MIGRATION AMENDMENT REGULATIONS 2009 (NO. 5) (SLI NO 115 OF 2009) EXPLANATORY STATEMENT

ATTACHMENT B

Details of the Migration Amendment Regulations 2009 (No. 5)

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2009 (No. 5).

Regulation 2 – Commencement

This regulation provides that the amendments made by Schedule 1 commence on 14 September 2009.

This is the same commencement date as for the Migration Legislation Amendment (Worker Protection) Act 2008 (the Worker Protection Act). Some of the proposed regulations are made for the purposes of provisions amended by the Worker Protection Act. Section 4 of the Acts Interpretation Act 1901 provides that where a provision confers a power to make regulations, the provision does not need to have commenced for regulations to be made under the provision – the provision need only have been enacted by the Parliament.

Regulation 3 – Amendment of Migration Regulations 1994

This regulation provides that the Migration Regulations 1994 (the Principal Regulations) are amended as set out in Schedule 1.

This regulation also provides the application provisions for the amendments made by Schedule 1.

Paragraph 3(2)(a) provides that the amendments made by Schedule 1 of the amending regulations apply in relation to a work agreement entered into before 14 September 2009 and continuing in effect on 14 September 2009; or entered into on or after 14 September 2009.

Paragraph 3(2)(a) confirms that the amendments made by Schedule 1 of the amending regulations apply in relation to all agreements which meet the requirements of a work agreement at new Division 2.18 (inserted by item [9]) regardless of when the agreement was entered into.

Paragraph 3(2)(b) provides that the amendments made by Schedule 1 apply in relation to an application for approval as a sponsor made, but not finally determined (within the meaning of subsection 5(9) of the Act) before 14 September 2009; or made on or after 14 September 2009.

Subsection 5(9) of the Act provides that an application is finally determined if a decision that has been made in respect of the application is no longer subject to, or is outside of time for, merits review by the Migration Review Tribunal or the Refugee Review Tribunal.

Paragraph 3(2)(b) confirms item 49 of the Worker Protection Act which has the effect that an application for approval as sponsor that is made, but not finally determined prior to 14 September 2009 is treated as if it is made on 14 September 2009, and the application must be assessed against the criteria prescribed at new regulation 2.59 and 2.60 (inserted by item [9]).

Paragraph 3(2)(c) provides that the amendments made by Schedule 1 apply in relation to an application for approval of a nomination of an activity:

· made under regulation 1.20G or 1.20GA of the regulations as in force immediately prior to 14 September 2009, but not finally determined within the meaning of subsection 5(9) of the Act before 14 September 2009; or

· made on or after 14 September 2009.

The effect of paragraph 3(2)(c) is that all applications for approval of a nomination made under regulation 1.20G or 1.20GA made, but not finally determined before 14 September 2009 will be decided in accordance with new Division 2.17 (inserted by item [9]) which sets out the new provisions relating to nominations for the purposes of section 140GB of the Act.

Paragraph 3(2)(d) provides that the amendments made by Schedule 1 apply in relation to an application for a variation of a term of approval of sponsorship made on or after 14 September 2009.

The effect of paragraph 3(2)(d) is that new Division 2.16 (inserted by item [9]), which sets out the new provisions relating to variation of terms of approval as sponsor for the purposes of section 140GA of the Act, applies on and from 14 September 2009. Prior to 14 September 2009 there was no express power or criteria to vary the terms of a person’s approval as a sponsor, therefore there will be no applications made, but not finally determined before 14 September 2009 in relation to varying terms of approval as a sponsor.

Subregulation 3(3) provides that if items 45 or 46 of Schedule 1 to the Worker Protection Act apply to a person, the sponsorship obligations made by Schedule 1 to the amending regulations start to apply to the person on the later of:

· the date on which the obligation commences for the person; or

· 14 September 2009.

Items 45 and 46 of Schedule 1 to the Worker Protection Act apply to a person who, immediately before 14 September 2009:

· is a standard business sponsor; or

· is an approved sponsor other than an approved professional development sponsor; or

· was an approved sponsor and a standard business sponsor (other than an approved professional development sponsor), and remained bound by an undertaking made under section 140H (prior to amendment by the Worker Protection Act) that was enforceable under section 140Q (prior to amendment by the Worker Protection Act).

Subregulation 3(3) clarifies that if an event prescribed in Division 2.19 (as to when a sponsorship obligation starts to apply to a person) happens prior 14 September 2009, then the prescribed obligation starts to apply on 14 September 2009, rather than on the happening of the event. This confirms that the sponsorship obligations cannot commence retrospectively.

Subregulation 3(4) provides that the amendments made by items [10] to [21] of Schedule 1 apply in relation to a decision, subject to merits review, made by the Minister on or after 14 September 2009.

The effect of subregulation 3(4) is that if a decision made by the Minister prior to 14 September 2009 was reviewable by the Migration Review Tribunal (MRT) by virtue of regulation 4.02 as in force prior to the amendments made by the amending regulations, it will continue to be eligible for review by the MRT after the amendments to regulation 4.02 (made by items [10] – [21]) commence on 14 September 2009. Without this provision, merits review would no longer be available for certain decisions made by the Minister before 14 September 2009, because the decisions are made under a different provision to the new provisions inserted in regulation 4.02 by items [10] – [21].

If the decision relates to an application for approval as a sponsor under section 140E of the Act, or for approval of a nomination made under regulations 1.20G or 1.20GA of the Principal Regulations, as in force immediately prior to 14 September 2009, then the MRT will decide the application in accordance with new Division 2.14 (in relation to an application under 140E of the Act) and new Division 2.17 (in relation to an application under regulations 1.20G and 1.20GA of the Principal Regulations). This is the effect of subparagraphs 2(b)(i) and 2(c)(i).

The note following regulation 3 explains that Part 2 of Schedule 1 to the Worker Protection Act provides transitional matters relevant to the amendments made by Schedule 1 of the amending regulations. The transitional matters include matters relevant to persons who were, immediately before 14 September 2009, approved sponsors approved professional development sponsors, standard business sponsors, and former standard business sponsors.

Schedule 1 – Amendments

Item [1] – Regulation 1.03, definition of approved professional development sponsor

This item omits the definition of “approved professional development sponsor” from regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations.

The term “approved professional development sponsor” is replaced by the similar term “professional development sponsor”. A definition of “professional development sponsor” is inserted by item [2].

Item [2] – Regulation 1.03, after definition of proficient English

This item inserts the definition of “professional development sponsor” and 2 notes into regulation 1.03 of Division 1.2 of Part 1 of the Principal Regulations.

This new definition replaces the similar definition “approved professional development sponsor” omitted by item [1].

The definition provides that “professional development sponsor” means a person who is both:

· approved as a sponsor in relation to the professional development sponsor class [by the Minister under subsection 140E(1) of the Act]; and

· an ‘approved sponsor’[within the meaning of subsection 5(1) of the Act].

A person who is approved under subsection 140E(1) as a professional development sponsor, is also an “approved sponsor” if their approval as a professional development sponsor has not been cancelled under section 140M of the Act, or their approval as a professional development sponsor has not otherwise ceased to have effect under section 140G of the Act.

Note 1 following the definition of “professional development sponsor” explains that the term “approved sponsor” is defined in subsection 5(1) of the Act.

Note 2 following the definition of “professional development sponsor” explains that different classes of sponsor, in relation to which a person may be approved as a sponsor, are prescribed under subsection 140E(2) of the Act at regulation 2.58. Regulation 2.58 is inserted into the Principal Regulations at new Division 2.12 by item [9].

Item [3] – Regulation 1.03, after definition of spouse

This item inserts a definition of “standard business sponsor” and 3 notes into regulation 1.03, in Division 1.2 of Part 1 of the Principal Regulations.

Prior to this amendment “standard business sponsor” was defined for the purposes of certain Divisions of the Principal Regulations, but it was not defined for the purposes of the Principal Regulations as a whole. The other definition of “standard business sponsor” is omitted by item [7]. The new definition of “standard business sponsor” is different to the definition of “standard business sponsor” omitted by item [7].

The definition provides that “standard business sponsor” means a person who is both:

· approved as a sponsor in relation to the standard business sponsor class [by the Minister under subsection 140E(1) of the Act]; and

· an ‘approved sponsor’ [within the meaning of subsection 5(1) of the Act].

A person who is approved under subsection 140E(1) as a standard business sponsor, is also an “approved sponsor” if their approval as a standard business sponsor has not been cancelled under section 140M of the Act, or their approval as a standard business sponsor has not otherwise ceased to have effect under section 140G of the Act.

Note 1 following the definition of “standard business sponsor” explains that the term “approved sponsor” is defined in subsection 5(1) of the Act.

Note 2 following the definition of “standard business sponsor” explains that different classes of sponsor, in relation to which a person may be approved as a sponsor, are prescribed under subsection 140E(2) of the Act at regulation 2.58. Regulation 2.58 is inserted into the Principal Regulations at new Division 2.12 by item [9].

Note 3 following the definition of “standard business sponsor” explains that due to item 45 of Schedule 1 to the Worker Protection Act, a person who immediately prior to 14 September 2009 is a standard business sponsor or an approved sponsor within the meaning of section 140D of the Act (as in force immediately before 14 September 2009), is taken to be approved as a sponsor in relation to the standard business sponsor class under section 140E of the Act.

Note 3 following the definition of “standard business sponsor” also explains that a person who is taken to be approved as a standard business sponsor due to item 45 of Schedule 1 to the Worker Protection Act continues to have the same terms of approval as specified under section140G of the Act as in force immediately prior to 14 September 2009. This is provided under subitem 45(3) of Schedule 1 to the Worker Protection Act. The terms of approval under section 140G of the Act as in force immediately prior to 14 September 2009 provide the duration of the approval.

Item [4] – Division 1.4, heading

This item omits the heading for Division 1.4 of Part 1 of the Principal Regulations, “Sponsorship”, and replaces it with the new heading “Sponsorship not applicable to Division 3A of Part 2 of the Act”.

The purpose of this amendment is to distinguish sponsorship associated with Division 1.4 of the Principal Regulations from sponsorship associated with new Part 2A of the Principal Regulations (inserted by item [9]) and with Division 3A of Part 2 of the Act.

Item [5] – Regulation 1.20, heading

This item omits the heading for regulation 1.20 of Division 1.4 of Part 1 of the Principal Regulations, “Sponsorship”, and replaces it with the new heading “Sponsorship undertakings”.

Item [6] – Division 1.4A

This item omits Division 1.4A of Part 1 of the Principal Regulations.

Division 1.4A relates to standard business sponsors. The Division is omitted because the type of matters prescribed in Division 1.4A are prescribed in new Part 2A of the Principal Regulations inserted by item [9].

Item [7] Division 1.4B, heading

This item omits the heading for Division 1.4B of Part 1 of the Principal Regulations, “Limitation on certain sponsorships and nominations”, for the new heading, “Limitation on certain sponsorships under Division 1.4”.

The purpose of this amendment is to clarify that Division 1.4B relates only to sponsorships associated with Division 1.4, not sponsorships associated with new Part 2A.

Item [8] Divisions 1.4C and 1.4D

This item omits Divisions 1.4C and 1.4D of Part 1 of the Principal Regulations.

Division 1.4C relates to approved professional development sponsors. The Division is omitted because the type of matters prescribed in Division 1.4C are prescribed in new Part 2A of the Principal Regulations inserted by item [9].

Division 1.4D relates to the approval and ongoing responsibilities of an approved special student sponsor. An approved special student sponsor may sponsor temporary protection visa holders for the following student visas:

· a subclass 571 (Schools Sector) visa; or

· a subclass 572 (Vocational Education and Training Sector) visa; or

· a subclass 573 (Higher Education Sector) visa; or

· a subclass 574 (Postgraduate Research Sector) visa.

A temporary protection visa for these purposes includes:

· a Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa

· a Subclass 451 (Secondary Movement Relocation (Temporary)) visa; or

· a Subclass 785 (Temporary Protection) visa.

These temporary protection visas were repealed on 9 August 2008. Transitional arrangements allow the holders of these temporary protection visas to apply for a Resolution of Status (Class CD) visa. The Resolution of Status visa is a permanent visa that provides the same study entitlements in Australia as that of citizens or permanent residents, therefore eliminating the need for temporary protection visa holders to apply for a student visa.

Therefore, Division 1.4D is omitted because it is redundant.

Item [9] – Part 2A: Sponsorship applicable to Division 3A of Part 2 of the Act

This item amends the Principal Regulations to insert a new Part 2A after existing Part 2. New Part 2A is titled “Sponsorship applicable to Division 3A of Part 2 of the Act”.

The purpose of this amendment is include in one Part all regulations prescribed under Division 3A of Part 2 of the Act, as amended on 14 September 2009 by the Worker Protection Act.

Division 2.11 - Introductory

New Division 2.11 of new Part 2A of the Principal Regulations establishes the application and interpretation provisions to be applied to new Part 2A.

Regulation 2.56 – Application

New regulation 2.56 provides, for the purposes of section 140A of the Act, that Division 3A of Part 2 of the Act applies to the following visa subclasses:

· 457 (Business (Long Stay)) visa; and

· 470 (Professional Development) visa.

Section 140A of the Act provides that Division 3A of Part 2 of the Act only applies to visas of a prescribed kind (however described).

Regulation 2.57 – Interpretation

New regulation 2.57 provides a list of terms and corresponding definitions for the purposes of assisting the interpretation of new Part 2A.

Subregulation 2.57(1) - “ASCO”

For the purposes of Part 2A, “ASCO” means the Australian Standard Classification of Occupations.

The Australian Standard Classification of Occupations was developed by the Australian Bureau of Statistics and is a skill-based classification of occupations. The primary purposes of this publication are to aid in the interpretation of Australian Bureau of Statistics occupation statistics and to provide detailed occupation information. The Australian Standard Classification of Occupation lists a unique code (ASCO code) for each occupation.

The ASCO is used in new Division 2.17 of Part 2A of the amending regulations.

Subregulation 2.57(1) – “associated entity”

For the purposes of Part 2A, “associated entity” has the same meaning as in section 50AAA of the Corporations Act 2001.

Section 50AAA of the Corporations Act 2001 provides that one entity (the ‘associate’) is an associated entity of another entity (‘the principal’) if:

· the associate and the principal are related bodies corporate; or

· the principal controls the associate; or

· the associate controls the principal, and the operations, resources or affairs of the principal are material to the associate; or

· the associate has a qualifying investment in the principal, and

o the associate has significant influence over the principal, and

o the interest material to the associate; or

· an entity (the ‘third entity’) controls both the principal and the associate, and the operations, resources or affairs of the principal and the associate are both material to the third entity.

For the purposes of section 50AAA of the Corporations Act 2001, one entity (the ‘first entity’) has a qualifying investment in another entity (the ‘second entity’) if the first entity:

· has an asset that is an investment in the second entity; or

· has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.

Subregulation 2.57(1) - “Australian organisation”

For the purposes of Part 2A, an “Australian organisation” is a body corporate or unincorporated association (other than an individual or sole trader) that is lawfully established in Australia.

This definition has the same policy intention as the definition of “Australian organisation” at regulation 1.20M of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. The difference in this new definition is to incorporate what was previously defined as ‘organisation’ in regulation 1.20M of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. Regulation 1.20M is repealed by item [8].

Subregulation 2.57(1) - “competent authority”

For the purposes of Part 2A, a “competent authority” means a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened.

Subregulation 2.57(1) – “government agency”

For the purposes of Part 2A, a “government agency” includes all Commonwealth or State or Territory agencies.

This definition is the same as the definition of “government agency” at regulation 1.20M of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. Regulation 1.20M is repealed by item [8].

Subregulation 2.57(1) – “officer”

For the purposes of Part 2A, in circumstances relating to a corporation, an “officer” has the same meaning as in section 9 of the Corporations Act 2001.

Section 9 of the Corporations Act 2001 provides that a person is an “officer” of a corporation if the person holds a position as listed within the definition, namely:

· a director or secretary of the corporation; or

· a person who makes or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or

· a person who has the capacity to affect significantly the corporation’s financial standing; or

· a person who in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation); or

· a receiver, or receiver and manager, of the property of the corporation; or

· an administrator of the corporation; or

· an administrator of a deed of company arrangement executed by the corporation; or

· a liquidator of the corporation; or

· a trustee or other person administering a compromise or arrangement made between the corporation and someone else.

In circumstances relating to an entity that is neither an individual nor a corporation an “officer” for the purposes of Part 2A, has the same meaning as in section 9 of the Corporations Act 2001.

Section 9 of the Corporations Act 2001 provides that an entity that is neither an individual nor a corporation is an “officer” if the entity is:

· a partner in the partnership, if the entity is a partnership; or

· an office holder of the unincorporated association if the entity is an unincorporated association; or

· a person who makes or participates in making, decisions that affect the whole, or a substantial part, of the business of the entity; or

· a person who has the capacity to affect significantly the entity’s financial standing.

Subregulation 2.57(1) - ‘overseas employer’

For the purposes of Part 2A, an “overseas employer” includes organisations, multilateral agencies and registered businesses, with the following attributes, in relation to a person who applies or claims to apply for a Sponsored Training (Temporary) (Class UV) visa.

An organisation is an “overseas employer” if the organisation:

· is a body corporate or an unincorporated association other than an individual or sole trader;

· conducts activities under the auspices of the government of a foreign country or a province, territory or state of a foreign country; and

· has agreed to the proposed professional development sponsor lodging a visa application on behalf of the person.

A multilateral agency is an “overseas employer” if the multilateral agency:

· is activity operating; and

· has actively operated for a continuous period of 1 year before the date of application; and

· has agreed to the proposed professional development sponsor lodging a visa application on behalf of the person.

A registered business is an “overseas employer” if the registered business:

· is conducted by a body corporate or an unincorporated association (other than a body corporate or unincorporated association) outside Australia; and

· is actively and lawfully operating outside of Australia; and

· has actively and lawfully operated outside Australia for a continuous period of 1 year before the date of application; and

· employs the person.

This definition of “overseas employer” has the same policy intention as the definition of “overseas employer” at regulation 1.20M of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. The differences in this new definitions are to capture the previous definition ‘organisation’ and to avoid confusion with the nomination process that is applicable to standard business sponsors but not professional development sponsors. Regulation 1.20M is repealed by item [8].

Subregulation 2.57(1) – “participant costs”

For the purpose of Part 2A, “participant costs” refers to the costs which relate to a primary sponsored person, who is enrolled in a professional development program, which is conducted by a professional development sponsor.

The relevant costs are:

· travel and entry to Australia;

· tuition for the professional development program;

· accommodation in Australia;

· living expenses in Australia;

· health insurance in Australia;

· return travel.

This definition of “participant costs” has the same policy intention as the definition of “participant costs” at regulation 1.20M of Part 1 of the Principal Regulations as in force immediately prior to the commencement of the amending regulations. The differences in this new definition are to ensure consistency of terms used throughout the sponsorship framework. Regulation 1.20M is repealed by item [8].

Subregulation 2.57(1) – “primary sponsored person”

For the purposes of Part 2A, “primary sponsored person” has a different meaning depending on the person in relation to whom it is being defined. “Primary sponsored person” has a particular meaning in relation to:

· a standard business sponsor and a former standard business sponsor;

· a party to a work agreement and a former party to a work agreement; and

· a professional development sponsor and a former professional development sponsor.

There are two types of people who may be a “primary sponsored person” in relation to a standard business sponsor or former standard business sponsor.

Standard Business Sponsor

First, it is a person who:

· holds a Subclass 457 (Business (Long stay)) visa; and

· for whom the last approved nomination was made by the standard business sponsor or former standard business sponsor.

Second, a “primary sponsored person” in relation to a standard business sponsor or former standard business sponsor is a person:

· who is in the migration zone; and

· who does not hold a substantive visa; and

· whose last substantive visa was a Subclass 457 (Business (Long Stay)) visa; and

· for whom the last approved nomination was made by the standard business sponsor or the former standard business sponsor.

There are two types of people who may be a primary sponsored person in relation to a party to a work agreement or former party to a work agreement.

Work Agreements

First, it is a person who:

· holds a Subclass 457 (Business (Long stay)) visa; and

· for whom the last approved nomination was made by the party to a work agreement or former party to a work agreement.

Second, a “primary sponsored person” in relation to a party to a work agreement or former party to a work agreement is a person:

· who is in the migration zone; and

· who does not hold a substantive visa; and

· whose last substantive visa was a Subclass 457 (Business (Long Stay)) visa; and

· for whom the last approved nomination was made by the party to the work agreement or former party to the work agreement.

There are two types of people who may be a primary sponsored person in relation to professional development sponsor or former professional development sponsor.

Professional Development Sponsor

First, it is a person who:

· holds a Subclass 470 (Professional Development) visa; and

· satisfied the criteria for the grant of the visa on the basis of the professional development sponsor having agreed, in writing, to be the professional development sponsor for the primary sponsored person.

Second, a “primary sponsored person” in relation to a professional development sponsor, or former professional development sponsor is a person:

· who is in the migration zone; and

· who does not hold a substantive visa; and

· whose last substantive visa was a Subclass 470 (Professional Development) visa; and

· who satisfied the criteria for grant of that visa on the basis of the professional development sponsor having agreed, in writing, to be the professional development sponsor for the primary sponsored person.

The policy intention of the definition of primary sponsored person in relation to a professional development sponsor is intended to be similar to the definition of ‘overseas participant’ at regulation 1.20M of Part 1.4C of the Principal Regulations as in force immediately before the commencement of these amending regulations. Regulation 1.20M is repealed by item [8]. The differences in this new definition are to ensure consistency with the definition of primary sponsored person in relation to standard business sponsors and parties to work agreements.

Subregulation 2.57(1) - ‘professional development agreement’

For the purposes of Part 2A a “professional development agreement” is an agreement which meets the requirements as set out in subregulation 2.60(2). Subregulation 2.60(2) is inserted in new Division 2.13 Criteria for approval of sponsor, by item [9].

Subregulation 2.57(1) – “professional development program”

For the purposes of Part 2A a “professional development program” is a program which meets the requirements as set out in subregulation 2.60(3). Subregulation 2.60(3) is inserted in new Division 2.13 Criteria for approval of sponsor, by item [9].

Subregulation 2.57(1) – “related body corporate”

For the purposes of Part 2A, “related body corporate”, has the same meaning as provided in section 50 of the Corporation Act 2001.

Section 50 of the Corporations Act 2001 provides that a body corporate is an entity which is:

· a holding company of another body corporate; or

· a subsidiary of another body corporate; or

· a subsidiary of a holding company of another body corporate; the first-mentioned body and the other body are related to each other.

Subregulation 2.57(1) – “secondary sponsored person”

For the purposes of Part 2A, “secondary sponsored person” has a different meaning depending on the person in relation to whom it is being defined. “Secondary sponsored person” has a particular meaning in relation to:

· a standard business sponsor and a former standard business sponsor; and

· a party to a work agreement and a former party to a work agreement.

There are three types of people who may be a “secondary sponsored person” in relation to a standard business sponsor or former standard business sponsor.

Standard Business Sponsor

First, it is a person who:

· holds a Subclass 457 (Business (Long Stay)) visa; and

· was granted the visa on the basis of satisfying the secondary criteria as for the grant of the visa; and

· in relation to whom, the standard business sponsor or former standard business sponsor was the last person to have included the person in an approved nomination or to have agreed in writing to the person being a secondary sponsored person in relation to the standard business sponsor or former standard business sponsor

The second type of “secondary sponsored person” in relation to a standard business sponsor or former standard business sponsor is

· a person who holds a Subclass 457 (Business (Long Stay)) visa, on the basis of being granted the visa at the time of the birth of the person, under section 78 of the Act; and

· who is a member of the family unit of a primary sponsored person whose last approved nomination, made for the primary sponsored person, was made by the standard business sponsor or former standard business sponsor.

Section 78 of the Act provides that if a child born in Australia is a non-citizen when born and at the time of the birth one or both of the child’s parents holds a visa, then the child is taken to have been granted at birth one or more visas of the same kinds and classes and on the same terms and conditions (if any) as those visas. However, such a child would not have been included in a nomination and the sponsor has not agreed in writing that the child can be a secondary sponsored person in relation to them.

Finally, a “secondary sponsored person” in relation to a standard business sponsor or former standard business sponsor is a person:

· who is in the migration zone; and

· who does not hold a substantive visa; and

· whose last substantive visa was a Subclass 457 (Business (Long Stay)) visa granted on the basis of satisfying the secondary criteria for the grant of the visa; and

This part of the definition of “primary sponsored person” is intended to ensure that sponsors continue to be subject to the sponsorship obligations after the Subclass 457 (Business (Long Stay)) visa ceases, but the primary sponsored person is still in Australia and has not been granted another substantive visa, thereby ensuring that there is someone who is responsible for the visa holder.

There are three types of people who may be a secondary sponsored person in relation to a party to a work agreement or former party to a work agreement.

Work Agreements

First, it is a person who:

· holds a Subclass 457 (Business (Long Stay)) visa; and

· was granted the visa on the basis of having satisfied the secondary criteria for grant of the visa; and

· in relation to who, the party to the work agreement or former party to the work agreement was the last person to have included the person in an approved nomination or to have agreed in writing to the person being a secondary sponsored person in relation to the party to the work agreement or former party to the work agreement.

The second, type of “secondary sponsored person” in relation to a party to the work agreement or former party to the work agreement is

· a person who holds a Subclass 457 (Business (Long Stay)) visa, on the basis of being granted the visa at the time of the birth of the person, under section 78 of the Act; and

Section 78 of the Act provides that if a child born in Australia is a non-citizen when born and at the time of the birth one or both of the child’s parents holds a visa, then the child is taken to have been granted at birth a visa or visas of the same kinds and classes and on the same terms and conditions (if any) as those visas. However, such a child would not have been included in a nomination and the sponsor has not agreed in writing that the child can be a secondary sponsored person in relation to them.

Finally, a “secondary sponsored person” in relation to a party to a work agreement or former party to a work agreement is a person:

· who is in the migration zone; and

· who does not hold a substantive visa; and

· whose last substantive visa was a Subclass 457 (Business (Long Stay)) visa granted on the basis of satisfying the secondary criteria for the grant of the visa; and

· in relation to whom, the party to the work agreement or former party to the work agreement was the last person to have included the person in an approved nomination or to have agreed in writing to the person being a secondary sponsored person in relation to the party to the work agreement or former party to the work agreement.

This part of the definition of “secondary sponsored person” is intended to ensure that sponsors continue to be subject to the obligation to pay location and removal costs if a person who was on a Subclass 457 (Business (Long Stay)) visa becomes an unlawful non-citizen in Australia.

The note at the end of new subregulation 2.57(1) explains that the definition of “approved sponsor” is contained within subsection 5(1) of the Act.

Subsection 5(1) of the Act provides that an “approved sponsor” is either:

· a person who has been approved by the Minister under section 140E in relation to a class of sponsor; and 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.

Subregulation 2.57(2) – “associated with”

For the purposes of Part 2A, a person is associated with an applicant that is:

· a corporation, if the person is an officer of the corporation, a related body corporate or an associated entity; and

· a partnership, if the person is a partner of the partnership; and

· an unincorporated association, if the person is a member of the association’s committee of management; and

· an entity not mentioned above, if the person is an officer of the entity.

Subregulation 2.57(3) – “adverse information”

For the purposes of Part 2A, “adverse information” means any adverse information relevant to an applicant’s suitability as a sponsor in relation to the class of sponsor that the applicant has applied for, and includes (but is not limited to) information that the applicant, or a person associated with the applicant:

· has been found guilty by a court, of an offence under a law of a Commonwealth, State or Territory; or

· has been found by a competent authority, to have acted in contravention of a Commonwealth, State or Territory; or

· has been the subject of administrative action (including the issue of a warning) by a competent authority for the possible contravention of a Commonwealth, State or Territory law; or

· is under investigation or subject to legal proceedings in relation to an alleged contravention of a Commonwealth, State or Territory law; or

· has become insolvent within the meaning of subsection 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001.

The law which has been contravened, or has possibly been contravened relates to one or more of the following:

· discrimination;

· immigration;

· industrial relations;

· occupational health and safety;

· people smuggling and related offences;

· slavery, sexual servitude and deceptive recruiting;

· taxation;

· terrorism; and

· trafficking in persons and debt bondage.

In addition, the conviction, finding of non-compliance, administrative action, investigation, legal proceedings or insolvency must have occurred within the previous 3 years.

This definition operates to ensure that the Minister may take into account the existence of adverse information about a person in considering an application for approval as a sponsor under Division 2.13, or an application for variation of terms of approval as a sponsor under Division 2.16, or an application for approval of a nomination under Division 2.17 by that person. It is important that Minister may consider such information in determining the applicant’s suitability as a sponsor or nominator.

While the definition is inclusive, it is not intended that any other information the Minister may take into account would be inconsistent with the information prescribed. For example, an investigation relating to alleged discrimination which occurred ten years ago would not be relevant to the applicant’s suitability as a standard business sponsor owing to the less serious nature of the information and considering the three year period referred to in (3)(c).

Division 2.12 - Classes of Sponsor

New Division 2.12 of new Part 2A of the Principal Regulations includes new regulation 2.58.

Regulation 2.58 – Classes of Sponsor

New regulation 2.58 provides, for the purposes of subsection 140E(2) of the Act, that there are two classes of sponsor in relation to which a person may be approved. The two classes of sponsor are:

· standard business sponsor; and

· professional development sponsor.

Subsection 140E(2) provides that the regulations must prescribe classes in relation to which a person may be approved as a sponsor.

The subclass of visa that a class of sponsor is eligible to sponsor is determined by the criterion in Schedule 1 and Schedule 2 to the Principal Regulations for the visa subclass.

There is a note at the foot of this new regulation which clarifies that “a party to a work agreement is not required to be approved as a sponsor in relation to a class of sponsor.” Importantly, it is only those sponsors who are approved under section 140E that are approved as sponsors in respect of a particular class (e.g. standard business sponsor class). A party to a work agreement does not need to apply or meet prescribed criteria to be approved as a sponsor.

Division 2.13 - Criteria for approval of sponsor

New Division 2.13 of Part 2A of the Principal Regulations establishes the criteria which must be satisfied by a person seeking approval as a sponsor.

The note to Division 2.13 explains that a party to a work agreement is an approved sponsor within the meaning of subsection 5(1) of the Act, but they are not a class of sponsor. A party to a work agreement does not need to apply or meet prescribed criteria to be approved as a sponsor.

Regulation 2.59 – Criteria for approval as a standard business sponsor

New regulation 2.59 sets out, for the purposes of subsection 140E(1) of the Act the criteria for approval as a standard business sponsor. Subsection 140E(1) of the Act provides that the Minister must approve a person as a sponsor in relation to one or more classes of sponsor if prescribed criteria are satisfied.

Paragraph 2.59(a) provides that the Minister must be satisfied that the applicant has applied for approval as a standard business sponsor in accordance with the process set out in Division 2.14.

Paragraph 2.59(b) provides that the Minister must be satisfied that the applicant:

· is not [already] a standard business sponsor; or

· is a standard business sponsor because of the application of subclause 45(2) of Part 2 of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008.

The purpose of this criterion is to ensure that a person cannot have two concurrent post commencement approvals as a standard business sponsor. A standard business sponsor who wishes to extend the duration of their approval as a standard business sponsor may, instead of making a further application for approval, apply to vary the duration of their approval as a standard business sponsor. Under this one sponsorship approval, the sponsor can nominate any number of visa holders which eases the administrative burden on the client and the Department.

Paragraph 2.59(c) provides that the Minister is satisfied that the applicant is either lawfully operating a business in Australia or lawfully operating a business outside Australia.

Paragraph 2.59(d) provides that the Minister must be satisfied that an applicant meets the benchmarks for the training of Australian citizens or permanent residents as specified by an instrument in writing for the purposes of this paragraph if:

· the applicant is lawfully operating a business in Australia; and

· has traded in Australia for 12 months or more.

Paragraph 2.59(e) provides that the Minister must be satisfied that an applicant who is lawfully operating a business in Australia, and has traded in Australia for 12 months or less, has an auditable plane to meet the benchmarks specified in the instrument in writing made for the purposes of paragraph (d) if:

· the applicant has an auditable plan to meet the benchmarks specified.

Paragraph 2.59(e), is similar to the criteria which is being repealed and applies to domestic businesses only so as not to offend Australia’s international trade commitments in relation to market access for overseas businesses.

The criteria at paragraphs 2.59(d) and 2.59(e) replaces a similar criterion repealed by item [6]. It is intended to ensure that prospective sponsors operating a business in Australia have an adequate record (in the case of 2.59(d)) or a measurable commitment (in the case of 2.59(e)) to training Australian citizens and Australian permanent residents before being granted access to the pool of overseas labour. It would be unreasonable to expect prospective sponsors operating a business overseas only to meet similar criteria. It is expected that such business will utilise the program to either establish a business in Australia (in which case they would need to satisfy the criterion upon variation or renewal of their sponsorship) or to fulfil a discrete contractual obligation.

This criterion refers to an instrument because the training benchmarks may change from time to time consistent with changes in the Australian business community.

Paragraph 2.59(f) provides that the Minister must be satisfied that the applicant has attested in writing in the application that the applicant has a strong record of, or a demonstrated commitment to:

· employing local labour; and

· non-discriminatory employment practices.

The criterion at paragraph 2.59(f) replaces the benefit to Australia test set out in paragraph 1.20D(2)(a) of the Principal Regulations repealed by item [6]. It is intended to ensure that employers seeking to access the pool of overseas labour already have a strong record, or demonstrated commitment to, employing local labour and non-discriminatory work practices.

Paragraph 2.59 (g) provides that the Minister must be satisfied that:

· there is no adverse information known to the Minister about the applicant or a person associated with the applicant; or

· it is reasonable to disregard any adverse information known to the Minister about the applicant or a person associated with the applicant.

The objective of this criterion is to allow the Minister to consider information about the applicant’s suitability as a sponsor or nominator in deciding whether to approve an application.

It might be reasonable to disregard information if, for example, the person had developed practices and procedures to ensure the relevant conduct was not repeated. To illustrate, if a person was found to have breached occupational health an safety legislation two years ago but had since appointed an occupational health and safety manager and had a clean occupational health and safety record, it may be reasonable to disregard the original breach.

Note 1 following paragraph 2.59(g) explains that in relation to subparagraph 2.59(b)(ii) a person approved as a standard business sponsor before 14 September 2009 can make a new application to become a standard business sponsor on or after 14 September 2009. A person who was approved as a standard business sponsor on or after 14 September 2009 can apply under section 140GA of the Act for a variation of the terms of approval as a sponsor to extend the duration of the sponsorship approval (under regulation 2.68), so long as they have not ceased to be a standard business sponsor.

Note 2 to paragraph 2.59(g) explains that definitions for the terms “associated with” and “adverse information” are provided by subregulation 2.57(2) and (3) (inserted by item [9] at Division 2.11).

Regulation 2.60 – Criteria for approval as a professional development sponsor

New regulation 2.60 sets out, for the purposes of subsection 140E(1), the criteria for approval as a professional development sponsor. Subsection 140E(1) of the Act provides that the Minister must approve a person as a sponsor in relation to one or more classes of sponsor if prescribed criteria are satisfied.

Paragraph 2.60(1)(a) provides that the Minister must be satisfied that the applicant is:

· an Australian organisation; or

· a government agency.

“Australian organisation” and “government agency” are defined at regulation 2.57 of Division 2.11 inserted into the Principal Regulations by item [9]. The definition of Australian organisation provides (amongst other things) that Australian organisation does not include an individual or sole trader.

This is the same criterion as at regulation 1.20N of Division 1.4C of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. Regulation 1.20N is repealed by item [8].

Paragraph 2.60(1)(b) provides that the Minister must be satisfied that the applicant is a party to a professional development agreement that meets the requirements provided in subregulation 2.60(3). Paragraph 2.60(1)(b) also provides that the professional development agreement must be in force at the time of the Minister’s consideration of the application.

Paragraph 2.60(1)(c) provides that the Minister must be satisfied that the applicant is offering to conduct a professional development program that satisfies the requirements provided in subregulation 2.60(3).

This is the same criterion as at paragraph 1.20NA(2)(a) of Division 1.4C of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. Regulation 1.20NA is repealed by item [8].

Paragraph 2.60(1)(d) provides that the Minister must be satisfied that the applicant has demonstrated an overall capacity to conduct a professional development program involving primary sponsored persons.

This is the same criterion as at paragraph 1.20NA(2)(b) of Division 1.4C of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. Regulation 1.20NA is repealed by item [8].

Paragraph 2.60(1)(e) provides that the Minister must be satisfied that the applicant has the capacity to meet their financial commitments. Paragraph 2.60(1)(e) also provides that the Minister must be satisfied that the applicant has paid any security requested by an authorised officer under section 269 of the Act.

Section 269 of the Act provides that an authorised officer, subject to the officer’s powers outlined in section 1A of the Act, may require and take security for compliance or with any other condition in accordance with the provisions of the Act or the regulations.

This is the same criterion as at paragraphs 1.20NA(1)(b) and 1.20NA(2)(ca) of Division 1.4C of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. Regulation 1.20NA is repealed by item [8].

Paragraph 2.60(1)(f) provides that the Minister must be satisfied that each of the parties to the professional development agreement has the capacity to meet their financial commitments.

This is the same criterion as at paragraph 1.20NA(2)(ca) of Division 1.4C of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. Regulation 1.20NA is repealed by item [8].

Paragraph 2.60(1)(g) provides that the Minister must be satisfied that if an overseas employer that is a party to a professional development agreement with the applicant has previously been required to comply with the immigration laws of Australia – the overseas employer has a satisfactory record of compliance.

Overseas employer is defined at regulation 2.57 of Division 2.11 inserted into the Principal Regulations by item [9].

This is the same criterion as at paragraph 1.20NA(2)(g) of Division 1.4C of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. Regulation 1.20NA is repealed by item [8].

Paragraph 2.60(1)(h) provides that the Minister must be satisfied that:

· there is no adverse information known to the Minister about the applicant or a person associated with the applicant; or

· it is reasonable to disregard any adverse information known to the Minister about the applicant or a person associated with the applicant.

It would be reasonable to disregard information if, for example, the person had developed practices and procedures to ensure the relevant conduct was not repeated. To illustrate, if a person was found to have breached occupational health an safety legislation two years ago but had since appointed an occupational health and safety manager and had a clean occupational health and safety record, it may be reasonable to disregard the original breach.

The note to paragraph 2.60(1)(h) explains that definitions for the terms “associated with” and “adverse information” are provided by subregulation 2.57(2) and (3) (inserted by item [9] at Division 2.11).

The new criterion at paragraph 2.60(1)(h) replaces the criterion at paragraphs 1.20NA(2)(d), 1.20NA(2)(e), 1.20NA(2)(f), and 1.20NA(2)(m) of Division 1.4C of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. Regulation 1.20NA is repealed by item [8].

If any of the circumstances in paragraphs 1.20NA(2)(d), 1.20NA(2)(e), 1.20NA(2)(f), and 1.20NA(2)(m) of Division 1.4C of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations occurred it would also be “adverse information” as described in subregulation 2.57(1). Rather than multiple criteria covering the same circumstances it was preferable for the 1 criterion to cover all circumstances.

Subregulation 2.60(2) provides the requirements that make an agreement a “professional development agreement”.

These requirements are the same as are currently provided in subregulation 1.20NA(4) of Division 1.4C of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. Regulation 1.20NA is repealed by item [8].

Subregulation 2.60(3) provides the requirements that program must meet to be a “professional development program”.

These requirements are the same as are currently provided in paragraph 1.20NA(2)(a) of Division 1.4C of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. Regulation 1.20NA is repealed by item [8].

Division 2.14 - Application for approval as sponsor

New Division 2.14 of new Part 2A of the Principal Regulations provides the process to make an application for approval as one or more classes of sponsor under section 140F of the Act.

Regulation 2.61 – Application for approval as sponsor

Subregulation 2.61(1) provides that, for the purposes of subsection 140F(1) of the Act, a person may apply to the Minister for approval as a sponsor in relation to a class of sponsor in accordance with the process set out in regulations 2.61 and 2.62.

The note to subregulation 2.61(1) explains that a party to a work agreement is not required to apply for approval as a sponsor.

Subregulation 2.61(2) provides a table that sets out the approved form that an application must be made in accordance with, and the application fee to be paid. The form to be used, and the fee to be paid depends on the class of sponsor in relation to which the application is being made, and the certain circumstances of the applicant.

If the application is for approval as a standard business sponsor the fee is $285.

If the application is for approval as a standard business sponsor the application must be made in accordance with form 1196S, unless the applicant operates a business in Australia – in which case the application can also be made in accordance with form 1196 (Internet).

If the application is for approval as a professional development sponsor the fee is $1145, unless the applicant is a Commonwealth agency – in which case the fee is nil.

If the application is for approval as a professional development sponsor the application must be made in accordance with approved form 1226.

The process to make an application for approval as a professional development sponsor is the same as the process provided in regulation 1.20N of Division 1.4C of Part 1 of the Principal Regulations as in force immediately before the commencement of the amending regulations. Regulation 1.20N is repealed by item [8].

Paragraph 2.59(1)(a) (inserted by item [9]), provides that if an application to be approved as a standard business sponsor is not made in accordance with the process set out in regulation 2.61, then the applicant cannot be approved as a standard business sponsor.

Regulation 2.62 – Notice of Decision

New regulation 2.62 provides that an applicant for approval as a sponsor must receive notification in writing from the Minister of a decision made under subsection 140E(1) of the Act.

New regulation 2.62 provides that notification must be provided in accordance with the following guidelines:

· notification must be provided within a reasonable period after making the decision; and

· a written copy of approval or refusal must be included; and

· in circumstances where the decision is a refusal, a statement of reasons for the refusal must be provided.

‘Reasonable period’ is not defined in the regulations. However, a notification may be considered to have been provided within a reasonable time if it is provided without undue delay after a decision has been made.

New regulation 2.62 also provides that if the application was made using approved form 1196 (Internet), the Minister may provide the applicant with those documents in electronic form.

This is the same requirements as at subregulation 1.20D(5) of Division 1.4A and 1.20NA(3) of Division 1.4C of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. Those regulations are repealed by items [6] and [8].

Division 2.15 – Terms of approval of sponsorship

Regulation 2.63 – Standard Business Sponsor

New regulation 2.63 of Division 2.15 of new Part 2A of the Principal Regulations provides, for the purposes of subsection 140G(2) of the Act, that a kind of term on which a person may be approved as a standard business sponsor is the duration of the approval.

The duration of approval may be specified in the approval as one of the following:

· a period of time; or

· an ending on a particular date; or

· as ending on the occurrence of a particular event.

It is intended that approval as a standard business sponsor will cease 24 months after the day on which the standard business sponsor was approved unless a variation to the terms is approved under Division 2.16.

Regulation 2.64 – Professional development sponsor

New regulation 2.64 provides, for the purposes of subsection 140G(3) of the Act, the terms of approval as a professional development sponsor.

In contrast to the terms of approval for a standard business sponsor, the terms of approval prescribed in regulation 2.64 are the actual terms of approval that apply to all persons approved as a professional development sponsor, rather than being kinds of terms for which the detail will be specified in the approval.

Regulation 2.64 provides that an approval as a professional development sponsor has effect only in relation to:

· the professional development program specified in the application for approval, as varied by agreement between the professional development sponsor and the Secretary; and

· the professional development agreement or agreements specified in the application for approval; and

· the overseas employer or employer’s specified in the application for approval.

Regulation 2.64 also provides that a professional development sponsor’s approval ceases on the earlier of:

· 3 years after the day approval is granted; and

· the day on which the professional development agreement specified in the application for approval ends.

These are the similar terms of approval as provided for in subregulations 1.20O(1) and 1.20O(2) of Division 1.4C of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. Regulation 1.20O is repealed by item [8]. The difference is that regulation 1.20O provides that the term of approval ceases if the approval of a person as a professional development sponsor is cancelled. As this is provided for in section 140M of the Act, it is not necessary to repeat in the amending regulations.

Division 2.16 - Variation of terms of approval of sponsorship

New Division 2.16 of new Part 2A of the Principal Regulations sets out when a standard business sponsor can apply to have the terms of their approval varied.

Regulation 2.65 – Application

New regulation 2.65 provides that Division 2.16 applies to a person who is a standard business sponsor.

A professional development sponsor cannot apply to have the terms of their approval as a professional development sponsor varied.

Regulation 2.66 – Process to apply for variation of terms of approval

New regulation 2.66 provides that, for the purposes of subsection 140GA(1) of the Act, a person may apply to the Minister for variation of a term of an approval as a standard business sponsor. Subsection 140GA(1) provides that the regulations may establish a process for the Minister to vary a term of a person’s approval as a sponsor.

An application to vary a term of approval must be made in accordance with approved form 1196S or approved form 1196 (Internet), unless the standard business sponsor does not operate a business in Australia, in which case the standard business sponsor can only make the application in accordance with approved form 1196S.

In addition, an application lodged to vary a term of approval must be accompanied by a fee of $285.

Paragraph 2.68(1)(a) (inserted by item [9]) provides that if an application is not made in accordance with the process set out in regulation 2.66 then the terms of approval cannot be varied.

Regulation 2.67 – Terms of approval that may be varied

New regulation 2.67 provides that, for the purposes of paragraph 140GA(2)(a) of the Act, in the case of a standard business sponsor, the term of approval that may be varied is the duration of approval. Paragraph 140GA(2)(a) of the Act provides that the Minister may prescribe the kinds of terms which may be varied.

The duration of approval is the only kind of term of approval in relation to an approval as a standard business sponsor (see new regulation 2.63 inserted by item [9]).

Regulation 2.68 – Criteria for variation of terms of approval

New regulation 2.68 provides the criteria, for the purposes of paragraph 140GA(2)(b) of the Act, in relation to which the Minister must be satisfied to approve an application to vary a term of an approval as a standard business sponsor. Paragraph 140GA(2)(b) of the Act provides that the regulations may prescribe criteria that must be satisfied to vary a term of an approval as a sponsor.

The criteria to vary terms of approval as a standard business sponsor are the same as the criteria for approval as a standard business sponsor, except for the criteria at paragraphs 2.68(a), 2.68(b) and 2.68(c). The exceptions are explained below. For an explanation of paragraph 2.68(d), (e), (f), (g) and (h), please refer to the explanation of the criteria at new paragraphs 2.59(c), (d), (e), (f) and (g) (inserted by item [9]).

The first exception is the criterion at paragraph 2.68(a). This paragraph provides that the application for variation must be made in accordance with the process set out at regulation 2.66. An application for approval as a standard business sponsor, on the other hand, must be made in accordance with regulation 2.61. This is not a substantive difference, however, as the process at regulation 2.61 is the same as the process at regulation 2.66, except that the application for variation of an approval must be made by a standard business sponsor.

The second exception is the criterion at paragraph 2.68(b). This paragraph provides that the applicant must be a standard business sponsor. In contrast, the criteria for approval as a sponsor provides that the applicant must not be a standard business sponsor, unless they are taken to be a standard business sponsor under the transitional provisions in the Worker Protection Act (see subitem 45(2) of that Act).

The purpose of requiring a person to be a standard business sponsor to vary their approval as a standard business sponsor is to ensure that there is an approval to vary. If the approval as a standard business sponsor has ceased then there is no approval to vary.

If an applicant has ceased to be a standard business sponsor after making an application for variation, but before a decision is made on the application, then their application will also be a valid application for the purposes of making an application for approval as a sponsor and will be assessed as an application for approval as a sponsor.

The purpose of varying the terms of approval to extend the duration of an approval, rather than granting a new approval as a standard business sponsor is two-fold. First, it prevents a person from having two concurrent approvals as a standard business sponsor. Second, it simplifies administrative processes by reducing the number of approvals that are granted to standard business sponsors who are eligible to be a standard business sponsor over a long period of time.

The final exception is the criterion at paragraph 2.68(c). This paragraph provides that the approval which the applicant seeks to vary was granted on or after 14 September 2009. The reason for this is because an approval of a person as a standard business sponsor prior to 14 September 2009 under Division 1.4A of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these regulations did not provide for that approval to be varied.

Regulation 2.69 – Notice of Decision

New regulation 2.69 provides that an applicant for variation of a term of an approval must receive notification in writing from the Minister of a decision made under paragraph 140GA(2)(a) of the Act.

New regulation 2.69 provides that notification must be provided in accordance with the following guidelines:

· notification must be provided within a reasonable period after making the decision; and

· a written copy of the decision to vary or not to vary the term of approval must be included; and

· in circumstances where the decision is to not vary the term of the approval, a statement of reasons for the decisionl must be provided.

New regulation 2.69 also provides that if the application was made using approved form 1196 (Internet), the Minister may provide the applicant with those documents in electronic form.

This is the same requirement as at subregulation 1.20D(5) of Division 1.4A of Division 1.4C of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. That regulation is repealed by item [6].

New Division 2.17 - Nominations

New Division 2.17 of new Part 2A of the Principal Regulations sets out the application process and criteria for approval of a nomination.

Nomination is the process through which a standard business sponsor or party to a work agreement nominates for approval of an occupation as well as the visa holder, visa applicant, or proposed visa applicant who will undertake that occupation. This ensures that the standard business sponsor, or party to the work agreement agrees to be the sponsor for that particular visa holder, visa applicant, or proposed visa applicant.

Regulation 2.70 – Application

New regulation 2.70 provides that Division 2.17 applies to a person who is a standard business sponsor, or a party to a work agreement.

Regulation 2.71 – Prescribed kind of visa

New regulation 2.71 provides, for the purposes of paragraph 140GB(1)(a) of the Act, that Subclass 457 (Business (Long Stay)) visas are the kind of visa for which an applicant, or a proposed applicant may be nominated.

Paragraph 140GB(1)(a) of the Act provides that an approved sponsor may nominate an applicant or proposed applicant for a visa of a prescribed kind of a visa, in relation to an occupation, activity or program.

Regulation 2.72– Criteria for approval of nomination – standard business sponsor and party to work agreement

New regulation 2.72 provides, for the purposes of subsection 140GB(2) of the Act, the criteria for approval of a nomination. Subsection 140GB(2) of the Act provides that the Minister must approve an approved sponsor’s nomination if the prescribed criteria are met.

Paragraph 2.72(1)(a) provides that the Minister must be satisfied that the nomination is made in accordance with the process set out in regulation 2.73 of the Regulations.

Paragraph 2.72(1)(b) provides that the Minister must be satisfied that the person who made the nomination is a standard business sponsor or a party to a work agreement (other than a Minister) [that relates to Subclass 457 (Business (Long Stay)) visas].

The purpose of this criterion is to ensure that a person who is a standard business sponsor or party to a work agreement when they make the nomination is still a standard business sponsor or party to a work agreement when the decision on the nomination is made.

Paragraph 2.72(1)(c) provides that, where the person making the nomination is a standard business sponsor, the Minister must be satisfied that:

· the nominated occupation must correspond with an occupation specified in the instrument in writing for subparagraph 2.72(1)(c)(i);

· if the instrument mentioned in subparagraph 2.72(1)(c)(i) requires the nomination to be supported in writing by an organisation as specified by the instrument in writing for subparagraph 2.72(1)(c)(ii), the evidence of support has been provided to the Minister as specified by the instrument;

· the terms and conditions of employment are no less favourable than those that are provided, or would be provided to an Australian citizen or permanent resident for performing work in an equivalent occupation.

The instrument referred to in subparagraph 2.72(1)(c)(i) allows the Minister to specify eligible occupations for the Subclass 457 visa program from time to time in the same way as the Minister can under the nomination provisions as in force prior to this amendment. The eligible occupations will change from time to time depending on prevailing conditions in the Australian labour market.

The instrument referred to in subparagraph 2.72(1)(c)(ii) allows the Minister to provide for specialist third party endorsement of nominations for certain occupations. If, for example, the Minister includes a certain occupation because it is in shortage in a certain region only, the Minster could require a specialist third party to determine whether the occupation was in a regional area so affected.

Subparagraph 2.72(1)(c)(iii) provides that the Minister must be satisfied that the terms and conditions on which the proposed applicant will be employed are no less favourable than the terms and conditions that would be provided to an Australian citizen or permanent resident to perform work in an equivalent position in the person’s workplace. This requirement mirrors the obligation at Regulation 2.79.

Paragraph 2.72(1)(d) provides that if the person is a party to a work agreement, the Minister must be satisfied that the nominated occupation is specified in the work agreement as an occupation that the person may nominate for an applicant or a proposed applicant.

Paragraph 2.72(1)(e) provides that if the person who is the subject of the nomination is currently a holder of a Subclass 457 (Business (Long Stay)) visa, the Minister must be satisfied that the person has listed in the nomination each person who currently holds a Subclass 457 (Business (Long Stay)) visa which was granted on the basis of being a member of the family unit of the primary sponsored person. The nomination may also list other persons who are not current secondary sponsored persons, but it must at least include all current secondary sponsored persons.

The purpose of this criterion is twofold. First, it ensures that the person making the nomination is aware of all the secondary sponsored persons who are connected to the prospective primary sponsored person that is being nominated. Second, it ensures that the person who owes obligations in relation to a person granted a visa on the basis of satisfying the secondary criteria is the same as the person who owes obligations in relation to the person granted a visa on the basis of satisfying the primary criteria. In other words, it ensures that the liability for the family unit moves with the primary person.

Paragraph 2.72(1)(f) provides that the Minister must be satisfied that the person has provided the following information as part of the nomination:

· the 6 digit Australian Standard Classification of Occupation (ASCO) code for the nominated occupation; and

· if there is no ASCO code for the nominated occupation and the person is a standard business sponsor, they must provide the name of the occupation as it appears on the instrument in writing made for the purposes of subparagraph 2.72(1)(c)(i); and

· if there is no ASCO code for the nominated occupation and the person is a party to a work agreement, they must provide the name of the occupation as it appears in the work agreement; and

· the location or locations at which the nominated occupation is to be carried out; and

· information that identifies the person proposed to undertake the nominated occupation.

The applicant must identify the occupation to enable a comparison to be made with the list of eligible occupations in an instrument made under subparagraph 2.72(1)(c)(i) and in order for the sponsor to certify the relevant matters set out in paragraph 2.72(1)(g). Similarly, the applicant must identify the person proposed to undertake the nominated occupation in order for the sponsor to certify the relevant matters in paragraph 2.72(1)(g).

Paragraph 2.72(1)(g) provides that, if the person is a standard business sponsor, the Minister must be satisfied that the person has certified in writing:

· the duties of the position include a significant majority of the duties of the position as listed in the Australian Standard Classification of Occupations (ASCO);

· the nominated occupation is an occupation other than an occupation mentioned in an instrument in writing for the purposes of subparagraph 2.72(1)(g)(ii), that the position is a position with a business, or an associated entity, of the person; and

· the proposed applicant for nomination holds qualifications and experience which correspond with the relevant qualifications and experience specified for the occupation in the ASCO or if there is no ASCO code for the nominated occupation – for the occupation specified in the instrument in writing made for the purposes of subparagraph 2.72(1)(c)(i).

The requirement for a standard business sponsor to certify that the duties of the nominated position are commensurate with the duties of the nominated occupation has two purposes. First, it represents a formal self-assessment that the position the standard business sponsor has in mind is an eligible position. Second, it informs the sponsor of the Minister’s expectations about what the proposed applicant will be doing when the Department of Immigration and Citizenship (“the Department”) conducts monitoring and compliance activities.

The requirement to certify that the nominated position exists in the business of the standard business sponsor or an associated entity is to continue the exclusion of on-hire industry from the standard business sponsorship program.

If a person is a party to a work agreement, paragraph 2.72(1)(h) provides that they must certify in writing:

· the qualifications and experience of the applicant, or proposed applicant, in relation to the nominated occupation is commensurate with the qualifications and experience specified for the occupation in the work agreement.

The purpose of this requirement is the same as for standard business sponsors.

Paragraph 2.72(1)(i) inserts the same “adverse information” criterion as for approval as a standard business sponsor and variation of a term of approval. That is, paragraph 2.72(1)(i) provides that the Minister must be satisfied that:

· there is no adverse information known to the Minister about the applicant or a person associated with the applicant; or

· any adverse information known to the Minister about the applicant or a person associated with the applicant, can be disregarded.

Subparagraph 2.72(1)(i)(ii) provides that the Minister may disregard adverse information if he or she is satisfied that it is reasonable to disregard the information. It would be reasonable to disregard information if, for example, the person had developed practices and procedures to ensure the relevant conduct was not repeated. To illustrate, if a person was found to have breached occupational health an safety legislation two years ago and had since appointed an occupational health and safety manager and had a clean occupational health and safety record, it may be reasonable to disregard the original breach.

The note to paragraph 2.72(1)(i) explains that definitions for the terms associated with and adverse information are provided by subregulation 2.57(2) and (3) (inserted by item [9] at Division 2.11).

Subregulation 2.72(2) provides that if all secondary sponsored persons are not listed in the nomination then the Minister may approve the nomination if it is reasonable in the circumstances to do so.

An example of a circumstance in which it may be reasonable to approve the nomination where all secondary sponsored persons are not included is where the relevant secondary sponsored person has left Australia and does not intend to return, but their visa is still in effect.

Regulation 2.73 – Process for nomination

New regulation 2.73 sets out, for the purposes of subsection 140GB(3) of the Act, the process for nominating a proposed occupation for an applicant or proposed applicant for a Subclass 457 (Business (Long Stay)) visa.

Subsection 140GB(3) of the Act provides that the regulations may establish a process for the Minister to approve an approved sponsor’s nomination.

Paragraph 2.72(1)(a) (inserted by item [9]) provides that if a nomination is not made in accordance with the process set out in regulation 2.73 then the nomination cannot be approved.

A nomination must be made in accordance with approved form 1196N or approved form 1196 (Internet), unless the standard business sponsor does not operate a business in Australia, in which case the standard business sponsor can only make the application in accordance with approved form 1196N (see subregulations 2.73(2) and (3)).

Subregulation 2.73(4) requires the applicant to provide, as part of the nomination the information mentioned in paragraph 2.72(1)(f) and the certification mentioned in paragraph 2.72(1)(g) and if the person is a party to a work agreement, the certification mentioned in paragraph 2.72(1)(h).

In addition, a nomination must be accompanied by a fee of $60 (see subregulation 2.73(5)).

New paragraph 2.72(6)(a) also provides that the Minister may refund the fee paid if:

· the tasks of the nominated occupation no longer correspond to the tasks of an occupation specified in the instrument in writing made for the purposes of 2.72(1)(c)(i); and

· the person withdraws the nomination for that reason before a decision is made under section 140GA.

The Minister may also refund the fee paid under paragraph 2.72(6)(b) if:

· the nomination is approved under section 140GA; and

· after the approval of the nomination but before the visa is granted in relation to the approval, the tasks of the nominated occupation no longer correspond to the tasks of an occupation specified in an instrument in writing made for the purposes of 2.72(1)(c)(i).

Regulation 2.74 – Notice of Decision

New regulation 2.74 provides that an applicant for approval as a sponsor must receive notification in writing from the Minister of a decision made under subsection 140GB(2) of the Act.

New regulation 2.74 provides that notification must be provided in accordance with the following:

· notification must be provided within a reasonable period after making the decision; and

· a written copy of the approval or refusal must be included; and

· in circumstances where the decision is a refusal, a statement of reasons for the refusal must be provided.

‘Reasonable period’ is not defined in the regulations. However, a notification may be considered to have been provided within a reasonable period if it is provided without undue delay after a decision has been made.

New subregulation 2.74(2) provides that if the application was made using approved form 1196 (Internet), the Minister may provide the notification to the applicant in electronic form.

This is the same requirement as at subregulation 1.20D(4) of Division 1.4A of Part 1 of the Principal Regulations as in force immediately prior to the commencement of these amending regulations. That regulation is repealed by item [6].

Regulation 2.75 – Period of approval of nomination

New regulation 2.75 provides that approval of a nomination ceases on the earliest of the following:

· in the event the nomination is withdrawn in writing by the person, on the day on which Immigration receives in writing that the person has withdrawn the nomination; and

· 12 months after the day on which the nomination is approved; and

· in the event the applicant or proposed applicant is granted a Subclass 457 (Business (Long Stay)) visa, on the day the visa is granted; and

· in the event approval of the nomination is given to a standard business sponsor, 3 months after the day on which the person’s approval as a standard business sponsor ceases; and

· in the event approval of the nomination is given to a standard business sponsor and the person’s approval as a standard business sponsor is cancelled under subsection 140M(1) of the Act, on the day the person’s approval as a standard business sponsor is cancelled; and

· in the event approval is granted to a party to a work agreement, the day on which the work agreement ceases.

Division 2.18 - Work Agreements

New Division 2.18 of new Part 2A of the Principal Regulations establishes requirements that a work agreement must comply with to satisfy section 140GC of the Act. Section 140GC of the Act provides that for the purposes of the definition of a “work agreement”, the regulations may prescribe requirements that an agreement must satisfy to be a ‘work agreement’.

Regulation 2.76 – Requirements

New regulation 2.76 provides for section 140GC of the Act, and for the definition of “work agreement” at subsection 5(1) of the Act, the requirements that an agreement must satisfy to be a “work agreement”.

New subregulation 2.76(2) provides that a “work agreement” must satisfy the following:

· is an agreement between the Commonwealth, as represented by the Minister, or by the Minister and 1 or more other Ministers, and

· a person, an unincorporated association or a partnership in Australia; and

· must authorise the recruitment, employment or engagement of services of a person who is intended to be employed or engaged as a holder of a Subclass 457 (Business (Long Stay)) visa; and

· must be in effect; and

· must not be an IASS agreement.

An Invest Australia Supported Skills agreement is an IASS agreement. It is intended that these agreements will not be “work agreements” for the purposes of new Part 2 of the Regulations.

Division 2.19 - Sponsorship Obligations

New Division 2.19 of new Part 2A of the Principal Regulations provides, for the purposes of section 140H of the Act, the sponsorship obligations that an approved sponsor or former approved sponsor must satisfy. Subsection 140H(1) of the Act (as amended by the Worker Protection Act) provides that the regulations may prescribe the sponsorship obligations which an approved sponsor or former approved sponsor must satisfy.

If a person who is required to satisfy a sponsorship obligation fails to satisfy the obligation they are liable to a range of sanctions including:

· a warning;

· their approval as a sponsor may be cancelled (see section 140M of the Act as amended by the Worker Protection Act);

· they may be barred as a sponsor (see section 140M of the Act as amended by the Worker Protection Act);

· they may be issued with an infringement notice (see section 140R of the Act as amended by the Worker Protection Act and Division 5.4 and 5.5 of the Principal Regulations as amended by items [22] – [38]);

· the Minister may seek a pecuniary penalty order in the Federal Magistrates Court or the Federal Court (see section 140Q of the Act and Part 8D of the Act as amended by the Worker Protection Act).

Regulation 2.77 – Preliminary

New regulation 2.77 provides that the obligations contained within Division 2.19 are the sponsorship obligations which the person to whom the obligation applies must satisfy.

This regulation is prescribed for the purposes subsection 140H(1) of the Act and provides that for subsection 140H(1), each of the obligations mentioned in this Division is a sponsorship obligation which a person to whom the obligation applies must satisfy.

Subsection 140H(4) of the Act creates a power to allow the regulations to 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 the obligations must be satisfied in the manner (if any) and within the period (if any) prescribed by the regulations. Also, subsection 140H(6) of the Act provides that different kinds of sponsorship obligations may be prescribed for different kinds of visa and different classes or approved sponsor.

Each obligation in Division 2.19, prescribes for the purposes of 140H of the Act:

· the class or kind of approved sponsor or former approved sponsor to whom it applies;

· the elements that must be satisfied to satisfy the obligation;

· when the obligation starts to apply; and

· when the obligation ceases to apply.

Regulation 2.78 – Obligation to cooperate with inspectors

New regulation 2.78 provides the obligation to cooperate with inspectors.

Subregulation 2.78(1) provides that the obligation applies to the following persons:

· a person who is or was a standard business sponsor,

· a person who is or was a party to a work agreement (other than a Minister); or

· a person who is or was a professional development sponsor.

Subregulation 2.78(1) clarifies that for the purposes of subsection 140H(4) of the Act (as amended by the Worker Protection Act) the obligation to cooperate with inspectors applies generally rather than in respect of each primary sponsored person. Subsection 140H(4) of the Act provides that the regulations may require a person to satisfy a sponsorship obligation in respect of each visa holder sponsored by the person, or generally.

Subregulation 2.78(2) provides the elements of the obligation. To satisfy the obligation a person mentioned in subregulation (1) must cooperate with an inspector. The person is only required to cooperate with an inspector if:

· the inspector is appointed under section 140V of the Act; and

· the inspector is exercising powers under Subdivision F of Division 3A of Part 2 of the Act (which sets out the powers of an inspector for the purposes of investigating compliance with matters relating to sponsorship obligations and requirements); or

Subregulation 2.78(3) provides the circumstances in which a person is taken not to be cooperating with an inspector, without limiting subregulation 2.78(2).

A person will be taken to have not cooperated with an inspector if:

· the person hinders or obstructs an inspector whilst the inspector is exercising powers under Subdivision F of Division 3A of Part 2 of the Act; or

· the person conceals, or attempts to conceal, from an inspector the location of a person, document or thing while the inspector is exercising powers under Subdivision F of Division 3A of Part 2 of the Act; or

· the person prevents or attempts to prevent another person from assisting an inspector while the inspector is exercising powers under Subdivision F of Division 3A of Part 2 of the Act; or

· the person assaults an inspector or a person assisting the inspector while the inspector is exercising powers under Subdivision F of Division 3A of Part 2 of the Act; or

· the person intimidates or threatens, or attempts to intimidate or threaten, an inspector or a person assisting an inspector while the inspector is exercising power under Subdivision F of Division 3A of Part 2 of the Act.

Subregulation 2.78(4) provides when the obligation to cooperate with inspectors starts to apply to a person who is or was a standard business sponsor, and who is or was a professional development sponsor. The obligation starts to apply on the day on which the person is approved as a sponsor under subsection 140E(1) of the Act, and ends 5 years after the day on which the person ceases or ceased to be a sponsor.

Subregulation 2.78(5) provides when the obligation to cooperate with inspectors starts to apply and ceases to apply to a person who is or was a party to a work agreement (other than a Minister). The obligation starts to apply on the day the work agreement commences, and ends 5 years after the day on which the work agreement ends.

Regulation 2.79 – Obligation to ensure equivalent terms and conditions of employment

New regulation 2.79 provides the obligation to ensure equivalent terms and conditions of employment are provided to a primary sponsored person.

Subregulation 2.79(1) provides that the obligation applies to the following persons:

· a person who is or was standard business sponsor of a primary sponsored person; or

· a person who is or was a party to a work agreement (other than a Minister) of a primary sponsored person.

Subregulation 2.79(1) clarifies that for the purposes of subsection 140H(4) of the Act (as amended by the Worker Protection Act) the obligation to ensure provision of equivalent terms and conditions of employment applies in respect of each primary sponsored person rather than generally. Subsection 140H(4) of the Act provides that the regulations may require a person to satisfy a sponsorship obligation in respect of each visa holder sponsored by the person, or generally.

Subregulation 2.79(2) provides the elements of the obligation. To satisfy the obligation a person mentioned in subregulation (1) must ensure that the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions the person provides, or would provide, to an Australian citizen or Australian permanent resident to perform work in an equivalent position in the person’s workplace.

Subregulation 2.79(3) provides that for subregulation (2),the terms and conditions will be considered no less favourable if they are at or above the terms and conditions determined in accordance with the process set out by the Minister in an instrument in writing made for the purpose of this subregulation. The purpose of this provision is to ensure that, at a minimum, the person mentioned in subregulation (1) provides to the primary sponsored person the terms and conditions of employment that are determined in accordance with the process set out in the instrument.

The instrument made under this subregulation will be a practical tool for determining whether the terms and conditions of employment are no less favourable in a range of circumstances. For example, if the nominated position filled by the primary sponsored person is covered by an enterprise agreement, then the terms and conditions of the enterprise agreement or terms and conditions that are above the level set out in the enterprise agreement would be regarded as no less favourable.

Paragraphs 2.79(4)(a) and (b) prescribe for the purposes of subsection 140H(5) of the Act, when the obligation starts to apply and ceases to apply. The obligation starts to apply on the day on which the Minister approves a nomination by the person of an occupation for the primary sponsored person or, if the primary sponsored person does not hold a Subclass 457 (Business (Long Stay)) visa on the day the Minister approves the nomination – the day the visa is granted on the basis of an approved nomination.

The obligation ends on the earlier of the day on which the primary sponsored person is granted a further substantive visa that is not a Subclass 457 (Business (Long Stay)) visa that is in effect and the day on which the primary sponsored person ceases employment with the person.

Regulation 2.80 - Obligation to pay travel costs to enable sponsored persons to leave Australia

New regulation 2.80 provides the obligation to pay travel costs to enable sponsored persons to leave Australia.

Subregulation 2.80(1) provides that the obligation applies to the following persons:

· a person who is or was standard business sponsor of a primary sponsored person or a secondary sponsored person (if any); or

· a person who is or was a party to a work agreement (other than a Minister) in relation a primary sponsored person or secondary sponsored person (if any).

Subregulation 2.80(1) clarifies that for the purposes of subsection 140H(4) of the Act (as amended by the Worker Protection Act) the obligation to pay travel costs to enable sponsored persons to leave Australia applies in respect of each primary sponsored person and secondary sponsored person rather than generally. Subsection 140H(4) of the Act provides that the regulations may require a person to satisfy a sponsorship obligation in respect of each visa holder sponsored by the person, or generally.

Subregulation 2.80(2) provides the elements of the obligation. To satisfy the obligation a person mentioned in subregulation (1) must pay the travel costs of the primary sponsored person or the secondary sponsored person that are reasonable and necessary if:

· the costs have been requested in writing by:

o the Minister on behalf of the primary sponsored person or the secondary sponsored person; or

o the primary sponsored person; or

o the secondary sponsored person; or

o the primary sponsored person on behalf of the secondary sponsored person; or

o the secondary sponsored person on behalf of the primary sponsored person; and

· the costs have not already been paid by the person in accordance with the obligation for the person who is seeking to have their costs paid.

The obligation to pay travel costs is contingent on a request from either a sponsored person or the Department (who will have contacted the sponsored person) in order to provide an appropriate trigger for the obligation. Unless a request is made, it will not be clear whether the sponsored person(s) intends to return home well in advance of their visa expiring or whether they intend to extend their stay by applying for a further visa.

In addition, the person mentioned in subregulation (1) will be considered to have satisfied the obligation in relation to a sponsored person if they have already paid the travel costs of that sponsored person in accordance with regulation 2.80. Where the person mentioned in subregulation (1) has paid the travel costs of a sponsored person and notifies the Department of the same (as per the obligation at new regulation 2.84 to provide information to Immigration when certain events occur), and that sponsored person’s visa is still in effect, the Department may cancel the visa to ensure the sponsored person does not return on the same visa and seek to take advantage of the person mentioned in subregulation (1) by requesting payment of return travel costs again.

Subregulation 2.80(3) further clarifies subregulation 2.80(2) by providing that a request to pay travel costs must comply with the following:

· specify the person or person whose travel will be funded by the costs; and

· specify the country for which the person whose travel costs will be funded holds a passport; and

· if the person whose travel will be funded is a multiple passport holder – specify the country that the person holds a passport for and wants to travel to; and

· be made while the person whose travel will be funded is the holder of a Subclass 457 (Business (Long Stay)) visa.

Subregulation 2.80(4) further clarifies subregulation 2.80(2) by providing that a person is taken to have paid reasonable and necessary costs if:

· the costs include the cost of travel from the primary sponsored person’s usual place of residence within Australia to the place of departure from Australia; and

· the costs include the cost of travel from Australia to the country which is specified in the request to pay travel costs as the country for which the primary sponsored person or secondary sponsored person (whichever is applicable) holds a passport (or if multiple passports are held the country specified in the request); and

· the costs are paid within 30 days of receiving the request for costs; and

· the costs are for economy class air travel or the equivalent of economy class air travel.

Subregulation 2.80(5) provides when the obligation starts to apply and ceases to apply. The obligation starts to apply, in relation to both primary sponsored persons and secondary sponsored persons, on:

· the day on which the Minister approves a nomination by the person of an occupation for the primary sponsored person; or

· if the primary sponsored person did not hold a Subclass 457 (Business (Long Stay)) visa on the day the Minister approved the nomination by the person of an occupation for the primary sponsored person – the day on which the primary sponsored person is granted a Subclass 457 (Business (Long Stay)) visa on the basis of an approved nomination by the person.

The obligation ends, in relation to a primary sponsored person, on the earlier of the following events:

· the day on which the Minister approves a nomination under section 140GB of the Act by another standard business sponsor or party to a work agreement in relation to the primary sponsored person; and

· the day on which the primary sponsored person is granted a further substantive visa other than Subclass 457 (Business (Long Stay)) visa and which is in effect; and

· the first day on which the primary sponsored person is unable to return to Australia on a visa which relates to their Subclass 457 (Business (Long Stay) visa. This will occur when each of the following events occur concurrently:

o the primary sponsored person has left Australia;

o the Subclass 457 (Business (Long Stay)) visa has ceased to be in effect; and

o if the primary sponsored person held a Subclass 020 – Bridging B visa when they left Australia, and the last substantive visa held by the primary sponsored person was a Subclass 457 (Business (Long Stay)) visa - the bridging visa has ceased to be in effect.

The obligation ends, in relation to a secondary sponsored person, on the earlier of the following events:

· the day on which the secondary sponsored person is granted a further substantive visa other than Subclass 457 (Business (Long Stay)) visa and which is in effect; and

· the first day on which the secondary sponsored person is unable to return to Australia on a visa which relates to their Subclass 457 (Business (Long Stay) visa. This will occur when each of the following events occur concurrently:

o the secondary sponsored person has left Australia;

o the Subclass 457 (Business (Long Stay)) visa has ceased to be in effect; and

o if the secondary sponsored person held a Subclass 020 – Bridging B visa when they left Australia, and the last substantive visa held by the secondary sponsored person was a Subclass 457 (Business (Long Stay)) visa - the bridging visa has ceased to be in effect.

Regulation 2.81 – Obligation to pay costs incurred by the Commonwealth to locate and remove unlawful non-citizen

New regulation 2.81 provides the obligation to pay costs incurred by the Commonwealth to locate and remove an unlawful non-citizen.

Subregulation 2.81(1) provides that the obligation applies to the following persons:

· a person who is or was a standard business sponsor of a primary sponsored person or a secondary sponsored person; or

· a person who is or was a party to a work agreement (other than a Minister) in relation a primary sponsored person or secondary sponsored person; or

· a person who is or was a professional development sponsor of a primary sponsored person.

There are no secondary sponsored persons in relation to a professional development sponsor. See the definition of secondary sponsored person inserted by item [9] at regulation 2.57(1).

Subregulation 2.81(1) clarifies that for the purposes of subsection 140H(4) of the Act (as amended by the Worker Protection Act) the obligation applies in respect of each primary sponsored person and secondary sponsored person rather than generally. Subsection 140H(4) of the Act provides that the regulations may require a person to satisfy a sponsorship obligation in respect of each visa holder sponsored by the person, or generally.

Subregulation 2.81(2) provides the elements of the obligation. To satisfy the obligation a person mentioned in subregulation (1) must pay the costs incurred by the Commonwealth if:

· the costs were incurred by the Commonwealth in taking either or both of the following actions in relation to the primary sponsored person or secondary sponsored person:

o locating, as an unlawful non-citizen, the primary sponsored person or the secondary sponsored person;

o removing, as an unlawful non-citizen, the primary sponsored person or the secondary sponsored person from Australia; and

· the Minister has requested the payment of the costs by written notice in the manner specified in subregulation (5); and

· if the costs were incurred by the Commonwealth within the period mentioned in subregulation (6).

Subregulation 2.81(3) provides that in circumstances where a person has already paid the cost of return travel in accordance with the obligation mentioned in regulation 2.80 (obligation to pay return travel costs), the person is only liable to pay the Commonwealth the difference between:

· the lesser of:

o the actual costs incurred to locate and remove the person; or

o the limit prescribed under paragraph 140J(1)(a) of the Act (as amended by the Worker Protection Act), as prescribed by subregulation 2.81(4); and

· the return costs that have already been paid by the person.

In situations where the return travel costs already paid by the person in accordance with the obligation to pay return travel costs are more than the costs of locating or removing the unlawful non-citizen, or the limit prescribed in subregulation 2.81(4), it is intended that the person will be under no further obligation to pay costs incurred by the Commonwealth in locating or removing an unlawful non-citizen.

Subregulation 2.81(4) provides that for the purposes of paragraph 140J(1)(a) of the Act the prescribed limit is $10,000.

Paragraph 140J(1)(a) of the Act provides that if an amount is payable by a person who is or was an approved sponsor in relation to a sponsorship obligation, that person is not liable to pay the Commonwealth more than a limit prescribed by the regulations.

Subregulation 2.81(5) clarifies subregulation 2.81(2) by providing that the notice issued by the Minister requesting payment of the Commonwealth’s costs must:

· be given to the person using a method mentioned in section 494B of the Act; and

· specify a date for compliance not earlier than 7 days after the date a person will be taken to have received the document by section 494C of the Act.

Section 494B of the Act provides the methods in which the Minister may give documents to a person. The specified methods include:

· giving by hand;

· handing to a person at last residential or business address;

· dispatch by prepaid post or by other prepaid means;

· dispatch by fax transmission, email or other electronic means;

· handing the document by way of an authorised officer;

· handing the documents to a carer.

Section 494C of the Act provides when a person is taken to have received a document from the Minister subject to section 494B of the Act. The relevant timeframes for when a person is deemed to have received a document from the Minister are:

· by hand, the person is deemed to have received the document at the time the document is handed to the person;

· by handing to a person at last residential or business address, the person is deemed to have received the document at the time the document is handed to the person;

· by dispatch by prepaid post or by other prepaid means, the person is deemed to have received the document:

o 7 working days (in the place of the address) from the date of the document, in circumstances where the document was dispatched from an address in Australia to an address in Australia; or

o 21 days any other circumstance.

· by dispatch by fax transmission, email or other electronic means, the person is deemed to have received the document at the end of the day that the document was transmitted.

Subregulation 2.81(6) clarifies subregulation 2.81(2) by providing when the costs must have been incurred by the Commonwealth. The period within which the Commonwealth must incur the costs starts, in relation to a primary sponsored person, on the day on which the primary sponsored person becomes an unlawful non-citizen, and ends at the moment when the primary sponsored person leaves Australia. In relation to a secondary sponsored person the period starts on the day on which the secondary sponsored person becomes an unlawful non-citizen and ends at the moment when the secondary sponsored person leaves Australia.

Subregulation 2.81(7) provides when the obligation starts to apply and ceases to apply. The obligation starts to apply, in relation a primary sponsored persons, on the day on which the primary sponsored person becomes an unlawful non-citizen, and ends 5 years after the moment when the primary sponsored person leaves Australia. In relation to a secondary sponsored person the period starts on the day on which the secondary sponsored person becomes an unlawful non-citizen and ends 5 years after the moment when the secondary sponsored person leaves Australia.

Subregulation 2.81(8) provides that for the purposes of this regulation “costs” relating to the removal of a primary sponsored person or a secondary sponsored person from Australia, has the same meaning as established in paragraph (b) of the definition of “costs” established in section 207 of the Act.

Regulation 2.82 – Obligation to keep records

New regulation 2.82 provides the obligation to keep records.

Subregulation 2.82(1) provides that the obligation applies to the following persons:

· a person who is or was a standard business sponsor; or

· a person who is or was a party to a work agreement (other than a Minister).

Subregulation 2.82(1) clarifies that for the purposes of subsection 140H(4) of the Act the obligation to keep records applies generally rather than in respect of each primary sponsored person. Subsection 140H(4) of the Act provides that the regulations may require a person to satisfy a sponsorship obligation in respect of each visa holder sponsored by the person, or generally.

Subregulation 2.82(2) provides the elements of the obligation.

Subregulation 2.82(2) provides that in order to satisfy the obligation a person mentioned in subregulation (1) must keep records of a kind specified in subparagraph 2.82(3) and specified by the Minister in an instrument in writing. The person must also keep records in a reproducible format and where applicable to keep the records in a manner that is either specified by the Minister in an instrument in writing or if the record is a record as to how the person complied with the request to pay return travel costs, the record must be kept in a manner that is capable of being verified by an independent person. A person must also keep records for the period specified in subregulation (4), (5) and (6) in order to satisfy the obligation.

Subregulation 2.82(3) gives further clarification to 2.82(2), and provides that the types of records which must be kept are:

· in relation to the obligation to pay return travel costs:

o a record of the written request to pay return travel costs from the primary or secondary sponsored person;

o a record of when the written request for payment was received; and

o a record of how the person complied with the request, including the amount, who it was paid for, and the date of the payment.

· In relation to the obligation to provide information to Immigration when certain events occur, 2.82(3)(b) provides that the types of records that must be kept are:

o a record of a notification to Immigration of an event specified in regulation 2.84 and

o records of the particulars of the notification of the event, including the date the person notified Immigration of the event, the method, and where the notification was provided; and

· In relation to the obligation to ensure a primary sponsored person does not work in an occupation other than an approved occupation:

o record of the tasks performed by the primary sponsored person in relation to work undertaken as the holder of a Subclass 457 (Business (Long Stay)) visa; and

o a record of the location or locations at which the tasks (mentioned above) were performed.

Subregulation 2.82(4) provides when the obligation starts to apply and ceases to apply to a person who is or was a standard business sponsor. The obligation starts to apply on the day on which the person is approved as standard business sponsor under section 140E(1) and ends 2 years after the first day on which each of the following occurs concurrently:

· the person ceases to be a standard business sponsor; and

· there is no primary sponsored person or secondary sponsored person in relation to the person.

Subregulation 2.82(5) provides when the obligation starts to apply and ceases to apply to a person who is or was a party to a work agreement (other than a Minister). The obligation starts to apply on the day on which the work agreement commences, and ends 2 years after the first day on which each of the following occurs concurrently:

· the person ceases to be a party to a work agreement; and

· there is no primary sponsored person or secondary sponsored person in relation to the person.

Subregulation 2.82(6) provides that the obligation to keep records does not require a person to keep a record for a period exceeding 5 years.

Regulation 2.83 – Obligation to provide records and information to the Minister

New regulation 2.83 provides the obligation to provide records and information to the Minister.

Subregulation 2.83(1) provides that the obligation applies to the following persons:

· a person who is or was a standard business sponsor; or

· a person who is or was a party to a work agreement (other than a Minister);or

· a person who is or was a professional development sponsor.

Subregulation 2.83(1) clarifies that for the purposes of subsection 140H(4) of the Act the obligation applies generally rather than in respect of each primary sponsored person. Subsection 140H(4) of the Act provides that the regulations may require a person to satisfy a sponsorship obligation in respect of each visa holder sponsored by the person, or generally.

Subregulation 2.83(2) provides the elements of the obligation. To satisfy the obligation a person mentioned in subregulation (1) must provide records or information to the Minister:

· if the Minister has requested the provision of the records or information by written notices in the manner specified by subregulation 2.81(3); and

· if the records requested by the Minister are:

o records the person is required to keep under a law of the Commonwealth or a State or Territory that applies to the person; or

o records the person is required to keep under the obligation to keep records under subregulation 2.82; and

· if the records or information relates to the administration of Division 3A of Part 2 of the Act and the regulations made under that Division (this is the Division which relates to sponsorship); and

· in the manner and within the timeframe, requested by the Minister in the notice mentioned in subregulation 2.83(3).

The note to subregulation 2.83(2) explains that the obligation to keep records prescribed at regulation 2.82 does not apply to a professional development sponsor.

Subregulation 2.83(3) clarifies paragraph 2.83(2)(a) by providing that a notice from the Minister requesting records or information must be given using one of the methods listed in section 494B of the Act. The notice must also specify a date for compliance no earlier than 7 days after the date the person is deemed to have received the document pursuant to the timeframes established by section 494C of the Act.

The operation of sections 494B and 494C of the Act are explained at the explanation of new regulation 2.81.

Subregulation 2.83(4) provides when the obligation starts to apply and ceases to apply to a person who is or was a standard business sponsor or who is or was a professional development sponsor. The obligation starts to apply on the day on which the person is approved as a sponsor under section 140E of the Act, and ends 2 years after the first day on which each of the following occurs concurrently:

· the person ceases to be a standard business sponsor or professional development sponsor; and

· there is no primary sponsored person or secondary sponsored person in relation to the person.

Subregulation 2.83(5) provides when the obligation starts to apply and ceases to apply to a person who is or was a party to a work agreement (other than a Minister). The obligation starts to apply on the day on which the work agreement commences, and ends 2 years after the first day on which each of the following occurs concurrently:

· the person ceases to be a party to a work agreement; and

· there is no primary sponsored person or secondary sponsored person in relation to the person.

Regulation 2.84 – Obligation to provide information to Immigration when certain events occur

New regulation 2.84 provides the obligation to provide information to Immigration when certain events occur.

Subregulation 2.84(1) provides that the obligation applies to the following persons:

· a person who is or was a standard business sponsor; or

· a person who is or was a party to a work agreement (other than a Minister);or

· a person who is or was a professional development sponsor.

Subregulation 2.84(1) clarifies that for the purposes of subsection 140H(4) of the Act the obligation applies generally rather than in respect of each primary sponsored person. Subsection 140H(4) of the Act provides that the regulations may require a person to satisfy a sponsorship obligation in respect of each visa holder sponsored by the person, or generally.

Subregulation 2.84(2) provides the elements of the obligation. To satisfy the obligation a person mentioned in subregulation (1) must provide details of an event to Immigration when an event prescribed in regulation 2.84, and specified for the person mentioned in subregulation (1), occurs. The person must also provide the details of the event to an address specified by the Minister in an instrument in writing and within the period specified in subregulation 2.84(6).

Subregulation 2.84(3) prescribes the events for which a person who is or was a standard business sponsor and who is or was a party to a work agreement (other than a Minister) must notify Immigration. The events are:

· the cessation or expected cessation of a primary sponsored person’s employment with the person;

· a change to the information provided to Immigration in the person’s application for approval as a sponsor in relation to the training requirement mentioned in subregulation 2.59(d) and (e), and their address and contact details;

· a change to the information provided to Immigration in the person’s application to vary a term of approval in relation to training requirement mentioned in subregulation 2.68(e) and (f);

· the legal entity of the person ceases to exist;

· in circumstances where the legal entity of the person is a company, when a new Director is appointed;

· in circumstances where the legal entity of the person is a partnership, when a new partner joins the partnership;

· in circumstances where the legal entity of the person is a unincorporated association, when a new member is appointed to the managing committee of the association;

· the return travel costs of a primary sponsored person or secondary sponsored person have been paid in accordance with the obligation mentioned in regulation 2.80;

· the person is insolvent within the meaning of subsection 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001;

· if the person is a natural person:

o the person enters into a personal insolvency agreement under Part X of the Bankruptcy Act 1966;

o the person enters into a debt agreement under Part IX of the Bankruptcy Act 1966;

o a sequestration order is made against the estate of the person under Part IV of the bankruptcy Act 1966;

o the person becomes bankrupt by virtue of the presentation of a debtor’s petition under Part IV of the Bankruptcy Act 1966;

o the person presents a declaration of intention to present a debtor’s petition under Part IV of the Bankruptcy Act 1966;

o a composition or scheme of arrangement is presented in relation to the person in accordance with Division 6 of Part IV of the Bankruptcy Act 1966;

· if the person is a company –

o an administrator is appointed for the company under Part 5.3A of the Corporations Act 2001;

o the company resolves by special resolution to be wound up voluntarily under subsection 491(1) of the Corporations Act 2001;

o a court has ordered that the company be wound up in insolvency under Part 5.4, or on other grounds under Part 5.4A, of the Corporations Act 2001;

o a court has appointed an official liquidator to be the provisional liquidator of the company under Part 5.4B of the Corporations Act 2001;

o a court has approved a compromise or arrangement proposed by the company under Part 5.1 of the Corporations Act 2001;

o the property of the company becomes subject to a receiver or other controller under Part 5.2 of the Corporations Act 2001;

o procedures are initiated for the deregistration of the company under Part 5A.1 of the Corporations Act 2001;

· if the person is a partner of a partnership or a member of a managing committee for an unincorporated association, any of the events of the kind mentioned above.

Subregulation 2.84(4) prescribes the events for which a person who is or was a professional development sponsor must notify Immigration. The events are:

· a change to the information provided to Immigration in the person’s application for approval as a sponsor in relation to:

o the person’s address and contact details; and

o the person’s capacity to deliver the approved professional development program; and

o the capacity of a sub-contractor involved in the delivery of the approved professional development program to deliver the program or any part of the program;

· the legal entity of the person cease to exist;

· in circumstances where the legal entity of the person is a company, when a new Director is appointed;

· in circumstances where the legal entity of the person is a partnership, when a new partner joins the partnership;

· in circumstances where the legal entity of the person is a unincorporated association, when a new member is appointed to the managing committee of the association;

· the person has become insolvent within the meaning of subsection 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001;

· if the person is a natural person:

o the person enters into a personal insolvency agreement under Part X of the Bankruptcy Act 1966;

o the person enters into a debt agreement under Part IX of the Bankruptcy Act 1966;

o a sequestration order is made against the estate of the person under Part IV of the bankruptcy Act 1966;

o the person becomes a bankrupt by virtue of the presentation of a debtor’s petition under Part IV of the Bankruptcy Act 1966;

o the person presents a declaration of intention to present a debtor’s petition under Part IV of the Bankruptcy Act 1966;

o a composition or scheme of arrangement is being presented in relation to the person in accordance with Division 6 of Part IV of the Bankruptcy Act 1966;

· if the person is a company –

o an administrator is appointed for the company under Part 5.3A of the Corporations Act 2001;

o the company resolves by special resolution to be wound up voluntarily, under subsection 491(1) of the Corporations Act 2001; and

o a court has ordered that the company be wound up in insolvency under Part 5.4, or on other grounds under Part 5.4A, of the Corporations Act 2001;

o a court has appointed an official liquidator to be the provisional liquidator of the company under Part 5.4B of the Corporations Act 2001;

o a court has approved a compromise or arrangement proposed by the company under Part 5.1 of the Corporations Act 2001;

o the property of the company becomes subject to a receiver or other controller under Part 5.2 of the Corporations Act 2001;

o procedures are initiated for the deregistration of the company under Part 5A.1 of the Corporations Act 2001;

· if the person is a partner of a partnership or a member of a managing committee for an unincorporated association, any of the events of the kind mentioned above;

· the primary sponsored person is unable to participate in the professional development program;

· the primary sponsored person has ceased participation in a professional development program prior to the ending of the professional development program;

· the primary sponsored person has failed to attend a professional development program, and the absence was not authorised by the professional development sponsor.

The purpose of requiring a professional development sponsor to notify Immigration if the primary sponsored person is unable to participate in the professional development program, has ceased participation in a professional development program prior to the ending of the professional development program, or failed to attend a professional development program where the absence was not authorised by the professional development sponsor, is that the occurrence of these events may be an indication that a primary sponsored person is not complying with their visa conditions. Not every occurrence of such an event will mean a primary sponsored person is not complying with their visa conditions, but Immigration will investigate the events on receiving notification to determine if the primary sponsored person is complying with their visa conditions.

Subregulation 2.84(5) clarifies paragraph 2.84(3)(a) by providing that in addition to informing Immigration of the cessation or expected cessation, of a primary sponsored person’s employment a person may notify Immigration of:

· the final date of employment of the primary sponsored person before the date of cessation; but

· if the primary sponsored person does not cease employment with the person, or ceases employment on a different date, the person must notify Immigration of the continued employment or the new date of cessation.

Subregulation 2.84(6) sets out the period within which a person must notify Immigration of the occurrence of a prescribed event.

Where the event is to notify Immigration of the cessation of employment of a primary sponsored person, the person must notify Immigration within 10 working days of the primary sponsored person ceasing employment.

If the primary sponsored person does not cease employment with the person or ceases employment on a different date, the person must notify Immigration on the earliest of:

· within 10 working days of the date originally notified to Immigration; or

· within 10 working days of the actual date the primary sponsored person ceases working for the person.

For all other events, the person must notify Immigration within 10 working days of the change or event occurring.

Subregulation 2.84(7) provides when the obligation starts to apply and ceases to apply to a person who is or was a standard business sponsor or who is or was a professional development sponsor. The obligation starts to apply on the day on which the person is approved as a sponsor under section 140E of the Act, and ends after the first day on which each of the following occurs concurrently:

· the person ceases to be a standard business sponsor or professional development sponsor; and

· there is no primary sponsored person or secondary sponsored person in relation to the person.

Subregulation 2.84(8) provides when the obligation starts to apply and ceases to apply to a person who is or was a party to a work agreement. The obligation starts to apply on the day on which the work agreement commences, and ends after the first day on which each of the following occurs concurrently:

· the person ceases to be a standard business sponsor or professional development sponsor; and

· there is no primary sponsored person or secondary sponsored person in relation to the person.

Regulation 2.85 – Obligation to secure an offer of a reasonable standard of accommodation for a primary sponsored person

New regulation 2.85 provides the obligation to secure an offer of a reasonable standard of accommodation for a primary sponsored person.

Subregulation 2.85(1) provides that the obligation applies to a person who is or was a professional development sponsor of a primary sponsored person.

Subregulation 2.85(1) clarifies that for the purposes of subsection 140H(4) of the Act the obligation applies in respect of each primary sponsored person rather than generally. Subsection 140H(4) of the Act provides that the regulations may require a person to satisfy a sponsorship obligation in respect of each visa holder sponsored by the person, or generally.

Subregulation 2.85(2) provides the elements of the obligation. To satisfy the obligation a person mentioned in subregulation (1) must secure 1 or more offers of accommodation for the primary sponsored person that will provide for a reasonable standard of accommodation and will ensure the primary sponsored person has accommodation for the entire period of participation in a professional development program.

The example following subregulation 2.85(2) provides that in a situation where accommodation has been secured and becomes unavailable, the professional development sponsor is obligated and must secure another offer of accommodation for the primary sponsored person.

Subregulation 2.85(3) clarifies the meaning of “reasonable standard of accommodation” in subregulation 2.85(2), by providing that accommodation is of a reasonable standard if the accommodation:

· meets all relevant State and local government regulations regarding fire, health and safety; and

· offers 24 hour access; and

· provides meals or a self-catering kitchen; and

· is clean and well-maintained; and

· has a lounge area; and

· has adequate laundry facilities or a laundry service; and

· provides power for lighting, cooking and refrigeration; and

· has an adequate ratio of guests to bathroom facilities; and

· has uncrowded sleeping areas; and

· provides appropriate gender segregated areas and bathroom facilities; and

· allows adequate privacy and secure storage for personal items.

Subregulation 2.85(4) provides when the obligation starts to apply and ceases to apply. The obligation starts to apply on the day the primary sponsored person is granted a Subclass 470 (Professional Development) visa and the obligation ceases to apply on the earlier of one of the following events occurring:

· the day on which the primary sponsored person is granted a further substantive visa that is not a Subclass 470 (Professional Development) visa and is in effect;

· the first day on which each of the following occur concurrently:

o the primary sponsored person has left Australia; and

o the Subclass 470 (Professional Development) visa has ceased to be in effect; and

o if the primary sponsored person held a Subclass 020 Bridging visa B on the day they left Australia, and the last substantive visa held by the primary sponsored person was a Subclass 470 (Professional Development) visa - the bridging visa has ceased to be in effect.

The purpose of this obligation is to ensure that a primary sponsored person has accommodation in Australia for the duration of the professional development program. The holder of a Subclass 470 (Professional Development) visa is not permitted to work in Australia. To ensure that the primary sponsored person is not destitute and is not forced to work in Australia, it is an obligation for the professional development sponsor to secure an offer of a reasonable standard of accommodation. The professional development agreement will then set out who is to pay for the accommodation in Australia.

Regulation 2.86 – Obligation to ensure primary sponsored person does not work in an occupation other than an approved occupation

New regulation 2.86 provides the obligation to ensure that the primary sponsored person does not work in an occupation other than the approved nominated occupation.

Subregulation 2.86(1) provides that the obligation applies to a person who is or was:

· a standard business sponsor of a primary sponsored person; or

· a party to a work agreement (other than a Minister) in relation to a primary sponsored person.

Subregulation 2.86(1) clarifies that for the purposes of subsection 140H(4) of the Act the obligation applies in respect of each primary sponsored person rather than generally. Subsection 140H(4) of the Act provides that the regulations may require a person to satisfy a sponsorship obligation in respect of each visa holder sponsored by the person, or generally.

Subregulation 2.86(2) provides the elements of the obligation. To satisfy the obligation a person mentioned in subregulation (1) must ensure that the primary sponsored person does not work in an occupation other than the occupation nominated most recently by the person for the primary sponsored person under subsection 140GB(1) of the Act, and approved by the Minister under subsection 140GB(2) of the Act.

Subregulation 2.86(3) provides when the obligation starts to apply and ceases to apply. The obligation starts to apply on:

· the day on which the Minister approves a nomination by the person of an occupation for the primary sponsored person; or

The obligation ceases to apply on the earliest of the following events occurring:

· the day on which the primary sponsored person is granted a further substantive visa other than Subclass 457 (Business (Long Stay)) visa and which is in effect; and

o the primary sponsored person has left Australia;

o the Subclass 457 (Business (Long Stay)) visa has ceased to be in effect; and

Regulation 2.87 – Obligation not to recover certain costs from a primary sponsored person or secondary sponsored person

New regulation 2.87 provides the obligation not to recover certain costs from a primary sponsored person or secondary sponsored person.

Subregulation 2.87(1) provides that the regulation applies to a person who is or was:

· a standard business sponsor of a primary sponsored person or a secondary sponsored person; or

· a party to a work agreement (other than the Minister) in relation to a primary sponsored person or a secondary sponsored person.

Subregulation 2.87(1) clarifies that for the purposes of subsection 140H(4) of the Act the obligation applies in respect of each primary sponsored person and secondary sponsored person, rather than generally. Subsection 140H(4) of the Act provides that the regulations may require a person to satisfy a sponsorship obligation in respect of each visa holder sponsored by the person, or generally.

Subregulation 2.87(2) provides the elements of the obligation. To satisfy the obligation a person mentioned in subregulation (1) must not recover or seek to recover, from a primary sponsored person or a 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; and

· the costs, including migration agent costs, associated with becoming an approved sponsor, being an approved sponsor, or being a former approved sponsor.

Subregulation 2.87(3) provides when the obligation starts to apply and ceases to apply. The obligation starts to apply, in relation to both primary sponsored persons and secondary sponsored persons, on:

· the day on which the Minister approves a nomination by the person of an occupation for the primary sponsored person; or

The obligation ends, in relation to a primary sponsored person, on the earlier of the following events:

· the day on which the primary sponsored person is granted a further substantive visa other than Subclass 457 (Business (Long Stay)) visa and which is in effect; and

o the primary sponsored person has left Australia;

o the Subclass 457 (Business (Long Stay)) visa has ceased to be in effect; and

The obligation ends, in relation to a secondary sponsored person, on the earlier of the following events:

· the day on which the secondary sponsored person is granted a further substantive visa other than Subclass 457 (Business (Long Stay)) visa and which is in effect; and

o the secondary sponsored person has left Australia;

o the Subclass 457 (Business (Long Stay)) visa has ceased to be in effect; and

Division 2.20 - Circumstances in which sponsor may be barred or sponsor’s approval may be cancelled

New Division 2.20 of new Part 2A of the Principal Regulations provides, for the purposes of section 140L of the Act, the circumstances in which a sponsor’s approval may be barred or cancelled under section 140M of the Act.

Section 140L of the Act provides that the regulations may prescribe the circumstances in which a sponsor may be barred or their approval as a sponsor cancelled.

Section 140M of the Act sets out the barring and cancelling actions that may be taken in relation to an approved sponsor.

Regulation 2.88 – Preliminary

New regulation 2.88 provides that each circumstance prescribed in Division 2.20 is a circumstance in which the Minister may take one or more of the actions mentioned in section 140M of the Act.

This regulation reiterates subsection 140L(1) of the Act which provides that the regulations may prescribe the circumstances in which the Minister may take one or more of the actions mentioned in section 140M of the Act.

The intention is that if a prescribed circumstance exists, the Minister will have discretionary power over whether to take action at all, and if so what action to take. That is, depending on the circumstance which is found to exist, the Minister may decide to take no action at all, or alternatively take one or more of the actions mentioned in section 140M of the Act.

The note to regulation 2.88 explains that the Minister cannot take action against a party to a work agreement under section 140M of the Act. The terms of the work agreement will provide for whether the agreement can be cancelled or whether the party to the work agreement can be barred from doing certain things under the agreement. A party to a work agreement cannot have action taken against them under section 140M because all of the actions mentioned in section 140M relate to a class of approved sponsor, and a party to a work agreement is not a class of approved sponsor prescribed under subsection 140E(2) of the Act.

Subsection 140L(2) of the Act provides that the regulations may prescribe the circumstances in which the Minister must take one or more of the actions mentioned in section 140M of the Act in relation to a person who is or was an approved sponsor. There are no regulations being prescribed for the purposes of this subsection, therefore there are no circumstances in which the Minister must take an action under section 140M of the Act.

Each circumstance in Division 2.20 sets out:

· the circumstance in which a section 140M action may be taken by the Minister; and

· the criteria (or factors) that the Minister must consider when deciding which action (if any) to take under section 140M.

Regulation 2.89 – Failure to satisfy sponsorship obligation

New regulation 2.89 prescribes, for the purposes of subparagraph 140L(1)(a)(i) of the Act, a circumstance in relation to failure to satisfy a sponsorship obligation.

Subparagraph 140L(1)(a)(i) provides that the regulations may prescribe circumstances in which the Minister may take one or more of the actions mentioned in section 140M of the Act in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) and within the period (if any) prescribed by the regulations.

The objective of new regulation 2.89 is to allow the Minister to cancel approval of a sponsor, or bar an approved sponsor from sponsoring more people or applying for further approval as a sponsor, where the sponsor fails to satisfy a sponsorship obligation.

Subregulation 2.89(1) provides that the prescribed circumstance applies to a person who is or was:

· a standard business sponsor; or

· a standard business sponsor of a primary sponsored person or a secondary sponsored person; or

· a professional development sponsor; or

· a professional development sponsor of a primary sponsored person.

Subregulation 2.89(2) provides that for the purposes of subparagraph 140L(1)(a)(i) of the Act, the circumstance in which the Minister may take an action under section 140M of the Act is that the Minister is satisfied that the person mentioned in subregulation (1) has failed to satisfy a sponsorship obligation mentioned in Division 2.19.

Paragraph 140L(1)(b) of the Act provides that the regulations may prescribe the criteria to be taken into account by the Minister in determining what action to take under section 140M of the Act.

Subregulation 2.89(3) provides, for the purposes of paragraph 140L(1)(b) of the Act, the following criteria that the Minister must take into account in determining what action (if any) to take under section 140M in relation to the circumstance mentioned in subregulation 2.89(2):

· the past and present conduct of the person in relation to Immigration; and

· the number of occasions on which the person has failed to satisfy the sponsorship obligation; and

· the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred; and

· the period of time that the person has been an approved sponsor; and

· whether, and the extent to which, the failure to satisfy the sponsorship obligation has had the direct or indirect impact on another person; and

· whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent; and

· whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure; and

· the steps (if any) the person has taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise; and

· the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation; and

· the number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations; and

· any other relevant factors.

Regulation 2.90 – Provision of false or misleading information

Subparagraph 140L(1)(a)(ii) of the Act provides that the regulations may prescribe circumstances (other than a failure to satisfy a sponsorship obligation) in which the Minister may take one or more of the actions mentioned in section 140M of the Act.

New regulation 2.90 prescribes, for the purposes of subparagraph 140L(1)(a)(ii) of the Act, a circumstance in relation to the provision of false or misleading information to Immigration or the Migration Review Tribunal (MRT).

The objective of new regulation 2.90 is to allow the Minister to cancel approval of a sponsor, or bar an approved sponsor from sponsoring more people or applying for further approval as a sponsor, where the sponsor has provided false or misleading information to Immigration or the MRT.

Subregulation 2.90(1) provides that the prescribed circumstance applies to a person who is or was:

· a standard business sponsor; or

· a professional development sponsor.

Subregulation 2.90(2) provides that for the purposes of subparagraph 140L(1)(a)(ii) of the Act, the circumstance in which the Minister may take an action under section 140M is that the Minister is satisfied that the person has provided false or misleading information to Immigration or the MRT.

Paragraph 140L(1)(b) of the Act provides that the regulations may prescribe the criteria to be taken into account by the Minister in determining what action to take under section 140M.

Subregulation 2.90(3) provides for the purposes of paragraph 140L(1)(b) of the Act, the following criteria that the Minister must take into account in determining what action (if any) to take under section 140M in relation to the circumstance mentioned in subregulation 2.90(2):

· the purpose for which the information was provided; and

· the past and present conduct of the person in relation to Immigration; and

· the nature of the information; and

· whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person; and

· whether the information was provided in good faith; and

· whether the person notified Immigration immediately upon discovering that the information was false or misleading; and

· any other relevant factors.

Regulation 2.91 – Application or variation criteria no longer met

New regulation 2.91 prescribes, for the purposes of subparagraph 140L(1)(a)(ii) of the Act, a circumstance in relation to a sponsor not continuing to meet the criteria for approval as a sponsor, or the criteria for variation of terms of approval as a sponsor.

The objective of new regulation 2.91 is to allow the Minister to cancel approval of a sponsor, or bar an approved sponsor from sponsoring more people or applying for further approval as a sponsor, where the Minister is satisfied that the person no longer satisfies the criteria for approval as a sponsor, or no longer satisfies the criteria for approval of a variation.

Subregulation 2.91(1) provides that the prescribed circumstance applies to a person who is or was:

· a standard business sponsor; or

· a professional development sponsor.

Subregulation 2.91(2) provides that for the purposes of subparagraph 140L(1)(a)(ii) of the Act the circumstance in which the Minister may take an action under section 140M is if the Minister is satisfied that:

· if the person was approved as a sponsor under section 140E of the Act before 14 September 2009 - the person no longer satisfies the criteria prescribed at the time the person was approved as a sponsor; or

· if the person is approved as a sponsor under section 140E of the Act on or after 14 September 2009 - the person no longer satisfies the criteria prescribed at the time the person was approved as a sponsor; or

· if the terms of approval of the person as a standard business sponsor have been varied - the person no longer satisfies the criteria prescribed under section 140GA at the time of the approval of the variation.

Paragraph 140L(1)(b) of the Act provides that the regulations may prescribe the criteria to be taken into account by the Minister in determining what action to take under section 140M.

Subregulation 2.91(3) provides, for the purposes of paragraph 140L(1)(b) of the Act, the following criteria that the Minister must take into account in determining what action (if any) to take under section 140M in relation to the circumstance mentioned at 2.91(2):

· the nature of the applicable sponsorship criteria that the person no longer meets; and

· whether, and the extent to which, the failure to continue to satisfy the criteria for approval as a sponsor, or to continue to satisfy the criteria for approval of a variation, has had a direct or indirect impact on another person; and

· the reason why the person no longer satisfies the applicable sponsorship criteria, including whether the failure to satisfy the criteria is within the person’s control; and

· the steps (if any) the person has taken to ensure that the person will satisfy the applicable criteria in the future; and

· any other relevant factors.

Regulation 2.92 – Contravention of law

New regulation 2.92 prescribes, for the purposes of subparagraph 140L(1)(a)(ii) of the Act, two circumstances in relation to a sponsor or a primary sponsored person contravening the law.

The objective of new regulation 2.92 is to allow the Minister to cancel approval of a sponsor, or bar an approved sponsor from sponsoring more people or applying for further approval as a sponsor, where the sponsor has been found to have contravened a Commonwealth, State or Territory law.

Subregulation 2.92(1) provides that the prescribed circumstances apply to a person who is or was:

· a standard business sponsor; or

· a standard business sponsor of a primary sponsored person; or

· a professional development sponsor.

Subregulation 2.92(2) provides the first circumstance in relation to a contravention of a law. This circumstance applies to both a person who is or was a standard business sponsor, and a person who is or was a professional development sponsor. Subregulation 2.92(2) provides, for the purposes of subparagraph 140L(1)(a)(ii) of the Act, that a circumstance in which the Minister may take an action under section 140M of the Act is that the Minister is satisfied that the person has been found by a court or a competent authority to have contravened a Commonwealth, State or Territory law.

Paragraph 140L(1)(b) of the Act provides that the regulations may prescribe the criteria to be taken into account by the Minister in determining what action to take under section 140M.

Subregulation 2.92(3) provides, for the purposes of paragraph 140L(1)(b) of the Act, the following criteria that the Minister must take into account in determining what action (if any) to take under section 140M in relation to the circumstances mentioned in subregulation 2.92(2):

· the past and present conduct of the person; and

· the nature of the law that the person has contravened; and

· the gravity of the unlawful activity; and

· any other relevant factors.

Subregulation 2.92(4) provides the second circumstance in relation to contravention of a law. This circumstance applies only to a person who is or was a standard business sponsor. It provides, for the purposes of subparagraph 140L(1)(a)(ii) of the Act, that a circumstance in which the Minister may take action under section 140M of the Act is that the Minister is satisfied that each of the following applies:

· a primary sponsored person has been found by a court or a competent authority to have contravened a Commonwealth law, State or Territory law; and

· the law was a law relating to the licensing, registration or membership of the primary sponsored person in relation to the primary sponsored person’s occupation; and

· the primary sponsored person was required to comply with the law in order to work in the occupation nominated by the person and approved by the Minister.

Paragraph 140L(1)(b) of the Act provides that the regulations may prescribe the criteria to be taken into account by the Minister in determining what action to take under section 140M.

Subparagraph 2.92(5) provides, for the purposes of paragraph 140L(1)(b) of the Act, the following criteria that the Minister must take into account in determining what action (if any) to take under section 140M in relation to the circumstances mentioned in subregulation 2.92(4):

· whether the person took reasonable steps to prevent the primary sponsored person from contravening a law relating to a licensing, registration or membership requirement of the primary sponsored person’s approved occupation; and

· whether any other primary sponsored person, while in the employ of the person has been found by a court or a competent authority to have contravened a law relating to a licensing, registration or membership requirement; and

· the processes (if any) the person has implemented to ensure future compliance with the licensing, registration or membership requirements of a primary sponsored person’s approved occupation; and

· any other relevant factors.

Regulation 2.93 – Unapproved change to professional development program

New regulation 2.93 provides, for the purposes of subparagraph 140L(1)(a)(ii) of the Act, a circumstance in relation to a person who is or was a professional development sponsor making an unapproved change to a professional development program.

The objective of new regulation 2.93 is to allow the Minister to cancel approval of a sponsor, or bar an approved sponsor from sponsoring more people or applying for further approval as a sponsor, where there has been an unapproved change to a professional development program. This is to ensure that the professional development program that is being provided is only the program which has been approved.

Subregulation 2.93(1) provides that the prescribed circumstance applies to a person who is or was a professional development sponsor.

Subregulation 2.93(2) provides that for the purposes of subparagraph 140L(1)(a)(ii) of the Act, the circumstance in which the Minister may take an action under section 140M is that the Minister is satisfied that the person mentioned in subregulation 2.93(1) has made a change to the professional development program without approval in writing from the Secretary of the Department.

Paragraph 140L(1)(b) of the Act provides that the regulations may prescribe the criteria to be taken into account by the Minister in determining what action to take under section 140M.

Subregulation 2.93(3) provides, for the purposes of paragraph 140L(1)(b) of the Act, the following criteria that the Minister must take into account in determining what action (if any) to take under section 140M in relation to the circumstance mentioned in subregulation 2.93(2):

· the severity of the conduct; and

· the past conduct of the person in relation to Immigration; and

· the impact, if any, that the taking of the action may have on the Australian community; and

· the extent to which the barring of the person as a sponsor will be an adequate means of dealing with the matter, having regard to the seriousness of the inability, or of the failure to comply, and the past conduct of the person; and

· any other relevant factors.

Regulation 2.94 – Failure to pay additional security

New regulation 2.94 provides, for the purposes of subparagraph 140L(1)(a)(ii), a circumstance in relation to a person who is or was a professional development sponsor failing to pay an additional security requested by an authorised officer under section 269 of the Act.

The purpose of new regulation 2.94 is to provide the ability to sanction a professional development sponsor where there has been a failure to provide an additional security. A professional development sponsor may be requested to pay an additional security where a security previously provided has been enforced.

Subregulation 2.94(1) provides that the prescribed circumstance applies to a person who is or was a professional development sponsor.

Subregulation 2.94(2) provides that for the purposes of subparagraph 140L(1)(a)(ii) of the Act, the circumstance in which the Minister may take an action under section 140M is that the Minister is satisfied that the person mentioned in subregulation 2.94(1) has failed to pay an additional security requested by an authorised officer under section 269 of the Act.

Subregulation 2.94(3) provides that a person has failed to pay an additional security if the person has failed to pay the security:

· within 28 days of the day on which the person was requested to pay the security; or

· within a longer period as allowed by an authorised officer in the request.

Paragraph 140L(1)(b) of the Act provides that the regulations may prescribe the criteria to be taken into account by the Minister in determining what action to take under section 140M.

Subregulation 2.94(4) provides, for the purposes of paragraph 140L(1)(b) of the Act, the following criteria that the Minister must take into account in determining what action (if any) to take under section 140M in relation to the circumstance mentioned in 2.94(2):

· the severity of the conduct; and

· the past conduct of the person in relation to Immigration; and

· the impact, if any, that the taking of the action may have on the Australian community; and

· any other relevant factors.

Division 2.21 - Process to bar sponsor or cancel sponsor’s approval

New Division 2.21 of new Part 2A of the Principal Regulations provides, for the purposes of section 140N of the Act, the process by which the Minister may take action under section 140M of the Act.

Section 140N of the Act provides that the regulations may prescribe the process to cancel the approval of a person as a sponsor under section 140M and the process for the Minister to place a bar on a person under section 140M.

Regulation 2.95 – Preliminary

New regulation 2.95 provides that Division 2.21 applies to a person who is or was an approved sponsor, other than a party to a work agreement.

The note following subregulation 2.95(1) explains that the Minister cannot take action against a party to a work agreement under section 140M of the Act. The terms of the work agreement will provide for whether the agreement can be cancelled or whether the person can be barred from doing certain things under the agreement. A party to a work agreement cannot have action taken against them under section 140M because all of the actions under section 140M relate to a class of approved sponsor, and a party to a work agreement is not a class of approved sponsor prescribed under subsection 140E(2) of the Act.

New regulation 2.95 also provides that if the Minister is taking action against a person under section 140M of the Act, the Minister must do so in accordance with the process set out regulations 2.96, 2.97, and 2.98.

The reason for explicitly setting out in regulations the process for barring or cancelling a sponsor’s approval is to provide legal authority as well as greater certainty and transparency to a process which is currently prescribed in policy only. This ensures that if a decision is made to take action under section 140M of the Act (i.e. to bar or to cancel a person’s approval as a sponsor) due to the existence of a prescribed circumstance, the Minister is compelled by law to comply with the relevant process, which incorporates and reflects the common law principles of natural justice.

Regulation 2.96 – Notice of intention to take action

New subregulation 2.96(1) provides that if the Minister is considering taking action under section 140M of the Act in relation to the person, the Minister must give written notice to the person prior to taking the action.

As an action under section 140M of the Act (to cancel a person’s approval as a sponsor or to bar an approved sponsor), will have direct adverse impact on the person, it is reasonable that the person is made aware that the Minister is considering taking action against them. It is also appropriate that they be provided with an opportunity to comment on the alleged circumstance in relation to which action is being considered, before a decision is actually made.

New subregulation 2.96(2) provides that the written notice must:

· specify details of the circumstances in relation to which action is being considered; and

· specify details of the actions that the Minister may take; and

· specify the address for providing a response to the Minister; and

· be given using a method mentioned in section 494B of the Act; and

· specify a date for providing a response not earlier than 7 days after the date a person is taken to have received the notice by section 494C of the Act.

Section 494B of the Act establishes the methods by which the Minister may give documents to a person. The specified methods include:

· giving by hand;

· handing to a person at last residential or business address;

· dispatch by prepaid post or by other prepaid means;

· transmission by fax, email or other electronic means;

· handing the document by way of an authorised officer;

· handing the documents to a carer.

Section 494C of the Act establishes when a person is taken to have received a document where the Minister gives a document by one of the methods specified in section 494B of the Act. The relevant timeframes for when a person is deemed to have received a document from the Minister are:

· giving by hand, the person is deemed to have received the document at the time the document is handed to the person;

· handing to a person at last residential or business address, the person is deemed to have received the document at the time the document is handed to the other person;

· dispatch by prepaid post or by other prepaid means, the person is deemed to have received the document:

o 7 working days (in the place of the address) after the date of the document, where the document was dispatched from a place in Australia to an address in Australia; or

o 21 days after the date of the document in any other circumstance.

· transmission by fax, email or other electronic means, the person is deemed to have received the document at the end of the day on which the document was transmitted.

Regulation 2.97 – Decision

New regulation 2.97 provides that the Minister must consider a response before making a decision if:

· the person provides a response to the Minister before the date for response specified in the notice of intention to take action; or

· the person provides a response to the Minister after the date for response specified in the notice of intention to take action, but before the Minister has made a decision.

This provision ensures that if a response is provided prior to a decision having been made, regardless of whether that response was provided within the timeframe specified in the notice of intention to take action, the content of the response must be taken into account by the Minister in deciding what action (if any) should be taken.

Regulation 2.98 – Notice of decision

New subregulation 2.98(1) provides that if the Minister does decide to take action under section 140M of the Act, the Minister must notify the person, in writing, of the following matters:

· the decision taken by the Minister, including the effect of the decision;

· the grounds for making the decision;

· if the person has a right to have the decision reviewed under Part 5 of the Act, the notice must include:

o that the decision can be reviewed; and

o the time in which the application for review may be made; and

o who can apply for review; and

o where the application for review may be made;

· if the action taken by the Minister is to bar the person:

o details of how the person can apply for a waiver of the bar; and

o the address to which a request for a waiver, if made, must be sent.

New subregulation 2.98(2) provides that if the Minister has provided the person with a notice that the Minister is considering taking action under section 140M of the Act, and the Minister decides to take no action, the Minister must provide the person with a written notice stating that a decision has been made to take no action.

The combined effect of subregulations 2.98(1) and 2.98(2) is to ensure that the person is duly notified regardless of the course decided on by the Minister. This is particularly important if a decision is made to take action against the person.

Division 2.22 - Waiving a bar on sponsor’s approval

New Division 2.22 of new Part 2A of the Principal Regulations provides, for the purposes of section 140O and 140P of the Act, the circumstances, criteria and process for waiving a bar placed on a person.

Section 140O of the Act provides that the regulations may prescribe the circumstances and criteria to waive a bar placed on a person under section 140M of the Act. Section 140P of the Act provides that the regulations may prescribe the process for waiving a bar placed on a person under section 140M of the Act.

Regulation 2.99 – Application

New regulation 2.99 provides that Division 2.22 applies to a person who is or was an approved sponsor, other than a party to a work agreement.

Division 2.22 does not apply to a party to a work agreement, because a party to a work agreement cannot be barred under section 140M of the Act. A party to a work agreement cannot have action taken against them under section 140M because all of the actions under section 140M relate to a class of approved sponsor, and a party to a work agreement is not a class of approved sponsor prescribed under subsection 140E(2) of the Act.

Regulation 2.100 – Circumstances in which a bar may be waived

New regulation 2.100 provides that for the purposes of subsection 140O(2) of the Act, the circumstance in which the Minister may waive a bar placed on a person under section 140M of the Act is that the Minister has received a request from the person to waive a bar.

Regulation 2.101 – Criteria for waiving a bar

New regulation 2.101 provides, for the purposes of subsection 140O(3) of the Act, that the criteria to be taken into account in determining whether to waive a bar are:

· whether the person has made the request to waive the bar in accordance with the process set out in regulation 2.102; and

· if the Minister has not previously refused to waive the bar:

o whether the interests of Australia would be significantly affected if the bar were not waived; and

o whether a substantial trade opportunity would be lost if the bar were not waived; and

o whether there would be a significant detriment to the Australian community if the bar were not waived; and

o whether the person’s inability to sponsor a proposed primary sponsored person would significantly damage Australia’s relations with the government of another country; and

o whether significant new evidence or information has come to light which was not available at the time the decision to place the bar was made; and

· if the Minister has previously refused to waive the bar, whether the circumstances relevant to the making of the earlier decision have changed substantially.

These provisions preserve the integrity of the administrative sanctions regime provided for by section 140M of the Act, specifically in relation to the action of barring, by ensuring that a bar which has been placed on a person under section 140M of the Act is not waived without due consideration of the prescribed criteria.

Regulation 2.102 – Process to waive a bar

New subregulation 2.102(1) provides, for the purposes of section 140P of the Act, that the Minister may waive a bar placed on a person under section 140M of the Act in accordance with the process set out in this regulation.

New subregulation 2.102(2) provides that a request from the person to the Minister to waive the bar must be in writing and be sent to the address specified in the notice of the decision to place a bar on the person.

If the request to waive a bar meets these requirements then the Minister must consider the criteria for waiving a bar prescribed at regulation 2.101 to determine whether or not to waive the bar.

The rationale for requiring that a request for waiver be sent to a specified address is to ensure that the request is directed to the appropriate area for timely consideration and decision.

Division 2.23 - Disclosure of personal information

New Division 2.23 of new Part 2A of the Principal Regulations provides, for the purposes of section 140ZH and 140ZI of the Act, the kind of personal information that may disclosed, the circumstances in which that information may be disclosed, and the kinds of government agencies to whom that information may be disclosed.

Section 140ZH of the Act authorises the Minister to disclose certain kinds of personal information. It provides that the regulations may prescribe:

· the kind of information which may be disclosed by the Minister about a person who is or was an approved sponsor, or a person who is or was a visa holder in relation to an approved sponsor;

· the circumstances in which the prescribed kind of information may be disclosed; and

· in addition to the persons listed in section 140ZH as persons to whom the prescribed kind of information may be disclosed – the kind of government agency to whom the prescribed kind of information may be disclosed.

Section 140ZI of the Act authorises a person who is or was an approved sponsor of a visa holder (or former visa holder) to disclose on request of the Minister, personal information of a prescribed kind to the Minister.

Section 140ZH and section 140ZI of the Act only authorise the disclosure of the personal information, they do not compel disclosure of the personal information.

Regulation 2.103 – Disclosure of personal information by Minister

New subregulation 2.103(1) provides the kinds of personal information which may be disclosed by the Minister about a visa holder or former visa holder to:

· an approved sponsor of the visa holder or former visa holder;

· a former approved sponsor of the visa holder or former visa holder; and

· a Commonwealth, State or Territory government agency as prescribed in new subregulation 2.103(3).

The kinds of information are:

· information relating to a failure to comply with a visa condition by the visa holder or former visa holder; and

· information about the immigration status of the visa holder or former visa holder; and

· information about the terms and conditions of employment of the visa holder or former visa holder; and

· information about costs incurred by the Commonwealth in relation to the visa holder or former visa holder; and

· information about an allegation made, or presumed to be made, by a visa holder or former visa holder that an approved sponsor or former approved sponsor has failed to satisfy a sponsorship obligation, or that a circumstance prescribed under section 140L of the Act may exist (see new Division 2.20 inserted by item [9]); and

· information about a debt, relating to the visa holder or former visa holder, owed by an approved sponsor or former approved sponsor.

New subregulation 2.103(2) provides the kinds of personal information which may be disclosed by the Minister about an approved sponsor or former approved sponsor of a visa holder or former visa holder to:

· the visa holder; or

· a former visa holder; or

· a Commonwealth, State or Territory government agency as prescribed in new subregulation 2.103(3).

The kinds of information are:

· information relating to a failure, or a possible failure, to satisfy a sponsorship obligation prescribed under subsection 140H(1) of the Act (the obligations are prescribed in new Division 2.19 inserted by item [9]);

· information that a circumstance prescribed under section 140L of the Act may exist (the circumstances are prescribed in new Division 2.20 inserted by item [9]);

· information about a warning given in relation to the possible existence of a circumstance prescribed under section 140L of the Act;

· information about an action taken under section 140M of the Act;

· information about a pecuniary penalty imposed for a contravention of section 140Q of the Act (section 140Q of the Act is a civil penalty provision which is contravened if an approved sponsor or former approved sponsor fails to satisfy a prescribed sponsorship obligation which applies to them);

· information about a warning given in relation to a possible contravention of section 140Q of the Act;

· information about an infringement notice issued under section 140R of the Act (section 140R of the Act provides for the regulations to prescribe an infringement notice regime to allow a fine to be paid in lieu of pecuniary penalty proceedings being brought in a court for a failure to satisfy a sponsorship obligation);

· information about the outcome of monitoring by an inspector exercising powers under Subdivision F of Division 3A of the Part 2 of the Act;

· information provided to the Department in accordance with the obligation to provide records and information to the Minister;

· information provided to the Department in accordance with the obligation to provide information to the Department when certain events occur;

· information relevant to the performance of a function by a Commonwealth, State or Territory agency relating to the regulation of 1 or more of the matters mentioned in subregulation (3).

The note at the end of subregulation 2.103(2) states that regulation 2.83 prescribes the obligation to provide records and information to the Minister, and that regulation 2.84 prescribes a sponsorship obligation to provide information to Immigration when certain events occur. New subregulation 2.103(3) provides, for the purposes of subsection 140ZH(1) of the Act, the Commonwealth, State and Territory agencies to whom the Minister may disclose personal information prescribed in subregulations 2.103(1) and (2) (explained directly above).

The Minister may disclose information to a Commonwealth, State or Territory agency which is responsible for the regulation of 1 or more of the following matters:

· education;

· fair trading;

· health;

· industrial relations;

· law enforcement;

· public safety;

· registration and licensing in relation to an occupation;

· taxation;

· trade practices;

· workplace safety; and

· workplace training.

Regulation 2.104 – Circumstances in which the Minister may disclose personal information

New subregulation 2.104(1) explains that for the purposes of subsection 140ZH(2), regulation 2.104 provides the circumstances in which the Minister may disclose personal information prescribed in regulation 2.103.

Subregulation 2.104(2) provides the following as the circumstances in which the Minister may disclose information prescribed at subregulation 2.103(2) to a visa holder or former visa holder:

· the disclosure of the information may assist Immigration in determining whether an approved sponsor or a former approved sponsor has failed to satisfy a sponsorship obligation, or whether a circumstance prescribed under section 140L of the Act exists in relation to an approved sponsor or former approved sponsor of the visa holder or former visa holder;

· the disclosure of the information may assist the visa holder or former visa holder to recover a debt under section 140S of the Act;

· the disclosure of the information will notify the visa holder or former visa holder that their approved sponsor or former approved sponsor has been sanctioned for a failure to satisfy a sponsorship obligation prescribed under section 140H of the Act (see Division 2.19 inserted by item [9]), or has been sanctioned due to the existence of a circumstance prescribed under section 140L of the Act (see Division 2.20 inserted by item [9]); and

· the disclosure of the information will notify the visa holder or former visa holder of the outcome of an allegation made by the visa holder or the former visa holder in relation to an approved sponsor or former approved sponsor.

Subregulation 2.104(3) provides the following as the circumstances in which the Minister may disclose personal information prescribed at subregulation 2.103(1) to an approved sponsor or former approved sponsor:

· the disclosure of the information may assist the approved sponsor or former approved sponsor:

o to respond to a claim that a sponsorship obligation has not been satisfied; or

o to respond to a claim that a circumstance prescribed under section 140L of the Act exists (see Division 2.20 inserted by item [9]); or

o to satisfy a sponsorship obligation; or

o to meet a liability owed to a visa holder or a former visa holder; and

· the disclosure of the information will notify the approved sponsor or former approved sponsor that he or she is no longer the approved sponsor of a visa holder or a former visa holder; and

· the disclosure of the information will notify the approved sponsor or former approved sponsor of the cancellation of a visa held by a person who is or was a primary sponsored person or a secondary sponsored person.

Subregulation 2.104(4) provides the circumstances in which the Minister may disclose information prescribed at subregulations 2.103(1) and (2) to a Commonwealth, State or Territory government agency prescribed at subregulation 2.103(3):

· the disclosure of the information may assist the agency to perform a regulatory function in relation to the matters mentioned in regulation 2.103(3); or

· the disclosure of the information may assist Immigration in determining whether an approved sponsor or former approved sponsor has satisfied a sponsorship obligation, or whether a circumstance prescribed under section 140L of the Act exists (see new Division 2.20 inserted by item [9]).

Regulation 2.105 – Circumstances in which a recipient may use or disclose personal information

Subsection 140ZH(3) of the Act provides that the regulations may prescribe circumstances in which the recipient of information disclosed under subsection 140ZH(1) may use or disclose the personal information.

New regulation 2.105 provides, for the purposes of subsection 140ZH(3) of the Act, the circumstances in which a recipient of personal information may use or disclose the information prescribed at subregulations 2.103(1) and (2). The recipient of the information may only use or disclose the information in the same circumstances in which the information was disclosed to the recipient.

For example, if the Minister disclosed the personal information relating to an approved sponsor to a visa holder, for the purposes of assisting an investigation into whether or not a sponsorship obligation had been satisfied, the visa holder would then be permitted to use or disclose the personal information received to another person, however, the disclosure must only be for the purposes of assisting the third party in the investigation to determine whether or not a sponsorship obligation had been satisfied.

Regulation 2.106 – Disclosure of personal information to Minister

New regulation 2.106 provides, for the purposes of subsection 140ZI(1) of the Act, the kind of personal information the Minister may request an approved sponsor, or a former approved sponsor, of a visa holder or a former visa holder to disclose to the Minister. The kind of personal information is the contact details of the visa holder or the former visa holder.

The example to regulation 2.106 provides that ‘contact details’ may include (but is not limited to):

· a postal address;

· a residential address;

· a telephone number;

· a personal website; and

· an email address.

The Department of Immigration and Citizenship often does not have contact details in Australia for temporary visa holders. This provision will enable the Department to collect that information from sponsors in order to facilitate direct communication with visa holders about their rights and obligations.

Item [10] Subregulation 4.02(1), including the note

This item omits subregulation 4.02(1) of Division 4.1 of Part 4 of the Principal Regulations. The omission of subregulation 4.02(1) includes the note.

Subregulation 4.02(1) defines “business sponsor” to mean a standard business sponsor (other than a standard business sponsor approved under regulation 1.20DA) or a pre-qualified business sponsor. The definition is omitted for two reasons. First, because there are no longer any persons who meet the definition of “pre-qualified business sponsor”. Second, to ensure the consistent term of “standard business sponsor” is used throughout the regulations to refer to a person who is approved under subsection 140E(1) of the Act in relation to the standard business sponsor class of sponsors.

Item [11] Paragraphs 4.02(4)(a) to (d)

This item repeals paragraphs 4.02(4)(a) to (d) of Division 4.1 of Part 4 of the Principal Regulations and inserts new paragraphs 4.02(4)(a) and (d).

Paragraph 4.02(4)(a) as in force immediately before the commencement of the amending regulations provides that a decision to refuse an application under regulation 1.20D as in force before, on or after 1 July 2003, is reviewable by the Migration Review Tribunal (is “MRT-reviewable”). Regulation 1.20D provides for the approval of a person as a standard business sponsor. Regulation 1.20D is being repealed by item [6], and decisions to approve a person as a standard business sponsor will now be made under section 140E of the Act. Regulation 4 of the amending regulations ensures that a decision made by the Minister under regulation 1.20D of the Principal Regulations as in force immediately prior to 14 September 2009 remains MRT-reviewable.

New paragraph 4.02(4)(a) provides that a decision under subsection 140E(1) of the Act to refuse a person’s application for a approval as a sponsor in relation to one or more classes of sponsor is an MRT-reviewable decision. Subsection 140E(1) of the Act provides that the Minister must approve a person as a sponsor if the prescribed criteria are satisfied. The criteria for approval are at new regulation 2.59 (standard business sponsors) and 2.60 (professional development sponsors) inserted by [9].

Immediately prior to the commencement of the amending regulations, there is no paragraph 4.02(4)(b), and this amendment does not insert a new paragraph 4.02(4)(b).

Paragraph 4.02(4)(c) is repealed by this amendment and is not replaced. Paragraph 4.02(4)(c) provided that a decision under section 137B of the Act to cancel the approval of a person as a business sponsor is MRT-reviewable. Section 137B of the Act is repealed by item 9 of the Worker Protection Act. The Worker Protection Act moves the power to cancel a person’s approval as a standard business sponsor to section 140M of the Act. Regulation 4 of the amending regulations ensures that a decision made by the Minister under section 137B of the Act as in force immediately prior to 14 September 2009 remains MRT-reviewable.

Paragraph 4.02(4)(d) as in force immediately prior to the commencement of the amending regulations provided that a decision under regulation 1.20H to refuse to approve the nomination of an activity by a business sponsor is MRT-reviewable. Regulation 1.20H is repealed by item [6], and the Worker Protection Act inserts new section 140GB into the Act to provide for the approval of a nomination made by an approved sponsor. Regulation 4 of the amending regulations ensures that a decision made by the Minister under regulation 1.20D of the Principal Regulations as in force immediately prior to 14 September 2009 remains MRT-reviewable.

New paragraph 4.02(4)(d) provides that a decision under subsection 140GB(2) of the Act to refuse a nomination of a standard business sponsor is MRT-reviewable. Subsection 140GB(2) provides that the Minister must approve an approved sponsor’s nomination if prescribed criteria are satisfied.

Item [12] Paragraphs 4.02(4)(g) to (i)

This item repeals paragraphs 4.02(4)(g), (h) and (i) of Division 4.1 of Part 4 of the Principal Regulations and inserts new paragraph 4.02(4)(h).

Paragraph 4.02(4)(g) as in force immediately prior to the commencement of the amending regulations provides that a decision under subsection 140E(1) of the Act to refuse an application for approval as an approved professional development sponsor is MRT-reviewable.

This paragraph is repealed because new paragraph 4.02(4)(a) inserted by item [11] ensures that a decision to refuse an application for approval as a professional development sponsor is MRT-reviewable. Regulation 4 of the amending regulations ensures that a decision made by the Minister under subsection 140E(1) of the Act as in force immediately prior to 14 September 2009 remains MRT-reviewable.

Paragraphs 4.02(4)(h) and 4.02(4)(i) as in force immediately prior to the commencement of the amending regulations provide that a decision to cancel a person’s approval as a standard business sponsor or as a professional development sponsor is MRT-reviewable. In addition, a decision to bar a person as a standard business sponsor or a professional development sponsor is MRT- reviewable.

New paragraph 4.02(4)(h) achieves the effect of both paragraphs 4.02(4)(h) and 4.02(4)(i) as in force immediately prior to the commencement of the amending regulations by providing that a decision under section 140M of the Act to take action to cancel a sponsor’s approval or to bar a sponsor is MRT-reviewable. This applies to decisions in relation to both standard business sponsors and professional development sponsors. Regulation 4 of the amending regulations ensures that a decision made by the Minister prior to 14 September 2009 to cancel a person’s approval, or bar a person as a sponsor remains MRT-reviewable.

Item [13] Paragraph 4.02(4)(m)

This item replaces the reference to “applicant.” with “applicant;” in paragraph 4.02(4)(m) of Division 4.1 of Part 4 of the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [14].

Item [14] After paragraph 4.02(4)(m)

This item inserts new paragraph 4.02(4)(n) after paragraph 4.02(4)(m) of Division 4.1 of Part 4 of the Principal Regulations.

New paragraph 4.02(4)(n) provides that a decision made under subsection 140GA(2) of the Act not to vary a term specified in an approval is MRT-reviewable.

Subsection 140GA(2) of the Act provides that the Minister must vary a term specified in an approval provided that the term is a of a kind that is prescribed in the regulations as a term that can be varied, and the prescribed criteria for the term to be varied are satisfied. This is a new decision-making power in the Act which did not have an equivalent prior to its insertion into the Act by the Worker Protection Act.

Therefore, the purpose of new paragraph 4.02(4)(n) is to ensure that, consistent with other kinds of decisions made in relation to sponsorship under Division 3A of Part 2 of the Act, this new kind of decision is MRT-reviewable.

Item [15] After subregulation 4.02(4)

This item inserts new subregulations 4.02(4A) to (4C) after subregulation 4.02(4) of Division 4.1 of Part 4 of the Principal Regulations.

New subregulation 4.02(4A) limits the kinds of decisions that are MRT-reviewable under new paragraphs 4.02(4)(a), (d), (h) and (n) to decisions affecting businesses operating in Australia only.

Subregulation 4.02(4A) provides that for new paragraph 4.02(4)(a), the decision to refuse a person’s application to be a sponsor under subsection 140E(1) of the Act is not MRT-reviewable if the decision is to refuse a person as a standard business sponsor, and the decision did not require the Minister to consider the criterion at subparagraph 2.59 (1)(d) and (e).

The Minister is not required to consider the criterion at subparagraphs 2.59(1)(d) and (e) if the applicant is not lawfully operating a business in Australia. That is, if the applicant is operating a business outside Australia only.

The note at the end of subregulation 4.02(4A) provides that the Minister is only required to consider the criteria at subparagraphs 2.59(d) and (e) if the applicant is lawfully operating a business in Australia.

Subregulation 4.02(4B) provides that for new paragraphs 4.02(4)(d) and (h), the decision to refuse to approve a nomination under subsection 140GB(2) of the Act, or to take an action under section 140M to cancel a person’s approval as a sponsor or to bar a person as a sponsor, is not MRT-reviewable if the decision relates to a person who is or was a standard business sponsor, and either:

· the decision to approve the person as a standard business sponsor did not consider the criterion at subparagraph 2.59(d) and (e); or

· if the person had the terms of their approval as a standard business sponsor varied under section 140GA(2) of the Act, the decision to vary the terms of approval did not consider the criterion at subparagraph 2.68(e) and (f).

The Minister is not required to consider the criterion at subparagraph 2.59(d) and (e) or subparagraph 2.68(e) and (f) if the applicant is not lawfully operating a business in Australia. That is, if the applicant is operating a business outside Australia only.

The note at the end of subregulation 4.02(4B) explains that the Minister is only required to consider the criteria at subparagraphs 2.68(e) and (f) if the applicant is lawfully operating a business in Australia.

New subregulation 4.02(4C) provides that for new paragraph 4.02(4)(n), the decision to not vary the terms of a person’s approval as a sponsor under subsection 140GA(2) is not MRT-reviewable if the decision relates to a person who is or was a standard business sponsor, and the decision (as to whether to vary the terms of the approval) did not require the Minister to consider the criterion at subparagraph 2.68(e) and (f).

The Minister is not required to consider the criterion at subparagraph 2.68(e) and (f) if the applicant is not lawfully operating a business in Australia. That is, if the applicant is operating a business outside Australia only.

The note at the end of subregulation 4.02(4C) explains that the Minister is only required to consider the criteria at subparagraphs 2.68(e) and (f) if the applicant is lawfully operating a business in Australia.

Item [16] Paragraph 4.02(5 )(b)

This item omits paragraph 4.02(5)(b) of Division 4.1 of Part 4 of the Principal Regulations.

Paragraph 4.02(5)(b) provides who has standing to make an application for review of decision mentioned in paragraph 4.02(4)(c).

This amendment is consequential to the amendment made in item [11], which omits paragraph 4.02(4)(c).

Item [17] Paragraph 4.02(5)(c)

This item substitutes paragraph 4.02(5)(c) for new paragraph 4.02(5)(c) of Division 4.1 of Part 4 of the Principal Regulations.

Paragraph 4.02(5)(c) provides that the business sponsor to whose nomination of an activity the decision relates has standing to make an application for review of decision mentioned in paragraph 4.02(4)(d).

New paragraph 4.02(5)(c) provides that the approved sponsor who made the nomination under section 140GB of the Act has standing to make an application for review of a decision mentioned in paragraph 4.02(4)(d).

The purpose of this change is to:

· remove the term ‘business sponsor’ from paragraph 4.02(5)(c) because “business sponsor” is omitted by item [11];

· remove the terminology of “activity” because an occupation, program or activity may be nominated under section 140GB of the Act; and

· ensure that all kinds of approved sponsor who are permitted under the Act and Principal Regulations to make a nomination have access to merits review, rather than just standard business sponsors.

Item [18] Paragraph 4.02(5)(f) to (g)

This item replaces paragraphs 4.02(5)(f) to (g) with new paragraph 4.02(5)(g) of Division 4.1 of Part 4 of the Principal Regulations.

Paragraph 4.02(5)(f) provides who has standing to make an application for review of decision mentioned in paragraph 4.02(4)(g).

This amendment is consequential to the amendment made in item [12], which omits paragraph 4.02(4)(g).

Paragraph 4.02(5)(g) provides that the person who is or was professional development sponsor has standing to make an application for review of a decision to cancel the person’s approval as a professional development sponsor, or bar a person as a professional development sponsor (mentioned in paragraph 4.02(4)(h)).

New paragraph 4.02(5)(g) replaces paragraph 4.02(5)(g) by providing that the person whose approval is cancelled or who has been barred has standing to make an application for review of a decision mentioned in paragraph 4.02(4)(h).

This amendment is consequential to the amendment to paragraph 4.02(4)(h) at item [12] which amends 4.02(4)(h) to achieve the effect of both 4.02(4)(h) and (i) by providing that a decision under section 140M of the Act to take action to cancel a sponsor’s approval or to bar a sponsor is MRT-reviewable. This applies to decisions in relation to both standard business sponsors and professional development sponsors.

Therefore, new paragraph 4.02(5)(g) amends paragraph 4.02(5)(g) so that both standard business sponsors and professional development sponsors have standing in relation to a decision mentioned in new paragraph 4.02(4)(h).

Item [19] Paragraph 4.02(5)(j)

This item omits paragraph 4.02(5)(j) of Division 4.1 of Part 4 of the Principal Regulations.

Paragraph 4.02(5)(j) provides that the person who has had their approval as standard business sponsor cancelled or barred has standing to make an application for review of decision mentioned in paragraph 4.02(4)(i).

This amendment is consequential to the amendment made in item [12], which omits paragraph 4.02(4)(i). The effect of 4.02(4)(i) is maintained by new paragraph 4.02(4)(h) inserted by item [12], and the effect of 4.02(5)(j) is maintained by new paragraph 4.02(5)(g) inserted by item [18].

Item [20] Paragraph 4.02(5)(l)

This item replaces reference to “relates.” with “relates;” in paragraph 4.02(5)(l) of Division 4.1 of Part 4 of the Principal Regulations.

This amendment is technical in nature and consequential to the amendment made by item [21].

Item [21] After paragraph 4.02(5)(l)

This item inserts new paragraph 4.02(5)(m) after paragraph 4.02(5)(l) of Division 4.1 of Part 4 of the Principal Regulations.

New paragraph 4.02(5)(m) provides that for a decision made under subsection 140GA(2) of the Act not to vary a term of approval as a sponsor (the decision mentioned in new paragraph 4.02(4)(n) inserted by item [14]), the approved sponsor who applied for a variation of the term has standing to make an application for review of the decision.

New paragraph 4.02(4)(n) inserted by item [14], provides for merits review of a new decision making power inserted into the Act by the Worker Protection Act. This item ensures that there is a person who has standing to make an application for merits review of a decision made under that new decision making power (new section 140GB of the Act).

Item [22] Regulation 5.20, heading

This item inserts a new heading into regulation 5.20 to clarify that regulation 5.20 of Division 5.4 of Part 5 of the Act contains the prescribed penalties for offences.

In contrast, new regulation 5.20A of Division 5.4 of Part 5 of the Principal Regulations inserted by item [23] contains the prescribed penalties for civil penalties.

Item [23] After regulation 5.20

This item inserts new regulation 5.20A of Division 5.4 of Part 5 of the Principal Regulations.

New regulation 5.20A is titled “Prescribed penalties – civil penalties (Act, s 140Q)”. It provides, for the purposes of section 140R of the Act, the amount that a person can pay as an alternative to the Minister applying to the court for an order that a pecuniary penalty be paid for a contravention of subsections 140Q(1) and (2) of the Act, if they are issued with an infringement notice.

The note following regulation 5.20A explains that subsections 140Q(1) and (2) of the Act are civil penalty provisions which are contravened if an approved sponsor or former approved sponsor fails to satisfy a sponsorship obligation.

Paragraph 5.20A(a) provides that where a person has previously been issued with an infringement notice for an alleged contravention of a civil penalty provision or has been ordered by a Court to pay a pecuniary penalty for failure to satisfy a sponsorship obligation, regardless of whether the penalty imposed was paid or otherwise, the prescribed penalty is 12 penalty units for an individual, and 60 penalty units for a body corporate.

This prescribed penalty is one-fifth of the maximum penalty which could be ordered by a court for contravening a civil penalty provision (see section 140Q of the Act). It is also the maximum penalty which, under section 140R of the Act, may be prescribed in the regulations as the amount that a person can pay as an alternative to the Minister applying to the court for an order that a pecuniary penalty be paid for a contravention of subsections 140Q(1) and (2) of the Act.

Paragraph 5.20A(b) provides that where a person is issued with an infringement notice, and they have not previously been issued with an infringement notice for an alleged contravention of a civil penalty provision, or ordered to pay a pecuniary penalty in relation to an alleged failure to satisfy a sponsorship obligation, the prescribed penalty payable is 6 penalty units for an individual and 30 penalty units for a body corporate.

This prescribed penalty is one-tenth of the maximum penalty which could be ordered by a court for contravening a civil penalty provision (see section 140Q of the Act).

In essence, new regulation 5.20A provides for a two-tiered approach to the issue of infringement notice as an alternative to the Minister applying to a Court for an order for pecuniary penalty for contravention of subsection 140Q(1) or (2) of the Act, so that a lesser penalty applies to a first-time contravention of subsection 140Q(1) or (2).

Item [24] subregulation 5.21(1), definition of prescribed penalty

The purpose of this item is to update the definition of “prescribed penalty” to extend to the civil penalty provisions prescribed in regulations 5.20A and is consequential to the amendments made in item [24].

The new definition provides that a “prescribed penalty” is:

· in relation to an offence the penalty prescribed by regulation 5.20 for the offence; or

· in relation to a civil penalty provision the penalty prescribed by regulation 5.20A for a contravention of the civil penalty provision.

Item [25] Subregulation 5.21(1), note

This item amends the reference to the existing note to refer to it as “Note 1”.

This amendment is consequential to the amendment at item [27].

Item [26] Subregulation 5.21(1), note

This item amends the note following subregulation 5.21(1) of Division 5.5 of Part 5 of the Principal Regulations by inserting a description of subsections 140Q(1) and (2) of the Act, after the words “of a business visa”.

New note 1 following subregulation 5.21(1) in addition to explaining sections 137, 229 and 230 and subsections 245(2) and 245N(2) of the Act, explains that subsections 140Q(1) and (2) of the Act are civil penalty provisions which are contravened if an approved sponsor or former approved sponsor fails to satisfy a sponsorship obligation.

Item [27] Subregulation 5.21(1), after the note

This item inserts a new note following subregulation 5.21(1) of Division 5.5 of Part 5 of the Principal Regulations.

The new note explains that civil penalty provision is defined in subsection 5(1) of the Act.

Subsection 5(1) of the Act provides that civil penalty provision means a subsection, or a section that is not divided into subsections, that has set out at its foot the words “civil penalty” and one or more amounts in penalty units.

Item [28] Regulation 5.22

This item substitutes regulation 5.22 of Division 5.5 of Part 5 of the Principal Regulations with new regulation 5.22.

Regulation 5.22 provides when an infringement notice can be served. New regulation 5.22 amends regulation 5.22 by ensuring that it refers to a civil penalty provision as well as to an offence, and inserting two new requirements for when an infringement notice may be served for the purposes of the civil penalty provisions at section 140Q of the Act.

New regulation 5.22 provides that if an authorised officer has reason to believe that a person has committed an offence or has contravened a civil penalty provisions, he or she may cause an infringement notice to be served on the person in accordance with Division 5.5 of Part 5 of the Principal Regulations.

The first additional requirement inserted by new regulation 5.22 provides that for an infringement notice issued in relation to a contravention of a civil penalty provision the infringement notice must be served within 12 months of the date on which, or the last day of the period over which, the civil penalty provision is alleged to have been contravened.

The second additional requirement inserted by new regulation 5.22 provides for an infringement notice issued in relation to a contravention of a civil penalty provision, an infringement notice cannot be served on a person in relation to failure to satisfy the obligation to cooperate with inspectors (prescribed at regulation 2.78 and inserted by item [10]), or the obligation to secure a reasonable standard of accommodation for a primary sponsored person (prescribed at regulation 2.85 and inserted by item [10]).

The note at the end of regulation 5.22 explains that the regulation 2.78 prescribes an obligation to cooperate with inspectors. Regulation 2.85 prescribes an obligation to secure an offer of a reasonable standard of accommodation for a primary sponsored person.

The purpose of this item is to satisfy the requirement of the Interim Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (issued in February 2008 by the Criminal Law Branch of the Attorney-General’s Department) which stipulates that in relation to a civil penalty provision, a infringement notice may only be issued within 12 months of the alleged contravention.

The obligation to cooperate with inspectors, and to secure a reasonable standard of accommodation for a primary sponsored person are excluded from the infringement notice regime because these obligations contain subjective elements which is not appropriate for a non-judicial officer to be determining the existence of for the purpose of imposing a pecuniary penalty. Failure to satisfy these obligations will still allow the Minister to cancel a person’s approval as a sponsor or bar a person from sponsoring more people under section 140M of the Act, and a court will still be able to order a pecuniary penalty for failure to satisfy these obligations.

Item [29] Paragraph 5.23(1)(b)

This item substitutes paragraph 5.23(1)(b) of Division 5.5 of Part 5 of the Principal Regulations with new paragraphs 5.23(1)(b) and (ba).

Regulation 5.23 provides what must be contained in an infringement notice.

New paragraph 5.23(1)(b) clarifies that paragraph 5.23(1)(b) is only for the purposes of a notice issued for the commission of an offence. New paragraph 5.23(1)(b) provides that if the notice is issued for the commission of an offence, it must set out the day on which the offence is alleged to have been committed and if the offence is against section 229 or 230 of the Act, the place at which the offence is alleged to have been committed.

New subparagraph 5.23(1)(ba) provides the equivalent of paragraph 5.23(1)(b), but for the purposes of a notice issued for a contravention of a civil penalty provision. The difference in relation to a civil penalty provision is that a civil penalty provision may be contravened over a period of time, rather than only on a particular day. New paragraph 5.23(1)(ba) provides that if the notice is issued for a contravention of a civil penalty provision it must set out the day on which, or the period over which, the civil penalty provision is alleged to have been contravened.

Item [30] Paragraph 5.23(1)(c)

This item amends paragraph 5.23(1)(c) of Division 5.5 of Part 5 of the Principal Regulations to insert the phrase “or alleged contraventions of a civil penalty provision” directly after “particulars of the alleged offence”.

Regulation 5.23 provides what must be contained in an infringement notice.

Paragraph 5.23(1)(c) provides that an infringement notice must contain brief particulars of the offence for which the notice has been issued. In addition to this, new paragraph 5.23(1)(c) provides that in circumstances relating to an alleged contravention of a civil penalty provision, the notice must contain brief particulars of the alleged contravention of the civil penalty.

The purpose of this item is to ensure that individuals who are issued with an infringement notice for alleged breaches of civil penalty provisions are provided with the same standard of notification as individuals who are issued with infringement notices for an alleged offence.

Item [31] Paragraph 5.23(1)(g)

This item omits “notice.” from paragraph 5.23(1)(g) of Division 5.5 of Part 5 of the Principal Regulations and replaces it with “notice; and”.

This amendment is technical in nature and consequential to the amendment made by item [32].

Item [32] After paragraph 5.23(1)(g)

This item inserts new paragraph 5.23(1)(h) after paragraph 5.23(1)(g) of Division 5.5 of Part 5 of the Principal Regulations.

Regulation 5.23 provides what must be contained in an infringement notice.

New paragraph 5.23(1)(h) provides that if the infringement notice is for an alleged contravention of a civil penalty provision it must include a statement that if the provision is contravened after the day on which, or the period over which, the contravention specified in the notice occurred, the person will have contravened the provision again and further action may be taken to sanction the person as listed in section 140K of the Act.

The purpose of this item is to ensure that a person who is issued with an infringement notice for an alleged contravention of a civil penalty provision is aware that if they subsequently contravene the civil penalty provision, the fact that they have already been issued with an infringement notice for one contravention of the civil penalty provision does not prevent the Minister from taking further sanction action against the person in relation to a further contravention of the civil penalty provision, including issuing another infringement notice.

Item [33] Regulation 5.25

This item substitutes the existing regulation 5.25 of Division 5.5 of Part 5 of the Principal Regulations with a new regulation 5.25.

Regulation 5.25 provides what happens when if the prescribed penalty is paid.

New regulation 5.25 amends the Principal Regulations by including references to ‘alleged contraventions of civil penalty provisions’ in addition to the references to ‘alleged offences’.

New regulation 5.25 provides that if a person who is served with an infringement notice pays the prescribed penalty in relation to the alleged offence or alleged contravention of a civil penalty provision before the end of 28 days after the date of service of the notice, or before the further period allowed under regulation 5.24, or if the notice is withdrawn, then:

· any liability of the person in respect to the alleged offence or alleged contravention of a civil penalty provision is discharged; and

· no further proceedings may be taken in respect of the alleged offence or alleged contraventions of a civil penalty provision; and

· the person is not to have been convicted of the alleged offence.

Regulation 5.31 as inserted by item [38] makes it clear that the withdrawal of an infringement notice does not affect the liability of a person to be subject to proceedings in relation to a contravention of a civil penalty provision in the same way that payment within the prescribed time period does. If an infringement notice is withdrawn before the person on whom the infringement notice is issued pays the infringement notice, the person may be prosecuted for offence or contravention of the civil penalty provision.

The fact that no further proceedings may be taken against the person where the person pays the prescribed penalty within the prescribed time period does not mean that the issuing of an infringement notice will not be considered by the Minister or the Department in further dealings with the person. For example, a person to whom an infringement notice has been issued may apply for approval as a standard business sponsor. The issuing of an infringement notice may be considered adverse information within the meaning of subregulation 2.57(3) of Part 2A of the Principal Regulations (inserted by item [9]). This adverse information may then be considered as part of the criteria for approval as a standard business sponsor in regulation 2.59 of Part 2A of the Principal Regulations (inserted by item [9]).

Item [34] Subregulation 5.26(2)

This item substitutes subregulation 5.26(2) of Division 5.5 of Part 5 of the Principal Regulations with a new subregulation 5.26(2).

Regulation 5.26 provides when an infringement notice can be withdrawn.

New subregulation 5.26(2) amends the Principal Regulations by including references to civil penalty provisions in addition to the references to offences.

New subregulation 5.26(2) provides that an infringement notice for an alleged offence against section 229 or 230 of the Act or for an alleged contravention of a civil penalty provision cannot be withdrawn after 3 months commencing on the day on which the notice was served.

Item [35] Regulation 5.28 Evidence

This item substitutes regulation 5.28 with a new regulation 5.28 of Division 5.5 of Part 5 of the Principal Regulations.

Regulation 5.28 provides matters in relation to evidence being given in a court in relation to infringement notices.

New regulation 5.28 amends the Principal Regulations by restructuring the regulation and including references to civil penalty provisions in addition to the references to offences.

New subregulation 5.28(1) provides that a certificate signed by an authorised officer, which states a matter listed in subregulation 5.28(2) will be considered as evidence of the matter.

Subregulation 5.28(1) provides that signed certificates maybe tendered as evidence in any of the following circumstances:

· hearings of proceedings for prosecution of an offences specified within an infringement notice; or

· applications made for a pecuniary penalty order as a result of contravention of a civil penalty provision as specified in an infringement notice

Subregulation 5.28(2) provides that the matters for subregulation (1) are that an authorised officer:

· did not allow further time for payment of the penalty specified in the infringement notice and the penalty was not paid within the time allowed for payment of the notice; or

· allowed a further period (as specified in the certificate) for payment of the penalty specified in the infringement notice and the penalty was not paid within that further period; or

· withdrew the infringement notice on a day specified in the certificate.

Subregulation 5.28(3) provides that an authorised officer is deemed to have signed a certificate unless it can be proven that the authorised officer in question was not the signatory.

Item [36] Regulation 5.29, heading

This item substitutes the existing heading of regulation 5.29 of Division 5.5 of Part 5 of the Principal Regulations “Can there be more than one infringement notice for the same offence?” with a new title “Can there be more than one infringement notice for the same offence or contravention of a civil penalty provision?”

The purpose of this amendment is to provide clarity that the regulation applies to infringement notices issued for both offences and contraventions of civil penalty provisions.

Item [37] Regulation 5.29

This item amends regulation 5.29 of Division 5.5 of Part 5 of the Principal Regulations to insert the phrase “or the same contravention of a civil penalty provision” directly after “for the same offence”.

The purpose of the amendment is to include infringement notices which are served in relation to alleged contraventions of civil penalty provisions in regulation 5.29. A person may be served with more than one infringement notice for the one offence or the same contravention of a civil penalty provision, but regulation 5.25 applies if the person pays the prescribed penalty in accordance with one of the infringement notices.

Item [38] Regulation 5.31

This item substitutes regulation 5.31 with new regulation 5.31 of Division 5.5 of Part 5 of the Principal Regulations.

Regulation 5.31 provides that an infringement notice is not compulsory.

New regulation 5.31 amends the Principal Regulations by including references to civil penalty provisions in addition to the references to offences.

New regulation 5.31 provides that nothing in Division 5.5 of Part 5 of the Principal Regulations:

· requires an infringement notice to be issued in relation to an offence or a contravention of a civil penalty provision; or

· affects the liability of a person to be prosecuted for an offence or to be subject to proceedings in relation to a contravention of a civil penalty provision if the person does not comply with an infringement notice; or

· affects the liability of a person to be prosecuted for an offence or to be subject to proceedings in relation to a contravention of a civil penalty provision if an infringement notice is not served on the person in relation to the offence or in relation to a contravention of a civil penalty provision; or

· affect the liability of a person to be prosecuted for an offence or to be subject to proceedings in relation to a contravention of a civil penalty provision if an infringement notice is served and withdrawn; or

· limits the amount of the fine which may be imposed by a Court on a person convicted of an offence or the pecuniary penalty that may be imposed by a Court on a person for a contravention of a civil penalty provision.

Commonwealth Numbered Regulations - Explanatory Statements

Select Legislative Instrument 2009 No. 115

Issued by the Minister for Immigration and Citizenship