Employer-sponsored visas, such as the Subclass 482 and Subclass 494, are a critical pathway for Australian businesses to access skilled overseas workers. However, a common misunderstanding arises not only in employment contracts, but also in service agreements between businesses and migration agents.
Some businesses assume that sponsorship or nomination costs can be shifted to the visa applicant through separate arrangements or indirect mechanisms. Under Australian migration law, this is not permitted.
The Legal Position: Obligations Remain with the Sponsor
Under the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth), approved sponsors are subject to strict and enforceable obligations.
These obligations remain solely with the sponsoring employer and cannot be transferred to the visa applicant – whether directly or indirectly.
In particular, Regulation 2.87 of the Migration Regulations prohibits sponsors from recovering or attempting to recover certain costs from visa holders or applicants.
“Indirect Arrangements” Are Still a Risk
Even where there is no direct clause in an employment contract, the Department of Home Affairs may consider the substance of the arrangement, not just its form.
This means that:
- Asking a migration agent to structure fees in a way that shifts costs to the applicant
- Entering into side agreements with the nominee
- Creating informal understandings about reimbursement
may still raise compliance concerns.
Why This Matters for Businesses
Non-compliance with sponsorship obligations can result in serious consequences, including:
- Financial penalties
- Cancellation of sponsorship approval
- Being barred from sponsoring overseas workers
Importantly, liability rests with the sponsor – even where a third party is involved.
Best Practice for Businesses
To ensure compliance, businesses should:
- Ensure all agreements reflect that sponsorship and nomination costs are borne by the employer
- Avoid any direct or indirect cost recovery from visa applicants
- Seek professional advice when entering into service agreements with migration agents
A Note for Migration Agents
Migration agents also play an important role in maintaining compliance. Where requested to include clauses that may facilitate cost recovery from applicants, agents should exercise caution and ensure that agreements align with legislative requirements.
Final Thoughts
Sponsorship obligations under Australian migration law are clear, strict, and non-transferable. Attempting to shift these obligations – whether through employment contracts or service agreements – can expose businesses to significant compliance risks.
Understanding these boundaries is essential to maintaining a lawful and sustainable sponsorship arrangement.