In Short
- ABF investigations target businesses suspected of breaching import/export laws.
- Non-compliance can result in severe penalties, including fines and prosecution.
- It’s crucial to maintain accurate documentation and adhere to customs regulations.
Tips for Businesses
Ensure your business complies with all customs and import/export regulations to avoid Australian Border Force (ABF) investigations. Keep thorough records, regularly review compliance, and seek professional advice if needed. A proactive approach can prevent costly penalties and protect your business’s reputation.
Table of Contents
- What is the Australian Border Force?
- How Will I Know if Business is Under ABF Investigation?
- Steps to Take if Your Business is Being Investigated
- What Can the ABF Do if Your Business Fails the Investigation?
- Register of Sanctioned Sponsors
- Migration Reform To Protect Migrant Workers From Exploitation
- Key Takeaways
- Frequently Asked Questions
As an employer who sponsors or nominates foreign workers, you will have several business obligations that you must comply with. Staying aware of your employment obligations is essential, as your business can face various consequences for breaching them, including being investigated by the Australian Border Force (ABF). This article will outline what actions you can take to mitigate the consequences of an ABF investigation into your business.
What is the Australian Border Force?
The ABF plays a crucial role in managing Australia’s immigration system. As an operationally independent body within the Department of Home Affairs, it is Australia’s frontline border law enforcement agency and customs service. The ABF delivers critical border protection and national security outcomes while facilitating the movement of people and goods across the border. In addition, it is responsible for enforcing Australia’s immigration laws and regulations, with key immigration functions including the following.
Border Management
The ABF is responsible for managing Australia’s borders. This involves managing:
- passenger and cargo movements;
- customs and immigration processing; and
- border protection.
Immigration Enforcement
The ABF enforces Australia’s immigration laws and regulations, including visa and citizenship requirements. Furthermore, it investigates immigration-related crimes such as people smuggling and visa fraud.
Visa Compliance
The ABF ensures that people granted visas to enter Australia comply with their visa conditions. This may include complying with visa work rights and length of stay.
Detection and Prevention of Security Threats
The ABF works closely with other law enforcement agencies to detect and prevent security threats, including:
- terrorism;
- human trafficking; and
- other transnational crimes.
How Will I Know if Business is Under ABF Investigation?
If your business is under investigation by the Australian Border Force (ABF), you may not always be immediately aware. However, some signs may indicate that the ABF is investigating your business. Let us explore these now.
Unannounced Visits From ABF Officers
ABF officers may conduct unannounced visits to your business premises to:
- verify the identity and work rights of employees;
- examine employment records; and
- ensure compliance with immigration laws and regulations.
Requests For Information
The ABF may request information from your business, such as:
- details of your employees;
- records of employment; and
- information about your business operations.
Notices of Non-Compliance
Suppose the ABF finds that your business is not complying with immigration laws and regulations. In that case, it may issue a notice of non-compliance, which can lead to further investigation and penalties.
Reports From Employees or Other Sources
Employees or other individuals may report suspected non-compliance with immigration laws and regulations to the ABF, which can trigger an investigation.
Sponsoring overseas workers as an Australian business is complicated. Let us simplify it for you with this free employer guide.
Steps to Take if Your Business is Being Investigated
Suppose your business is under investigation by the Australian Border Force (ABF). In that case, you must take immediate action to comply with all applicable immigration laws and regulations. Below are steps you can take if your business is under investigation by the ABF.
1. Seek Legal Advice
It is important to seek legal advice as soon as possible if you are under investigation by the ABF. An immigration lawyer can help you understand your rights and obligations and guide you through the investigation process.
2. Cooperate With the Investigation
It is important to cooperate fully with the ABF investigation. This means:
- being proactive in the investigation;
- providing all requested information and documents;
- answering any questions truthfully and to the best of your knowledge; and
- allowing ABF officers to access your premises if necessary.
Not cooperating with inspectors can include:
- hindering them from exercising their powers;
- concealing, or attempting to conceal, information from the inspector; and
- assaulting, intimidating or threatening an inspector.
Non-cooperation is likely to be an aggravating factor in any consequences the ABF imposes on your business.
3. Review Your Business Practices
Conducting ongoing reviews of your business practices will assure you that your business complies with all applicable immigration laws and regulations. This includes ensuring that all employees are legally authorised to work in Australia. Furthermore, you must keep accurate records of their employment and visa status.
This is important because the consequences imposed on your business can be mitigated or aggravated by:
- your processes in place to monitor and comply with sponsorship obligations, including audits and policies;
- your business’ history of failure to satisfy the sponsorship obligations and the frequency of non-compliance;
- your business’ degree of cooperation with the Department’s monitoring activities;
- any previous bars or cancellations for sponsorship by your business; and
- any provisions of false or misleading information.
4. Implement Corrective Actions
If you identify non-compliance by your business or the investigation reveals that your business is not complying with immigration laws and regulations, you should take immediate corrective action. This may include:
- terminating the employment of unauthorised workers;
- implementing new policies and procedures to ensure compliance; and
- cooperating with the ABF to rectify any non-compliance issues.
This is important as the ABF will consider mitigating factors such as:
- your intentions and actions before or during the identification of non-compliance;
- your willingness, speed and ability to rectify issues raised within the business or by the Department; and
- the impact of the failure being minimised through taking corrective action.
What Can the ABF Do if Your Business Fails the Investigation?
If your business fails an investigation by the ABF, it can have severe consequences for you and your business. This is because the ABF has the power to take a range of enforcement actions depending on the severity of the non-compliance and other mitigating and aggravating factors.
Based on the relevant findings, failure of an ABF investigation can result in several potential consequences for the business. These include:
- cancellation of current sponsorships, nominations or visas under the sponsorship; or
- bars imposed on future sponsorships, nominations or visas for specified periods;
- fines ranging from $1,878 to $3,756 for individuals and penalties between $9,390 and $18,780 for businesses;
- civil penalties imposed by the courts and;
- a legally binding agreement between your business and the Department of Home Affairs or ABF, in which you commit to taking specific measures.
Please note that more than one sanction could be imposed on your business.
Cancellation of Visas
If your business is found to be employing workers who do not have valid work rights, the ABF may cancel their visas, which could result in them having to leave Australia. Other consequences include:
- Penalties: The ABF can impose significant fines and penalties for non-compliance with immigration laws and regulations, generally up to $85,000 or more, depending on severity.
- Prosecution: In serious cases of non-compliance, the ABF may refer the matter to the Department of Public Prosecutions (DPP), which can result in criminal charges and potential imprisonment.
- Adverse publicity: Non-compliance with immigration laws and regulations can result in adverse publicity for your business, which can damage your reputation and affect your ability to attract customers and employees.
- Business closure: In extreme cases, the ABF may close your business if it is found to be seriously non-compliant with immigration laws and regulations.
Register of Sanctioned Sponsors
The register of sanctioned sponsors records details of sponsors, by state/territory, who have breached their sponsorship obligations since 18 March 2015. It serves to name the sponsor businesses that breached their obligations publicly.
Migration Reform To Protect Migrant Workers From Exploitation
The Migration Amendment (Strengthening Employer Compliance) Act 2024 established additional employer sanctions that could be applied to an employer in breach of their obligations. An employer who coerces or compels a migrant worker to breach their visa condition commits a criminal offence.
Key Takeaways
Overall, it is important to take any investigation by the ABF seriously and to take immediate action to ensure that your business is complying with all applicable immigration laws and regulations. Seeking legal advice and cooperating fully with the investigation can help you minimise any potential penalties or consequences.
For more information, our experienced immigration lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
ABF officers may conduct unannounced visits to your business premises to verify the identity and work rights of employees, examine employment records, and ensure compliance with immigration laws and regulations. The ABF may request information from your business, such as details of your employees, records of employment, and information about your business operations.
If the ABF finds that your business is not complying with immigration laws and regulations, it may issue a notice of non-compliance, which can lead to further investigation and penalties.
Similarly, employees or other individuals may report suspected non-compliance with immigration laws and regulations to the ABF, which can trigger an investigation.
Immediately seek legal advice from an immigration lawyer. You must cooperate with the investigation. Following this, review your business practices and implement corrective action as soon as possible.
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