Business Immigration in Australia: overview

A Q&A guide to investing in Australia.

This Q&A gives an overview of the key factors affecting business immigration, including information on the jurisdiction's sources of immigration law; relevant government entities; requirements for unsponsored and sponsored immigration; requirements for sponsors; civil and criminal penalties for sponsors; common issues and concerns; dependants; settlement and citizenship; recent trends and proposals for reform.

To compare answers across multiple jurisdictions, visit the Business Immigration Country Q&A tool.

The Q&A is part of the global guide to business immigration. For a full list of jurisdictional Q&As visit www.practicallaw.com/immigration-guide.

Anne O’Donoghue and Leonie Rodger, Immigration Solutions Lawyers
Contents

Relevant governmental entities

1. What are the relevant government entities (agencies, departments, branches, bodies, and so on) relating to immigration in your jurisdiction?

Administration

The Department of Immigration and Border Protection (DIBP) is the entity responsible for ensuring that the immigration of non-citizens into Australia remains within the public interest (section 4, Migration Act 1958). The DIBP administers Australian law and policies in relation to immigration, citizenship and border control. DIBP's functions include:

  • Policy review and change.

  • Visa processing.

  • Decision-making.

The portfolio secretary is the head of the DIBP, who reports directly to the Minister for Immigration and Border Protection (Minister).

Enforcement

The Australian Border Force (ABF) is the body within the DIBP that is responsible for enforcing customs and immigration laws. To exercise this responsibility, ABF conducts field operations aimed at identifying unlawful non-citizens and those working illegally. The ABF also has the power to issue warrants and commission the detention of individuals. The head of the ABF, the commissioner reports to the Minister on operational matters and coordinates with the secretary of the DIBP.

Legislative

See Question 2

Other

The Administrative Appeals Tribunal (AAT) is the single avenue for the independent, merit-based review of administrative decisions by the Australian government (for example, a wide range of visa applications, employer sponsorship applications and other decisions relating to migration and temporary visas).

Applicants in most, but not all, visa categories can appeal the decision to refuse or cancel a visa in the AAT's Migration and Refugee Division. As the AAT is a quasi-judicial body, its decisions are subject to review by the Federal Court of Australia for errors of law.

In the absence of legal error, an individual can ask the Minister to exercise his power to intervene in the public interest if the applicant shows unique or exceptional circumstances (sections 48B, 351 and 417, Migration Act 1958). Examples of unique or exceptional circumstances are:

  • Where removal of the applicant would negatively affect the best interests of a child or cause irreparable harm and continuing hardship to an Australian citizen or Australian family unit.

  • Where an applicant has spent a long time in Australia and is well integrated into the Australian community.

  • Where an applicant would be subject to torture, degrading treatment or death if returned to the country of citizenship or usual residence.

The Minister's power is exercised on a discretionary basis and cannot be compelled.

 

Sources and conflicts of law

Sources of law

2. What are the principal sources of law relating to immigration in your jurisdiction?

Domestic statutes, rules and regulations

The Migration Act 1958 (Cth) (Migration Act) is the primary source of immigration law in Australia and governs the entry into, presence in and departure from Australia of foreign nationals. The Migration Act:

  • Authorises the Minister for Immigration and Border Protection to grant, refuse or cancel a visa.

  • Regulates the provision of immigration advice and assistance from migration agents and lawyers (Part 3, Migration Act).

  • Confers the power to make all regulations that are not inconsistent with the Act, necessary for its implementation (section 504). For example, the Migration Regulations 1994 (Cth) (Migration Regulations) contains provisions relating to visa classes, and the requirements and procedures associated with each available subclass.

Legislative instruments, such as Ministerial Determinations and Directions, provide guidance on the exercise of functions or powers granted under the Migration Act and Migration Regulations.

Australian citizenship is governed by the Australian Citizenship Act 2007 (Cth).

Case law

Case law supplements domestic statutes, rules and regulations and provides clarification where these sources are ambiguous.

International law and international treaties

Australia is a signatory to a number of international treaties that are intended to maintain fairness and the general welfare of foreign nationals when they apply for migration to Australia. In addition, reciprocal arrangements by way of bilateral treaties provide for special visas and rights for certain non-citizens entering Australia.

Australia is party to the following international agreements:

  • The working holiday maker programme (WHM). The WHM allows foreign nationals aged between 18 and 31 from participating nations to stay in Australia for up to 12 months and engage in short-term study and employment. It is comprised of the working holiday (subclass 417) and the work and holiday (subclass 462) visas. Australia currently has reciprocal arrangements with 33 partner countries and regions, which will soon increase to 39 when the work and holiday arrangements signed with China, Greece, Israel, Papua New Guinea, Hungary and Vietnam come into effect. Other countries with which Australia has signed arrangements that are not yet in effect are Greece, Israel and Papua New Guinea. Negotiations are underway for new arrangements with 19. countries.

  • Reciprocal Health Care Agreements (RHCAs) . Some foreign nationals can qualify for limited access to subsidised essential medical treatments while visiting Australia. The Australian government has RHCAs with New Zealand, UK, Republic of Ireland, Sweden, The Netherlands, Finland, Italy, Belgium, Malta, Slovenia and Norway. These agreements are not intended to replace private health insurance for overseas travel. However, an RHCA may suffice as adequate insurance for temporary work (skilled) visa applicants, who must otherwise provide evidence of health insurance before their visa can be granted.

Other sources

The Trans-Tasman Travel Arrangement (that is, an informal agreement which came into effect in 1973) allows the free movement of citizens between Australia and New Zealand. Since Australia has a universal visa requirement, most citizens from New Zealand are granted a special category visa (subclass 444) on arrival in Australia and are permitted to remain indefinitely. The Arrangement does not confer citizenship rights and New Zealand citizens without Australian citizenship cannot work in the Australian Public Service or employment relating to national security.

 

Conflicts of law

3. What potential conflicts (if any) arise between the various sources of law?

The Australian Constitution authorises the federal government to exclusively regulate naturalisation, aliens and immigration (section 51). Therefore, there are no conflicts between state and federal law.

Australia must not act in contravention of its international law and treaty obligations when administering migration law. Court judgments have ruled that the Minister for Immigration and Border Protection must comply with Australia's obligations under international agreements such as the (Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 [270]; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273):

  • Refugee Convention.

  • Convention against Torture.

  • International Covenant on Civil and Political Rights.

  • Convention on the Rights of the Child.

 

Business immigration

Unsponsored business-related immigration

4. What are the primary options available for unsponsored work and investment in your jurisdiction?

Self-employment

The skilled independent visa (subclass 189) is points-based and does not require the applicant to be sponsored by an employer, state or territory government. Once granted, the holder can live and work in Australia as a permanent resident.

To be eligible for this visa, applicants must have:

  • Nominated an occupation listed on the relevant skilled occupation list.

  • Obtained a suitable skills assessment for the nominated occupation.

  • Achieved a pass mark in the points test.

Applicants must also be younger than 50 years of age and have competent English.

There are three stages to the application process for this visa. First, an applicant must submit an expression of interest and wait to be invited through SkillSelect. Once an invitation is received, applicants have 60 days to apply online for the visa. There is a limit to the number of invitations issued through SkillSelect each year. This limit, known as the ''occupation ceiling'', varies according to occupation group on the skilled occupation list and is available on the Department of Immigration and Border Protection website.

Entrepreneurs

Business talent (permanent) visa (subclass 132) . This visa allows applicants to establish a new business or develop an existing business in Australia. It is a permanent visa allowing the holder to travel to and enter Australia for five years from the date of grant. Applicants must submit an expression of interest through SkillSelect in order to be nominated by a state or territory government agency and invited to apply by the Minister for Immigration and Border Protection (Minister). The applicant can be in or outside Australia at the time of making the application.

Applicants must genuinely have a realistic commitment to establish an eligible business or participate in an existing eligible business in Australia. They must also:

  • Have a realistic commitment to maintain a substantial ownership interest in the business.

  • Sustain direct and continuous involvement in its day-to-day management.

  • Influence its overall direction and performance.

High-calibre business owners or part-owners who intend to do business in Australia can apply under the significant business history stream. To apply under this stream, the applicant must have net business and personal assets of at least A$1.5 million and an annual business turnover of at least A$3 million. Unless the proposed business is deemed to be of exceptional economic benefit to Australia, applicants under this stream must be younger than 55 years of age.

Applicants who have sourced at least A$1 million in venture capital funding from a member of the Australian Venture Capital Association Limited to start the commercialisation or development of a high-value business idea in Australia can apply under the venture capital entrepreneur stream.

Business innovation and investment (provisional) visa (subclass 188) . The business innovation stream of this visa is targeted towards applicants who want to own and manage a new or existing business in Australia. It is a temporary visa permitting the holder to travel to, enter and remain in Australia for four years and three months from the date of grant. Applicants must submit an expression of interest through SkillSelect in order to be nominated by a state, territory government agency or Austrade and be invited to apply by the Minister. Applicants can be in or outside Australia at the time of making the application.

Applicants must:

  • Be under 55 years of age.

  • Have an ownership interest in a business with a turnover of at least A$500,000 for two of the past four years.

  • Have net personal and business assets of at least A$800,000.

  • Satisfy a points test assessing general attributes such as English language proficiency, educational qualifications and business experience. Points are also awarded for innovation (Schedule 7A, Migration Regulations 1994 ( Cth)).

Holders can apply for a business innovation and investment (permanent) visa (subclass 888), allowing them to remain in Australia on a permanent basis and continue to own and manage a business in Australia.

Investors

The business innovation and investment (provisional) visa (subclass 188) has three additional streams targeted towards people who want to invest in Australia:

  • Investor stream.

  • Significant investor stream.

  • Premium investor stream.

Applicants for these streams must also submit an expression of interest through SkillSelect in order to be nominated by a state, territory government agency or Austrade and invited to apply by the Minister. Applicants can be in or outside Australia at the time of making the application.

Applicants should note that any income generated from complying investments will be subject to tax under Australian taxation law.

Investor stream. Applicants for the investor stream must be under 55 years of age and intend to make a designated investment of at least A$1.5 million in an Australian state or territory. They must also have a genuine intention to continue to maintain the investment activity in Australia after the original investment has matured. Additionally, the applicant must comply with all of the following:

  • Have had business and personal assets of at least A$2.25 million for the past two fiscal years.

  • Have made an investment in an Australian state or territory bonds prior to grant of the visa.

  • Have three years of work experience managing a business or eligible investments and show a high level of management skill.

  • For at least one of the past five years have:

    • managed a business in which the applicant has held 10% of shares; and

    • managed eligible investments of at least A$1.5 million in value.

Significant investor stream. This stream is for applicants who have made a complying investment of at least A$5 million in the Australian economy and genuinely intend to hold this investment for at least four years. Applicants must have legally acquired, unencumbered net assets of at least A$5 million and demonstrate a genuine and realistic commitment to live in Australia for a total of at least 40 days per year for the duration of the provisional visa. Direct investment in residential real estate is prohibited and indirect investment in residential property through managed funds is strictly limited.

The A$5 million investment must be made in the following proportions:

  • At least A$500,000 in venture capital and growth private equity funds that invest in start-ups and small private companies.

  • At least A$1.5 million in approved managed funds investing in emerging companies listed on the Australian Stock Exchange.

  • A balancing investment of at least A$3 million in managed funds that can invest in a range of assets.

Premium investor stream. Applicants must have made a complying investment of at least A$15 million in the Australian economy and genuinely intend to hold the complying premium investment for the whole of the visa period. Nominations for this stream are made exclusively by Austrade on behalf of the Australian government.

The A$15 million investment must be made in any of the following options:

  • Assets listed on the Australian Securities Exchange.

  • Australian government or semi-government bonds or notes.

  • Corporate bonds or notes issued by an Australian exchange listed entity, or investment grade rated Australian corporate bonds or notes rated by an Australian financial services licensed debt rating agency.

  • Australian proprietary limited companies.

  • Non-residential real property in Australia.

  • Deferred annuities issued by Australian-registered life companies.

  • State or territory government-approved philanthropic contributions.

Business visitors

Individuals seeking to enter Australia for the purpose of undertaking business activities or non-ongoing, highly-specialised work can apply for any of the below visas. Applicants must:

  • Be outside Australia at the time of making the application and giving the decision.

  • Satisfy certain health and character requirements.

  • Have no outstanding debts to the Australian Government.

  • Demonstrate a genuine intention to enter Australia temporarily.

A ''no further stay'' (8503) condition can be attached to a subclass 600 or subclass 400 visa at the discretion of the Minister or delegate, preventing foreign nationals from applying for another temporary or permanent visa to extend their stay in Australia without first departing. One this condition has been attached to a visa, it is difficult to waive.

Visitor visa. The business stream of the visitor visa (subclass 600) permits foreign nationals to participate in business visitor activities, such as:

  • General business or employment enquiries.

  • Investigation, negotiation or review of business contracts.

  • Unpaid participation in conferences, trade fairs or seminars in Australia.

Work of any kind for an organisation or person based in Australia (including the sale of goods or services directly to the Australian public) is strictly prohibited under this visa. The period of validity and entry entitlements of this visa varies according to the nature and length of the activity; although it is typically granted for up to three, six or 12 months. Applicants must be able to show all the following:

  • A relevant business background.

  • A good business reason for travelling to Australia.

  • They have enough money with which to support themselves during their stay in Australia.

Electronic travel authority (ETA). The ETA (subclass 601) also permits foreign nationals to enter Australia for the purpose of participating in the business visitor activities listed above for visitor visas. Work is also strictly prohibited under this visa. Only eligible passports (listed on the Department of Immigration and Border Protection (DIBP) website) can apply. Once granted, holders can enter Australia multiple times up to 12 months from the date of grant and stay in Australia for no more than three months at a time. Applicants must be able to show all the following:

  • A relevant business background.

  • A good business reason for travelling to Australia.

  • They have enough money with which to support themselves during their stay in Australia.

The eVisitor. The eVisitor visa (subclass 651) is the third visa allowing foreign nationals to enter Australia for the purpose of participating in business visitor activities. 36 passports are eligible for this visa (see the list on the DIBP website). Applicants must be outside Australia when the application and the decision are made. Once granted, holders can enter Australia multiple times up to 12 months from the date of grant and stay in Australia for no more than three months at a time. There is no application fee for this visa. Applicants must be able to show all the following:

  • A relevant business background.

  • A good business reason for travelling to Australia.

  • They have enough money with which to support themselves during their stay in Australia.

Temporary (short stay activity) visa. The temporary (short stay activity) visa (subclass 400) is for people who want to undertake short-term, highly-specialised, non-ongoing work in Australia. Once granted, foreign nationals can enter and stay in Australia for a total of three months in a 12-month period, although a total stay of six months may be considered if supported by a strong business case. Applicants must be able to show all the following:

  • They possess specialised skills, knowledge or experience that can assist Australian businesses, but are not reasonably available in the Australian labour market.

  • The intended work is short term and non-ongoing.

 

Sponsored business-related immigration

5. What are the options available for sponsor-based employment in your jurisdiction?

Types of sponsor-based employment visas

Australian work permits are most frequently granted under employer-sponsored visas, which are available in both temporary and permanent forms. The two most common options for businesses to sponsor an overseas worker are the:

  • Temporary work (skilled) visa (subclass 457).

  • Employer nomination scheme (subclass 186).

Temporary work (skilled) visa (subclass 457)

This visa allows Australian companies to nominate foreign workers in skilled occupations for up to four years. The nominated occupation must be on the most recent consolidated sponsored occupation list (CSOL), which the Department of Immigration and Border Protection updates on 1 July each year. Applications can be made onshore or offshore.

Aside from the general requirements outlined below, the following key criteria must also be met:

  • Skills. At the time of application, applicants must demonstrate that they have the requisite skills for the nominated occupation. Particularly in relation to trade and generalist occupations, applicants may be required to show a positive skills assessment from the relevant skill assessment body.

  • English proficiency. Applicants must possess vocational English. This requires an International English language test system (IELTS) score of at least five in each test component, an occupation English test (OET) score of at least B in each component, at least a 36 for the test of English as a foreign language (TOEFL), an overall test score of at least 36 for a Pearson test of English Academic (PTE), or at least 154 for a Cambridge English assessment. Exemptions are available to individuals who satisfy one of the following:

    • their nominated salary exceeds the English Language Salary Exemption Threshold (ELSET), which is currently A$96,400;

    • they have completed at least five years full-time study in a secondary or higher education institution where the language of instruction was English; or

    • they hold passports from Canada, New Zealand, Ireland, the UK or US.

  • Registration and licensing. Registration is mandatory to practise or work in certain occupations. Subclass 457 visa holders must seek to obtain any mandatory registration, licence or membership within 28 days of visa grant. Often, a higher proficiency of English is required in order to qualify for registration.

Employer nomination scheme (subclass 186)

This visa is a permanent residence scheme for skilled workers who are sponsored by an Australian business. It can be applied for either onshore or offshore. Applicants can work under one of the following three streams:

  • Temporary residence transition stream.

  • Direct entry stream.

  • Agreement stream.

The temporary residence transition stream is applicable for foreign workers who have worked under a subclass 457 visa for at least two years and intend to continue working for the same employer under the subclass 186 visa. Applicants with two years under the sponsorship of an associated entity may be considered under this stream. Applicants who do not hold a subclass 457 visa or have not yet reached the two-year threshold can apply under the direct entry stream and applicants who are being sponsored by an employer under a labour agreement or a regional migration agreement can apply under the agreement scheme.

Aside from the general requirements outlined below, the following key criteria must also be met:

  • Age. Applicants must be less than 50 years of age, unless they apply under the agreement stream and the relevant labour agreement allows for the employment of a person over the age of 50. Exemptions are available for:

    • individuals nominated as a senior academic by an Australian university or researcher by an Australian government agency;

    • medical practitioners who have worked in the nominated occupation immediately before applying;

    • applicants who have been working for their nominating employer in their nominated occupation under a subclass 444 or 461 visa for the past two years; or

    • applicants under the temporary residence transition stream who have worked for their nominating employer for at least four years.

  • Skills. Applicants under the temporary residence transition stream will have the relevant skills if they have worked for their nominating employer for at least two years on a subclass 457 visa. A positive skills assessment from a relevant skills assessment body is required for all applicants under the direct entry scheme. If applying under the agreement stream, applicants must have the qualifications and skills stipulated in the applicable labour agreement. Skill exemptions apply only to applicants under the direct entry stream who:

  • have been nominated as a senior academic by an Australian university or researcher by an Australian government agency;

  • have nominated earnings are at least equivalent to the Australian Tax Office top individual income tax rate (A$180,001); or

  • have been working for their nominating employer in their nominated occupation under a subclass 444 or 461 for the past two years.

  • English proficiency. Applicants under the temporary residence transition stream must demonstrate a vocational level of English, the same as that required for a subclass 457 visa. If applying under the direct entry stream, applicants must meet a higher threshold of ''competent'' English. English language requirements are stipulated in the applicable labour agreement for applicants under the agreement stream. To be exempt from the English-language requirement, an applicant must:

  • hold a passport from Canada, New Zealand, Ireland, the UK or US;

  • have nominated earnings that are at least equivalent to the Australian Tax Office top individual income tax rate (A$180,001); or

  • if they apply under the temporary residence transition stream, have completed at least five years full-time study in a secondary or higher education institution where the language of instruction was English.

General requirements

Applicants for both the subclass 457 and subclass 186 visas must satisfy the following character and health requirements (section 501, Migration Act 1958):

  • Applicants must not have received cumulative prison sentences of 12 months or more.

  • Applicants must not have been convicted of escaping from immigration detention.

  • Applicants must not have association with an organisation that the Minister for Immigration and Border Protection reasonably suspects of involvement in criminal conduct.

  • Applicants must not be or reasonably suspected to have been involved in people smuggling or trafficking, genocide, war crimes or other crimes of serious international concern, regardless of any conviction.

  • Applicants must undergo different types of health examinations depending on the type of visa they apply for, the length of their intended stay in Australia and their country of origin. The health requirement is designed to protect the Australian community from public health and safety risks, contain public expenditure on health and community services, and safeguard access to health-care and community services in short supply for Australian citizens.

At the time of application, foreign nationals must provide a police certificate and health statement from their country of origin.

Lengths of leave

A subclass 457 visa allows holders to remain in Australia for a period of not more than four years from the date it is granted. This visa is subject to mandatory condition 8107 requiring holders to work only for their sponsoring employer in the nominated occupation. This work must be commenced within 90 days of arrival. If the employment ceases, visa holders must find a new approved sponsoring employer within 90 days or depart Australia.

A subclass 186 visa is a permanent visa that permits holders to travel to and enter Australia for five years from the date it is granted.

Extensions for each route

Since visas cannot be extended, individuals wishing to remain in Australia must apply for a new visa before their current visa expires. Individuals with a subclass 457 visa can apply for permanent residency under the temporary residence transition stream of subclass visa 186.

 

Requirements for sponsors

6. What are the requirements for becoming a sponsor of employment-based migrants and what are the role and reporting duties of sponsors?

Requirements to become a sponsor

To be an approved business sponsor for a temporary work (skilled) visa (subclass 457), a business in Australia must demonstrate that it is a lawfully operating business and either:

  • Demonstrate that it meets the prescribed training benchmark if it has been trading for more than 12 months.

  • Provide an auditable plan to meet the prescribed training benchmark.

Businesses operating outside Australia need not show that they meet training benchmarks.

To become an approved sponsor under the employer nomination scheme (subclass 186), the following requirements must be fulfilled:

  • The employer's business must actively and lawfully operate in Australia.

  • The nominated position must be available for at least two years on a full-time basis.

  • The nominee's terms and conditions of employment must be comparable to those that would apply to an Australian citizen or Australian permanent resident in a similar position.

  • The Department of Immigration and Border Protection (DIBP) must not be aware of any adverse information relating to the employer.

  • The employer must comply with relevant workplace laws.

If an associated entity seeking to employ the applicant is already an approved sponsor, it is not necessary for the business to be one. In the circumstances, it is the associated entity that will provide the sponsorship. An associated entity is a related body corporate to the principal of the business, where one has significant influence over the other or a qualifying investment, and the operations, resources or affairs or interest from the investment is material to the other entity (sections 50AAA, Corporations Act 2001 ( Cth)).

Role of sponsors

Sponsors under the subclass 457 visa programme must nominate a proposed visa applicant in an occupation listed in the consolidated sponsored occupation list. Occupations of skill level three or lower require sponsors to show evidence that they have conducted labour market testing (that is, the business tested the local labour but were unable to reasonably source the required skills in the local labour market). Skill levels are assessed according to the Australian and New Zealand standard classification of occupations, which divides occupations into five skill levels according to formal education and training, previous experience and on-the-job training. Skill level one requires a bachelor degree or higher qualification, skill level two requires an associate degree, advanced diploma or diploma and skill level three requires a certificate IV.

Formal qualifications for these skill levels can be substituted by at least three to five years of relevant work experience. Sponsors must not pay visa holders market rates that are less than the temporary skilled migration income threshold, which is currently A$53,900.

Reporting duties of sponsors

Sponsors are subject to a number of reporting duties (Regulations 2.78 to 2.87, Migration Regulations 1994), including to:

  • Co-operate with inspectors.

  • Ensure equivalent terms and conditions of employment.

  • Pay travel costs to enable a sponsored person's departure from Australia.

  • If a sponsored person becomes an unlawful non-citizen, pay the costs incurred by the Commonwealth to locate and remove the unlawful non-citizen.

  • Maintain records.

  • Provide records and information to the Minister for Immigration and Border Protection.

  • Provide information to the DIBP when certain events occur.

  • Ensure that the sponsored worker does not work in an occupation other than the approved occupation.

  • Not receive payment from a sponsored person for sponsorship.

Breaches of any of these obligations can incur administrative sanctions, or civil or criminal penalties (sections 140K to 140Q, Migration Act; Regulations 2.89 to 1.13A, 2.89 to 2.92, 2.101, 5.20A, Migration Regulations 1994) (see Question 7).

The DIBP ensures that all sponsors comply with the above obligations for the duration of the sponsorship and up to five years after it ceases being a sponsor. Monitoring is conducted in three main ways:

  • Written requests for information.

  • Site visits with or without notice.

  • Exchanging information with other Commonwealth, state and territory agencies.

 

Civil and criminal penalties for sponsors

7. What are the types of civil and criminal penalties that sponsors may face for non-compliance with the rules?

Civil penalties

Within six years of an alleged offence, the Minister for Immigration and Border Protection can seek an order for the payment of a fine by a sponsor who has breached a civil penalty provision. Since civil penalty provisions are strict liability offences, fault elements of knowledge and recklessness do not apply and evidence does not need to be proven ''beyond a reasonable doubt''.

A statutory defence is available for employers who have taken reasonable steps at reasonable times to verify the visa status and work rights of a foreign national worker. Reasonable steps include conducting an online check of the employee's work rights via the Department of Immigration and Border Protection online search facility (visa entitlement verification online) and inspecting personal documents of workers.

Criminal penalties

A sponsor's failure to comply with obligations can also attract criminal penalty. As well as the physical elements of the offence, for non-aggravated offences, the knowledge or recklessness of the sponsor must be established, beyond a reasonable doubt. Sponsors found guilty of non-aggravated offences can face up to two years' imprisonment if they are unable to show that they have taken reasonable steps at reasonable times to verify the worker's visa status and work rights.

If a sponsor exploits (that is, conduct that causes a foreign national worker to enter into a condition similar to slavery, servitude, forced labour, forced marriage or debt bondage) a foreign national worker, he may be found guilty of an aggravated criminal offence. The same criminal elements and standard of proof are required as for non-aggravated offences. However, aggravated offences are punishable by up to five years' imprisonment and no statutory defence is available.

 

Common issues or concerns for business immigration

8. What common issues or concerns may arise under business immigration in your jurisdiction?

Tax considerations and compliance are common issues for business immigration. Foreign nationals travelling to Australia for business or investment purposes should be mindful of the tax implications that flow from the nature of their activity and their visa conditions. Employment and investment in Australia attracts income tax payable to the Australian government regardless of an individual's citizenship status. It is recommended that businesses seek independent taxation advice.

In June 2014 more than 62,100 non-citizens were reportedly staying in Australia without a valid visa (Department of Immigration and Border Protection, Australia’s Migration Trends 2013-14 (2014) [5.2]). The majority (72%) of these people entered Australia on a visitor visa. Aside from individuals staying in Australia beyond the period permitted by their visa, unlawful work is also an issue. The government relies on ''dob-in'' services, home and workplace raids, data-matching and flagging at immigration checkpoints to detect non-compliance. Once detected, both employees and their sponsors can face significant civil and criminal penalties, as well as administrative sanctions.

 

Dependants

9. What persons qualify as dependants (for example, family members)? What are the general requirements and restrictions for bringing dependants into your jurisdiction for sponsored and unsponsored business-related immigration?

Persons qualifying as dependants

A dependant is someone who is wholly or substantially reliant on the primary applicant for financial support to meet his or her basic needs for food, clothing and shelter or because he or she is incapacitated for work (Regulation 1.05A, Migration Regulations 1994). Persons who may qualify include spouses and de facto partners. Children and step-children also qualify as dependants if they are single and either have (Regulation 1.03, Migration Regulations 1994):

  • Not turned 18.

  • Turned 18 but continue to be reliant on the primary applicant.

General requirements and restrictions

Unsponsored business-related immigration. Dependants must satisfy the same health and character tests applicable to the primary applicant. Additionally, dependants over the age of 18 must demonstrate at least functional English. Those who arrive as secondary visa holders under subclass 132 or 188 visas can work and study in Australia. Dependants arriving with business visitor visa holders cannot work or study in Australia.

Sponsored business-related immigration.

Dependants must satisfy the same health and character tests applicable to the primary applicant. Additionally, those over the age of 18 must demonstrate at least functional English.

Dependants arriving as secondary sponsored-employment visa holders have unrestricted work and study rights in Australia.

 

Settlement and citizenship

10. What is the general time frame and processes for obtaining permanent residence and citizenship in your jurisdiction for sponsored and unsponsored business-related immigration?

General process and time frame for obtaining permanent residence

Unsponsored business-related immigration. The business innovation and investment (provisional) visa (subclass 188) is the first stage before becoming eligible for a business innovation and investment (permanent) visa (subclass 888). Therefore, applicants who have held a subclass 188 visa for at least four years can apply for permanent residency through a subclass 188 visa.

Applicants on a subclass 400 or 600 visa with the ''no further stay'' condition attached will have to depart Australia before applying for a new visa unless they can demonstrate compelling and compassionate circumstances to satisfy the Minister for Immigration and Border Protection that the condition should be waived. Without the condition, individuals who are able to satisfy the criteria can apply for a subclass 188 visa and transition to a permanent (subclass 888) visa after four years.

Alternatively, applicants can apply directly for permanent residence through a business talent (permanent) visa (subclass 132), which is a direct pathway to permanent residency for unsponsored business-related immigration. The projected processing times for all visas under the business innovation and investment programme (subclass 132, 188 and 888) is nine months, regardless of the applicant's country of origin and whether the application is lodged inside or outside Australia.

Sponsored business-related immigration. The employer nomination scheme (subclass 186) is a permanent residence visa programme. The projected processing time for this visa is six months.

Individuals who have held a temporary work (skilled) visa (subclass 457) for at least two years can apply for permanent residence through the temporary residence transition stream of the employer nomination scheme visa (subclass 186). Individuals who have not yet held a subclass 457 visa for two years can apply for permanent residency either under the:

  • Direct entry stream of subclass 186.

  • Agreement stream of subclass 186, if they are sponsored under a labour agreement or a regional migration agreement.

Individuals who have held electronic travel authority visas (subclass 601) and eVisitor visas (subclass 651), or temporary (short stay activity) visas (subclass 400) and visitor visas (subclass 600) without a ''no further stay'' condition attached for over two years, can apply for a subclass 457 visa and transition to a permanent visa via the temporary residence transition stream of a subclass 186 visa. Alternatively, applicants can apply directly for permanent residence through the direct entry stream or agreement stream.

General process and time frame for obtaining citizenship

Foreign nationals can obtain Australian citizenship by conferral, a process governed by the Australian Citizenship Act 2007. To apply for citizenship, a migrant aged over 18 must fulfil all the following conditions:

  • Be a permanent resident.

  • Have been lawfully present in Australia for the four years immediately preceding the application and a permanent resident for 12 months immediately before the application.

  • Be likely to reside or continue to reside in Australia, or maintain a close and continuing association with Australia.

  • Be of good character.

  • Possess a basic knowledge of the English language.

  • Have an adequate knowledge of Australia and the rights and duties associated with Australian citizenship.

Once a foreign national has obtained permanent residence through the processes described above, they may be able to obtain citizenship. The process will take at least four years from the date of entry into Australia under a valid visa if the applicant did not stay in Australia unlawfully and was not absent for more than 12 months in that period. The Department of Immigration and Border Protection indicates that 80% of applications for Australian citizenship are processed within 80 days (time between lodgement and decision).

 

Present climate and future legislation

Present climate and trends

11. What are the recent trends, both political and social, that have impacted your jurisdiction with regard to immigration policy and law?

The focus of Australia's migration programme has changed significantly since 1945. Whereas the original aim was to build the population for defence purposes, attention has shifted to the economy and emphasis is now on temporary and permanent skilled migration to supplement Australia's labour market.

The most commonly used programme for temporary sponsored business-related migration is the temporary work (skilled) visa (subclass 457). The following changes to the visa were introduced in December 2015:

  • Exemption from labour market testing where it would interfere with Australia's trade obligations.

  • The English language requirement was relaxed to accept test results from more recognised English language test providers than were previously accepted.

  • The sponsorship period for start-up businesses operating under a subclass 457 visa has been extended from 12 months to 18 months, and the sponsorship for standard business has been extended to five years from the date of grant.

  • Sponsors have extra time to notify the Department of Immigration and Border Protection of any changes relating to subclass 457 applicants, as notification periods have been extended from 10 to 28 days.

Although no changes to the temporary skilled migration income threshold (TSMIT) have been made since 2013, the Australia government announced a review of TSMIT would be conducted to facilitate the passage of legislation giving effect to the China-Australia Free Trade Agreement, which was ratified in December 2015.

The requirement that all applicants be of good character has been strengthened in recent years. The Migration Amendment (Character and General Visa Cancellation) Act 2014 broadened powers to refuse to grant or cancel a visa on character grounds. The Act:

  • Lowered the threshold for temporary visa cancellations.

  • Strengthened ministerial decision-making powers in relation to general visa cancellation provisions.

  • Introduced mandatory visa cancellation for certain non-citizens who do not pass the character test.

 

Future legislation

12. Are there any anticipated changes in the immigration laws of your jurisdiction?

Domestic legislation

The Minister for Immigration and Border Protection has announced a new entrepreneur visa as part of the National Innovation and Science Agenda, which intends to facilitate the entry into Australia and stay of entrepreneurs with innovative ideas and financial backing from a third party (Minister for Immigration and Border Protection, 2016). This new visa will be introduced in November 2016 and will initially take the form of a temporary visa, with the opportunity to graduate to a permanent visa in the event that the business idea is successful. The exact criteria for this visa are yet to be formulated. The consultation process, inviting feedback on the proposed settings for the visa, began on 18 February 2016 and was closed on 18 March 2016. When the criteria are decided on, Schedule 2 of the Migration Regulations will be amended to bring the visa into operation.

The Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016, currently before the House of Representatives, proposes to amend the Migration Act to give full effect to the Migration Amendment (Character and General Visa Cancellation) Act 2014 in relation to both:

  • Mandatory visa cancellation-related powers.

  • Lawful disclosure of identifying information where non-citizens are suspected of being of character concern.

International issues

Negotiations have recently concluded for the Trans-Pacific Partnership agreement (TPP). One chapter in the text of the agreement contains obligations related to the temporary entry of business persons. Parties to the TPP must implement measures that facilitate the entry and temporary stay of foreign nationals and permanent residents to enable the pursuit of business or investment opportunities. The agreement prescribes that application and processing fees must be reasonable and not unnecessarily delay trade in goods and services or the conduct of investment activities. There are no obligations with respect to citizenship, nationality or permanent residency. Parties are given flexibility to determine commitments in relation to eligible categories of business persons and conditions of entry.

Australia signed the TPP on 4 February 2016 and now has two years to complete the ratification process. The agreement was presented to the Joint Standing Committee on Treaties Inquiry into the Trans-Pacific Partnership Agreement on 22 February 2016.

 

Online resources

Department of Immigration and Border Protection (DIBP)

W www.border.gov.au

Description. Official website of the DIBP. Contains immigration information including visa, citizenship and sponsorship requirements for individuals and travellers, as well as businesses, agents and trade professionals. Details of visa processing times and fee charts are also available on this website.

Department of Foreign Affairs and Trade

W www.dfat.gov.au

Description. Official website of the Department of Foreign Affairs and Trade. Provides general information about the department, Australia's international relations, visas to visit Australia and developments in trade and investment.

Office of the Migration Agents Registration Authority

W www.mara.gov.au

Description. Official website of the industry regulator for Australian migration agent services. Provides general information about the use of registered migration agents, a search engine to locate and contact migration agents and a mechanism through which clients may make complaints about migration agents.

Australian Private Equity & Venture Capital Association Limited (AVCAL)

W www.avcal.com.au

Description. Official website of AVCAL, the national association representing Australian venture capital industry participants. Provides reports, statistics and reports, as well as a list of members relevant to applicants of the venture capital entrepreneur stream under the business talent visa (subclass 132).

Australia.gov.au

W www.australia.gov.au

Description. Entry point for all Australian Commonwealth Government authorised information and services. Provides links to resources pertaining to immigration and visas generally, and frequently asked questions.



Contributor profiles

Anne O'Donoghue, Principal Lawyer, Accredited Specialist in Immigration Law

Immigration Solutions Lawyers Pty Ltd

T +61 (2) 9264 6432
F +61 (2) 9264 6437
E anne@immigrationsolutions.com.au
W www.immigrationsolutions.com.au

Professional qualifications. Australia, Lawyer, Australia, Registered migration agent

Areas of practice. Immigration law.

Languages. English

Professional associations/memberships.

  • American Bar Association.
  • Australian Institute of Company Directors.
  • Immigration and Nationality Commission of the International Bar Association (Vice Chair).
  • Immigration committee UIA (Secretary).
  • Law Society of New South Wales.
  • International Law Section of the LCA (Executive Treasurer).
  • Specialist Accreditation Immigration Law Advisory Committee of the NSW Law Society.
  • Australasian Institute of Judicial Administration.

Publications.

  • Australia, The Corporate Immigration Review (1st, 2nd, 3rd, 4th, 5th and 6th editions).
  • Global Business Immigration Handbook.
  • Annual Global Report, Global Employment Institute International Bar Association.

Leonie Rodger, Legal Researcher

Immigration Solutions Lawyers Pty Ltd

T +61 (2) 9264 6432
F +61 (2) 9264 6437
E leonie@immigrationsolutions.com.au
W www.immigrationsolutions.com.au

Professional qualifications. Macquarie University, BIntStud/LLB (Hons)

Publications.

  • Australia, The Corporate Immigration Review (6th edition).
  • Global Business Immigration Handbook.

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