The payment of costs associated with employer-sponsored visas is subject to strict regulation under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). These regulations aim to prevent the exploitation of sponsored individuals and to ensure that the visa is used for its intended purposes.
Can Visa Applicants Cover Fees?
The table below reveals whether a visa applicant can bear costs:
| Fees | TSS/482 | ENS/186 |
| Nomination fee | ✖ | ✔ |
| Cost associated with the nomination application (including professional fees, advertising and recruiting cost) | ✖ | ✔ |
| Skilling Australians Fund (SAF) Levy | ✖ | ✖ |
| Visa application | ✔ | ✔ |
| Cost associated with the visa application (including professional fees, English test, police clearances and health examination) | ✔ | ✔ |
TSS nomination and visa fees
Regulation 2.87 requires sponsors to cover specific costs, including:
- The cost of becoming a sponsor
- Nomination charges, including the SAF Levy
- Legal representation or migration agent costs related to sponsorship and nomination applications
- Costs linked directly to recruiting primary sponsored individuals
Sponsors cannot shift these costs to the visa applicant, even with their consent.
Approved work sponsors are also prohibited from receiving benefits for a sponsorship event.
Do the Obligations Apply to Visa Applications?
These obligations only concern sponsorship and nomination charges.
The SAF Levy
The SAF Levy is explicitly excluded as a cost associated with nomination applications, and it must be covered by the business.
ENS Nomination and Visa Fees
ENS application fees are not subject to Regulation 2.87 of the Regulations. However, they are are influenced by section 245AR of the Act, which carries penalties for those who receive benefits in return for a “sponsorship-related event.”
What is a “Sponsorship-Related Event”?
A “sponsorship-related event” includes applications for work sponsor approval and nominations for sponsored visa holders.
What constitutes “Benefits”?
The term “benefits” includes lump-sum payments, ongoing financial support, wage underpayments, unpaid work, goods or services provided above market value, and more.
Exclusions from “Benefits”
Government charges, such as sponsorship, nomination fees, and visa application charges, are expressly excluded from the definition of “benefits.” This means that ENS nomination costs do not have to be covered by the company.
Regarding the SAF Levy
The SAF Levy is explicitly listed as a cost that must not be passed on to an employee.
For more information and assistance on understanding and complying with these regulations, feel free to contact Crystal Migration at ross@crystalmigration.net or by phone at (02) 9289 2988.