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
Information and Research Services
This paper has been prepared for general distribution to Senators and
Members of the Australian Parliament. While great care is taken to ensure
that the paper is accurate and balanced, the paper is written using information
publicly available at the time of production. The views expressed are
those of the author and should not be attributed to the Information and
Research Services (IRS). Advice on legislation or legal policy issues
contained in this paper is provided for use in parliamentary debate and
for related parliamentary purposes. This paper is not professional legal
opinion. Readers are reminded that the paper is not an official parliamentary
or Australian government document.
IRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of the
public.
ISSN 1328-8091
© Commonwealth of Australia 2003
Except to the extent of the uses permitted under the Copyright Act
1968, no part of this publication may be reproduced or transmitted
in any form or by any means, including information storage and retrieval
systems, without the prior written consent of the Parliamentary Library,
other than by Members of the Australian Parliament in the course of their
official duties.
Published by the Department of the Parliamentary Library, 2003.
|
