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Recovery of Visa Application Costs in 2018

Written By Michelle O'Sullivan
Thu, Oct 11, 2018
Michelle O'Sullivan

Generally, there are three steps to the TSS application process. The first step is for the business to become an approved standard business sponsor. The second step is for the business to nominate a position which needs to be filled by an overseas citizen within their business. The third step is for this overseas citizen to apply for a TSS visa.

As part of the TSS visa programme, both visa applicants and sponsors have various obligations with which they must comply.

Often when these obligations are not met, it is because the relevant party was not fully aware of the obligation in the first instance, or they misunderstood what they were supposed to do

One of the most commonly misunderstood sponsor obligations, is the obligation to “Not recover, transfer or charge certain costs to another person”.

To put it simply, this means that a sponsoring business cannot insist that a TSS visa applicant pays certain costs relating to being sponsored.

What are these ‘certain costs’?

This includes costs that relate to:

  • cost of sponsorship and nomination charges
  • migration agent costs associated with the lodgement of sponsorship and nomination applications
  • migration agent fees or legal fees associated with sponsorship monitoring
  • administrative costs and any sundry costs an employer incurs when they conduct recruitment exercises, including:
    • recruitment agent fees
    • the cost of job advertising
    • screening of candidates, short listing, interviews and reference checks
    • salaries of recruitment or human resource staff
    • the cost of outsourcing background checks, police checks and psychological testing, if these relate to an employer determining an applicant’s suitability for the position
  • training of new staff
  • pre-agreed costs that are related to attracting a potential sponsored person such as paying for airfares to Australia, visa application costs and moving assistance
  • responding to queries for prospective candidates, and advising unsuccessful applicants
  • monies associated with the sponsor meeting training requirements—refer to Obligation to provide training
  • travel costs for the sponsor to interview and/or meet the applicant either overseas or in Australia.

Example scenarios in which a sponsor breaches its obligations:

A. Rob’s Restaurant Pty Ltd wishes to sponsor a Head Chef. Having been unable to find a suitable person through advertising, the business owner, Rob, contacts TSS Immigration to source a skilled Head Chef. It is decided that the business will sponsor and employ Jane Doe. Jane has many years of experience and is currently residing in the UK. Jane doesn’t have enough money to cover the visa application fee and the professional fees charged by the migration agent, so the business agrees to pay for the whole application on her behalf, including the fees payable to TSS for the recruitment process and the immigration process. The business provides Jane with an employment contract which states that Jane will need to pay the company back all of this money, in the form of weekly deductions from her wages.

B. Rob’s Restaurant Pty Ltd wishes to sponsor Jane Doe. They agree to do this, but only if Jane will pay all fees relating to the business becoming an approved sponsor, as well as for the nomination and visa. Further to this, they expect Jane to pay all costs relating the recruitment process, and the required expenditure on training Australian staff.

Example scenarios in which a sponsor meets its obligations:

A. Rob’s Restaurant Pty Ltd wants to sponsor Jane Doe. They pay all cost relating to the business sponsorship, the nomination and the visa application. These costs include the fees payable to DIBP, and the professional fees to the migration agent.

B. Rob’s Restaurant Pty Ltd wishes to sponsor Jane. They will first need to lodge an application to become an approved standard business sponsor, and then lodge a TSS nomination on Jane’s behalf. The business is happy to pay all costs for these elements but does not wish to pay for Jane’s visa application, or the migration agent fees, for the visa application. The business reaches an agreement with Jane that she will pay her own visa application fee, as well as the professional fees charged by the migration agent to submit the visa application.

The Department of Immigration and Border Protection regularly initiates monitoring of sponsoring businesses. If a business is found to have breached its obligations as a sponsor, sanctions can range from a warning to sponsorship cancellation and significant fines, depending on the scale of the misconduct.

Standard business sponsors, or TSS visa holders, who are unsure as to whether they are fully compliant with their obligations, should contact TSS Immigration for a review of their current practices.

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