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Australian Immigration Law Update – Subclass 400 Visa – Temporary Work (Short-stay specialist)

by | Nov 14, 2022 | Migration

Does your business or organisation require someone from outside Australia to come to Australia for short-term non-ongoing specialised work?  If so, the Subclass 400 visa may be suitable.

The Subclass 400 visa is for persons with a demonstrated need to undertake short-term, non-ongoing, highly specialised work in Australia or where it is in Australia’s interest.

In general, the visa provides a pathway for workers (such as professionals, managers, technicians and tradespeople) with highly specialised skills, knowledge or experience that can assist Australian business and which cannot reasonably be found in the Australian labour market.

The Subclass 400 visa also provides for the entry to Australia of persons who do not satisfy ‘highly specialised work stream’ where it can be demonstrated there are compelling circumstances affecting Australia’s interest.

Key features

  • The Subclass 400 visa has two eligibility streams:
    1. Highly Specialised Work stream
    2. Australia’s Interest stream
  • The application process for the Subclass 400 visa is single stage; it does not require the applicant to be sponsored or nominated.
  • The visa applicant must be outside of Australia when applying for the and when the visa application is decided.
  • There must be a demonstrated need for the applicant to be in Australia to participate in the event, or engage in the activity or work.
  • Under the ‘highly specialised work stream’, the proposed work to be undertaken by the visa applicant must not have adverse consequences for the employment, or training opportunities, of Australian citizens or permanent residents.
  • The maximum period of stay is six months. However, under policy it is expected the normal period of stay would be 3 months or less.
  • The visa can be granted with either a single entry facility or multiple entry.
  • The period of stay granted commences on the first day the visa holder enters Australia. Where a multiple entry facility has been granted, re-entering Australia does not re-set the period of stay allowed.
  • Visa holders must arrive in Australia within six months after the date the visa is granted, or within a lesser period as decided by the Australian Department of Home Affairs.
  • Members of the applicant’s family unit may make a combined application with the applicant .
  • Members of the applicant’s family unit who are combined applicants of the Subclass 400 application are not permitted to work in Australia.

Option 1 – Highly Specialised Work stream

Migration Regulation 400.221 requires that the applicant will undertake work that is highly specialised.

This stream encapsulates highly specialised skills, knowledge or experience that can assist Australian business and cannot reasonably be found in the Australian labour market.

Typically, applicants align with occupations in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) Major Groups 1 to 3 (Managers, Professionals, Technicians and Trades Workers), but could also include otherwise highly specialised workers who cannot reasonably be sourced in Australia provided all other criteria are satisfied.

Evidence regarding the  highly specialised nature of the proposed work/employment should be submitted with the application, including (for example):

  • statements by the prospective employer and
  • where appropriate, an assessment by the relevant peak industry body; or evidence from a large reputable employment agency; or comment from the relevant union – that the employment skills cannot be found within Australia.

Additionally, if the work is in relation to a project, the following may be requested:

  • statements from the prospective employer providing information about the size and duration of the project
  • the schedule of work to be performed and
  • the number of Australians employed on the project (or future Australian positions the project is expected to generate).

Option 2 – Australia’s Interest Stream

The Australia’s Interest stream is to enable persons who do not satisfy the requirements of the highly specialised work stream to be granted a Subclass 400 visa if there are ‘compelling circumstances affecting Australia’s interest’.

For an applicant to satisfy the requirements of this stream there must be compelling circumstances affecting Australia’s interest that require the applicant’s entry and stay in Australia. The applicant must be going to participate in an event, or engage in an activity or work, that relates directly to those circumstances.

For example:

  • the entry of the person is required to assist in a disaster or emergency or
  • Australia’s relationship with a foreign government would be damaged were the person not granted the visa or
  • Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa or
  • Australia’s trade or business opportunities would be adversely affected were the person not granted the visa.

In addition to the criteria set out above, information and documentation should be submitted with the application which demonstrates that the visa application is a ‘genuine temporary entrant’ to Australia and include evidence that the visa applicant has adequate financial means to support themselves whilst in Australia.  Health and character checks may also be required.

Should you have any questions about these your eligibility for this visa, please don’t hesitate to contact our migration lawyers.

Nevett Ford Lawyers Melbourne
Telephone: +61 3 9614 7111
Email: melbourne@nevettford.com.au
Visit our website: www.nevettford.com.au