Most employers know how important it is to check a potential employee’s visa to make sure they can work for your company. However, many people will not be aware of the need to constantly monitor their visa requirements and ensure that all requirements continue to be met as some aspect of staff roles change.
Violation of visa requirements are not taken lightly by the Departments of Home Affairs, and the responsibility for complying rests with both the visa holder and the employer.
The Work Visa label clearly states three conditions: the position, the location of employment and the place of work. It is the employer’s responsibility to ensure that all conditions are met so as not to violate the Migration Act 1958
Some common situations we see are:
- Visa holders have been promoted in their company and failed to get a new work visa before starting their new role (their position is recorded clearly on their visa); or
- The employee is transferred to another office in Australia, where their visa only allows work in a specific area.
Violation of visa conditions may not only result in the denial of an employee’s subsequent visa application, but may also result in the receipt of an eviction (and potentially deportation) notice. It can also have serious consequences for the employer, including liability under section 350 of the Immigration Act; and the difficulties in retaining and hiring migrant workers in the future.
Often all that is required to stay within the law boundary is simple, but once a violation has occurred the situation is no longer straightforward.
Breach of sponsorship obligations:
A sponsor who fails to meet their sponsorship obligations may face a range of possible sanctions, including:
- cancellation of their approval as a sponsor
- being barred from sponsoring other workers
- being barred from making future applications for approval as a sponsor
- being issued with an infringement notice imposing a specified financial penalty with different penalties imposed against individuals and bodies corporate for first or subsequent infringement notices
- civil penalties imposed by the courts (for example, up to $63,000 for a corporation and $12,600 for an individual for each failure)
- Even jail time for stakeholders
- Enforceable Undertaking between the sponsor and the Department of Home Affairs / Australian Border Force.
If you believe that one of your employees may have violated their visa conditions, we recommend that you take steps to remedy the violation immediately. Contact us at Complize for information on how to fully and simply comply with immigration law in real-time.
Authors: TJ & Jackson Taylor