The subclass 400 visa is for skilled workers (such as professionals, managers, technicians and tradespeople) needing to come to Australia for no more than 6 months to carry highly specialised work of a non-ongoing nature.
This can be a valuable tool for businesses and projects who require skilled workers which cannot readily be found in the Australian labour market. But it is critical that the 400 visa be used only as intended and not as a shortcut to speed up the process (or even avoid it) of sponsoring workers under the TSS visa program as this will bring unnecessary and unwanted attention on the business and may even jeopardise the company’s ability to sponsor the workers it needs.
A bit more about the 400 visa
- 400 visas can be processed in as little as a week but on average take between 2 and 3 weeks to process
- The application for a 400 visa is made by an individual and it does not require the applicant to be sponsored or nominated by a company – although it usually requires some letter of support
- The visa is for a maximum stay of 6 months in a year, however, under policy it is expected the normal period of stay would be 3 months or less. The visa can be granted with either a single entry facility or multiple entry
- The visa applicant must be outside of Australia when applying for the visa and when the visa application is decided. The applicant cannot apply for another 400 visa whilst in Australia
- There must be a demonstrated need for the applicant to be in Australia to participate in the event, or engage in the activity or work
- That work must be highly specialised and not ongoing. It is not appropriate to rotate workers through a position using 400 visas
- The proposed work to be undertaken by the visa applicant must not have adverse consequences for the employment, or training opportunities, of Australian citizens or permanent residents
The numbers we are talking about
This visa class has been hugely popular since it was introduced in March 2013. Statistics from 2022 indicate that in a period of 8 months the government granted over 21,000 subclass 400 visas with the most popular sector being in engineering and trades for the infrastructure/construction industry. More recently, we have heard of the visa being used to sponsor cooks and chefs, particularly in regional Australia and that some employers see it as a way to quickly bring in skilled workers with the intention to sponsor them under TSS visas and that this is being monitored by the Department of Home Affairs and possibly the Australian Border Force.
Not ongoing work
The most critical point to remember is that the 400 visa is meant only for work that is ‘not ongoing’. This is defined in the law as work that is likely to be completed within a continuous period of 6 months or less and where the person:
- has not been given an expectation of staying in Australia, for a purpose relating to the work, after the end of that period; and
- has not made arrangements to stay in Australia, for a purpose relating to the work, after the end of that period.
In other words, the government recognises that the work might end up longer than six months (particularly in a project context) – in fact, there is no prohibition on the company then sponsoring the worker under the TSS program if they need to stay in Australia longer – but there can be no plan with the applicant to do this before the applicant comes to Australia.
Adverse consequences for employment and training opportunities of Australians
There is also a requirement that the applicant must not intend to engage in activities that will have adverse consequences for employment or training opportunities, or conditions of employment, for Australian citizens or Australian permanent residents. The Department can look at the salary to be paid to the person while they are in Australia (although in practice they rarely do so), and may even require evidence of labour market testing in some cases if they have a concern that the 400 is being used as cheap labour in roles that should be able to be filled by Australians.
Applications that are subjected to more scrutiny
The Department’s policy identifies the following circumstances as generally requiring closer scrutiny and investigation:
- where work of more than 3 months is being applied for
- when then overseas employer may be seeking to fulfil multiple separate contracts in Australia
- where there are large group applications for a single project
- when workers are being rotated through a position
- when the decision maker is otherwise concerned that the applicant or applicant’s employer is trying to bypass the Australian labour market and/or scrutiny of the TSS 482 visa programme
400 visa users be warned!
Individuals who are found to be applying for a 400 visa in circumstances other than intended may face investigation and even possible visa refusal or cancellation.
Employers who are found to be using the 400 visa to circumvent the TSS process or to use overseas labour where it harms the Australian labour market, could face refusal or cancellation of their sponsorship status. If individuals or employers are found to have pre-planned for the employee to remain in Australia, this could constitute fraud or misleading information and can result even more serious consequences including criminal investigation.
Please always check with your Ajuria team before supporting or employing a 400 visa applicant/holder and never offer any promises to that person in relation to any work or sponsorship beyond the period applied for in the 400 visa.
As always please contact us if you require more information about the 400 visa or how we can otherwise help you.
The post Australian Temporary Work Visas < 6 months – The use and misuse of the Subclass 400 Visa Program first appeared on Ajuria Lawyers – Leaders in Immigration.
