On 23 March 2013, the Migration Amendment Regulation 2013 (No. 1) (Cth) commenced, making a number of changes to Australia's temporary visitor visa framework. The amendments included the repeal of a number of visa subclasses, the introduction of 4 new visa subclasses, the amending a number of existing visas and the clarification of the work rights that attach to temporary work visas.
Changes to Visa Subclasses
The changes to Australia's visitor visas were made as part of the Australian Government's continuing efforts, under its Simplification and Deregulation Agenda, to reduce the total number of visa subclasses by 50%. As a result of the amendments, applicants will not longer be able to apply for the following visa subclasses1:
- Business Short Stay (subclass 456);
- Sponsored Business Visitor (subclass 459);
- ETA (Business Entrant – Short Validity) (subclass 977);
- ETA (Business Entrant – Long Validity) (subclass 956);
- ETA (Visitor) (subclass 976); and
- Sponsored Family Visitor (subclass 679).
Persons previously eligible under the old subclasses will be able to apply under one of 3 new visa subclasses (or a 'stream' of such).
The below table summarises, generally, relevant changes to Australia's temporary visa framework:
| New Visa Subclass | Stream | Work Rights? | Superseded Visa Subclass 2 |
|
400 Temporary Work (Short Stay Activity) |
Highly Specialised Work Stream |
Work must:
|
subclass 456 subclass 459 |
| Invited Participant Stream | No |
subclass 456 subclass 459 |
|
| Australia's Interest Stream |
Yes (although the visa is only able to be granted in compelling circumstances affecting Australia's interest) |
subclass 456 subclass 459 |
|
|
600 Visitor |
Tourist Stream | No | Nosubclass 679 |
| Sponsored Family Stream | No | subclass 679 | |
| Business Visitor Stream | 'business visitor activity' only | subclass 456 | |
| Approved Destination Status Stream | No | Provisions of the subclass 676 visa (which previously (which was repealed as part of the amendments) | |
|
601 Electronic Travel Authority |
n/a | 'business visitor activity' only |
subclass 956 subclass 976 subclass 977 |
|
6513 eVisitor |
n/a | 'business visitor activity' only | n/a |
Work Rights: 'highly specialised and non-ongoing' OR 'business visitor activity'?
Holders of the new temporary work visas will be limited to either 'highly specialised and non-ongoing' work or a 'business visitor activity' depending on the subclass visa that they hold.
The concept of 'highly specialised' work is designed to allow Australian businesses to utilise foreign workers for tasks which require skills not available in the Australian labour market. Examples of the type of work which would be considered to be 'highly specialised and non-ongoing' include:
- training Australian workers on equipment or software that a business has recently purchased overseas; or
- installing of equipment/technology new to Australia that requires specialist knowledge.
The 'non-ongoing' component is intended to mean work which is likely to be completed within a continuous period of no more than 3 months.
A 'business visitor activity' has been defined to mean activities including:
- making general business or employment enquiries;
- investigating, negotiating, entering into, or reviewing a business contract; and
- participation in a conference, trade fair or seminar in Australia (unless the person is being paid by an organiser for participation).
What Visa Should I Apply for?
Persons entering Australia for business purposes should firstly considers the nature of their proposed activity. If their proposed activities can reasonably be construed as being:
- 'highly specialised and non-ongoing', then the subclass 400 visa should be considered; and
- a 'business visitor activity', then the subclass 600 visa in the 'Business Visitor Stream', the subclass 601 visa or the subclass 651 visa should be considered; and
Where an activity does not fall within the above framework, the subclass 457 visa should be considered.
Persons who engage in work activities beyond those that are provided for in their visas are in breach of their visa conditions and are liable to penalties including fines and visa cancellation.
Footnotes
1 The amendments also repealed the Medical Treatment (Short Stay) (subclass 675) and Medical Treatment (Long Stay) (subclass 685) visas, replacing them with the new Medical Treatment (subclass 602) visa. These amendments will not be considered in this article.
2 The list of superseded visas has been provided as a guide only and should not be used as a basis upon which to determine the appropriate visa under the new framework.
3 The subclass 651 (eVisitor) visa existed prior to the amendment; however, the work rights attached to the visa have been amended so as to be consistent with other temporary visas.
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.