Paying for visa sponsorship can result in visa cancellation

migration lawyer melbourne paying for visa sponsorship
Paying for visa sponsorship can result in your visa cancellation

Paying for visa sponsorship can result in your visa cancellation if the Department come to know that you have paid someone to sponsor you for a, for e.g., Subclass 482 visa (click here to learn more about TSS 482 visa) or a Partner visa (click here to learn more about Subclass 820 visa).

The Department has the power under section 116(1AC) to cancel your current visa for paying for visa sponsorship. This is commonly as “Cash for visas”.

Section 116 gives the Department a discretionary power to cancel your visa and subsection (1AC) states that the Minister may cancel a visa (the current visa) if he is satisfied that:

(a) your sponsor has asked for or received a benefit from you or someone else on your behalf in return for sponsoring you for a visa (‘sponsorship-related event’); or

(b) you or someone else on your behalf have offered or provided a benefit to your sponsor for sponsoring you for a visa (‘sponsorship-related event’).

Subsection (1AD) applies to subsection (1AC):

  • whether or not you held the current visa or any previous visa at the time the benefit was asked for, received, offered or provided; and
  • whether or not the sponsorship relates to the current visa or any previous visa that the visa you held; and
  • whether or not the sponsorship (‘sponsorship-related event’) actually happened.

Section 116(1AD) provides that “cash for visas” cancellation ground will exist whether or not you held the current visa or a previous visa at the time the ‘payment for visas” activity happened. At the time the benefit was asked for, received, offered or provided, you may have held a previous visa, or may not yet have applied for, or been granted, a visa.

What section 116(1AD) means is that if you have paid someone to sponsor you for a visa, the Department may cancel your current visa even though it happened long before you were granted your current visa. For e.g., if you paid someone to sponsor you for a Subclass 482 visa, you were granted that visa but you are now holding a Regional Skilled Work Subclass 491 visa (click here to learn more about 491 visa). If the Department now found out that you paid someone to sponsor you for the Subclass 482 visa, it can now cancel your current Subclass 500 visa under section 116(1AC). Section 116(1AD) makes clear that the sponsorship-related event need not relate to the current visa or any previous visa and need not have resulted in the grant of a visa.

Paying for visa sponsorship can result in your visa cancellation because a benefit was asked for or received by, or on behalf of, you in return for the “occurrence of a “sponsored-related event” as define in section 245AQ.

Meaning of ‘benefit’

Paying for visa sponsorship can result in visa cancellation where a ‘benefit’ was paid or was received. Section 245AQ defines ‘benefit’ as:

  • a payment or other valuable consideration; and
  • a deduction of an amount; and
  • any kind of real or personal property; and
  • an advantage; and
  • a service; and
  • a gift.

To illustrate how paying for visa sponsorship can result in visa cancellation, we will use the case of Kang v Minister for Home Affairs [2019] FCA 186.

Kang is a citizen of NZ who entered Australia on a SCV 444 (click here to learn more about Subclass 444 visa). Kang was convicted for fraud and the making of false or misleading statements with the intention to obtain a financial advantage in relation to the operation of a migration business. He was sentenced to imprisonment for 12 months.

Kang, through a company, sought and received payments from visa applicants for the sponsorship of their visa applications. He received a letter from the Department informing him that they had become aware of the nature of his offending which could be used for cancelling his visa under section 116(1AC).

Kang had asked visa applicants to pay up to $50,000 for 1 of his companies to sponsor them for Subclass 457 visa and Subclass 187 visa.

The Department said that the payments by the visa applicants are ‘benefit’ in return for the occurrence of a ‘sponsorship-related event’ as defined in section 245AQ.

Kang was invited to comment and show why ground(s) for cancellation do not exist or give reasons and any supporting evidence for why his visa should not be cancelled.

You should note that the Federal Court does not have jurisdiction under section 476A to hear a decision by the Minister to cancel a visa under section 116(1AC). However, if the Minister did not personally make a decision to cancel your visa under section 116(1AC) then the cancellation decision (by a delegate) is a Part 5-reviewable decision (section 338) by the AAT under section 348.

You should also note that cancellation under section 116(1AC) does not depend on a criminal conviction or sentence or the outcome of your criminal trial. Paying for visa sponsorship can result in your visa cancellation simply on the basis that the Department becoming aware of you paying for someone to sponsor your visa. The information that the Department had become aware of could be from your criminal proceeding at a Court.

Section 116(1AC) or “cash for visas” ground can be used to cancel both permanent and temporary visas irrespective of your whereabouts. This means that your permanent visa can be cancelled if you are in Australia. You should note that section 117(2) applies to section 116(1) where a permanent visa cannot be cancelled if the visa holder is in Australia legally. Section 117(1) allows the Department to cancel a visa under subsection 116(1), (1AA), (1AB) and (1AC) before the visa holder enters Australia or when the visa holder is in immigration clearance (when clearing immigration at the airport or seaport) or when leaving Australia or in Australia.

Paying for visa sponsorship can result in your permanent or temporary visa cancellation.

Paying for visa sponsorship is against the law

It is an offence under section 245AR for a person to ask or to receive a benefit from another person for sponsoring a person for a visa (2 years imprisonment or 360 penalty units, or both: section 245AR(4)). It is also an offence under section 245AS for a person to offer to provide, or provides, a benefit to another person for sponsorship of a visa (240 penalty units). It is do not matter if the sponsorship related event does not occur.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) regarding paying for visa sponsorship can result in your visa cancellation.

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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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