ATTACHMENT A

 

 

Subsection 504(1) of the Migration Act 1958 ('the Act') provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

In addition, the following provisions may apply:

 

*         subsection 41(1) of the Act provides that the Migration Regulations 1994 ('the Principal Regulations') may provide that visas, or visas of a specified class, are subject to specified conditions.

 

*         subsection 41(2) of the Act provides that, without limiting subsection 41(1), the Principal Regulations may provide that a visa, or visas of a specified class, are subject to:

 

o   a condition that, despite anything else in the Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa or a temporary visa of a specified kind), while he or she remains in Australia; or

o   a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restriction on doing any work, work other than specified work or work of a specified kind.

 

• subsection 41(2A) of the Act provides that the Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under the Principal Regulations made for the purposes of that paragraph or under subsection (3).

 

• subsection 41(3) of the Act provides that, in addition to any conditions specified under subsection 41(1), the Minister may specify that a visa is subject to such conditions as permitted by the Principal Regulations for the purposes of this subsection.

 

• subsection 140E(1) of the Act provides that the Minister must approve a person as a sponsor in relation to one or more classes prescribed for the purpose of subsection 140E(2) if prescribed criteria are satisfied.

 

• subsection 140E(2) of the Act provides that the Principal Regulations must prescribe classes in relation to which a person may be approved as a sponsor.

 

• subsection 140E(3) of the Act provides that different criteria may be prescribed for:

 

o   different kinds of visa (however described); and

o   different classes in relation to which a person may be approved as a sponsor; and

o   different classes of person within a class in relation to which a person may be approved as a sponsor.

 

• section 140G of the Act provides under subsection 140G(1) that an approval as a sponsor may be on terms specified in the approval.  It further provides under subsection 140G(2) that the terms must be of a kind prescribed by the Principal Regulations.

 

• subsection 140G(3) of the Act provides an actual term of approval as a sponsor may be prescribed by the Principal Regulations.

 

• subsection 140G(4) of the Act provides that different kinds of terms may be prescribed for:

 

o   different kinds of visa (however described); and

o   different classes in relation to which a person may be approved as a sponsor.

 

• subsection 140GA(1) of the Act provides that the Principal Regulations may establish a process for the Minister to vary a term of a person's approval as a sponsor.

 

• subsection 140GA(2) of the Act provides that the Minister must vary a term specified in an approval if:

 

o   the term is of a kind prescribed by the Principal Regulations for the purposes of this paragraph; and

o   prescribed criteria are satisfied.

 

• subsection 140GA(3) of the Act provides that different processes and different criteria may be prescribed for:

 

o       different kinds of visa (however described); and

o       different kinds of terms; and

o       different classes in relation to which a person may be approved as a sponsor.

 

• subsection 140GB(1) of the Act provides that an approved sponsor may nominate:

 

o   an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:

 

§  the applicant or proposed applicant's proposed occupation; or

§  the program to be undertaken by the applicant or proposed applicant; or

§  the activity to be carried out by the applicant or proposed applicant; or

 

o   a proposed occupation, program or activity.

 

• subsection 140GB(2) of the Act provides that the Minister must approve an approved sponsor's nomination if prescribed criteria are satisfied.

 

• subsection 140GB(3) of the Act provides that the Principal Regulations may establish a process for the Minister to approve an approved sponsor's nomination.

 

• subsection 140GB(4) of the Act provides that different criteria and different processes may be prescribed for:

 

o   different kinds of visa (however described); and

o   different classes in relation to which a person may be approved as a sponsor.

 

• subsection 140H(1) of the Act provides that a person who is or was an approved sponsor must satisfy the sponsorship obligations prescribed by the Principal Regulations.

 

• subsection 140H(4) of the Act provides that the Principal Regulations may require a person to satisfy sponsorship obligations in respect of each visa holder sponsored by the person or generally.

 

• subsection 140H(5) of the Act provides that sponsorship obligations must be satisfied in the manner (if any) and within the period (if any) prescribed by the Principal Regulations.

 

• subsection 140H(6) of the Act provides that different kinds of sponsorship obligations may be prescribed for:

 

o   different kinds of visa (however described); and

o   different classes in relation to which a person may be, or may have been, approved as a sponsor.

 

ATTACHMENT B

 

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Amendment Regulation 2013 (No. 5)

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

*         Schedule 1 - Amendment of Migration Regulations 1994

 

Overview of the Legislative Instrument

 

The Legislative Instrument amends regulations within Part 2A - Sponsorship Applicable to Division 3A of Part 2 of the Act, of the Migration Regulations 1994 ('the Principal Regulations').  The amendments are designed to strengthen the integrity of the Subclass 457 (Temporary Work (Skilled)) visa ('Subclass 457 visa') program and, in the case of regulation 2.87, additional programs involving 'approved sponsors'.  The amendments provides for:

 

*         requiring standard business sponsors to engage temporary sponsored persons under a written contract of employment, preventing on-hire arrangements (outside of an approved labour agreement or unless an exempt occupation), or in an employment arrangement that includes characteristics normally associated with an independent contractor arrangement rather than an employment relationship (unless an exempt occupation); and

*         strengthening an approved sponsor's obligation not to recover costs from a temporary sponsored visa holder by requiring a sponsor to bear certain costs.

 

The amendments outlined above are designed to strengthen the integrity and effectiveness of the Subclass 457 visa Program and temporary skilled programs, and assist the prevention of the exploitation of visa holders.  The above measures strengthen existing regulations requiring standard business sponsors to ensure a primary sponsored person works in their nominated occupation (see regulation 2.86) and approved sponsors not to recover certain costs (see regulation 2.87).

 

While amendments to the Regulations in 2009 (resulting from the Migration Legislation Amendment (Worker Protection) Act 2008) introduced an obligation on approved sponsors to ensure a temporary sponsored person works in their nominated occupation, program or activity, and obliged them not to recover certain costs, monitoring of sponsors has revealed some sponsors are:

 

*         on-hiring primary sponsored persons to other businesses;

 

*         disguising direct employment relationships as independent contracting arrangements; and

 

*         requiring temporary sponsored visa holders to bear certain sponsor costs (relating to the recruitment of the visa holder and associated migration agent costs related to becoming an approved sponsor).

 

Human rights implications

 

The Legislative Instrument is relevant to the following human rights:

 

Right to work and rights at work

 

The obligation for States to recognise the right to work is provided for in Article 6 of the International Covenant on Economic, Social and Cultural Rights ('ICESCR') and the recognition of rights at work are provided for by Article 7 of ICESCR.

 

Article 6 provides:

 

'The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.'

 

Unlike Australian citizens and permanent non-citizens, temporary non-citizens (to which this measure applies) are granted a right to work by the authority of the Australian Government and the temporary sponsored visa holder is subject to any conditions that are placed on the visa, and does not hold work rights independently of that authority.  The amendments, inasmuch as they relate to the integrity of the Subclass 457 visa and the obligations which are placed on sponsors, do not engage Article 6 obligations.

 

However, the effects of the amendments engage the obligations under Article 7 of the ICESCR.  Broadly, Article 7 recognises the right of everyone to the enjoyment of just and favourable conditions of work.

 

By prohibiting on-hire arrangements (unless permitted through an approved Labour Agreement or in an exempt occupation), as well as employment relationships misrepresented as independent contractor arrangements (unless in an exempt occupation), the Legislative Instrument will help ensure that sponsors only employ temporary sponsored visa holders in a direct employer/employee relationship with all of the attached protections, benefits and entitlements.

 

From an Article 7 perspective, the amendments will:

 

*         remove any ambiguity as to who is responsible for providing primary sponsored persons' employment conditions; and

 

*         highlight that it is not permissible for an approved sponsor to require a person to pay certain costs (including recruitment costs and migration agent fees).

 

To the extent that the amendments provide clarity, certainty and further protection to sponsored visa holders, the amendments are consistent with the obligations under Article 7.

 

Conclusion

 

The Legislative Instrument is compatible with human rights because it advances the protection of temporary sponsored visa holders who have been granted a right to work in Australia.

 

 

ATTACHMENT C

 

 

Details of the Migration Amendment Regulation 2013 (No. 5)

 

Section 1 - Name of Regulation

 

This section provides that the title of the Regulation is the Migration Amendment Regulation 2013 (No. 5).

 

Section 2 - Commencement

 

This section provides for the Regulation to commence on 1 July 2013.

 

The purpose of this section is to provide for when the amendments made by the Regulation commences.

 

Section 3 - Authority

 

This section provides that this regulation is made under the Migration Act 1958 ('the Act').

 

The purpose of this section is to set out the Act under which the Regulation is made.

 

Section 4 - Schedule(s)

 

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

The purpose of this section is to provide for how the amendments in the Regulation operate.

 

Schedule 1 - Amendments relating to temporary skilled visas

 

The Subclass 457 (Temporary Work (Skilled)) visa ('Subclass 457 visa') program comprises of three distinct stages:

 

• the first stage requires the person seeking to become a sponsor to apply for approval as a sponsor or, if they are already a sponsor, to apply to vary the terms of approval as a sponsor;
• the second stage requires the sponsor to apply to nominate a person for sponsorship;
• the third stage requires the person who is proposed to be nominated for sponsorship to apply for a Subclass 457 visa.  This stage will not apply to a person who already holds a Subclass 457 visa.

 

Subsection 140E(1) of the Act relevantly provides that the Minister must approve a person as a sponsor if prescribed criteria are satisfied.  The prescribed criteria for approval of sponsor are provided for in regulation 2.59 to regulation 2.60M in Division 2.13 of Part 2A of the Migration Regulations 1994 ('the Principal Regulations').  The applicable criteria for approval of sponsor depend on which class of sponsor that the applicant applied for.  For example, a standard business sponsor is required to satisfy the criteria in regulation 2.59.

 

Subsection 140GA(2) of the Act provides that the Minister must vary a term specified in an approval if:

 

*         the term is of a kind prescribed by the Principal Regulations for the purposes of this paragraph; and

*         prescribed criteria are satisfied.

 

To vary the terms of sponsorship approval, the sponsor has to satisfy the applicable criteria in regulation 2.68 or regulation 2.68A.

 

Subsection 140GB(1) of the Act provides that an approved sponsor may nominate:

 

*         an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:

 

o   the applicant or proposed applicant's proposed occupation; or

o   the program to be undertaken by the applicant or proposed applicant; or

o   the activity to be carried out by the applicant or proposed applicant; or

 

*         a proposed occupation, program or activity.

 

Section 5 of the Act defines 'approved sponsor' to mean:

 

• a person:

 

• who has been approved by the Minister under section 140E in relation to a class prescribed by the Principal Regulations for the purpose of subsection 140E(2); and

o   whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class; or

 

• a person (other than a Minister) who is a party to a work agreement.

 

An approved sponsor may nominate a person if they meet the relevant nomination criteria in Division 2.17.  To nominate a person for a Subclass 457 visa, the sponsor must meet the criteria for approval of nomination in regulation 2.72.

 

Subsection 140GB(2) of the Act provides that the Minister must approve an approved sponsor's nomination if prescribed criteria are satisfied.

 

Subregulation 2.72(2) provides that for subsection 140GB(2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulation 2.72(3) to subregulation 2.72(12).

 

Subregulation 2.72(10) sets out the criteria which the Minister must be satisfied for approval of a nomination made by a person who is a standard business sponsor. 

 

Subsection 140H(1) of the Act provides that a person who is or was an approved sponsor must satisfy the sponsorship obligations prescribed by the Principal regulations.  Subsection 140H(5) of the Act provides that the sponsorship obligations must be satisfied in the manner (if any) and within the period (if any) prescribed by the regulations.  Regulation 2.77 provides that, for subsection 140H(1) of the Act, each of the obligations mentioned in Division 2.19 of Part 2A of the Principal Regulations is a sponsorship obligation that a person to whom the obligation applies must satisfy.

 

Accordingly, an approved sponsor is required to meet the sponsorship obligations in Division 2.19.

 

The amendments in Items 1, 2, 8 and 9 of this Regulation prevents a sponsor, or a person seeking approval to become a sponsor, from transferring, recovering or cause another person to pay some or all of the costs related to the person becoming a sponsor or related to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act.

 

The purpose of these amendments is to ensure that a sponsor, or a person seeking approval to become a sponsor, is solely responsible for costs relating to them becoming a sponsor, and costs related to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act.

 

The amendments in Items 3, 4, 5, 6, 7 and 10 of this Regulation ensures that the sponsored person, or prospective sponsored person, is engaged as an employee of the sponsor and under a written contract of employment, unless the occupation is specified by the Minister in an instrument in writing or in accordance with an approved work agreement.

 

The purpose of these amendments is to strengthen the existing requirement for all sponsored persons under standard business sponsors to be engaged as an employee of the sponsor.

 

Items 1 and 2 - After regulation 2.60M and After regulation 2.68A

 

Item 1 inserts new regulation 2.60S after regulation 2.60M into Division 2.13 of Part 2A of the Principal Regulations.

 

Item 2 inserts new regulation 2.68J after regulation 2.68A into Division 2.15 of Part 2A of the Principal Regulations.

 

New subregulation 2.60S(1) provides that, for subsection 140E(1) of the Act, the criteria in this regulation are in addition to the criteria in regulation 2.59 to regulation 2.60M.

 

New subregulation 2.68J(1) provides that, for paragraph 140GA(2)(b) of the Act, the criteria in this regulation are in addition to the criteria in regulations 2.68 and 2.68A.

 

New subregulation 2.60S(2) and new subregulation 2.68J(2) relevantly provides that, the criteria that must be satisfied for the Minister to approve an application by a person ('the applicant') for approval as a sponsor mentioned in any of regulation 2.59 to regulation 2.60M, or for a variation of a term of approval as a sponsor mentioned in regulation 2.68 or 2.68A, include a criterion that the Minister is satisfied that the applicant:

 

*         has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs associated with the applicant becoming an approved sponsor, including migration agent costs; and

*         has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs associated with the applicant becoming an approved sponsor, including migration agent costs; and

*         has not taken any action, and has not sought to take any action that would result in the transfer to another person or some or all of the costs that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act, including migration agent costs; and

*         has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act, including migration agent costs; and

*         if the applicant has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:

 

• a Subclass 402 (Training and Research) visa; or
• a Subclass 416 (Special Program) visa; or
• a Subclass 488 (Superyacht Crew) visa;

 

the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder; and

 

• if the applicant has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:

 

o   a Subclass 402 (Training and Research) visa; or

o   a Subclass 416 (Special Program) visa; or

o   a Subclass 488 (Superyacht Crew) visa;

 

the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder.

 

Subregulation 2.60S(3) and subregulation 2.68J(3) provides that, the criteria that must be satisfied for the Minister to approve an application by a person ('the applicant') for approval as a sponsor mentioned in any of subregulations 2.59 to 2.60M, or for a variation of a term of approval as a sponsor mentioned in regulations 2.68 or 2.68A, include a criterion that the Minister is satisfied that the applicant:

 

• has not recovered from another person some or all of the costs, including migration agent costs:

 

o   associated with the person becoming an approved sponsor; or

o   that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

 

• has not sought to recover from another person some or all of the costs, including migration agent costs:

 

o   associated with the person becoming an approved sponsor; or

o   that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act;

 

• if the applicant has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:

 

o   a Subclass 402 (Training and Research) visa; or

o   a Subclass 416 (Special Program) visa; or

o   a Subclass 488 (Superyacht Crew) visa;

 

the applicant has not recovered from another person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder; and

 

• if the applicant has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:

 

o   a Subclass 402 (Training and Research) visa; or

o   a Subclass 416 (Special Program) visa; or

o   a Subclass 488 (Superyacht Crew) visa;

 

the applicant has not sought to recover from another person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder.

 

New subregulation 2.60S(4) and 2.68J(4) relevantly provides that the Minister may disregard a criterion referred to in subregulation (2) or (3) if the Minister considers it reasonable to do so.

 

Previously, regulation 2.87 prevents a sponsor from recovering costs related to becoming a sponsor, and costs related to the recruitment of the sponsored person or prospective sponsored person, from a sponsored person.  However, there are no criteria in regulation 2.59 and regulation 2.68 preventing a person from becoming a sponsor, or varying the term of their approval as a sponsor, if they have recovered costs from a sponsored person.

 

This amendment strengthens the existing legislative framework by introducing additional criteria applicable to all classes of sponsor to ensure that, if the sponsorship applicant took any action, or sought to take any action, that resulted in the transfer or recovery of certain costs from another person, or the payment of certain costs by another person, the application can be refused.  This amendment also broadens the existing scope under regulation 2.87 to cover, in addition to cost recovery related actions, any actions that result in the transfer of certain costs to another person or the payment of certain costs by another person.

 

To provide flexibility in the sponsorship program, this amendment provides for the Minister to disregard the criteria in subregulations 2.60S(2) and (3), and 2.68J(2) and (3), if the Minister considers it reasonable to do so.

 

An example of when the Minister may consider it reasonable to disregard the criteria in subregulations 2.60S(2) and (3), and 2.68A(2) and (3) is where a sponsor inadvertently has a minor failure that, once identified, is rectified by the sponsor.

 

The purpose of this amendment is to ensure that the applicant for approval of sponsorship, or for variation of the term of approval as a sponsor, is solely responsible for certain costs.

 

Item 3 - At the end of subregulation 2.72(10)

 

This item adds a new subparagraph 2.72(10)(h) at the end of subregulation 2.72(10) in Division 2.17 of Part 2A of the Principal Regulations to provide a new criterion for approval of nomination by a standard business sponsor.

 

New paragraph 2.72(10)(h) provides for the requirement that, if the person is a standard business sponsor, the Minister is satisfied that:

 

• either:

 

o   the person will:

 

§  engage a visa holder, an applicant for a visa or the proposed applicant for a Subclass 457 visa only as an employee under a written contract of employment; and

§  give a copy of that contract to the Minister; or

 

• the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

 

Sub-subparagraph 2.72(10)(e)(iii)(B) relevantly provides that, if the nomination is made on or after 1 July 2010, the person has certified as part of the nomination, in writing, that if the person lawfully operates a business in Australia, the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph.

 

It is intended that a sponsored person, or a prospective sponsored person, is engaged only as an employee of the standard business sponsor.  To strengthen this intention, this amendment inserts a new criteria in subregulation 2.72(10) to require the sponsor to satisfy the Minister that the visa holder, applicant or a visa or the proposed applicant for a Subclass 457 visa is engaged as an employee under a written contract of employment.

 

However, this requirement will not apply if the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph 2.72(10)(e)(iii)(B).

 

The purpose of this amendment is to strengthen the existing requirement and the intention of the standard business sponsorship program for the sponsored person, or prospective sponsored person, to be engaged as an employee of the sponsor.

 

Item 4 - At the end of subregulation 2.82(3)

 

This item adds a new paragraph 2.82(3)(f) in Division 2.19 of Part 2A of the Principal Regulations to provide a new criterion for record keeping by a sponsor.

 

Subregulation 2.82(3) relevantly provides for the records that must be kept by a standard business sponsor.

 

Currently, regulation 2.82 does not require the sponsor to keep records of the contract of employment under which the sponsored person is employed.

 

New paragraph 2.82(3)(f) provides that the sponsor must now keep a record of the contract of employment under which the primary sponsored person is employed.

 

This amendment complements the new requirement under the new subregulation 2.72(10)(h) and subregulation 2.86(2AA), which requires the sponsor to satisfy the Minister that the sponsored person, or prospective sponsored person, is engaged on a written contract of employment.

 

The purpose of this amendment is to require sponsors to keep a record of the relevant contract of employment to demonstrate that they meet the requirements under the new subregulation 2.86(2AA) to engage the sponsored person on a written contract of employment.

 

Item 5 - Paragraph 2.86(2A)(c)

 

This item omits the phrase "if the person is, or was, a standard business sponsor who lawfully operates a business in Australia" and substitutes it with "if the person is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the person's approval as a standard business sponsor, or at the time of the last approval of a variation to the person's term of approval as a standard business sponsor".

 

Paragraph 2.86(2A)(c) had previously provided that, subject to subregulation 2.86(2B), if the person is or was a standard business sponsor who lawfully operates a business in Australia - the primary sponsored person is engaged only as:

 

*         an employee of the person; or

 

*         an employee of an associated entity of the person.

 

Substituted paragraph 2.86(2A)(c) provides that, if the person is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the person's approval as a standard business sponsor, or at the time of the last approval of a variation to the person's term of approval as a standard business sponsor Australia - the primary sponsored person is engaged only as:

 

*         an employee of the person; or

*         an employee of an associated entity of the person.

 

This amendment is consequential to the new obligation in subregulation 2.86(2AA) and aligns the wording in subregulation 2.86(2A)(c) with the new paragraph 2.86(2AA)(b).

 

Item 6 - Paragraph 2.86(2A)(d)

 

This item omits the phrase "if the person is, or was, a standard business sponsor who does not lawfully operate a business in Australia" and substitutes with it "if the person is, or was, a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the person's approval as a standard business sponsor, or at the time of the last approval of a variation to the person's term of approval as a standard business sponsor".

 

Paragraph 2.86(2A)(d) previously provided that, if the person is or was a standard business sponsor who does not lawfully operate a business in Australia -- the primary sponsored person is engaged only as an employee of the person.

 

Substituted paragraph 2.86(2A)(d) provides that, if the person is, or was, a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the person's approval as a standard business sponsor, or at the time of the last approval of a variation to the person's term of approval as a standard business sponsor -- the primary sponsored person is engaged only as an employee of the person.

 

This amendment is consequential to the new obligation in subregulation 2.86(2AA) and aligns the requirements in subregulation 2.86(2A)(d) with the new paragraph 2.86(2AA)(c).

 

Item 7 - After subregulation 2.86(2A)

 

This item inserts new subregulations 2.86(2AA) and (2AB) after subregulation 2.86(2A) into Division 2.19 of Part 2A of the Principal Regulations.

 

Currently, regulation 2.86 provides for a sponsorship obligation which requires the sponsor to ensure that the sponsored person works or participates in their nominated occupation program or activity.

 

Currently, subregulation 2.86(2A) provides that, subject to subregulation 2.86(2B), if:

 

*         the primary sponsored person holds a Subclass 457 visa; or

*         the last substantive visa held by the primary sponsored person was a Subclass 457 visa;

 

the sponsor must ensure:

 

*         if the sponsor is or was a standard business sponsor who lawfully operates a business in Australia -- the primary sponsored person is engaged only as:

 

o   an employee of the person; or

o   an employee of an associated entity of the person; or

 

*         if the sponsor is or was a standard business sponsor who does not lawfully operate a business in Australia -- the primary sponsored person is engaged only as an employee of the person; or

*         if the person is or was a party to a work agreement -- the primary sponsored person is engaged only as an employee of the person.

 

New subregulation 2.86(2AA) provides that, in addition to subregulation (2A), if the person is, or was, a standard business sponsor, the person must ensure that, if the nominated occupation is not an occupation specified by the Minister in an instrument in writing for sub-subparagraph 2.72(10)(e)(iii)(B):

 

*         the primary sponsored person is employed under a written contract of employment; and

*         if the person is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the person's approval as a standard business sponsor, or at the time of the last approval of a variation to the person's term of approval as a standard business sponsor:

 

o   the person does not engage in activities that relate to the recruitment of a visa holder, an applicant for a visa or a proposed applicant for a visa for the purposes of supplying the holder, applicant or proposed applicant to a business that is not associated with the person; and

o   the person does not engage in activities that relate to the hire of a visa holder to a business that is not associated with the person; and

 

*         if the person is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the person's approval as a standard business sponsor, or at the time of the last approval of a variation to the person's term of approval as a standard business - sponsor:

 

o   the person does not engage in activities that relate to the recruitment of a visa holder, an applicant for a visa or a proposed applicant for a visa for the purpose of supplying the holder, applicant or proposed applicant to any other business; and

o   the person does not engage in activities that relate to the hire of a visa holder to any other business.

 

This amendment strengthens the existing requirement for the primary sponsored person to be engaged as an employee of the sponsor by introducing a new sponsorship obligation to:

 

*         require the sponsor to ensure that the primary sponsored person is employed under a written contract of employment; and

*         depending on whether the sponsor was approved as a standard business sponsor who lawfully operated a business in Australia at the time of sponsorship approval, prohibit the sponsor from engaging in certain on-hire activities.

 

Consistent with the intention of the standard business sponsorship program, this amendment is intended to continue the existing exclusion of the on-hire industry from the standard business sponsorship program, unless the nominated occupation is specified by the Minister in an instrument in writing.  On-hire arrangements are problematic in the context of Subclass 457 visas, as it may not be clear if the primary sponsored person is working as a contractor or an employee, which affects what rights and entitlements that the primary sponsored person has access to, and it may be unclear who is responsible for the control and supervision of the primary sponsored person.

 

The standard business sponsorship program is designed to enable employers to address skilled labour shortages in Australia by recruiting skilled overseas workers where skilled local workers are not available in Australia.  Employers seeking access to the program are required to meet a series of requirements before they can sponsor an overseas worker.  As such, it is not intended for sponsors to be able to on-hire an overseas worker because it is intended for the overseas worker to provide the skills necessary for the employers' business.

 

The purpose of this amendment is also to strengthen the existing requirement, in accordance with the intention of the standard business sponsorship program, for the sponsored person, or prospective sponsored person, to be engaged only as an employee of the sponsor, unless the occupation is specified by the Minister in an instrument in writing for sub-subparagraph 2.72(10)(e)(iii)(B).

 

New subregulation 2.86(2AB) provides that the person's obligation in subregulation (2AA) applies only in relation to:

 

*         a primary sponsored person:

 

o   who holds a Subclass 457 visa; or

o   whose last substantive visa held was a Subclass 457 visa; and

 

*         a primary sponsored person:

 

o   who holds a Subclass 457 visa on the basis of satisfying the criteria in subclause 457.223(4) of Schedule 2; or

o   whose last substantive visa was a Subclass 457 visa held on the basis of satisfying the criteria in subclause 457.223(4) of Schedule 2.

 

Subclause 457.223(4) provides for the criteria for a visa applicant who has been nominated by a standard business sponsor.

 

The purpose and effect of this amendment is to provide for the obligation in new subregulation 2.86(2AA) to apply only to a primary sponsored person who is sponsored by a standard business sponsor, rather than a party to a work agreement.  It is not intended for the obligation in new subregulation 2.86(2AA) to apply to a party to a work agreement because work agreements are intended to operate under more flexible arrangements.

 

Item 8 - Regulation 2.87 (heading)

 

This item repeals and substitutes the heading of regulation 2.87 in Division 2.19 of the Principal Regulations.

 

The heading of regulation 2.87 previously read as 'Obligation not to recover certain costs from a primary sponsored person or secondary sponsored person'.

 

Substituted heading of regulation 2.87 reads as 'Obligation not to recover, transfer or take actions that would result in another person paying for certain costs'.  This amendment is consequential to the changes to regulation 2.87.

 

Item 9 - Subregulations 2.87(1) and (2)

 

This item repeals subregulation 2.87(1) and subregulation 2.87(2) of Division 2.19 of Part 2A of the Principal Regulations and substitutes them with new subregulations 2.87(1), (1A) and (1B).

 

Subregulation 2.87(1) previously provided that this regulation applies to a person who is or was an approved sponsor of a primary sponsored person or a secondary sponsored person.

 

Subregulation 2.87(2) previously provided that the person must not recover, or seek to recover, from the primary sponsored person or secondary sponsored person, all or part of the following costs:

 

• the costs that relate specifically to the recruitment of the primary sponsored person, including migration agent costs;
• the costs, including migration agent costs, associated with:

 

• becoming an approved sponsor;

o   being an approved sponsor;

o   being a former approved sponsor.

 

Substituted subregulation 2.87(1) provides that this regulation applies to a person who is or was an approved sponsor.

 

Substituted subregulation 2.87(1A) provides that the person:

 

• must not take any action, or seek to take actions, that would result in the transfer to another person of some or all of the costs, including migration agent costs:

 

• associated with the person becoming an approved sponsor; or

o   associated with the person being an approved sponsor; or

o   associated with the person being a former approved sponsor; or

o   that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

 

• must not take any action, or seek to take actions, that would result in another person paying to the person some or all of the costs, including migration agent costs:

 

• associated with the person becoming an approved sponsor; or

o   associated with the person being an approved sponsor; or

o   associated with the person being a former approved sponsor; or

o   that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

 

• if the applicant has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:

 

• a Subclass 402 (Training and Research) visa; or

o   a Subclass 416 (Special Program) visa; or

o   a Subclass 488 (Superyacht Crew) visa;

 

must not take any action, or seek to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder; and

 

• if the applicant has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:

 

• a Subclass 402 (Training and Research) visa; or

o   a Subclass 416 (Special Program) visa; or

o   a Subclass 488 (Superyacht Crew) visa;

 

must not take any action, or seek to take any that would result in another person paying to the person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder.

 

Substituted subregulation 2.87(1B) provides that the person:

 

• must not recover from another person some or all of the costs, including migration agent costs:

 

• associated with the person becoming an approved sponsor; or

o   associated with the person being an approved sponsor; or

o   associated with the person being a former approved sponsor; or

o   that relate specifically to the recruitment of the primary sponsored person, or a non-citizen, for the purposes of a nomination under subsection 140GB(1) of the Act; and

 

• must not seek to recover from another person some or all of the costs, including migration agent costs:

 

• associated with the person becoming an approved sponsor; or

o   associated with the person being an approved sponsor; or

o   associated with the person being a former approved sponsor; or

o   that relate specifically to the recruitment of the primary sponsored person, or a non-citizen, for the purposes of a nomination under subsection 140GB(1) of the Act;

 

• if the applicant has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:

 

• a Subclass 402 (Training and Research) visa; or

o   a Subclass 416 (Special Program) visa; or

o   a Subclass 488 (Superyacht Crew) visa;

 

must not recover from another person of some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder; and

 

• if the applicant has agreed to be the sponsor of an applicant for, proposed applicant for, or holder of:

 

• a Subclass 402 (Training and Research) visa; or

o   a Subclass 416 (Special Program) visa; or

o   a Subclass 488 (Superyacht Crew) visa;

 

must not seek to recover from another person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of that applicant, proposed applicant or holder.

 

This amendment strengthens the existing legislative framework by broadening the existing scope under regulation 2.87 to cover, in addition to cost recovery related actions, any actions that result in the transfer of certain costs to another person or the payment of certain costs by another person.

 

The purpose of this amendment is to ensure that the sponsor is solely responsible for certain costs.

 

Item 10 - Paragraph 8107(3)(a) of Schedule 8

 

This item repeals and substitutes paragraph 8107(3)(a) of Schedule 8 to the Principal Regulations.

 

Currently, paragraph 8107(3)(a) provides that, if the visa is, or the last substantive visa held by the applicant was, a Subclass 457 visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

 

• the holder must:

 

o   work only in the occupation listed in the most recently approved nomination for the holder; and

o   unless the circumstances in subclause 8107(3A) apply -- work only for:

 

§  the standard business sponsor, former standard business sponsor, party to a labour agreement or former party to a labour agreement (the sponsor) who nominated the holder in the most recently approved nomination; or

§  if the sponsor is a standard business sponsor or former standard business sponsor who lawfully operates a business in Australia -- an associated entity of the sponsor.

 

Substituted paragraph 8107(3)(a) provides that, if the visa is, or the last substantive visa held by the applicant was, a Subclass 457 visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

 

• the holder:

 

• must work only in the occupation listed in the most recently approved nomination for the holder; and
• unless the circumstances in subclause (3A) apply:

 

• must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or
• if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor's approval as a standard business sponsor, or at the time of the last approval of a variation to the holder's term of approval as a standard business sponsor--must work only in a position in the business of the sponsor or an associated entity of the sponsor; or
• if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor's approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor's term of approval as a standard business sponsor --must work only in a position in the business of the sponsor.

 

This amendment substantially replicates the effects of existing paragraph 8107(3)(a), but clarifies the intention that the employer to whom the visa holder can work for is dependent on whether the employer was approved as a sponsor who was lawfully operating a business in Australia.

 

The purpose of this amendment is to strengthen the integrity of the standard business sponsorship program by ensuring that the Subclass 457 visa holder can only work for the intended employer.

 

Item 11 - At the end of Schedule 13

 

This item adds a new Part 20 - Amendments made by the Migration Amendment Regulation 2013 (No.  5) into Schedule 13 to the Principal Regulations.

 

The purpose of new Part 20 is to insert a new clause 2001 - Operation of Schedule 1, which deals with the transitional arrangements in respect of amendments that is made by this Regulation.

 

New subclause 2001(1) provides that the amendment of these Regulations made by item 1 of Schedule 1 to the Migration Amendment Regulation 2013 (No. 5) apply in relation to:

 

• an application for approval as a sponsor that:

 

• was made before 1 July 2013; and

o   had not been finally determined before 1 July 2013; and

 

• an application for approval as a sponsor made on or after 1 July 2013.

 

New subclause 2001(2) provides that the amendments of these Regulations made by item 2 of Schedule 1 to the Migration Amendment Regulation 2013 (No. 5) apply in relation to:

 

• an application for variation of a term of approval as a sponsor that:

 

• was made before 1 July 2013; and

o   had not been finally determined before 1 July 2013; and

 

• an application for variation of a term of approval as a sponsor made on or after 1 July 2013.

 

New subclause 2001(3) provides that the amendment of these Regulations made by item 3 of Schedule 1 to the Migration Amendment Regulation 2013 (No. 5) apply in relation to:

 

• a nomination under subsection 140GB(1) of the Act:

 

• made before 1 July 2013; and

o   not finally determined before 1 July 2013; and

 

• a nomination under subsection 140GB(1) of the Act made on or after 1 July 2013.

 

New subclause 2001(4) provides that the amendment of these Regulations made by item 4 of Schedule 1 to the Migration Amendment Regulation 2013 (No. 5) apply in relation to a standard business sponsor on or after 1 July 2013.

 

New subclause 2001(5) provides that the amendment of these Regulations made by item 5 of Schedule 1 to the Migration Amendment Regulation 2013 (No. 5) apply in relation to a standard business sponsor, or a former standard business sponsor, on or after 1 July 2013.

 

New subclause 2001(6) provides that the amendment of these Regulations made by items 6, 7 and 9 of Schedule 1 to the Migration Amendment Regulation 2013 (No. 5) apply on or after 1 July 2013.

 

New subclause 2001(7) provides that the amendment of these Regulations made by item 7 of Schedule 1 to the Migration Amendment Regulation 2013 (No. 5) apply in relation to a standard business sponsor, or a former standard business sponsor, on or after 1 July 2013.

 

New subclause 2001(8) provides that the amendment of these Regulations made by item 8 of Schedule 1 to the Migration Amendment Regulation 2013 (No. 5) applies in relation to a visa that is:

 

• in effect on 1 July 2013; or

*         granted on or after 1 July 2013.

 

This amendment is necessary to clarify to whom the amendments in this Regulation applies to.