No leniency for business sponsors.

For any breach of sponsorship obligations, Business Sponsors are likely to face swift and severe sanctions with little chance of leniency for past good conduct.

19/12/2013

The Migration Review Tribunal recently affirmed a decision by DIBP to bar an employer from sponsoring overseas workers for 12 months because the sponsor failed to give notice to DIBP of the resignation of a nominated employee within 10 days of the employee ceasing employment.

In a letter to the MRT, the Employer set out to seek leniency and indicated that there was some confusion over the resignation date as employment negotiations were ongoing for some time:

“On the 30/7/2012 it was official that [the Employee] would no longer return to work with us. I advised [the Migration Agent] on the 15/8/2012 that [the Employee] had departed and resigned and that communications for negotiations have [broken] down and that we do not believe that [the Employee] will now return. [The Migration Agent] informed DIAC on the 21/8/2012 via telephone and email that [the Employee] has now officially resigned.”

Regulation 2.84 which sets out sponsorship obligations, requires that the sponsor notify the Department of the cessation of a sponsored person’s employment within 10 working days of the sponsored person ceasing employment.

The Tribunal offered no leniency to the Sponsor despite the Sponsors' submissions and the Tribunal’s finding that the Sponsor had no previous history of unsatisfactory conduct.

The decisions are clear messages both from DIBP and the MRT that Business Sponsors need to strictly comply with sponsorship obligations or face uncompromising sanctions.

Migration Alliance notes that decisions such as these could have devastating consequences on any business relying on sponsored employees.  Prudence suggests that both Employers and their Migration Agents ought to have in place a system to ensure strict compliance. Apart from notice requirements, other stumbling blocks may include, but are not limited to: compliance with the training requirement; and IF THE CIRCUMSTANCES DICTATE THEN, the requirement to ensure the sponsored employee's salary is increased to meet the market salary requirements.

These recent decisions certainly make it worthwhile to revisit compliance with Sponsorship obligations.

By Jerry Gomez, Migration Alliance Editor, RMA [MARN 0854080] and Lawyer.