Short term Australian work visas – the 400 visa
This publication provides a general outline of the subclass 400 visa. This visa may be used by foreign businesses to send employees to Australia for short-term, non- ongoing work, such as installing or maintaining specialised equipment for customers in Australia.
The Department of Immigration and Border Protection (DIBP) grants many different types of visas that allow for work in Australia. Unlike the 457 visa, the Temporary Work – Short Stay Activity (subclass 400) visa (the 400 visa) is applied for individually and is not an employer sponsored visa. This visa can be granted to applicants who are entering Australia for non-ongoing work, for a maximum period of up to 6 months.
Business visitor visas (including ETA, eVisitor and subclass 600) are often misused by businesses as de facto work visas or as a means of bypassing more stringent visa requirements. The conditions of business visitor visas specifically preclude “undertaking work for, or supplying services to, an organisation or other person based in Australia” or activities that involve the sale of goods or services to the general public.
Individuals wishing to undertake work in Australia should consider a more suitable visa such as the 400 visa (or a 457 visa for long-term engagements)
Overview
The 400 visa is separated into three different ‘streams’. These streams allow applicants to enter Australia to undertake the following:
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Highly specialised work stream: short-term, non-ongoing, highly specialised work;
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Invited participant stream: to participate in one or more cultural or social event(s) at the invitation of an Australian organisation; and
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Australia’s interest stream: discretionary power allowing the visa to be granted where it would be in Australia’s interest.
The 400 visa is for temporary stays only – all applicants must demonstrate that they genuinely intend to enter Australia for the period granted (6 months or less) and to undertake the activity set out in their application.
The Department of Immigration and Border Protection’s ‘service standard’ for processing subclass 400 visa applications ranges from 5 working days up to 1 month.
Highly specialised work
For employees, the most common stream for applying for a 400 visa is the ‘highly specialised work’ stream. This stream allows individuals to apply where they hold highly specialised skills, knowledge or experience that can assist Australian business and cannot reasonably be found in the Australian labour market.
Short-term
The 400 visa is usually granted for stays of up to 3 weeks, but the maximum length is up to 6 months after the first entry. A longer stay will generally only be granted in exceptional circumstances where it is demonstrated that an applicant is required in Australia for for longer than 3 months. Once granted, there is no provision for DIBP to extend a 400 visa in any circumstances.
In certain circumstances, the duration can be extended for up to 6 months. However the DIBP will need to be satisfied that there is a strong business case for doing so with matters such as the nature of the work, the skills of the applicant, remuneration details, the number of Australian employees employed and contractual obligations of the firm being key considerations.
Non-ongoing
A non-ongoing position is usually considered to be one where the duties will be finalised in no longer than 6 months.
Applicants will generally only be approved for one subclass 400 visa in a 12 month period. An application for a new 400 visa (from a current or former 400 visa holder) will be closely scrutinised and only be approved in limited circumstances, such as a delay in the delivery of the project in Australia.
Visa holders may also be subject to a “no further stay” condition, requiring the visa holder to depart Australia in order to lodge any new visa applications.
“Highly specialised”
The applicant must possess specialised skills that are not readily available in the Australian labour market.
Typically, applicants will have skills in an occupation such as Managers, Professionals, Technicians and Trade Workers listed under the Australia and New Zealand Standard Classification of Occupations (ANZSCO).
Highly specialised work may involve skills, knowledge or experience specific to an international company or overseas technology, such as installing imported equipment in Australia, or proprietary knowledge of a specific software or technology.
The 400 visa may be suitable for overseas technicians or employees with specific knowledge of a product, but applicants do not necessarily need to possess unique skills that cannot otherwise be found in Australia.
Skills that are “not reasonably available in Australia” may include instances where the applicable skill set is extremely limited and not practicably available to the Australian employer.
Entertainment industry workers are specifically excluded from applying for this stream.
Other streams
Participating in a cultural or social event
Applicants will be eligible if they have been invited by an organisation to participate in a cultural or social event on a non-ongoing basis.
The host organisation must be lawfully operating in Australian and must have a formal role in preparing and conducting the event.
There are limitations on the applicant receiving remuneration for participating in the event.
Australia’s interest
A 400 visa may be available where applicants can demonstrate that it would be in Australia’s interest.
Examples of people who may be eligible for this stream include:
• Emergency or disaster relief workers; or
• Applicants with the support of a foreign government; or
• Applicants who can contribute a significant benefit to Australia’s business, economic, cultural or other development.
This stream is only available in very exceptional circumstances.
Summary
All applications for 400 visas are assessed individually, and additional requirements may apply for certain passport holders. The amount of information and supporting documents required can vary greatly depending on the circumstances of the applicant.
Hall & Wilcox can assist clients with applications for the 400 visa and advise in relation to the availability of other Australian visa options. Should you or your employees require advice or assistance with Australian immigration requirements, please contact Hall & Wilcox.
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