There has been an important change to the policy guidelines relating to 400 visas applied for under the Highly Specialised Work stream (the most commonly used stream for a 400 visa).
This stream is designed to facilitate the entry of overseas workers to undertake work that is highly specialised and non-ongoing – likely to be completed within 3 months or less although in some cases up to 6 months can be obtained. This covers workers with highly specialised skills, knowledge or experience that can assist Australian businesses and cannot reasonably be found in the Australian labour market.
The new recently released policy clarifies work that is considered to satisfy the requirement for a 400 visa and the type of evidence that may be required to prove that the skills cannot be found in the Australian labour market.
1. Highly specialised skills relating to overseas technology
Where the applicant is employed by, or has been trained in relation to goods or services developed by, an overseas company that are being introduced to (or are already in use in) Australia the delegate should be satisfied that this specific (proprietary) knowledge is not available in the Australian workforce, or is of limited availability.
Some examples of these cases include:
- an installer or maintainer of recently imported equipment, which requires specific knowledge to install or maintain;
- a skilled mining engineer advising on a particular procedure or product which is not in use in Australia;
- a training professional seeking to enter Australia to support the introduction of new products (for example, newly developed software), concepts or methods (for example, innovative business management techniques) to the Australian workplace or the opening of an international business in Australia; and
- an internal auditor of an international company who may be required to audit an Australian subsidiary against company-specific control standards.
2. Highly specialised and not reasonably available in Australia
The applicant has highly specialised skills that can be found in Australia, but the skill set in the Australian community is extremely limited so as not to be practicably available to the Australian employer.
This generally means that Australian workers with the applicable skill set are already in employment and are not available. The overseas contractor /Australian business will need to satisfy the delegate that efforts have been made to contract available workers in Australia.
3. Other highly specialised skills
The 400 visa is not intended for workers seeking to perform a role that is generic to their profession. Examples of the sort of circumstances that should prompt further enquiry by a delegate are:
- a team of tradespersons being brought to Australia to perform annual shutdown maintenance in an Australian factory;
- a computer programmer being brought to Australia to assist a company to manage tight deadlines or peak workloads; or
- an electrician being brought to Australia to install electrical wiring in a new housing development.
In these cases the level of evidence required to support the application will vary, depending on the proposed work and the risk profile of the applicant.
A statement by the prospective employer may be adequate evidence, but it is very likely that additional evidence may be required to demonstrate that the skills are not available. This could include evidence of labour market testing or statement from a large reputable employment agency, or assessment by a relevant peak industry body or comment from a relevant union – that the employment skills cannot be found within Australia.
Ajuria Lawyers will advise you of what may be needed for any given application.
DISCLAIMER This information is current as of 31 July 2019 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.