The Australian Border Force: One to be Reckoned With
October 26, 2015
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In the last few weeks, the Fragomen offices in Australia have been hosting round tables for clients to provide an update on all things immigration law. There has been particular interest in the compliance section of this update, and given the recent media buzz around the new Australian Border Force (or ‘ABF’), this is perhaps not surprising.
The ABF is a new agency which combines the frontline operations of immigration and customs. Notable in this reorganisation has been a cultural shift away from the educative approach that the Department of Immigration has historically taken to genuine but flawed attempts to employ visa holders appropriately. Instead, we are seeing a more intolerant and unforgiving approach, with serious sanctions being dished out for breaches that previously would have been addressed by way of a warning letter.
In short: it’s clear that there’s a new sheriff in town.
So what does this mean for employers?
The first thing to note is that penalties under Australian immigration law do not just apply to those employers that sponsor subclass 457 visas. Any Australian employer can face serious fines, and even criminal charges, for allowing a person to work when they do not have a visa that gives them permission to do so.
Particular areas of risk of business include:
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457 sponsorship obligations: compliance in this area is rapidly developing into a source of significant legal and financial risk for businesses that that use the programme, with the Australian Border Force quick to impose bars on sponsoring further visas, and heavy fines, even for minor, isolated breaches.
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‘Stealth’ business visitors: Australian business visitor visas do not allow work. Entries of this type are particularly difficult for HR and mobility teams to manage because the visa is often obtained by the visa applicant directly, bypassing the usual internal approval mechanisms. However if a person on such a visa is found to be working in your workplace, the business may be held liable.
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Temporary visa holders hired locally: Most temporary visas have some work restriction on them. For example, a great many international students work part-time to support themselves while they study, primarily in retail or hospitality. In most cases their visa allows them to work 40 hours per fortnight. More sophisticated employers have systems in place to ensure that student visa holders are not rostered for more than their visa allows; but what happens if the student is asked to stay back a few hours to cover a person who’s called in sick? Usually there is no feedback mechanism in place to adjust that student’s roster the following week.
These are just some examples of common scenarios that expose businesses to the possibility of sanctions should they come to the attention of the ABF. Now more than ever, it is critical that employers have proper systems in place to ensure that work rights are checked and flagged, and that internal counsel and management are made aware that immigration compliance is ignored at the business’ peril.
If you would like to discuss your business’ compliance programmes, please contact us.
