Peter Dutton (Dickson, Liberal Party, Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

The Migration Amendment (Charging for a Migration Outcome) Bill 2015 amends the Migration Act 1958 ('the act') to introduce a new criminal and civil penalty regime that will make it unlawful for a person to ask for, receive, offer or provide payment or other benefits in return for a range of sponsorship related events. The bill also allows visa cancellation to be considered where the visa holder has engaged in such conduct, referred to as 'payment for visas' conduct.

This bill will implement a key integrity recommendation of the independent review into integrity in the subclass 457 program: that it be made unlawful for a sponsor to be paid by visa applicants for a migration outcome and that this be reinforced by a robust penalty and conviction framework.

This bill will apply to a range of temporary sponsored work visas and skilled permanent employer-sponsored visas, including the 457 visa.

'Payment for visas' conduct is not currently unlawful. This conduct is unacceptable to the government and the Australian people because it undermines the genuine purposes for which visas are intended to be granted. This bill will strengthen the integrity of Australia's migration program by allowing action to be taken where 'payment for visas' conduct has occurred.

'Payment for visas' conduct may occur through an employer offering to sponsor a visa applicant in return for a payment or benefit. It may occur before the applicant applies for a visa or during the visa holder's stay in Australia. Evidence obtained through monitoring sponsors indicates that the sponsor and applicant are complicit in the majority of 'payment for visas' activity. Employers may also exploit an employee by requiring payment in return for an ongoing sponsorship.

A strong response is required to ensure that this practice, which has continued under successive governments, does not continue.

The bill will amend the act to make it a criminal offence for a sponsor or other third party to ask for or receive a benefit in relation to a sponsorship related event. The offence will be punishable by a maximum of two years imprisonment or a fine of up to 360 penalty units, which currently equates to $64,800 for an individual person or five times higher—$324,000—for a body corporate.

The bill introduces civil penalties applicable to a sponsor, visa applicant or any other third party who asks for or receives, or provides or offers a benefit in relation to a sponsorship related event. The maximum pecuniary penalty is 240 penalty units, which currently equates to $43,200 for an individual person or five times higher—$216,000—for a body corporate.

The maximum penalties reflect the higher upper limit of amounts paid in 'payment for visas' cases.

The bill defines 'benefit' in wide terms to include any payment or deduction, and any kind of real or personal property, advantage, service or gift. It does not include payments of reasonable amounts for the provision of a professional service such as by a migration or recruitment agent.

The bill includes a definition of 'sponsor related event' to capture the types of conduct between a sponsor and a visa applicant or visa holder to which this offence will apply.

The bill defines 'sponsorship related event' to capture 'payment for visas' conduct that occurs at any point in the visa application process or throughout the duration of the visa.

The bill provides for further types of 'sponsorship related events' to be prescribed in the future, ensuring the legislation will be flexible to respond to emerging 'payment for visas' conduct. The bill also provides for a criminal or civil penalty to be imposed on an executive officer of a body corporate which has been found to be involved in 'payment for visas' activity.

The criminal and civil penalty framework will have extended extraterritorial application so that the offence and penalties apply to conduct by an Australian citizen or body corporate outside Australia, or to an Australian resident outside Australia if there is an equivalent offence in the law of the local jurisdiction.

The bill will also allow existing inspector, investigation, search warrant and notice-to-produce powers, which are currently used to investigate work related offences, to be used in relation to 'payment for visas' activity.

Finally, the bill will introduce a new discretionary power to consider visa cancellation where any person engages in 'payment for visas' conduct.

Visas granted at any time may be considered for cancellation, where conduct occurred on or after the commencement date of this bill.

Consistent with other cancellation powers in the act, the visa holder would be afforded procedural fairness during the cancellation process. Where a decision to cancel a visa is made, consequential cancellation of the same visas held by family members would automatically apply. A person whose visa is cancelled would have the ability to seek merits or judicial review of that decision.

It is my intention to later expand the 'payment for visas' provisions to family and other visas where there is the potential for this conduct to occur. The bill ensures that the department is able to take appropriate action against unscrupulous people who have engaged in 'payment for visas' conduct.

I commend this bill to the House.

Debate adjourned.