General framework

Legislation

What primary and secondary legislation governs immigration in your jurisdiction?

The Migration Act 1958 (Cth) (the Act) and subordinate Migration Regulations 1994 (Cth) (the Regulations) govern the bulk of law relating to immigration.

The Department of Home Affairs (the Department) also produces its own detailed Procedures Advice Manual to assist delegates. The Migration Series Instructions also provide commentary on specific aspects of the legislation.

International agreements

Has your jurisdiction concluded any international agreements affecting immigration (eg, free trade agreements or free movement accords)?

Australia has entered into the following free trade agreements (FTAs):

  • Australia-New Zealand;
  • Singapore-Australia;
  • Australia-United States;
  • Thailand-Australia;
  • Australia-Chile;
  • ASEAN-Australia-New Zealand:
    • from 1 January 2010, for eight countries: Australia, New Zealand, Brunei, Burma, Malaysia, the Philippines, Singapore and Vietnam;
    • from 12 March 2010, for Thailand
    • from 1 January 2011, for Laos;
    • from 4 January 2011, for Cambodia; and
    • from 10 January 2012, for Indonesia;
  • Malaysia-Australia;
  • Korea-Australia;
  • Japan-Australia;
  • China-Australia; and
  • Comprehensive and Progressive Agreement for Trans-Pacific Partnership.

Australia has concluded negotiations for the following FTAs that are not yet in force:

  • Australia-Hong Kong Free Trade Agreement;
  • Indonesia-Australia Comprehensive Economic Partnership Agreement;
  • Peru-Australia Free Trade Agreement; and
  • Pacific Agreement on Closer Economic Relations Plus, which was signed in Nuku’alofa in Tonga on 14 June 2017 by Australia, New Zealand and eight Pacific Island countries: the Cook Islands, Kiribati, Nauru, Niue, Samoa, Solomon Islands, Tonga and Tuvalu.

The following FTAs are currently under negotiation:

  • Australia-European Union Free Trade Agreement;
  • Australia-Gulf Cooperation Council Free Trade Agreement;
  • Australia-India Comprehensive Economic Cooperation Agreement;
  • Environmental Goods Agreement;
  • Pacific Alliance Free Trade Agreement;
  • Regional Comprehensive Economic Partnership;
  • Trade in Services Agreement; and
  • prospective Australia-United Kingdom Free Trade Agreement.
Regulatory authorities

Which government authorities regulate immigration and what is the extent of their enforcement powers? Can the decisions of these authorities be appealed?

The Administrative Appeals Tribunal (AAT) is able to review the merits of decisions made by the Department. This means they are able to reconsider the facts and reasons for a visa or citizenship application and consider new factual information.

The Federal Circuit Court of Australia (the Court) can also review some decisions made under the Act. These include decisions made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), the AAT and the Immigration Assessment Authority. The Court cannot review the merits of a decision and can only look at jurisdictional errors; it can only consider if a decision has been made according to the law and refer a matter back to a decision maker or prevent the Minister from acting on the decision.

Government policy

In broad terms what is your government’s policy towards business immigration?

Business migration is an essential part of any internationally competitive economy. The Department places high priority on permitting entry to appropriately skilled and qualified professionals to ‘fill the gaps’ and address shortages in Australia’s labour market. Government policy strongly favours granting visas to skilled workers and investors who are able to successfully supplement, not substitute, positions available to Australian citizens.

Short-term transfers

Visas

In what circumstances is a visa necessary for short-term travellers? How are short-term visas obtained?

Regardless of how long travellers intend to stay, a valid Australian visa is necessary. There are three visas that are commonly applied for for short-term business or tourism visits.

Temporary work (short stay specialist) visa subclass 400

This is for people who want to travel to Australia to do short-term, highly specialised, non-ongoing work. It includes multiple streams designed to give flexibility in visa options.

Visitor visa (subclass 600/601)

This visa is commonly referred to as an ETA or ‘e600’ and is for people travelling to Australia as tourists, for business visitor activities, to visit family or those who are on a tour with a registered travel agent from China. The duration of this visa is determined by the Minister for Immigration and Border Protection (the Minister) for a period of up to 12 months and it can be applied for online (see https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/visitor-600). Work rights are not granted with this visa although business visitors may attend conferences, meetings and other similar activities.

eVisitor visa (subclass 651)

This visa is for individuals merely intending to visit Australia for up to three months at a time, as a tourist or to participate in business visitor activities. This visa is only available to certain European nationals and can only be lodged online (see https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/evisitor-651).

Restrictions

What are the main restrictions on a business visitor?

For the short-term subclass 400, most visas are limited to three months, although six months can be granted. The purpose of the visa is for non-ongoing work, so multiple sequential 400 visas are not generally permitted.

‘Business visitor activities’ for a subclass 600 include making general business and employment enquiries, attending conferences, negotiating and reviewing business contracts, and making official government-to-government visits. The visa holder is not permitted to be paid by organisers for his or her participation in and attendance of these activities.

The length of stay depends on what visa the individual holds:

  • subclass 601 allows the visa holder to stay in Australia for up to three months on each visit within a 12-month period from the date of grant, or for the life of the passport if it is less than 12 months;
  • subclass 651 allows the visa holder to stay for up to three months on each visit within a 12-month period from the date of grant; and
  • subclass 600 is to be determined by the Minister.
Short-term training

Is work authorisation or immigration permission needed to give or receive short-term training?

The training and research (research stream) visa (subclass 402), which was previously for persons seeking to observe or participate in Australian research projects at a sponsoring Australian tertiary or research institute, has been closed to new applications since 19 November 2016. Applicants are encouraged to apply for a training visa (subclass 407), which allows visa holders to take part in workplace-based training or participate in professional development training for a period of up to two years.

On the 600 class visa, a ‘no work’ condition is currently enforced on all tourist and sponsored family visas, which means work on the visitor visa (subclass 600) is not permitted, although the visa holder can engage in ‘business visitor activities’. Post 23 March 2013, changes to business visitor visas’ work rights were removed and introduced to the temporary work (short stay specialist) (subclass 400) visa. This visa allows for the applicant to do short-term, highly specialised, non-ongoing work, and in limited circumstances, to participate in an activity or work relating to Australia’s interests. The applicant must be outside Australia when lodging his or her application for this visa, and up until the point that the application is decided (https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-work-400).

Transit

Are transit visas required to travel through your country? How are these obtained? Are they only required for certain nationals?

If an individual seeks to travel through Australia for 72 hours or less, an application is to be made for a transit visa (subclass 771). Transit visas are free of charge, and commonly applied for when an individual (or his or her dependent child travelling on the same passport, or both) needs to travel, via aircraft, through Australia, either on his or her way to another country, or to join a ship as a member of the crew. There is a vast number of nationalities or diplomatic passport holders, however, that are eligible to transit through Australia without applying for a transit visa. Successfully obtaining a transit visa permits an individual to enter and stay within Australia for no more than 72 hours.

Visa waivers and fast-track entry

Are any visa waiver or fast-track entry programmes available?

A priority consideration service exists for eligible passport holders from China, India or the United Arab Emirates who apply for either the tourist or business visitor stream of the visitor visa (subclass 600). To access this priority service, applicants must include this request at the time of application lodgement and in the country of passport.

Long-term transfers

Categories

What are the main work and business permit categories used by companies to transfer skilled staff?

The most common visa programme utilised to transfer skilled staff into Australia is the temporary skill shortage visa (subclass 482), which replaced the subclass 457 visa in March 2018. Businesses that sponsor skilled overseas workers under a subclass 482 visa are able to do so for a temporary period of either two or four years. Subclass 482 visa holders are:

  • eligible to work in Australia for a period of between one day and four years; and
  • entitled to bring any eligible dependants (who may work and study) with them to Australia.

After successful entry into Australia, subclass 482 visa holders have no limit on their ability to travel into and out of the country for the duration of their temporary residency.

Procedures

What are the procedures for obtaining these permissions? At what stage can work begin?

There are three processing stages in approving a subclass 482 visa: sponsorship, nomination and visa application.

To obtain sponsorship, an application is made by the company, which must:

  • be lawfully operating its business;
  • ensure the employment of the nominee will benefit Australia;
  • be able to comply with sponsorship obligations;
  • not be affiliated with any adverse information; and
  • have a strong record of, or commitment to, employing local labour and non-discriminatory employment practices.

In submitting the nomination application, the company must:

  • be the direct employer, or related to the direct employer, of the nominee;
  • ensure the position of the nominee is on the occupation list;
  • ensure the position meets the minimum skills threshold;
  • ensure the base salary meets or exceeds the temporary skilled migration income threshold (TSMIT), which is currently A$53,900;
  • ensure the terms and conditions of employment for the nominee are the equivalent ‘annual market salary rate’ (to that of their Australian counterparts);
  • provide the details of the nominee; and
  • meet the labour market testing (LMT) requirements (unless they are entitled to an exemption).

For nominees to lodge an application, they must:

  • demonstrate they have the requisite skills and experience for the position;
  • provide evidence that they have a vocational English proficiency (if required);
  • provide a skill assessment (if required);
  • undertake a health check (if required); and
  • provide police checks.
Period of stay

What are the general maximum (and minimum) periods of stay granted under the main categories for company transfers?

The maximum length of stay depends on the occupation the employee will be engaged in.

If the occupation is on the Short-term Skilled Occupation List, the maximum period of stay is two years. The visa holder may apply for one additional 482 visa, to take the total stay to four years.

If the occupation is on the Medium and Long-term Strategic Skills List, the 482 visa can be granted for a period of four years.

Processing time

How long does it typically take to process the main categories?

The Department advertises the typical processing time as being:

  • 30 days for 75 per cent of applications and 46-47 days for 90 per cent of applications in the short-term and medium-term streams; and
  • 27 days for 75 per cent of applications and 33 days for 90 per cent of applications in the labour agreement stream.
Staff benefits

Is it necessary to obtain any benefits or facilities for staff to secure a work permit?

It is currently not necessary to obtain benefits or facilities for staff to secure a work permit. However, applicants for those under the 482 programme must provide evidence (under condition 8501) that they have made adequate arrangements for health insurance during their intended period of stay within Australia.

Assessment criteria

Do the immigration authorities follow objective criteria, or do they exercise discretion according to subjective criteria?

There are strict guidelines concerning the granting of visas. There are numerous criteria for businesses and applicants alike to satisfy in order to be granted a visa - specifically those that allow immigrants to work in Australia. A visa will only be granted if all relevant criteria and procedures are met and undertaken, which leaves little room for subjectivity.

High net worth individuals and investors

Is there a special route for high net worth individuals or investors?

The significant investor visa (SIV) is party to the business innovation and investment (subclass 188) and the business innovation and investment (permanent) (subclass 888) stream, and is specifically for high net worth individuals seeking investment migration. Those who hold an SIV have an investment requirement of A$5 million into ‘complying significant investments’ for a minimum of four years. After this is satisfied, an SIV is eligible to apply for a permanent visa.

High net worth individuals who possess entrepreneurial skill or talent are encouraged to apply for a premium investor visa (PIV), which is in the same stream as the SIV. The PIV requires applicants to invest A$15 million into ‘complying investments’ for a 12-month period (minimum) before they become eligible to apply for a permanent visa.

The business talent (permanent) visa (subclass 132) allows high-calibre business owners or part-owners who want to establish a new or develop an existing business in Australia to do so. Genuine applicants must have net assets of at least A$1.5 million. Applicants are generally required to be nominated by a state or territory government agency.

Is there a special route (including fast track) for high net worth individuals for a residence permission route into your jurisdiction?

As noted in question 16, the SIV is an appropriate preliminary route to residency for applicants who meet the investment requirement of A$5 million into a complying investment. Once the four-year threshold is met, the SIV holder may apply for permanent residency. This is similar to the PIV, whereby the applicant must invest A$15 million into complying investments for a minimum of 12 months before he or she is eligible to apply for residency.

Highly skilled individuals

Is there a special route for highly skilled individuals?

The distinguished talent visa is for individuals who have an internationally recognised record of exception and outstanding achievement in a profession, sport, the arts or academia and research. This visa allows the applicant to live permanently in Australia.

Ancestry and descent

Is there a special route for foreign nationals based on ancestry or descent?

The family visa programme provides options for partners or spouses, children and relatives of Australian citizens or permanent residents.

Various temporary and permanent visas are available, including a carer visa for relatives with long-term medical conditions.

Minimum salary

Is there a minimum salary requirement for the main categories for company transfers?

Visa holders under the subclass 482 programme must receive the same remuneration and terms and conditions as an equivalent Australian worker at the same location - known as the ‘annual market salary rate’. This means that a 482 visa holder cannot earn less than A$53,900 (exclusive of superannuation) as per the current TSMIT. If the nominated salary is above the high-income threshold of A$250,000, the equivalent terms and conditions do not apply.

Resident labour market test

Is there a quota system or resident labour market test?

LMT was implemented in 2013 under the Migration Amendment (Temporary Sponsored Visas) Act 2013 and the requirements amended in March 2018. The purpose of LMT is to assure the Australian community that those employed pursuant to the 482 programme are supplements and not substitutes. Schedule 2 of this Act outlines the requirements relevant to LMT, with evidence of LMT to include:

  • information about the approved sponsor’s attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position or any similar position;
  • copies of job advertisements placed four months prior to submitting an application for a 482 visa together with evidence of paying for that advertising; or
  • any other type of evidence determined by the Minister, by legislative instrument.
Shortage occupations

Is there a special route for shortage occupations?

A number of visa schemes exist for applicants with an eligible skilled occupation (ie, one that appears on the Skilled Occupation List). Applicants with the relevant skills and experience may be eligible for any of the following visas:

  • employer nomination scheme (ENS) visa (subclass 186);
  • skilled independent visa (subclass 189) - points-tested stream;
  • skilled nominated visa (subclass 190);
  • training visa (subclass 407);
  • temporary skill shortage visa (subclass 482);
  • temporary graduate visa (subclass 485) - graduate work; and
  • skilled regional (provisional) visa (subclass 489).

A separate Regional Occupation List applies to the regional sponsored migration scheme visa (subclass 187).

Other eligibility requirements

Are there any other main eligibility requirements to qualify for work permission in your jurisdiction?

There is no minimum period of time an employee under the 482 programme must be employed for. All relevant employment details are outlined in the contract of employment, which must comply with the Fair Work Act 2009.

Third-party contractors

What is the process for third-party contractors to obtain work permission?

Presently, there is no process for third-party contractors to obtain work permission under the 482 programme. However, individuals who are employed under the On-Hire Labour Agreement are eligible to be on-hired to unrelated businesses.

Recognition of foreign qualifications

Is an equivalency assessment or recognition of skills and qualifications required to obtain immigration permission?

A skills assessment may be necessary depending on the nationality and nominated occupation of the applicant, and whether there is doubt concerning the applicant’s ability to perform specific skills related to his or her nominated occupation. However, a skills assessment will be necessary when the applicant is required to obtain a licence or registration for his or her nominated occupation, or to be a member of a professional organisation.

Extensions and variations

Short-term to long-term status

Can a short-term visa be converted in-country into longer-term authorisations? If so, what is the process?

Generally, a ‘substantive’ visa is required in order to make a further visa application or extension. The Regulations provide schedules detailing the requirements that must be satisfied for an extension to be approved or a visa to be granted.

Each visa subclass contains criteria that must be met by the applicant and any dependants or family members. If the criteria are met, the applicant and any dependants or family members are granted the visa.

Importantly, some visas can only be applied for offshore, while some can only be applied for while in Australia and some can be applied for either offshore or in Australia, depending on the relevant rules.

Schedule 2 of the Regulations lists the criteria that must be met for the visa to be granted.

However, there are numerous conditions that may bar a short-term visa holder from making a long-term visa application while the person remains onshore. For example, if a tourist visa (subclass 676 visa) holder’s visa was granted subject to condition 8503 of ‘no further stay’ then this condition will preclude the applicant from applying for most visas while still in Australia unless the condition is waived.

While there are some new limitations on employer nominated permanent residence, there may be a pathway to permanent residence from the 482 through the ENS.

Long-term extension

Can long-term immigration permission be extended?

Since 18 April 2017, only occupations on the Medium and Long-term Strategic Skills List are eligible for unlimited extensions.

Occupations on the Short-term Skilled Occupation List are entitled to a 482 with an initial two-year validity plus one onshore renewal. The visa holder will have to depart Australia and make an application from overseas after the end of the second 482. As this has only applied to visas granted since 18 April 2017, it is unclear how the Department will assess these applications, the first of which will not be considered until April 2021.

Once the visa holder ceases employment with the employer, he or she will be expected to depart Australia unless he or she wishes to apply for another visa and is eligible to do so.

Exit and re-entry

What are the rules on and implications of exit and re-entry for work permits?

A subclass 482 visa is granted on the basis that there is no limit on the amount of times the visa holder can travel into and out of Australia provided he or she remains in the employ of the sponsor.

Holiday leave of no more than three months may be permissible if the visa holder departs from Australia. More extensive absences may be in breach of condition 8607.

Permanent residency and citizenship

How can immigrants qualify for permanent residency or citizenship?

Only some subclass 482 visa holders may be sponsored for permanent residency by their employer as per the ENS. Applicants who are not employer sponsors can apply pursuant to the general skilled migration programme if they possess particular skills and experience and an appropriate proficiency in the English language.

A permanent resident of Australia who resides in Australia may apply for Australian citizenship provided that he or she:

  • meets the residence requirements, by having:
    • lived in Australia on a valid Australian visa for four years immediately prior to applying;
    • been a permanent resident for at least one year prior to making an application; and
    • been away from Australia for no more than 12 months in total in the previous four years, including no more than 90 days in total in the previous 12 months;
  • is of good character;
  • has a basic knowledge of English;
  • intends to reside or maintains a close and continuing association with Australia; and
  • has an adequate knowledge of the responsibilities and privileges of Australian citizenship.
End of employment

Must immigration permission be cancelled at the end of employment in your jurisdiction?

The conditions of a subclass 482 visa provide the business sponsor must meet certain sponsorship obligations relating to the visa holder. These obligations include informing the Department of the primary sponsored person’s cessation, or expected cessation, of employment within 28 working days of the 482 visa holder ceasing employment with them. The sponsorship obligations extend to providing the 482 visa holder’s travel costs of leaving Australia.

If the visa holder changes occupations with the sponsor, by promotion or transfer, a new nomination application may be required.

Employee restrictions

Are there any specific restrictions on a holder of employment permission?

Condition 8501 mandates that all 482 visa holders maintain adequate arrangements for health insurance while in Australia. Condition 8607 requires that a primary holder of a subclass 482 visa must:

  • work in the occupation for which he or she was nominated;
  • commence that work within 90 days of arrival in Australia, or within 90 days after the visa was granted if he or she was in Australia when the visa was granted;
  • work for the sponsor, or an associated entity of the sponsor, who nominated the position he or she is working in;
  • not cease employment for a period of more than 90 consecutive days;
  • hold any mandatory licence, registration or membership while performing the occupation and comply with any provisions; and
  • if the visa was granted on or after 1 December 2015, the applicant must:
    • hold the licence, registration or membership within 90 days of arrival in Australia if the visa was granted while he or she was outside Australia, or within 90 days after the visa was granted if he or she was in Australia when the visa was granted;
    • not engage in work that is inconsistent with the licence, registration or membership;
    • notify the Department in writing as soon as practicable if the application for the licence, registration or membership is refused; and
    • notify the Department in writing as soon as practicable if the licence, registration or membership ceases to be in force or is revoked or cancelled.

A new nomination is required if the 482 visa holder changes his or her occupation with the same employer. If the visa holder’s new occupation is inconsistent with the nomination approval, then condition 8607 may be breached and consideration may be given to cancellation of the visa.

If the visa holder intends to change sponsors, the ‘new’ sponsor must be an approved sponsor and must lodge and have approved a new nomination form prior to the visa holder commencing work for them. If this condition is not complied with, the visa may be cancelled.

Dependants

Eligibility

Who qualifies as a dependant?

As per regulation 1.05A of the Regulations, a ‘dependant’ is defined as a person who is dependent on another person if he or she is, or has been for a substantial period immediately before the time of making the visa application, wholly or substantially reliant on the other person for financial support to meet his or her basic needs of food, clothing and shelter.

Regulation 1.03 defines ‘dependent child’ as a child or step-child who has not yet turned 18 years of age, or who is 18 years of age and is still dependent on the applicant as he or she is incapacitated for work.

Conditions and restrictions

Are dependants automatically allowed to work or attend school?

Secondary applicants (generally family members of the primary applicant) are permitted to work within Australia upon grant of the visa. Those who have a dependent relationship with the primary visa holder are also eligible to commit to full-time study within Australia.

Access to social benefits

What social benefits are dependants entitled to?

Pursuant to the Social Security Act 1991, temporary resident visa holders are not permitted to receive any social benefits; however, temporary workers from certain nations are entitled to receive Medicare under a health agreement between their country and Australia.

Other requirements, restrictions and penalties

Criminal convictions

Are prior criminal convictions a barrier to obtaining immigration permission?

As per section 501 of the Act, all applicants who wish to enter or stay in Australia must be assessed against the character requirement. This section grants discretion to the Department or the Minister to reject a visa application for those who fail to satisfy the character requirement. The character requirement, or ‘test’, will subsequently fail if:

  • the applicant has a substantial criminal record;
  • the Minster reasonably suspects the applicant has been, or is, a member of, or associated with, a group or organisation that has been involved in criminal conduct;
  • the applicant has engaged in past or present criminal conduct that indicates he or she is not of good character;
  • the applicant is likely to cause significant risk to the Australian community or a segment of the community;
  • the applicant has been convicted of one or more sexually based offences involving a child; or
  • if the applicant has committed a war crime.

If an applicant is refused a visa on the basis that he or she has failed the character grounds, or had his or her visa cancelled, he or she will be permanently excluded from Australia. However, if the applicant or visa holder is in Australia, he or she will have the right to appeal that decision.

Penalties for non-compliance

What are the penalties for companies and individuals for non-compliance with immigration law? How are these applied in practice?

If a visa holder is found to be in breach of his or her visa conditions, he or she could face visa cancellation and an exclusion period. If a sponsor, or a formerly approved sponsor, fails to satisfy their sponsorship obligations, section 140K of the Act provides that the Minister may take action and impose a civil penalty order. Further, if an individual fails to satisfy the sponsorship obligations within the manner or within the period as prescribed in the Regulations, he or she may face a penalty of A$12,600 for each failure. Sponsors may be barred or their approval may be cancelled under section 140L, commonly if the sponsor has been investigated for a potential breach or has been subject to monitoring. Section 140M permits the Minister to either cancel the approval of person as sponsor for either one or several classes to which the sponsor belongs, to ban the sponsor for a specified period from sponsoring people or to ban the sponsor for a specified period from making future applications for approval as a sponsor.

Language requirements

Are there any minimum language requirements for migrants?

There are different requirements for English proficiency depending on what subclass of visa the applicant is applying for. The subclass 482 visa requires primary applicants to understand a sufficient level of English while they are in Australia. This can be assessed by the Department with one to five of the nominated English language tests (International English Language Testing System (IELTS), Occupational English Test (OET), Test of English as a Foreign Language internet-based test (TOEFL iBT), Pearson Test of English (PTE) Academic test and Cambridge English: Advanced (CAE) test), with the applicant satisfying a minimum score depending on the test being utilised and which list the nominated occupation is listed on. For occupations on the Medium and Long-term Strategic Skills List, the required English proficiency is:

  • IELTS overall band score of at least 5.0 with a score of at least five in each of the test components;
  • OET score of at least ‘B’ in each of the four components;
  • TOEFL iBT total score of at least 35 with a score of at least four for each of the test components of listening and reading, and a score of at least 14 for each of the test components of speaking and writing;
  • PTE Academic overall test score of at least 36 with a score of at least 36 in each of the test components; or
  • CAE overall test score of at least 154 with a score of at least 154 in each of the test components.

For occupations on the Short-term Skilled Occupation List, the required English proficiency is:

  • IELTS overall band score of at least 5.0 with a score of at least 4.5 in each of the test components;
  • OET score of at least ‘B’ in each of the four components;
  • TOEFL iBT total score of at least 35 with a score of at least three for each of the test components of listening and reading, and a score of at least 12 for each of the test components of speaking and writing;
  • PTE Academic overall test score of at least 36 with a score of at least 30 in each of the test components; or
  • CAE overall test score of at least 154 with a score of at least 147 in each of the test components.

A primary applicant may be exempt from satisfying the language requirement if he or she:

  • is a passport holder from Canada, Ireland, New Zealand, the UK or the US;
  • has completed a minimum of five years of full-time study in a secondary or higher education institution where the predominant language of instruction was English;
  • for intercompany transfer, is to be paid a salary that exceeds the English language requirement (of A$94,000) and the grant of the visa is within the interests of Australia, and the applicant currently works for an overseas business that is an associated business; or
  • is nominated for an occupation that will be performed at a diplomatic or consular mission of another country or an office of the authorities of Taiwan located in Australia.
Medical screening

Is medical screening required to obtain immigration permission?

Under section 60 of the Act, if the health or physical or mental condition of a visa applicant is relevant to the grant of a visa, the Minister may require the applicant to have his or her health status examined. Schedule 2 of the Regulations outlines the independent health requirements for each subclass. Schedule 4 of the Regulations, more specifically Regulations 4005 and 4006A, outlines the requirements relevant to the public interest criteria; meaning they are implemented to act as a further barrier to protect the Australian community from public health risks.

A visa applicant, depending on his or her subclass, is required to:

  • complete the health declaration in the visa application form;
  • have a chest X-ray examination, in certain circumstances, if 11 years or older;
  • have a medical examination in certain circumstances;
  • have an HIV test, hepatitis B or C test or other specific test if necessary or in certain circumstances; and
  • undergo other requested tests, as required.

If the health requirements are not satisfied, the application is to be refused under section 65(1) of the Act.

Secondment

Is there a specific procedure for employees on secondment to a client site in your jurisdiction?

There are no special visa categories for employees on secondment, although there are some exemptions to subclass 482 and subclass 400 requirements for intercompany transfers.

Under the 482 programme, sponsored employees are eligible to engage in short-term work on the premises of, or on the tools of, another business in carrying out the work - notably referred to as a ‘business service’. This is only possible if the sponsored employee is doing so in working directly for his or her employer. Under the temporary work (short stay) visa (subclass 400), limited work is able to be undertaken by the visa holder on secondment to a client’s site and in specific circumstances. As noted, this visa is for a three-month period only. However, it is possible to reapply after the three-month term has ceased.

Update and trends

Key developments of the past year

Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?

Key developments of the past year40 Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?

Many prospective applicants have expressed concern about possible legislative and policy changes affecting eligibility and processing times.

For citizenship applications, processing is now taking up to two years, according to media reports. The Morrison government has previously proposed increasing the permanent residency requirement for Australian citizenship to six years from four, and increasing the English language requirement score threshold to at least six in each band for the IELTS exam.