The changes allow sponsors, visa applicants, visa holders, former visa holders and others to lawfully provide the Secretary with the TFN of certain visa applicants, visa holders and former visa holders
The changes raise questions as to what the Department might do once they have those TFNs, including investigations concerning working rights compliance and tax and sponsorship obligations.
This article discusses Part 3 of the Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018. Our other articles on the new Act discuss only Parts 1 and 2. The entire new Act commences to operate on 13 December 2018.
The intention behind the changes
Paragraph 30 of the explanatory memorandum provides as follows:
Tax file numbers will assist the Department of Immigration and Border Protection to undertake more streamlined, targeted and effective compliance activity. For example, in the context of the employer sponsored skilled migration programme, information obtained from the Australian Taxation Office (ATO) will assist the Department to identify skilled visa sponsors who breach their obligations, including by underpaying visa holders, as well as visa holders who work for more than one employer in breach of their visa conditions.
Part 3 inserts s 506B into the Migration Act as follows:
8 After section 506A
Insert:
Request for tax file numbers
(1) The Secretary may request any of the persons mentioned in subsection (2) to provide the tax file number of a person (the relevant person) who is an applicant for, or holder or former holder of, a visa of a kind (however described) prescribed by the regulations.
…
Part 3 of the Migration Amendment (Enhanced Integrity) Regulations 2018, which also commences on 13 December 2018, prescribes the following visa subclasses under s 506B(1):
Part 3—Tax file numbers
12 At the end of Division 5.6 of Part 5
Add:
(1) For the purposes of subsection 506B(1) of the Act, the following kinds of visas are prescribed:
(a) a Subclass 124 (Distinguished Talent) visa;
(b) a Subclass 132 (Business Talent) visa;
(c) a Subclass 186 (Employer Nomination Scheme) visa;
(d) a Subclass 187 (Regional Sponsored Migration Scheme) visa;
(e) a Subclass 188 (Business Innovation and Investment (Provisional)) visa;
(f) a Subclass 189 (Skilled—Independent) visa;
(g) a Subclass 190 (Skilled—Nominated) visa;
(h) a Subclass 457 (Temporary Work (Skilled)) visa;
(i) a Subclass 476 (Skilled—Recognised Graduate) visa;
(j) a Subclass 482 (Temporary Skill Shortage) visa;
(k) a Subclass 485 (Temporary Graduate) visa;
(l) a Subclass 489 (Skilled—Regional (Provisional)) visa;
(m) a Subclass 858 (Distinguished Talent) visa;
(n) a Subclass 887 (Skilled—Regional) visa;
(o) a Subclass 888 (Business Innovation and Investment (Permanent)) visa;
(p) a Subclass 890 (Business Owner) visa;
(q) a Subclass 891 (Investor) visa;
(r) a Subclass 892 (State/Territory Sponsored Business Owner) visa;
(s) a Subclass 893 (State/Territory Sponsored Investor) visa.
Note: As a result of this regulation, the Secretary may request certain persons to provide tax file numbers of applicants for, or holders or former holders of, the kinds of visas prescribed.
Consequences of non-disclosure to the Department
It is interesting to note that there is no sanction if a person mentioned above refuses to disclose a tax file number following a request from the Secretary. That means that although the change allows for the Secretary to make such a request, non-compliance with it does not seem to carry any consequences. As per paragraphs 34 to 36 of the memorandum:
34. New paragraph 506B(2)(a) allows a request to be made to a visa applicant, visa holder or former holder to provide their own tax file number. Consistent with subsection 7(3) of the Privacy (Tax File Number) Rule 2015 issued under section 17 of the Privacy Act 1988, it is not the intention to require a visa applicant, visa holder or former holder to provide their tax file number.
35. … [The change] does not by itself require the visa applicant, visa holder or former holder to provide their tax file number to the sponsor or nominator.
36. … It is not the intention that a person who receives a request under new subsection 506B(1) be required to obtain the requested tax file number if they do not hold it…
Consequences of disclosure to the Department
New s 506B(3) reads as follows:
A person to whom a request is made under subsection (1) who is lawfully in possession of the tax file number may disclose the tax file number in accordance with the request.
Paragraph 36 of the memorandum starts as follows:
New subsection 506B(3) ensures that a person to whom a request is given under new subsection 506B(1) can lawfully disclose the requested tax file number to the Department if they lawfully hold the tax file number…
The exception to the legislative authorisation of disclosure is where an employer has obtained a tax file number unlawfully.
Consequences of disclosure by the Department
New s 506B(7) allows an officer to disclose a TFN provided under s 506B for purposes prescribed by regulations. Part 3 of the Migration Amendment (Enhanced Integrity) Regulations 2018, which also commences on 13 December 2018, prescribes the following purposes:
12 At the end of Division 5.6 of Part 5
Add:
…
(2) For the purposes of subsection 506B(7) of the Act, a tax file number provided under section 506B may be used, recorded or disclosed by an officer for any of the following purposes:
(a) verifying the identity of persons in relation to whom tax file numbers have been provided;
(b) ensuring compliance with the Act and these regulations by such persons, including compliance with sponsorship obligations and visa conditions;
(c) developing policy relating to visas of a kind prescribed under subregulation (1);
(d) researching, gathering intelligence, or identifying trends or risks, in relation to visas of a kind prescribed under subregulation (1).
Disclaimer: the above is a mere tentative analysis of new legislation and might not reflect how the Department, the AAT or the courts interpret those changes. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.
Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au