First court finding against 457 visa sponsor

The Department of Immigration and Citizenship (DIAC) today welcomed a Federal Magistrates Court decision against a Victorian 457 visa sponsor who underpaid a worker by $10 000.

The court issued a pecuniary penalty of $35 000 plus costs of almost $11 000 and put significant weight on the need to deter other employer sponsors from breaching their obligations.

A departmental spokesman said today that, for the first time, an action had been brought before the courts under the Migration Legislation Amendment (Worker Protection) Act 2008. He said the court found 457 sponsor Sahan Enterprises Pty Ltd had failed two of the obligations: the obligation to pay equivalent terms and conditions, and the obligation to keep appropriate pay records.

“DIAC will not tolerate abuse of the skilled migration program and this finding should send a strong signal to sponsors that they must fulfil their sponsorship obligations,” the spokesman said.

“This is a timely reminder that Australian workplace laws apply universally to all. Sponsors found to be doing the wrong thing by the department’s inspectors may be subject to administrative sanctions, an infringement or civil litigation, as in the case of Sahan Enterprises.”

During the monitoring process, inspectors uncovered failures of the sponsorship obligations. The sponsor was initially served with an infringement notice and asked to repay the visa holder. The sponsor did not comply with the requests and the matter was referred to the courts for a civil penalty.

The spokesman said the court finding represents a significant win and underscores the strength and importance of the reforms embodied in the Migration Legislation Amendment (Worker Protection) Act 2008 (the Worker Protection Act) sponsorship obligations.

“While other cases have been filed, those matters have been settled via alternative means to the satisfaction of the department and any sponsored people involved,” he said.

“While the vast majority of sponsors are compliant, DIAC remains committed to strengthening the integrity of Australia’s skilled visa programs by identifying and penalising employers who do the wrong thing.

“The department welcomes this finding, which is the result of its thorough approach to monitoring investigations and the high calibre of the sponsor monitoring inspectorate.”