The Subclass 400 Temporary Work (Short Stay Specialist) visa is for skilled workers needing to come to Australia to carry highly specialised work of a non-ongoing nature.

We have been noticing increased scrutiny on 400 visa applications over the last few months, and the Department’s policy has now been updated to reflect how applications will be assessed moving forwards. It is clear that this visa is to be used for three month stays only and applying for periods of stay of up to six months is discouraged as the risk of refusal will be very high.

Most notably:

• The standard maximum stay period on a 400 visa will three months, with six months only available in exceptional circumstances.
• The total stay period across multiple 400 visas within a 12-month period will now be three months, instead of six months.
• Applications will now be scrutinised to ensure the 400 visa program is being used correctly and not to circumvent the subclass 482 TSS visa requirements and/or Australian workplace standards.
• Applicants from countries with significant pay disparity relative to Australia will also be expected to provide additional evidence.

Stay period – 3 months to be norm
The Subclass 400 visa has always provided for a period of stay of up to six months, with the expectation that the usual period of stay would be three months or less.
This will remain the case, however it will now be more difficult than ever to obtain a 400 visa for a six month stay period. Such requests will need to be supported by strong evidence that exceptional/compelling circumstances exist.

Return visits
Previously, individuals could obtain multiple 400 visas within a 12-month period, so long as the total time in Australia did not exceed six months. This will now be limited to three months.
In other words, if an applicant has previously held a Subclass 400 visa in the last 12 months, and has applied for a subsequent Subclass 400 visa, then the decision maker may consider granting the remaining balance of the normal period of stay of three months. For example, if two months is spent in Australia on the first 400 visa, then a second may be approved for a maximum stay of one month.

Increased scrutiny
The Department’s policy identifies the following circumstances, among others, as generally requiring closer scrutiny and investigation (these are just examples):

• A stay period (or cumulative stays) has been requested that exceeds three months in any 12-month period;
• An overseas employer may be seeking to fulfil multiple separate contracts in Australia;
• There are large group applications for a single project;
• Workers are being rotated through a position;
• The work to be performed falls into an occupation classification with a lower skill level.

Such circumstances could be a sign to the Department that:

• A company is attempting to utilise the Subclass 400 program for a low paid substitute workforce;
• The work may have adverse consequences for employment or training opportunities, or conditions of employment, for Australians;
• An overseas employer is seeking to send workers to Australia to fulfil multiple separate contracts in Australia, rather than investing in training opportunities for Australians;
• The work to be carried out does not involve highly specialised skills and knowledge.

Users of the Subclass 400 visa should be aware that if any of the above circumstances exist, or even appear to exist, there will be a very high risk of refusal unless sufficient evidence is provided to the contrary.

Genuine temporary entry
As the 400 visa is for non-ongoing work, applicants must genuinely intend to stay temporarily in Australia. Applicants from countries with a significant pay disparity relative to Australia will face a higher level of scrutiny in this regard.
It is also incredibly important to note that the 400 visa is not intended for subclass 482 TSS visa applicants to enter Australia to undertake ongoing work while their 482 TSS visa is applied for/assessed.

Australia’s interest stream
If the Department is not satisfied that a 400 visa applicant will be carrying out highly skilled and/or non-ongoing work, they must first consider if there are compelling circumstances affecting Australia’s interest before refusing an application.
For example:

• The entry of the person is required to assist in a disaster or emergency;
• Australia’s relationship with a foreign government would be damaged were the person not granted the visa; or
• Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa; and/or
• Australia’s trade or business opportunities would be adversely affected were the person not granted the subclass 400 visa;
• There is an urgent need for a senior executive (e.g. CEO, Chief Financial Officer, Managing Director) of a multinational organisation to travel to Australia at short notice to commence ongoing work, and they have already applied for a TSS 482 visa, and it can be demonstrated that the seniority of the role and nature of the organisation are such that Australia’s interest is likely be affected if the position is left unfilled.

Be warned and prepared for future 400 visa applications
Moving forward, it is important to remember that:

• The 400 visa should only be used for its intended purpose – highly skilled, non-ongoing work. The subclass 482 visa should be used where an individual will be required in Australia for longer than three months.
• The Department can, and will, look into the history of a company’s use of the 400 visa to determine whether the program is being used correctly (e.g. the number of applications, the type of work to be carried out, and the number of applicants who convert to a longer stay visa onshore).
• Where applicable, evidence that the grant of a 400 visa would be in Australia’s interest should be provided with the application as a back-up.

As always please contact us if you require more information about the Subclass 400 visa or how we can otherwise help you.

The post Australian Immigration Update Change of Policy Direction on Subclass 400 Visas first appeared on Ajuria Lawyers – Leaders in Immigration.