Changes to the visitor visa regime – Employers beware

The Business eVisitor visa and Business ETA -- once described as businesses’ best friend when it came to bringing in an overseas national to undertake short term emergency work -- may now be business’s worst enemy, writes Martin Hildebrand.

BY External 09 Apr 2013

Contrary to popular opinion, it continues to be possible to apply for these visas. However, fundamental changes to the underlying legislation expose business to compliance action by the Department of Immigration.

This is because any Business eVisitor or Business ETA granted after 23 March 2013 no longer has work rights attached to it. In the past, these visas were issued with condition 8112 which basically allowed visa holders to carry out work in Australia which could not be carried out by an Australian citizen or permanent resident. Business eVisitor visas and Business ETAs granted after 23 March 2013 are no longer issued with this work condition.

Businesses which are unaware of this particular change are exposed to compliance action and business must beware that increasing compliance checks are imminent in the lead up to the Federal Election. The Minister for Immigration’s recent rhetoric on 457 visas and announcement that more than 300 Fair Work Inspectors will be vested with power to investigate in visa matters leaves nothing to the imagination.

Emergency situations which require overseas workers urgently will continue to come up and you will need to develop a new strategy for dealing with them.

Resist the temptation of convenience associated with the Business eVisitor and Business ETA which can still be applied for online. Businesses must remember that the only activities allowed on these visas, if granted after 23 March, are “business activities”: a term which has now been legislated very narrowly to include:

Making a general business or employment enquiry;
Investigating, negotiating, entering into or reviewing a business contract;
An activity carried out as part of an official government to government visit;
Participation in a conference, trade fair or seminar in Australia unless the person is being paid by an organizer for participation;

But excludes

An activity that is, or includes work for, or supplying services to, an organization or other person based in Australia; and
An activity that is, or includes, the sale of goods or services directly to the general public.

Unless the overseas national’s intended activity falls within the above, you may need to apply for the new Temporary work (short stay) visa subclass 400. While this visa should be reasonably straightforward, its biggest downfall at this stage is the fact that it cannot be applied for online. Legislation envisages online lodgement, but the Department’s IT systems for this visa are not yet in place, which means that you will need to lodge a paper- based application translating into more red tape and delays.

Little has been done to inform employers of these fundamental changes to date and unless a broad information campaign is initiated by the Department of Immigration immediately, businesses are likely to be caught. The author has contacted the Prime Minister and Minister for Immigration and has raised his concerns, but is still awaiting a response.

About the author

Martin Hildebrand is an Immigration Lawyer MARN 0210935 with Phillip Yip & Associates. Email: [email protected] ; Phone: (02) 9283 6616