition (s245AC)
  • referring an unlawful non-citizen for work (s245AE)
  • referring a lawful non-citizen for work in breach of a work-related condition (s245AEA).

The Migration Act provides ‘reasonable steps’ as a statutory defence to defend allegations of a work-related contravention.   The onus is then on the employer to establish that they took reasonable steps at reasonable times to verify the work entitlement of a particular employee.

Reasonable steps prescribed by the Migration Regulations include but are not limited to:

  • using the Department of Home Affairs Visa Entitlement Verification Online (VEVO) system to verify a non-citizens visa status and related work entitlement
  • formally contracting a third party to verify that a worker has the required permission to work in Australia
  • inspecting certain documents as prescribed by the Regulations including the workers:
    • Australian or New Zealand passport or
    • Australian birth certificate or
    • evidence of Australian citizenship and a form of photo identification or
    • Certificate of Evidence of Residence Status and a form of photo identification or
    • Certificate of Status for New Zealand Citizens in Australia and a form of photo identification.

Sale of a business does not automatically transfer sponsored overseas workers

Sponsored temporary overseas workers have a visa condition which only permits them to work for the approved sponsoring entity.  This means that after the sale of a business, the new legal entity must be approved as a Standard Business Sponsor and the nominated position be reconsidered for approval under laws in force at that time.  The Department of Home Affairs will make a fresh assessment of the new business entity seeking approval and the nominated position at the time approval is sought to transfer across the existing temporary visa holder.

Sale of a business or mergers and acquisitions all too often happen without immigration law compliance having been considered. This can leave the new entity with staff who are not entitled to work after the sale of the business and where it relates to key staff can impact on the value of the business.  It can also result in long delays pending Sponsorship Approval of the new legal entity and Nomination and Visa approval for temporary workers who may be integral to the day to day operation of the business.

Sponsored employees are only entitled to work in the Nominated Occupation as approved by the Department of Home Affairs

The temporary employer-sponsored program is carefully monitored by the Department of Home Affairs with Fair Work inspectors having powers under the Migration Act to conduct audits on approved sponsors.