Since recovering from the relatively mild impact of the global financial crisis, China has broadened its business activities in Australia from primarily sourcing Australian natural resources to becoming an active player in a range of industries.
In mid September 2010 I attended the seventh China International Small and Medium Enterprises Fair (CISMEF) in Guangzhou, China. For the first time, Australia was the cohost country for the show which provided a focused opportunity to promote in China Australian technology, products and services, as well as its way of life and investment environment.
Among the various events that took place at the 10,000 square metre Australian Pavilion in the show, was a workshop hosted by the Australian Trade Commission on the key aspects of starting a business in Australia. This included active discussion about appropriate Australian visas.
The most frequently asked question during my time at the CISMEF and indeed during my stay in China in September was: "We run a business in China and are interested in expanding into Australia, what should we do to send our people to Australia?"
I have therefore outlined the major visa categories relevant to business activities (as the business expands into Australia) ranging from conducting market evaluation to identifying viable investment projects and engaging in long term business activities in Australia.
Exploratory stage: Subclass 456 Short Stay Business visa
A subclass 456 visa enables a Chinese national to visit Australia for business purposes. Nationals of Electronic Travel Authority (ETA) eligible countries may do so on a Business ETA or an eVisitor (Business Stream) visa. Eligible Chinese nationals may be granted a single or multiple travel subclass 456 visa which allows them a stay of up to three months on each entry to Australia. This visa permits the holder to conduct business activities such as attending conferences, business negotiations or exploratory business visits.
A subclass 456 visa is not a work visa and is subject to mandatory condition 8112 which states: The holder must not engage in work in Australia that might otherwise be carried out by an Australian citizen or an Australian permanent resident. Under policy, this normally means the work to be undertaken must be:
- highly specialized in nature and not ongoing (the role itself should not be ongoing for more than six weeks); or
- an emergency or urgent situation (Department of Immigration and Citizenship (DIAC) policy restricts the meaning of "emergency" and examples provided include specialist workers necessary in the event of a natural disaster); or
- in Australia's interest (again, DIAC's policy contemplates that use on this basis would be rare).
Operational stage: Business Sponsorship & Subclass 457 Long Stay Business visa
After the market exploratory stage, if an overseas business decides to establish a presence in Australia and relocate personnel to take charge of the establishment and subsequent management of its Australian business operations, it may apply for the status of a Business Sponsor and sponsor these personnel for a subclass 457 visa through the overseas post of the Department of Immigration & Citizenship DIAC. This also applies also to an overseas business that does not intend to establish a legal entity in Australia but needs to second employees to Australia to help fulfill its contractual obligations to its clients there.
Alternatively, if an overseas business acquires an existing business in Australia, or otherwise establishes an operational Australian business, the existing business may apply for the status of a Business Sponsor to facilitate its overseas employees' applications for a subclass 457 visas through DIAC in Australia Under current Australian immigration legislation, to be approved as a sponsor the overseas company must demonstrate that:
- It does not have business operations in Australia;
- It has a reputable business background; and
- It needs to send employees to Australia to either establish or assist in the establishment of a business operation in Australia with overseas connections or fulfill/assist in fulfilling a contractual obligation.
A business sponsor is subject to a list of sponsorship obligations, which cover matters such as:
- The salary paid to sponsored employees and the nature of the work that they perform;
- Employing a sponsored person only in the occupation nominated;
- The payment of return travel costs, where requested in writing;
- Notifying DIAC of certain events (including the cessation of employment) within 10 working days; and
- Maintaining certain records and producing these to DIAC if requested.
An approved business sponsor can nominate an overseas national to enter for the grant of a subclass 457 visa in respect of only certain roles specified by DIAC on its list of occupations for the grant of a subclass 457 visa. This list generally covers managerial, professional, associate professional and a selection of trade related roles. In addition, the sponsor must satisfy DIAC that the overseas national would receive market rate earnings and employment terms and conditions that would be equal to their Australian counterparts' while working in Australia, and that the overseas national has the qualification and skills to fill the role.
A subclass 457 visa enables a stay of up to four years, and is subject to the following two mandatory conditions:
- Condition 8107, which states the primary subclass 457 visa holder must work for their sponsor and in the occupation they have been nominated for and must not cease employment for more than 28 consecutive days;
- Condition 8501, which requires a subclass 457 visa holder to maintain health insurance arrangements throughout their stay in Australia.
Permanent presence in Australia: Subclass 121/856 Employer Nomination Scheme Permanent Residence visa
After the overseas business has established itself in Australia, it may nominate an overseas national for permanent residence under the Employment Nomination Scheme (ENS) (visa subclass 121 or 856). It is important to note that an overseas business cannot nominate a foreign national for permanent residence in Australia.
The Employer Nomination Scheme enables employers to sponsor skilled workers to fill particular occupations in Australia on a permanent basis. These skilled workers can be recruited from overseas or be existing holders of a qualifying temporary visa in Australia.
In essence, to be successful with its nomination application, the nominating business or employer must be lawfully operating a business in Australia, and the nominated position must provide full-time employment in Australia for at least three years and meet the gazetted minimum salary level.
To be successful in their visa application, among standard health and character requirements, the nominee or employee must satisfy at least one of the following requirements:
- Have worked full-time in Australia in the nominated occupation on a qualifying visa (such as a subclass 457 visa) for the two years immediately before the visa application is made, including at least the last 12 months with the nominating employer;
- Have been nominated to fill a position with a base salary of more than $165 000 per annum (excluding superannuation or allowances); or
- Have had their skills assessed as suitable by the relevant skills assessing authority and, unless exceptional circumstances apply, have at least three years full-time work experience in the occupation before the visa application is lodged.
In addition, the nominee must also:
- Demonstrate that they have the appropriate skills, qualifications and/or experience to fill the nominated position;
- Meet any mandatory licensing, registration or professional membership requirements, if applicable;
- Unless the nominated appointment is exceptional, be under 45 years of age and have vocational English language ability;
- The nominee and all dependent family members (whether migrating or not) must meet health and character requirements.
If the nominating business operates in regional and low population growth areas, it may consider nominating a highly skilled worker for permanent residence under the Regional Sponsored Migration Scheme as well.
Should you have any questions concerning this article, please do not hesitate to contact one of your Fragomen advisors.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.