Since April 2017, there has been unprecedented change to Australian immigration laws and regulations. As a consequence of this change, we have witnessed an evolving pattern of behaviour by Government to take a hard-line approach to immigration compliance whilst creating processes that have effectively reduced the number of temporary and permanent residence visa grants (and now this has moved to Australian citizenship).
Effectively, this clamp-down has been felt by the Immigration advice industry, Australian companies and skilled foreign workers alike.
In line with this increased scrutiny, we have noticed a significant increase in the numbers of companies being audited by the Immigration Department, some of which have led to sanctions including fines.
Breaches of sponsorship obligations can lead to one or more of the following sanctions:
- you could be barred from sponsoring more people for a specified time;
- you could be barred from applying for approval to be a sponsor, in relation to this visa or another one;
- all your existing approvals as a sponsor could be cancelled;
- you can be fined up to AUD12,600 for a body corporate and AUD2,520 for an individual for each breach; or
- you can be referred to court for a civil penalty order of up to AUD63,000 for a corporation and AUD12,600 for an individual for each failure.
However contingent upon the nature of the non – compliance, it may also lead to criminal penalties which could result in:
- Two years prison and/or $75,600 for an individual or
- Penalties up to $324,000 for a corporate body
Some significant recent cases include:
- January 2018: Masaki sushi and its owner received a combined $194,112 fine for not complying with their obligations in relation to foreign workers.
- February 2017: Canteen Cuisine and its owner received a combined $532,910 fine for not complying with their obligations in relation to foreign workers.
- June 2016: Hallmark Computers and its owner received a combined $516,000 fine for not complying with their obligations in relation to foreign workers. They were also ordered to pay $66,000 in back-pay and $17,500 in taxes
Therefore, it is increasingly important to ensure that your company is fully compliant with Australian Immigration laws and regulations and have the policies and procedures in place to identify and minimise your risk. As businesses become increasingly complex as a result of growth, structural change, digitalisation and technology, it becomes more difficult to monitor and eliminate this risk.
As such, Gilton Valeo is rolling out a new Immigration Due Diligence Audit to assist our clients to take a proactive approach to tackle this risk head-on.
What is due diligence?
Immigration due diligence is a process whereby we test your existing immigration policies and procedures to ensure that you are compliant with Australian Immigration laws and regulations. This involves an audit-based approach encompassing:
- a review of your company’s compliance against your sponsorship obligations and statutory notifications in respect to the company; and
- a random selection of your foreign employee population and reviewing each against:
- Employment contracts for immigration specific terms and advice regarding inclusion/removal of terms;
- Compliance with immigration specific employment terms;
- Appropriateness of nominated occupation against current role;
- Appropriateness of nominated occupation when assessed against PR options;
- Compliance with nomination including consistency of location, tasks and responsibilities; and
- Timeliness of statutory notifications and/or review of circumstances that might have required a notification.
How can a risk review help you?
Our approach to immigration risk and due diligence has been developed over our combined 30 years of Immigration law experience and hundreds of audits and investigations we have undertaken for our clients. These include voluntary audits and more seriously, assisting clients who were formally audited by the Immigration Department. We aim to eliminate your exposure through a measured systematic approach to risk identification and elimination.
If you would like to explore more, please contact the writer Fiona Wong on (02) 8234 8400.
