Slide presentation from the Immigration Law Conference 2019 in Canberra. Author: Department of Home Affairs

1. Temporary Work (Short Stay Specialist) visa (subclass 400)
Temporary Skill Shortage visa (subclass 482)

2. What is this visa for?
This visa allows holders to travel to Australia to:
• do short-term, highly specialised, non-ongoing work
Making an application
 Applicants must be outside of Australia when applying for this visa
and when the application is decided.
 Unsponsored, but a letter of invitation or offer of employment from an
Australian proposer is generally required - showing details of the
position, the duration of the work, the person’s role or duties and the
reason they are required.
Temporary Work (Short Stay Specialist) visa
(subclass 400)

3. Highly Specialised Work stream
Key regulations:
 Demonstrated need for the applicant to be in Australia to undertake
the work; and relevant employment background or skills.
 Highly Specialised Work: Highly specialised skills, knowledge or
experience (proprietary knowledge) that can assist Australian
business and cannot reasonably be found in the Australian labour
market. ANZSCO Major Groups 1 to 3 (Managers, Professionals,
Technicians and Tradepersons).
 Short term, ‘non-ongoing’ work: The applicant's engagement in the
work must be ‘non-ongoing’ - work is likely to be completed within six
months or less and that the applicant has not made arrangements or
been given an expectation of staying in Australia after the visa
ceases.
(continued…)

4. No adverse impact considerations:
 Evidence that the applicant’s employment
conditions satisfy Australian workplace standards
(i.e. Award or TSMIT).
 The nature, size and duration.
 The number of Australians being employed on the project and/or by
the business.
 Whether there are contractual obligations relating to the
installation/servicing of a piece of equipment.
 Whether there are key aspects to the skill set required that the
employer is unable to access in the Australian labour market
(e.g. evidence from an employment agency of a shortage of similarly
qualified persons in Australia).
 If the applicant's proposed employer has tried to hire an Australian to
do the proposed work (e.g. evidence of job search).

5. Period of stay and validity
 Validity - a maximum of six months is allowed in which
to first enter Australia before the visa expires
(a lessor period can be decided by the delegate).
 Stay Period - The legislated maximum stay period is
six months. Under policy:
• the stay period allowed is generally up to 3 months (up to 6 months in
limited circumstances and supported by a strong business case).
• the total stay period (including intermittent return visits) in any
12 month period should generally be 3 months or less.
 The stay period commences on the date the visa holder first enters
Australia and does not reset upon each entry.

6. Processing Centres
 Visa applications may be processed by any of our overseas offices.
 Requests for priority processing of visa applications must be directed
through online service channels and the Global Service Centre.
 Ultimately, it is the responsibility of applicants or Registered Migration
Agents to ensure they lodge applications (with all necessary
documentation) and allow sufficient time for the visa processing to be
completed.

7. Business Visitor to TSS visa

8. 8107 visa condition
 Visa holders must continue to work in the position and be
employed by the employer in relation to which the visa was
granted.
 Visa holders are subject to Condition 8107(1), which stipulates visa
holders must not:
 cease to be employed by the employer in relation to which the visa
was granted; or
 work in a position or occupation inconsistent with the position or
occupation in relation to which the visa was granted; or
 engage in work for another person or on the visa holder’s own
account while undertaking employment in relation to which the visa
was granted.

9. Key concerns
 Engage foreign overseas labour - to reduce costs by
circumventing Australian award wages and workplace
standards. Occupations outside ANZSCO Major Groups 1 to 3.
 Bypass the scrutiny and more stringent sponsorship requirements,
including labour market testing, of the Temporary Skill Shortage
(subclass 482) visa.
 Large numbers of foreign workers undertaking the same role.
 Group applications - increasing requests for 6 months stays.
 Lack of evidence of applicants not been paid in accordance
with Australian workplace standards.
 Rotation of workers through ongoing positions.
 Evidence of longer term strategies to train Australian workers.
 Discrepancy between Australian workers and foreign workers
experience/skills.

10. • Since the subclass was created in 2013:
– The majority of stays are granted for three months or less
• Current global processing times:
– 75% of applications – 20 days
– 90% of applications – 23 days
(as at 28 February 2019)
10
Subclass 400 – Key statistics
Note 1: The Invited Participant stream was removed from 19 November 2016.
Subclass 400 2016-17 2017-18 2018-19 to
31/01/2019
Lodgements 51,0081 47,694
27,496
(pro-rata 47,136)

11.  Invited for other Social and Cultural Activity
 Domestic workers for foreign senior executives
 Entertainment
 Religious work
 Research
 Staff exchange
 Special Program
 Sport
 Superyacht
 Australian Government Endorsed Events (AGEE)
11
Temporary Activity visa
(subclass 408)

12. 12
International Relations visa
(subclass 403)
 Government Agreement
 Foreign Government Agency
 Privileges and Immunities
 Seasonal Worker Program
 Pacific Labour Scheme
 Domestic Worker (Diplomatic or
Consular)

13. [Footer]
Temporary Skill Shortage (TSS) visa (Subclass 482)
The TSS visa program is designed to:
 sharpen the focus of our skilled visa programs to better meet
Australia’s skills needs
 improving the quality, economic contribution and integration of skilled
migrants
 ensure that Australian workers get first preference for jobs,
while ensuring businesses can fill genuine skills needs
 achieving a better balance between streamlined processing
arrangements and mitigating program risks

14. Standard LMT requirement – details required in advertisement
 the nominated position has been advertised in Australia in a medium with
national reach
 must be in English and included the following information:
o the title, or a description, of the position
o the skills or experience required for the position
o the name of the approved sponsor or the name of the recruitment
agency being used by the sponsor; and
o the salary or a salary range for the position, if the salary is less than
$AUD96,400 per annum
Temporary Skill Shortage Visa - Introduction 14
Labour Market Testing (LMT)

15.  at least two advertisements were published:
 on a national recruitment website (for example
jobactive.gov.au).
 in national print media or on national radio
 if the sponsor is accredited – on the businesses' website
 Note: the nominated position may be advertised in:
o the same medium (on two separate occasions) or
o any two different mediums simultaneously or
o any two different mediums on two separate occasions
A general classifieds website such as gumtree or social media
websites such as Facebooks do not meet the LMT requirement
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Labour Market Testing (LMT)
Standard LMT requirement – mediums of advertising

16.  Australia has ITO obligations under two categories
– Free Trade Agreements (FTAs)
– World Trade Organisation (WTO) General Agreement on Trade in Services
(GATS)
 Circumstances under which LMT evidence is not required are outlined in
the Temporary Skill Shortage visa (subclass 482) – nominations
procedural instruction in:
 section 4.7.4 International trade obligations and LMT
[Footer]
Labour Market Testing (LMT)
LMT and International Trade Obligations (ITO)

17. If the nominee is an existing employee of an overseas company and
is being transferred to the Australian associated entity, LMT evidence
required is that of a select position and is a written submission
separate to the application form, outlining:
 why a suitably qualified and experienced Australian is not readily available
to fill the nominated position
 why the nominee is one of a limited number of people with specialist
knowledge who can fill the nominated position
 any LMT undertaken or attempts to fill the position with an Australian
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Labour Market Testing (LMT)
LMT and Intra-Corporate Transferees (ICT)

18.  Payable in full at the time the TSS nomination is lodged, in addition to the
nomination application fee
 For businesses with a turnover of:
o less than $10M – the SAF contribution will be $1200 per year
o $10M or more – the SAF contribution will be $1800 per year
 Where you enter the wrong information in the form, causing the wrong amount
to be calculated, you will be able to withdraw the nomination and get a refund
and ‘start again’
 The ATO has advised that SAF contributions are tax deductible
 The SAF itself will be administered by the Department of Education and
Training (DET)
Note: information on how the SAF is used is available at
https://www.education.gov.au/skilling-australians-fund
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Skilling Australians Fund (SAF)

19. Refund of the SAF levy is available in limited circumstances, which are:
 A mistake made by the Department of Home Affairs, eg visa granted for
the wrong period of time
 If the employer is party to a Labour Agreement (LA)
o the nomination application is withdrawn before a decision is made
because the nominated occupation is not included in the relevant LA
o the number of nominations has reached its yearly ceiling
 Incorrect payment of the SAF levy, ie when the nomination is withdrawn
because the information provided in the application and used to calculate
the SAF levy was incorrect
 The associated sponsorship application is withdrawn or refused
 The associated LA is not entered into and the nomination application is
withdrawn
 The associated visa application is refused on public interest criteria
grounds
 The visa holder fails to commence employment
Note: the SAF levy is not refundable because a nomination application has been
refused [Footer]
Skilling Australians Fund (SAF)

20. • Lodgement of complete applications
– Include all supporting evidence at the time of lodging
– Upload additional evidence as soon as it becomes available
• Requests for Information (RFIs)
– While decision makers can request further information, they are not
obligated to
– Employer Sponsored Program Management (ESPM) are encouraging
decision makers to contact migration agents where one or two
documents are absent from an application
– RFIs may not been made where a substantial amount of supporting
documentation is missing
• Explanatory statements
– Where something in an application may not be clear to a decision
maker, it is recommended that an explanatory statement be included
– ESPM have recently seen a few refusal decision queried where facts
in the application were unclear from the evidence provided
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Complete applications

21. • There is no established pathway from the Temporary Work (Short Stay
Specialist) visa (Subclass 400) to the TSS. Time spent on this visa can be
counted towards the two year work experience requirement if the
experience is gained at the required skill level.
• There is an option for employers of TSS visa holders in nominated
occupations that appear on the Medium and Long-Term Strategic Skills
List to nominate the worker for a Permanent Employer Sponsored Entry
visa under the Temporary Residence Transition stream. This option is
available after the TSS visa holder has worked for them for three years at
the time on nomination lodgement.
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Pathway Options