As discussed by Kate and Jo in previous posts, significant reforms to the subclass 457 visa were made on 1 July 2013. These included changes to sponsor obligations relating to ensuring the primary sponsored person works in the nominated occupation, not recovering, costs, and providing training.
This post will address some common questions that have been raised by employers and migration agents about the obligation not to recover, transfer or take actions that would result in another person paying certain costs.
What changes have been made to this obligation?
Previously, sponsors were obligated not to recover certain costs from a primary sponsored person or their family. Since 1 July 2013, in addition to the existing requirement not to recover certain costs, sponsors cannot transfer or take any action that would result in another person paying those costs.
Specifically, sponsors must not pass on the following costs:
- sponsorship and nomination charges
- migration agent costs associated with the lodgement of sponsorship and nomination applications
- administrative costs and any sundry costs an employer incurs when they conduct recruitment exercises.
Sponsors fail this obligation if they pass or transfer these costs to others and the department may take actions such as barring or cancelling the sponsor from using the program, issuing an infringement notice, inviting the sponsor to enter into an enforceable undertaking or applying to a court for a civil penalty order.
Frequently Asked Questions
I was an approved sponsor before 1 July 2013, and the overseas worker I want to sponsor lodged their application before 1 July 2013. Would I breach the new requirements of this obligation if the worker paid any of the costs listed above upfront?
Before 1 July 2013 sponsors were obliged not to recover (or seek to recover) the costs described above.
The strengthened obligation will not be applied retrospectively. In other words, if you did not recover (or seek to recover) costs before 1 July 2013, you will have met your obligation not to recover costs. From 1 July 2013, you were also required not to transfer or take any action that would result in another person paying the costs described above.
Any action or payments by a visa holder of these costs post 1 July 2013 would be a failure by the sponsor to meet this obligation.
Aren’t nominations related to the visa applicant, and therefore shouldn’t they be able to pay for the costs associated with the nomination?
Applications for nomination and sponsorship are made by prospective or approved sponsors and cannot be made by the visa holder. These costs are inherently a cost of being or becoming an approved sponsor and must be borne by the sponsor. If a visa holder pays for sponsorship or nomination costs on behalf of the sponsor (after 1 July 2013), this is a failure of this obligation.
What constitutes recruitment costs that must not be recovered, transferred or charged to sponsored persons?
Recruitment costs include costs paid in connection with finding and attracting an employee—what these costs include will depend on the specific circumstances of an individual case.
The costs associated with the visa application (including migration agent fees associated with lodging the visa application) are usually paid for by the visa applicant, however, in some circumstances these costs may be considered to be recruitment costs. For example, if a sponsor agreed to pay the visa application charge (and associated migration agent fees) in order to attract a prospective 457 employee, these costs would be considered recruitment costs.
For further information on sponsorship obligations visit the department’s website www.immi.gov.au.