by Alex Kaufman
In the past year, the Australian Government has rigorously enforced an immigration crackdown, introducing many changes to the migration program. This shift effectively wound back the concessions and ‘amnesties’ on strict compliance that were initially introduced to mitigate the challenges posed by the COVID-19 pandemic.
Our prediction of a shift toward immigration-related compliance and enforcement on the part of Australian Broder Force/Department of Home Affairs has been borne out by last month’s Federal Court case of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Tao [2024] FCA 292.
The ‘cash for visas case’ was prosecuted under sections 245AS and 245AR of the Migration Act 1958 with pecuniary penalties imposed on the parties in a multi-party commercial arrangement to supply and nominate workers under a regional sponsored (subclass 187) permanent visa. Although the contraventions occurred in 2017/2018, this case follows the recently published Nixon Review into Exploitation of Australia’s Visa System, and new powers and sanctions introduced under the Migration Amendment (Strengthening Employer Compliance) Bill – as amended – which passed both houses on 7 February 2024.
Broadly speaking, these new powers:
- Establish criminal offences and associated civil penalty provisions for:
- Employers/Sponsors who unduly influence, pressure, or coerce a non-citizen to breach a work-related condition of their visa.
- Employers/Sponsors who impose on a non-citizen to accept exploitative work arrangements to meet their visa conditions.
- Enable the Minister to:
- Prohibit certain employers from hiring additional non-citizens.
- Introduce associated offence and civil penalty provisions.
- Require the minister to publish certain information about prohibited employers.
- Increase and align maximum criminal and civil penalties for:
- Current and proposed work-related breaches.
- Employer-sponsored related breaches.
- Trigger enforceable undertaking provisions in the Regulatory Powers (Standard Provisions) Act 2014.
- Provide for enforceable compliance notices where an officer suspects a contravention of work or sponsorship-related offences or related provisions.
- Remove the criminal offence of breaching a work-related visa condition and insert an avoidance of doubt clause for remaining work-related offence provisions.
Suffice it to say, if the contraventions identified in the ‘Tao’ case were tried under the current compliance framework, the sanctions would have been substantially more severe for the Respondents in the case.
To assess your immigration compliance with the current and emerging employer sanctions framework amid the ongoing immigration crackdown, contact the Longton Migration team for a confidential assessment and pre-audit health check.
*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*
