Appealing Negative Decisions

If you, or the person that you wish to sponsor, has received a negative decision for an application, you may have the right to apply for merits review at the Administrative Appeals Tribunal (AAT).

What is Merits Review?

A merits review is a reassessment of a decision made by a primary decision-maker (in this case, the Department of Home Affairs). When the AAT conducts a merits review, it will reassess the application by stepping in the shoes of the Department of Home Affairs and make a fresh decision by applying the law to the facts of the case.

The AAT may make the same decision as the Department, or it may make a different decision. Alternately, it may remit (return) the application to the Department of Home Affairs for reconsideration with specific directions.

When you apply for merits review at the AAT, you will have the opportunity to present new information or evidence to support your application.

Time limitations for Merits Review

There are time limitations for applying for merits review of a negative decision. In most cases, where the decision relates to an application to become a sponsor, an application to nominate a person, or an application for a temporary visa where the person is sponsored by an organisation, the application for merits review must be made within 21 days.

Other types of decisions may have different time limitations. It is important to obtain legal advice to understand your rights to seek merits review and the time limitation that applies.

Compliance and Auditing

If you are an approved sponsor, there are a range of sponsor obligations that you are required to meet. We can assist your business or organisation to maintain compliance with your sponsor obligations by:

• Conducting regular compliance checks to make sure your business is meeting its legal obligations as a sponsor

• Providing self-assessment tools and checklists for you to conduct your own internal audits

• Holding seminars or workshops to educate you and your staff on your sponsor obligations

The Migration Act 1958 imposes a range of sanctions on sponsors that fail to comply with their sponsor obligations. The Department of Home Affairs also has the power to monitor your compliance in a number of ways, such as by sending inspectors to your business/organisation premises or requesting you to provide records to demonstrate your compliance.

To minimise or avoid the risks associated with non-compliance with sponsor obligations, it is essential that you understand the sponsor obligations and ensure that you comply with them at all times.

The most common obligations are:

• To inform the Department of Home Affairs when certain events occur

• To keep records

• To provide records and information to the Department of Home Affairs

• To not recover from, transfer or charge the costs of sponsorship or recruitment to another person

• To ensure the visa holder participates in the nominated occupation, program or activity

Additional obligations apply to Standard Business Sponsors, including:

• To meet benchmarks for training Australian citizens or Permanent Residents

• To ensure equivalent terms and conditions of employment for the sponsored employee

• To not engage in discriminatory recruitment practices

Some obligations continue to apply after your approval as a sponsor has ended.

Are You Compliant with Your Obligations?

Offences related to Immigration Law

The Department of Home Affairs, administers amongst other functions, the task of upholding the integrity of its migration programme, which can be loosely summed up as concerns for the negative impact an abuse may have on the Australian community and economy at large, including (but not limited to):

1. Unfair competitive advantage of Australia businesses

2. Loss of government revenue including loss of taxes

3. Reputational damage to Australia’s international standing

DIBP also announced that from December 2017, they will commence the collection of Tax File Numbers from visa applicant and sponsors for data matching purpose with the Australian Taxation Office (ATO). A list of sanctioned employers and organisation will also be published.

Types of Immigration related fraud and offences

DIBP provides the following examples as fraud and offences relevant to business, employer or organization:

1. Providing false and misleading information to the Commonwealth, including not disclosing that it was or is under investigation by an authority;

2. Allowing people to work illegally or beyond their permitted work conditions (despite the mimicking of a contractor relationship);

3. Breaching its Sponsorship Obligations (which commences at date of grant and ends 2 to 3 years after the sponsorship ceases) – for instance, fail to meet training benchmark obligations, failure to notify the Department of changes of circumstances, fail to maintain proper records, etc.;

4. Engaging in discriminatory recruitment practices. As of 19 April 2016, the obligation commenced where documents must be kept demonstrating that the recruitment process did not discriminate based on citizenship, visa status, gender, race, social group, etc.;

5. Recovering, transferring or charging certain costs to another person, e.g. travel costs for interviewee, training expenses, etc.;

6. Failing to ensure the sponsored employee participates in the nominated occupation, for example, it is a breach if the sponsored employees maintains another part-time job outside (even if that part-time job is voluntary) or performs work beyond the scope of the roles and duties of the nominated occupation;

Other Migration Act offences, such as allowing an unlawful non-citizen to work, allowing a non-citizen to work in breach of a work-related condition, etc.

Effect of Breaches to Immigration Law

The Department can take actions against sponsors or employers should breach be found, such as:

1. Commence monitoring and site visits;

2. Bar from sponsoring more people and applying for new sponsorship, even with new entities;

3. Cancellation of sponsorship where the visas for existing sponsored employees will cancelled;

4. Infringement notice for each sponsorship breach of up to $10,200 for a body corporate and $2,040 for the individual;

5. Civil penalty order for each sponsorship breach of up to $51,000 for a corporation and $10,200 for the individual;

6. Referral to other Authorities for investigation and action (ACCC, AFP, ATO, FWO, etc.);

7. Criminal penalty such as imprisonment, for some of the offences are categorized as criminal. For ease of reference, we provide a summary below, which is not exhaustive and does not include the civil penalties associated:

How Can We Help?

With the experience of observing the procedures taken by the Department in relation to investigating immigration offences and reviewing their policies on investigating and appropriate actions the Department takes, our firm specializes in an ‘audit’ service, focused on identifying immigration breaches and offences.

We can help you to investigate and identify any breaches and provide you with our findings and recommendation thereafter. The investigative stage includes (but not limited to) interviews with relevant party, anonymous telephone calls to illicit information, review and analysis of records, etc. We will also help you draft submissions to the Department addressing the concerns and preventing negative outcomes to current and future applications, including cancellation of current sponsorship and request the Minister reasonably disregard the breaches for future applications.

Contact us for a planning session so we can treat any issues that your organisation have and prevent any adverse consequences you may suffer from.

Appealing a Penalty or Sanction

The Department of Home Affairs has the power to impose a range of penalties and sanctions on sponsors that fail to meet their sponsor obligations. The penalties or sanctions that are imposed will depend on a number of factors, including the nature and severity of the non-compliance, and any mitigating factors such as any attempts made by the sponsor to rectify the non-compliance.

Penalties and sanctions for sponsors include:

• Formal or informal warnings

• Cancellation of a sponsorship approval

• Being barred from being a sponsor for a specified period

• Receiving an infringement notice (a fine)

• Civil litigation (being taken to court)

If the Department of Home Affairs has imposed a penalty or sanction against your organisation, or if a court has made an order against your organisation, you may have the right to appeal the decision. There are different avenues of appeal, including:

• Internal review (ie. asking the Department of Home Affairs to review their decision)

• Merits review (ie. appealing to the Administrative Appeals Tribunal)

• Judicial review (ie. appealing to a federal court)

Different avenues of appeal will be available depending on the types of sanctions or penalties imposed. There are also different time limitations for appealing a penalty, sanction or court order. It is important for you to have legal representation so that you are informed about your rights to appeal a decision against your organisation.

Has your organisation been sanctioned or penalized for non-compliance with sponsor obligations? We can help. Contact us today for a free, confidential discussion about how we can assist you.