Bills Digest No. 177 2002-03
Migration Legislation
Amendment (Sponsorship Measures) Bill 2003
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Migration Legislation Amendment
(Sponsorship Measures) Bill 2003
Date Introduced:
4 June 2003
House: House of Representatives
Portfolio: Immigration and Multicultural and
Indigenous Affairs
Commencement:
Royal
Assent
To amend the
Migration Act 1958 to provide a comprehensive framework
for the Migration Regulations to deal with sponsorship
requirements
The Minister for
Immigration and Multicultural and Indigenous Affairs, the Hon.
Philip Ruddock, MP, noted in the Second Reading Speech
that:
Sponsorship is an important element of the system
for managing the entry and stay of persons in Australia. It plays a
central role in protecting the Australian community from the costs
and risks associated with the stay of non-citizens in
Australia.(1)
The Explanatory Memorandum states
that:
This Bill formally recognises the long-standing
Government policy that where non-citizens are brought to Australia
by sponsors, the sponsors, as opposed to the Australian community,
should bear all costs in relation to the non-citizens. This
is particularly the case in relation to temporary residence
sponsors who gain a commercial advantage from the sponsorship
arrangements.(2)
Arrangements currently exist for sponsoring
the entry and residence in Australia of employees, family members
and people for humanitarian reasons.(3) In addition,
there are special arrangements for sponsoring employees to work in
regional areas of Australia.(4) There are particular
rules under the Migration Regulations 1994 covering sponsorship for
temporary business purposes and family reunion.(5) In
addition, the official Migration Instructions contain detailed
guidance for immigration officials in relation to sponsorship of
various categories of entrants.(6)
'Sponsorship' is defined in the Migration
Regulations.(7) A sponsor accepts responsibility
for:
all financial obligations to the Commonwealth
incurred by an applicant for a temporary visa
compliance with all relevant legislation and
awards in relation to any employment entered into by the applicant,
and
compliance by the applicant with the
conditions of entry into Australia specified in the visa.
In the case of family members, the sponsor
gives a written undertaking to provide support during the
relative's first two years in Australia, including accommodation
and financial assistance as required. (8)
In general, a sponsor must be over 18, and an
Australian citizen, permanent resident or an eligible New Zealand
citizen.(9)
The Bill follows a review of Australia's
Temporary Residence Program carried out by the 'external reference
group' for the Department of Immigration and Multicultural and
Indigenous Affairs.(10)
The Review noted that sponsorship requirements
varied for different visa applicants. For some temporary resident
visas there is no sponsorship requirement and no employer
undertakings, for some there is no formal sponsorship requirement
but the Australian party must provide a similar form of
support,(11) and for others extensive obligations are
imposed on the sponsor covering everything from salary and medical
costs to social security claims:
In summary, the requirements to be approved as a
sponsor, the undertakings required of the sponsor and the
sponsorship approval processes differ for different visas. The
differences do not necessarily reflect different policy objectives
but seem to have resulted from sponsorship requirements for
different visas drifting apart over time.(12)
The Review made two main recommendations in
relation to sponsorship under the Migration Act:
that sponsorship be a requirement for all
temporary residents except under the short stay business visas or
where there is an agreement in place which obviates the need for
sponsorship [eg diplomatic visas], and
- that there should be a standardised sponsorship, involving
standardised undertakings, for temporary resident visa
sponsors.(13)
- The current
Bill
The Government has partly accepted the
Review's recommendations in drafting the Bill. The Bill provides
that regulations can be made requiring sponsorship for all visas
(not just temporary visas) but does not impose standardised
undertakings across all types of visa. As the Minister
explained:
In accordance with the recommendation of the
report In Australia's Interests: Review of the Temporary
Residence Program, this bill aims to standardise sponsorship
arrangements as much as possible. However, it also recognises
differences between types of sponsors and sponsorships and the need
to provide for different sponsor relationships . The bill gives
power to make regulations that differentiate between the approaches
taken in different visa regimes. This is the case in relation to
sponsorship approval criteria and processes, as well as the
undertakings and sanctions applicable against sponsors. This will
enable the government to take different approaches to sponsors of
different types. For example, it will
allow us to differentiate between sponsors who sponsor large
numbers of people or gain a commercial advantage from sponsorship
and sponsors in the family stream.(14)
The framework proposed by the Bill provides
for regulations to be made, depending on the type of visa, for:
sponsorship to be a criterion for a visa (both
a criterion for the application or for the grant of a visa)
a process and criteria for the approval of
sponsors, and
undertakings to be made by sponsors.
The Bill also allows certain actions to be
taken against sponsors of prescribed temporary visa holders if they
breach their undertakings. In addition, it will prevent appeals to
the Migration Review Tribunal where an approved sponsor is required
for the particular type of visa but arrangements for the
sponsorship are not in place or in prospect at the time of the
appeal.
The Government has stated that 'long stay
sponsored business visas' and 'sponsored professional development
visas' (i.e. for education and/or training) are the first visa
classes planned to be covered by the Bill.(15)
New sponsorship regulations made under the
proposed provisions in the Bill will not automatically apply to
every type of visa. The Bill provides that specific classes of
visas need to be 'prescribed' (i.e. included in separate
regulations) before they will come within the new sponsorship
regime. As the Minister noted, this means that the inclusion of
particular classes of visa in the new regime 'will be subject to
parliamentary scrutiny'.(16)
Schedule 1 Item 2 inserts
proposed 'Division 3A Sponsorship' in Part
2 of the Migration Act.
Proposed section 140A states
that Division 3A will apply to 'visas of a prescribed kind'. Under
section 5 of the Migration Act, only visas specified in regulations
will be 'prescribed'. According to the Explanatory Memorandum, this
'opt-in' mechanism will allow:
a staged, smooth and effective transition from
existing sponsorship arrangements to new arrangements It is
complemented by new section 140W, which ensures that current
regulations, including those dealing with sponsorship arrangements,
can continue to operate effectively alongside the new
framework. The combined effect of
new sections 140A and 140W is that sponsorship arrangements may be
developed in a progressive manner, maintaining continuity for those
involved and allowing for appropriate community consultations to
occur before operating under the new system. Initially, it is
envisaged that sponsored business visas and the proposed new
professional development visa will opt-in to the new sponsorship
system provided for by new Division 3A of Part 2 of the
Act.
Proposed section 140B states
that regulations may provide that sponsorship by an approved
sponsor is 'a criterion for a visa'. Proposed section
140C states that regulations may provide that sponsorship
by an approved sponsor is a criterion for a 'valid application for
a visa'.
Both sections state that any sponsorship
criterion is in addition to any other criteria for a valid visa or
valid application specified elsewhere in the Migration Act or
Migration Regulations.
Proposed sections 140D to
140G provide that a person has to consent in writing to
sponsor a visa applicant, that different criteria for approval as a
sponsor may be prescribed for different visas, and that different
processes for the Minister to approve a person as a sponsor may be
prescribed for different visas.
A person can be approved as a sponsor even
where the name of the visa applicant is not yet known
(proposed subsection 140D(b)). As the
Explanatory Memorandum notes:
This takes into account the fact that in some
circumstances, at the stage of being approved as a sponsor, the
sponsor may only know, for example, the occupation of the person to
be sponsored, the type of activity that the person will be
undertaking in Australia or the identity of the person s overseas
employer.(17)
References in section 140D to the approval of
'a person' as a sponsor cover any legal person, i.e. natural
persons and corporations. By virtue of proposed Subdivision
C (see below), this term will also cover bodies that are
not legal entities such as partnerships and unincorporated
associations.(18)
Proposed sections 140H and
140I provide that regulations may require an undertaking
on the part of a sponsor to pay the costs of the Commonwealth
together with other 'prescribed undertakings'. A note in
proposed section 140H lists the
following examples of undertakings that could be specified in
regulations:
(a) to pay debts for medical or hospital treatment
incurred by a visa holder sponsored by the sponsor
(b) to pay to the Commonwealth the costs of
locating, detaining and removing from Australia a visa holder
sponsored by the sponsor
(c) to pay the costs of the departure from
Australia of a visa holder sponsored by the sponsor
(d) to comply with the Department s requirements
to provide information to the Department
(e) to notify the Department of changes in the
circumstances of the sponsor or of a visa holder sponsored by the
sponsor, and
(f) to cooperate with the Department s monitoring
of the sponsor or of a visa holder sponsored by the sponsor.
Proposed sections 140J and
140K allow regulations to be made describing the
circumstances in which the Minister can cancel or bar the approval
of a sponsor or former sponsor. Proposed section
140L sets out the various actions available to the
Minister to do this. The sections apply to sponsors of temporary
visas only. The Explanatory Memorandum notes that:
This makes it clear that where undertakings are
made under regulations made under new section 140H in relation to a
permanent visa, the actions listed in new section 140L are not
available.(19)
The sections also do not apply to cancellation
of approval as a business sponsor, which is already dealt with in
Subdivision GA of Division 3 of the Migration
Act.(20)
The Explanatory Memorandum notes that
'It is important to ensure that new section 140J applies to former
sponsors as such persons can continue to be bound by undertakings
if regulations made under new section 140Q so
provide.'(21) Under proposed section 140Q regulations
can specify that undertakings remain enforceable against sponsors
of temporary visa holders even if 'the visa holder ceases to hold
the visa' or 'the sponsor ceases to be an approved sponsor'.
Proposed section 140V
provides that the Minister may disclose 'personal information of a
prescribed kind about a visa holder or former visa holder' to 'an
approved sponsor or former approved sponsor'. The type of personal
information that can be disclosed must be 'prescribed', i.e.
specified in regulations and laid before Parliament, before
information of that type can be released.
The Explanatory Memorandum notes that
provision for disclosure 'is necessary to accord natural justice to
a sponsor who is to be held responsible for the visa holder s
actions.'(22) For example, under proposed section 140L
the Minister could take action against a sponsor where a visa
holder breached a condition of their visa. To allow for such
cases:
regulations made under new subsection 140V(3)
might specify that the sponsor may use or disclose personal
information disclosed under new subsection 140V(1) for the purposes
of seeking review of a decision of the Minister to take one or more
of the actions under new section 140L.(23)
Disclosure of personal information by the
Commonwealth is prohibited by the Privacy Act 1988. This
prohibition does not apply where 'the disclosure is required or
authorised by or under law'.(24) Proposed section 140V
would have the effect of authorising disclosure of personal
information in accordance with the terms of the section.
However, the sponsor as the recipient of
personal information about a visa holder would be prohibited by the
Privacy Act from using or disclosing such information 'for a
purpose other than the purpose for which the information was given'
to the sponsor.(25) If, for example, the information was
released to the sponsor for the purpose of seeking a review by the
Minister, the sponsor could not use the information for any other
purpose.
While proposed subsection
140V(5) refers to the definition of 'personal information'
in the Privacy Act, Parliament may wish to consider including
either in this Bill or in the relevant regulations a more specific
reference to restrictions in the Act on use or disclosure of such
information. This may help avoid an unwitting breach of privacy by
the sponsor.
Proposed section 140W
provides that proposed Division 3A does not affect the operation of
existing regulations in this area.
Proposed sections 140X and
140ZC apply the sponsorship system in proposed
Division 3A of the Migration Act to partnerships and
unincorporated associations respectively. As non-legal entities,
such bodies would otherwise be outside the description of an
'approved sponsor' in proposed section 140D (see
above). These proposed provisions
recognise 'that in many instances a visa applicant will be
sponsored by a partnership or unincorporated association rather
than a person'.(26)
Proposed sections 140Y and
140ZD provide that sponsorship obligations undertaken by a
partnership or unincorporated association are instead imposed on
individual partners and members of the association's committee of
management.
Proposed sections 140Z and
140ZE provide that if a person becomes a partner or member
of an association's committee of management after the partnership
or association is approved as a sponsor, the new partner or member
may elect to accept sponsorship obligations.
Proposed sections 140ZA and
140ZF allow for regulations to be made prescribing the
circumstances in which a retiring partner or former management
committee member will remain liable for sponsorship
obligations.
Commencement: Schedule 1
commences on Royal Assent.
Item 1 of Schedule 2 adds
new paragraph 338(2)(d) to the Migration Act to
provide that in the case of a temporary visa 'prescribed for the
purposes of this paragraph' where a criterion is having an approved
sponsor, a decision to refuse the visa is only reviewable by the
Migration Review Tribunal if, at the time of applying for a
review:
the person has an approved sponsor, or
a decision on approval of a sponsor is
pending.
The Explanatory Memorandum notes
that:
The purpose of new paragraph 338(2)(d) is to
ensure that only those visa applicants who have an approved
sponsor, or are seeking review of a decision to refuse to approve
sponsorship, may apply to the MRT for review of a decision to
refuse to grant a prescribed visa. This is to prevent abuse of the
merits review process by refused visa applicants, who have no
sponsor, and therefore no ability to meet the criteria for grant of
the visa, seeking to extend their stay in Australia by lodging a
review application.(27)
The Minister said in the Second Reading Speech
that:
In these cases, the decision to refuse to grant
the visa cannot ever be overturned by the tribunal, because the
requirement that the applicant be sponsored is simply not
satisfied. This amendment will effectively close off a loophole
that has led to visa applicants pursuing what are clearly
unmeritorious claims.(28)
Commencement: Schedule 2
applies to decisions to refuse a visa made on or after Royal
Assent
The Bill is in part a response to an
official review of Australia's temporary residence program, but
potentially applies to all types of visas, not only temporary ones.
The Bill will enable regulations to be
passed making sponsorship by an 'approved sponsor' a requirement
both for any 'prescribed visa' and for applying for any 'prescribed
visa'.
The current intention is to target
employers sponsoring workers and education providers that attract
'potentially large numbers of visa holders from markets that
traditionally exhibit high immigration risk'.(29)
However, the ability to require an 'approved sponsor' before a
person can hold a valid visa or make a valid visa application could
potentially be used to limit the access of any group or class of
people to Australia's visa program. On the other hand the
Commonwealth clearly has power under the Constitution to make laws
to do this.(30) Moreover the Bill
stipulates that an approved sponsor can only be required for
prescribed classes of visas through regulations laid before
Parliament.
Members of partnerships and management
committees of unincorporated associations will need to consider
carefully their new liabilities under this Bill
before committing their organisations to sponsorship
obligations.
Of particular interest to the Parliament
may be the restrictions set down in Schedule 2 of the
Bill on appeals to the Migration Review
Tribunal. Preventing any appeal against refusal of a visa where the
visa applicant does not have an approved sponsor appears logical
where the Australian community would expect a sponsor, e.g. in the
case of visas for temporary employment or education/training in
this country. If this system is extended to require an approved
sponsor for permanent and other types of temporary visas,
preventing any appeal may not be in line with community
expectations. Again, however, particular types of visa will need to
be specifically prescribed by regulations for the purpose of
preventing an appeal to the Tribunal. As the Explanatory Memorandum
states:
only applicants who are seeking review of a
decision to refuse to grant a temporary visa, that is prescribed in
the regulations for the purpose of new paragraph 338(2)(d), will be
subject to the additional requirements of new paragraph
338(2)(d).(31)
This will give Parliament the
opportunity to review any proposal to prevent appeals to the
Migration Review Tribunal in the case of particular visa
types.
- Second Reading Speech, 4 June 2003, House
Hansard, p. 15291.
- Explanatory Memorandum, p. 2.
- See e.g. DIMIA,
Sponsoring an Employee, at
http://www.immi.gov.au/faq/migration_employer/employer01.htm
- DIMIA, Employer
Sponsored Migration to Australia, at
http://www.immi.gov.au/allforms/employer.htm
- Division 1.4.
- Department of Immigration and Multicultural
and Indigenous Affairs, Migration Series Instruction (MSI)353:
Form 40 - Sponsors And Sponsorship.
- Regulation 1.20.
- DIMIA,
Information For Sponsors Of Migrants, at
http://www.immi.gov.au/settle/info/sponsors_of_migrants.htm
- DIMIA, Sponsorship
for Migration to Australia, at
http://www.immi.gov.au/allforms/pdf/40.pdf
- DIMIA, In Australia's Interests: A Review
of the Temporary Residence Program (2002) (not available
on-line).
- E.g. 'assurances of support' in the case of
parents or other relatives.
- Review of the Temporary Residence
Program, p. 97.
- ibid, p. 99.
- Second Reading Speech, 4 June 2003, House
Hansard, p. 15291.
- ibid.
- ibid.
- Explanatory Memorandum, p. 7.
- ibid, p. 7.
- ibid, p. 8.
- Subdivision GA of Division 3.
- Explanatory Memorandum, p. 11.
- ibid, p. 18.
- ibid, p. 18.
- Privacy Act, section 14, Information Privacy
Principle 11: Limits on disclosure of personal information.
- ibid, Information Privacy Principle 11.3
- Explanatory Memorandum, p. 19.
- ibid, p. 26.
- Second Reading Speech, 4 June 2003, House
Hansard, p. 15291.
- ibid.
- Based on section 51 (27) 'immigration and
emigration'.
- Explanatory Memorandum, p. 25.
Peter Prince
18 June 2003
Bills Digest Service
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