Entry, work and residence entitlements are governed by the Migration Act and Regulations (Migration Legislation) and administered by the Department of Home Affairs (Home Affairs).
All non-Australian passport holders must hold a valid visa in order to enter Australia and, to work in Australia, that visa must contain work rights entitlements.
The Australian visa program contains a large number of visas, most of which are either temporary residence (allowing stays of a limited duration and purpose) or permanent residence (which give the holder the unlimited right to live and work in Australia). There is a wide variety of visas available, including employer sponsored visas, independent skilled visas, family visas and business skills visas. Eligibility depends on individual circumstances, skills, background and experience and, given the potential cost (both financial and in terms of time and opportunity) of getting an application wrong, it is important that applicants and their family and business sponsors understand the eligibility, documentation and procedural requirements in detail before submitting an application.
The Migration Legislation makes a distinction between ‘work’ and ‘business’ activities. Care must be taken to ascertain which activities are being undertaken so the correct visa can be obtained.
Home Affairs policy contains detailed guidance on what activities comprise ‘business activities’ however in general terms, it includes:
Short-term work is permitted in limited circumstances where the work is highly specialised in nature or required due to an emergency, and is non-ongoing. The appropriate visa for these situations is the Temporary Short Stay Specialist (Subclass 400) visa.
Under Home Affairs, policy ‘non-ongoing’ means a position that needs to be filled on a short term basis, not exceeding three months, or a maximum of six months in very limited circumstances.
The Temporary Skill Shortage (Subclass 482) visa (TSS) visa is the primary visa program available to and used by businesses to sponsor overseas employees to work in Australia on a temporary basis. It is available to organisations already established in Australia as well as organisations based outside of Australia that want to either establish operations in Australia for the first time, or fulfil contractual obligations in Australia.
The TSS visa is a sponsored visa. This means that the organisation wishing to hire an overseas worker must be approved as a business sponsor by the Home Affairs before the organisation can sponsor that person for a TSS work visa.
Step 1 (Sponsorship Application): The employer applies for approval as a business sponsor.
Step 2 (Nomination Application): The employer nominates the position to be filled.
Step 3 (Visa Application): The prospective employee applies for the Subclass 482 visa.
The TSS visa has a short term stream (visa granted for up to 2 years) and a medium term stream (visa granted for up to 4 years). In order to qualify for the TSS, the role needing to be filled must appear as an occupation on the Combined List of Skilled Occupations and must be advertised in a prescribed way before the application can be lodged. The applicant must have a minimum of two years of relevant work experience, the skills to fulfil the role and meet the English language, health and character requirements. The Australian Government is regularly reviewing the visa programs, requirements and conditions. The Australian Government website should be checked for updates.
This is an increasingly complex and important aspect of the Australian immigration system. Underpinning immigration compliance is the premise that non Australian citizens can only work in Australia if they have a visa containing appropriate work rights.
Similarly, the Employer Sanctions provisions of the Migration Legislation provide that employers may only employ workers with the right to work in Australia on their visa. The provisions impose strict liability, and employers who inadvertently employ a foreign worker without appropriate work rights will automatically be liable for an offence under the civil liability provisions of the Act unless they can show that they took certain prescribed steps (including conducting work rights checks).
Home Affairs’ published service standard for processing TSS sponsorship, nomination and visa applications varies and can be anywhere from 5 days (for 'accredited sponsors') to 11 months for very complex applications. Processing times vary according to demand and the complexity of the application, so it is important for employers to plan ahead to factor application preparation and processing times into the hiring process.
Employer nominated migration under the Employer Nomination Scheme (Subclass 186) and Regional Sponsored Migration Scheme (Subclass 187) enables businesses to nominate highly skilled workers for permanent residence from overseas, or in Australia on temporary visas. It requires evidence of at least a two year contract with the nominating employer from grant of the permanent residence, but the visa holder becomes a permanent resident and can effectively remain in Australia indefinitely. No sponsorship obligations are imposed on the employer pursuant to this visa scheme.