Category: Immigration Law

400 Temporary Work (Short Stay Specialist) visa

A brief overview of the Subclass 400 Temporary Work (Short Stay Specialist) visa

The Subclass 400 Temporary Work (Short Stay Specialist) visa (‘the specialist visa’) is a type of visa issued by the Australian government that allows individuals to come to Australia for a short period of time to perform a specific type of work.

There are two streams for this visa.

  1. For the highly specialised work stream, it is designed for those who are highly skilled and specialised in their field, and who have been offered a short-term job in Australia.
  2. In terms of Australia’s Interest stream, you must demonstrate that there are compelling circumstances affecting Australia’s interests and the applicant is allowed to and stay in Australia for those compelling circumstances.

To be eligible for the highly specialised work stream of this visa, you must have a valid job offer from an Australian employer for a position that cannot be filled by an Australian citizen or permanent resident. You must also have the skills, qualifications, and experience necessary to perform the work, and you must be able to demonstrate that you are a genuine visitor who will leave Australia at the end of your stay.

The length of stay on this visa can range from three months to six months, depending on the nature of the work and the conditions of the visa. You must also comply with the conditions of the visa, including the requirement to maintain health insurance while in Australia and to only engage in the work specified in your visa application.

One of the benefits of applying for this visa is the short processing time. In general, the specialist visa processing time is much shorter than other work visa subclasses, such as the Subclass 482 and Subclass 494 visa.

Overall, the specialist visa provides a flexible and fast option for individuals who need to come to Australia for a short period of time to perform specialised work urgently.

 

The eligibility criteria for the Subclass 400 Temporary Work (Short Stay Specialist) visa are:

 

  1. Job offer: The applicant must have a job offer for highly skilled work in their field of expertise, and the employer must be an approved sponsor.
  2. Compelling Circumstances: where the application is seeking the visa grant under the compelling circumstances stream, they must demonstrate the existence of compelling circumstances which affect Australia.
  3. Specialisation: The position must be highly skilled, and the skills required for the position must not be available in the Australian labour market.
  4. Financial requirements: The applicant must have adequate means to support themselves or have access to adequate means to support themselves during their intended stay in Australia.
  5. Health and character requirements: The applicant must meet the health and character requirements as specified by the Department of Home Affairs.
  6. English language ability: While there is no formal English language requirement for this visa, the applicant must have sufficient English language ability to undertake the work for which they have been offered a job.

These are the general eligibility criteria for the specialist visa. It is always a good idea to check the most recent information and guidelines from our professional migration legal team. We are keen to assist your visa application to suit your specific circumstances and needs.

Highly Skilled and Specialized Stream

The meaning of highly skilled and specialised in their field.

When an individual is considered “highly skilled and specialised in their field,” it means that they have a high level of expertise, knowledge, and experience in a specific area of work. This level of expertise is usually obtained through years of education, training, and practical experience.

For the specialist visa, being highly skilled and specialised in one’s field means that the individual is recognized as an expert in their field and is in high demand for their specialised skills and knowledge. This is usually demonstrated through factors such as advanced degrees, certifications, and a proven track record of successful work in the field.

The Australian government considers a person to be highly skilled if they have the skills, qualifications, and experience necessary to perform the work specified in their visa application, and if they are able to demonstrate that they are a genuine temporary entrant who will leave Australia at the end of their stay.

In general, being highly skilled and specialised in one’s field is a critical factor in being eligible for a specialist visa and is considered by the government when determining whether to grant a visa.

Examples of Highly Skilled and Specialised Fields

The eligible role is required to be highly skilled and specialised. However, it does not require the role to be technical. It is a common mistake that the Subclass 400 Temporary Work (Short Stay Specialist) visa is only designed for occupations such as engineering roles or tradesmanship. Non-technical roles can be eligible for the specialist visa, if they satisfy the ‘highly skilled and specialised’ criterion. The following are some examples of jobs that satisfy the ‘highly skilled and specialised’ requirements.

  • an installer or maintainer of recently imported equipment, which requires specific knowledge to install or maintain.
  • a skilled mining engineer advising on a particular procedure or product which is not in use in Australia.
  • a training professional seeking to enter Australia to support the introduction of new products (for example, newly developed software), concepts or methods (for example, innovative business management techniques) to the Australian workplace or the opening of an international business in Australia.
  • an internal auditor of an international company who may be required to audit an Australian subsidiary against company-specific control standards.

Whether an applicant satisfies the highly skilled and specialised field requirement will largely depend on the individual circumstances, such as qualifications, licences, registrations, work experiences, nature of the work and many other relevant issues. Please contact our professional migration team to discuss your circumstances before lodging this type of visa.

Jobs that might not satisfy the Highly Skilled and Specialised Requirements

Please note that the Subclass 400 Temporary Work (Short Stay Specialist) visa is not intended for workers who wish to work in a generic profession.  For example:

  •  a team of tradespersons being brought to Australia to perform annual shutdown maintenance in an Australian factory.
  • a computer programmer being brought to Australia to assist a company to manage tight deadlines or peak workloads or
  • an electrician being brought to Australia to install electrical wiring in a new housing development.

Australia’s Interest stream

Australia’s interest stream enables the Department to grant the specialist visa if there are ‘compelling circumstances affecting Australia’s interest’ to applicants who do not satisfy the highly skilled and specialised stream requirement.

Compelling circumstances in the migration policy

In general, compelling circumstances means unusual or special circumstances in its nature. This stream provides the Department a general discretion to grant the specialist visa based on the individual circumstances.

For example:

  • the entry of the a 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.

Please note that the visa grant under this stream is discretional and highly circumstantial. Please contact our professional migration team to discuss your circumstances before lodging your specialist visa application.

Other Criteria which apply to both streams

Demonstrated need to be in Australia.

The specialist visa is designed to allow visa holders to visit Australia to participate in certain events or work. The visa applicant must demonstrate that there is a genuine need for the applicant to visit in person to present in Australia in person to fulfil their obligations.

The Department may have regard to, but are not limited to considering, the following factors:

  • the applicant’s current occupation and skill level (i.e. training and experience), the applicant’s field of study (whether current or recently completed) or area of expertise
  • whether the applicant’s proficiency in English is sufficient to undertake the proposed activity or work and
  • the number of times the applicant has undertaken the same or similar activity or work.

Like the highly skilled and specialised requirement, this requirement is also dependent on many factors of your circumstances. Please contact our professional migration team to discuss your circumstances before lodging this type of visa.

Genuine Temporary Entry

The specialist visa applicant must demonstrate that they genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. The department might consider the following factors:

  1. whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
  2. whether the applicant intends to comply with the conditions to which the Subclass 400 visa would be subject; and
  3. any other relevant matter.

Genuine temporary entry requirement is another important issue for this type of visa application. Please contact our professional migration team to discuss your circumstances before lodging this type of visa.

Adequate means of support

Even though most of the specialist visa applicants will engage in paid work activities in Australia, the specialist visa still requires the applicants to prove that they have adequate financial capacity to support themselves during their stay in Australia.

Concluding remarks

The specialist visa is suitable for visa applicants who wish to work in Australia in highly skilled fields on a non-ongoing basis. It also allows applicants to help Australia in the event of natural disaster or other compelling circumstances. The short processing time is also one of the many benefits that this type of visa can help.

However, it cannot be used for ongoing work or training purposes, where other types of work visas may be more appropriate. Therefore, applicants and their Australian employer must be wary about the purpose and nature of this type of visa before applying. At Legal Point Lawyers, we have a professional migration law team who has years of experience in helping our clients to achieve their goals. Please contact our professional team for the customised assistance regarding specialist visa or any other types of visas.

Mr Tianhao Wu has a very strong background in Australia immigration law, especially in visa applications and AAT appeal applications. He is very experienced in all types of visa applications such as Global Talent Immigration, student visas, tourist visas, parent visas, partner visas, employer sponsored visas, general skilled visas, business skilled visas, bridging visas, other temporary visas, and AAT appeal applications.

 

Please contact Mr Tianhao Wu:

Email: tianhao.wu@legalpointlawyers.com.au

Mobile: 0416 316 188

Applying for a partner visa and the impact of the 20/21 Federal Budget

A partner visa is one of the most important type of visas because it affects a substantial number of families. This visa allows a foreigner to stay in Australia so that he or she can be united with his or her Australian partner. Following the Australian federal budget 2020-21, several changes are made to the partner visa scheme with significant implications. In this article, we will take a brief look at such changes and their impact on partner visas.

Requirements

The visa applicant must be ‘sponsored’ by his or her partner who is an Australian citizen, Australian permanent resident, or a New Zealand citizen who satisfies specific criteria. The visa applicant’s partner must first apply to and be approved by the immigration authority to be a sponsor.

The visa applicant’s partner must be visa applicant’s ‘spouse’ or ‘de facto partner’. In either case, they must be committed to each other in a shared life to the exclusion of others. Moreover, they must live together or not be separated permanently. For a de facto partnership to be recognised, it must have lasted for at least 12 months.

To be granted a partner visa, the partnership must be proved as genuine and continuing. All circumstances of the partnership must be considered by the immigration authority, including four essential aspects, namely financial aspect, nature of household, social aspect and nature of commitment to each other.

Application process

There are permanent and temporary partner visas: a permanent visa grants permanent residency in Australia, while a temporary partner visa allows the applicant to stay in Australia before the permanent visa is granted. The applicant must apply for a temporary visa and a permanent visa at the same time. Assessment of the permanent visa application will normally start two years after its lodgment.

Partner visas can be applied for either in Australia (on-shore) or outside Australia (off-shore). An interesting fact is that an offshore applicant can apply for a prospective marriage visa to come to Australia to marry his or her Australian partner. After the marriage, the applicant can apply for onshore partner visas.

CHANGES FOLLOWING FEDERAL BUDGET 2020-21

The Australian Federal Budget 2020-21 has brought significant changes to the partner visa scheme including:

  1. more visa places allocated to partner visas;
  2. priority to regional residents;
  3. mandatory character check for sponsors; and
  4. English requirements.

More visa places

In the 2020-21 visa program year (starting from 1 July 2020), the Australian Government has planned to grant 72,300 partner visas, compared to 39,799 in the 2019-20 program year.

Priority to regional sponsors

Partner visa applications will be given priority in the application process if the sponsor lives in ‘designated regional area’ such as Perth, Adelaide, the Gold Coast and Canberra. In other words, applicants with a regional sponsor might obtain permanent residency faster.

Sponsor’s character check and obligations

The sponsor applicant must provide the immigration authority with a police check. Moreover, the sponsor applicant must consent to the immigration authority disclosing his or her criminal records to the visa applicant.

The sponsor is obliged to provide the visa applicant and his or her children with accommodation and financial assistance 2 years after the temporary partner visa is granted, even when the permanent visa is granted before the 2 years expiry. The visa may be cancelled if the sponsor fails to perform his or her obligations.

English requirement

Both the partner visa applicant and the sponsor are required to have ‘functional English’ by the time the permanent partner visa is granted. They must at least demonstrate that they have made reasonable efforts to learn English. Such efforts may be demonstrated by, for example completing 500 hours of free English language classes through the Adult Migration English Program.

Conclusion

Applying for a partner visa is a long process and has a handful of requirements. This year, the Australian Government has created more opportunities for partner visa applicants and tightened the requirements for sponsors. At Legal Point Lawyers, we can help you with your application and offer a service that is smooth and efficient.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Case summary: Hua v Minister for Home Affairs [2019] FCAFC 158

Facts:

Van Phat Hua, the Appellant, a Vietnamese national, had an extensive criminal record dating back 30 years including drugs and violent crime offenses for which he was convicted multiple times, including armed robbery, cannabis cultivation, heroin trafficking, arson and assault. On 30 July 2014, he was convicted of arson, reckless conduct endangering life, making threats to kill, recklessly causing injury, intentionally destroying property, theft, and cultivation of cannabis. This resulted ultimately in a 3 and a half-year custodial (jail) sentence.

The Appellant’s temporary visa was subsequently automatically cancelled on 4 January 2016 pursuant to s 501CA of the Migration Act 1958 (Cth) . The Appellant made submissions to the Minister to revoke the mandatory cancellation. Among the documents submitted to the Minister in the course of the Minister’s decision were:

  • a Statutory Declaration submitted by the Appellant concerning his remorse at his actions (This Statutory Declaration was submitted in relation to a further incident for which the Minister invited submissions, where the Appellant got in a fight with another prisoner); and
  • The Appellant’s submissions in relation to the prison incident also included a letter from his assigned prison officer (‘the Leggett Letter’).

The Minister issued a decision not to revoke the mandatory cancellation on grounds that the Appellant’s threat to the community, having regard to all the facts, outweighed the counter- considerations of his ties to the community, the evidence of his wife (whom the Appellant had abused) that he had reformed, the needs of his disabled child, and his own expressions of remorse. Part of the Minister’s reasons mentioned that the Appellant did not make ‘direct expressions of remorse’ to the Minister.

The Appellant attempted to have the failure of the Minister to revoke the mandatory cancellation of his visa judicially reviewed on the grounds that the Minister had not considered the Statutory Declaration and the Leggett Letter, and that this failure to consider that evidence amounted to jurisdictional error.

The primary judge concluded that it was not made out that the Minister had no regard for the Statutory Declaration. The Primary judge also found that even if the Statutory Declaration was overlooked, it was not material. A similar conclusion was reached in respect of the Leggett Letter: the better explanation for the failure of mention was not a failure of consideration, but even if it was, there was no jurisdictional error.

This matter was appealed to the Federal Court of Australia, and further review was sought on the basis that the Primary Judge erred in regarding the Statutory Declaration and the Leggett Letter as not significant in the circumstances of the case.

Held by the Judge:

The failure of the Minister to consider the particular evidence of the Statutory declaration was found to be not material, as the underlying issue was whether the Appellant was remorseful, and even stronger evidence than the statutory declaration, namely the testimony by the Appellant’s wife, was considered, and the remorse was implicitly accepted in the Minister’s reasons. Moreover, the Appellant’s remorse was implicitly granted, and as just one factor in a multi-factor assessment of whether to revoke the visa cancellation, and unlikely to change the Minister’s decision in any event. This was sufficient for the judge to find that the Statutory Declaration was not material. The risk to the Australian Community was an overriding concern in the Minister’s decision, and would have overridden even good evidence of the Applicant’s remorse.

The Minister was held to have had due regard to the Leggett Letter implicitly, as part of the evidence for the Appellant’s behaviour in custody.

The appeal was dismissed with costs.

An important lesson to draw from these proceedings is that visa cancellations, especially for weighty considerations like threat to the Australian public, are difficult to appeal on technical points, because any point significant enough to invite judicial review as jurisdictional error must be capable of producing another result that what was actually decided.

Law Applied

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 at 263, [45].- helped to find that ‘A breach is material to a decision only if compliance could realistically have resulted in a different decision.’

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Immigration Limit At 10-year Low; New Regional Pathways To Permanent Residency

The Australian Department of Home Affairs have released the latest figures and reports on permanent residency visas granted under Australia’s skilled migration programme. All potential applicants to Australia should pay heed to the trends we summarise below:

The Australian immigration System

The Australian immigration system divides applicants into various ‘streams’- the ‘Skill’ Stream focuses on applicants with particular skills, but there is also the ‘Family’ stream and the ‘Child’ stream, which are more relevant to family immigration. The ‘Skill’ stream is the largest stream, accounting for 68.4 percent of the total Migration Programme outcome.

Most Frequently Granted Countries

People from India, China and the United Kingdom made up the top three nationalities granted permanent residency visas in the skill stream between 2017 and 2018. In this period, a total of 162,417 permanent residency visas were granted.

Most Frequently Granted Professions

The professions most frequently granted permanent residency visas in the period between 2017-2018 are as follows, in order of most numerous to least.

  • Accountants
  • Software Engineer
  • Registered Nurses
  • Developer Programmer
  • Cook

Immigration is getting tougher

However, the immigration environment in general is getting tougher, as new statistics for the 2018-2019 period reveal fewer permanent residencies were granted in the 2018-2019 period under the Permanent Migration Program (160,323 visas out of a ceiling of 190,000) than at any time in the last 10 years. In turn, migration for the 2019-2020 period has been capped at 160,000 places. Going forward permanent residency visa applications in the skill stream seem like they will be more more competitive than ever.

The Australian Government’s regional focus

Migration to regional Australia remains a priority for the Australian government. According to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, David Coleman,

“We’re also dedicating 23,000 places for regional skilled migrants and have announced two new regional visas to help fill some of the tens of thousands of job vacancies in regional Australia.

“We’re directing migration to those smaller cities and regional areas that are crying out for more people and those regional economies that simply cannot fill jobs with local workers.”

The Australian Government’s focus on regional migration is emphasised by the introduction of new visas focused on regional migration.

The Skilled Employer-Sponsored Regional (Provisional) visa will be for skilled migrants sponsored by an a regional employer while the Skilled Work Regional (Provisional) visa will cover migrants nominated by a State or Territory government or sponsored by an eligible family member.

The visas will be for a period of five years, with the possibility to apply for Permanent Residency only after living in the region for three years.

Applicants for permanent residency in Australia would do well to consider whether regional migration is right for them, if they want to improve their chances of a successful immigration application.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.