An introduction to the basic eligibility factors
Jobs come in all shapes and sizes. Say you have an occupation that sits outside the norm
and requires travel into other countries for work. Perhaps you are in entertainment and you’re going to an Australian tour, or you’re involved in a research project, or maybe, you’re here to do religious work. You’re coming in for something rather temporary and quite specific.
The Temporary Activity Visa (Subclass 408) is exactly what you need. This visa was only introduced in 19 November 2016 and replaces six other temporary activity visas. Here are the types of activities that would fall under this visa:
- Invited participant
- Religious worker
- Special program
- Superyacht crew
- Domestic worker (executive)
- Australian Government Endorsed Event (AGEE)
Who falls under these activities
Sportpersons, who are skilled at the Australian national level who are looking to be in Australia for the purpose of improving the quality of a sport through high-level competition and training involving Australian residents. The applicant must be endorsed by the peak sporting body which holds authority on that sport.
Examples include players, coaches and instructors joining an Australian club, team or organisation, and show and competition judges.
Religious workers who may apply for this visa include those who have relevant religious training and whose stay in Australia are for the purposes of providing spiritual leadership, conducting worship and ministering, pastoral care or proselytising.Work cannot be ancillary support (e.g. domestic work, prepared magazines and meals etc), construction of religious buildings, study or pastoral care that does not require religious qualifications.
Events for which the applicant may be invited for include religious, sporting, academic and artistic events, and conferences, conventions and trade fairs where the applicant will be receiving award for participation. Entry must be supported through a letter of invitation by an Australian organisation.
Performers, production and support persons who are coming to Australia for recording or, live performances
Academics who are in the top of their field and who have been invited to collaborate in a research project by an Australian tertiary or research institution, or students and new graduates who wish to embark on research activities in an Australian tertiary or research institution in areas related to their study should apply to enter under this visa.
Applicants should be invited by approved special program sponsors to participate in School Language Assistants Program (SLAP), school to school interchange program (SSIP), youth exchange, cultural enrichment or community benefit programs that have been approved by the Secretary
Such programs must involve employment placement of the applicant(s) in Australian for the reciprocal placement of Australian residents in overseas organisations. The arrangement must be temporary and for the promotion of international understanding and cooperation. It cannot be used as an alternative to a 457 visa.
Superyacht crew must be in Australia only for work that relates to the regular operations of their vessel
Domestic worker (executive)
Executive domestic workers do not include household helpers. Those eligible for this visa are employed by 457 or 403 (privileges and immunities activity) visa holders from overseas organisations or government agencies who are in senior executive positions.
Australian Government Endorsed Event (AGEE)
These are for participants in major Australian events. These events are listed in a legislative instrument.
Thats a lot of activities, each with their own specific criterion, so let’s start with the common criteria that runs across all activity types under the 408 visa:
- Meet sponsorship or support test
- There can be be no benefit (payment) offered or asked, in exchange for sponsorship
- No adverse consequences for employment, training or conditions of employment for Australian citizens and permanent residents
- Has health insurance for period of stay
- Is a genuine entrant for temporary stay
- Adequate means of support
- No character issues
For applicants who are outside Australia and do not intend to stay for longer than 3 months, they will need a ‘supporter’. Applications onshore or with intentions to stay in Australia for more than 3 months will require a ‘temporary activities sponsor’, unless the applicant is applying for entry under an Australian Government Endorsed Event (AGEE). Supporters, unlike sponsors, do not need to make a separate application. Different activities have slightly different rules surrounding supporters and sponsors.
If the applicant is in Australia, the applicant must be holding a substantive visa. If the applicant does not, he must have previously held one and the 408 application must be made within 28 days after the date the last substantive visa held by the applicant ceased. The substantive visa or last substantive visa cannot be a:
- permanent visa (only for those currently holding a substantive visa)
- temporary work (international relations) visa (subclass 403)
- transit visa (subclass 771)
- special purpose visa
- visa listed in thislegislative instrument(only for those currently holding a substantive visa)
For applications on and before 18 May 2017, the temporary activities sponsor can be a long stay activity (subclass 401) sponsor, training and research (subclass 402) sponsor, special program (subclass 402) sponsor, entertainment sponsor (subclass 402) or superyacht (subclass 402) sponsor. These are refer to sponsors who have been approved for the individual temporary activity visas that are now defunct.
The maximum period of stay allowed on a 408 visa and visa conditions that will apply depends on the activity type.
The applicant passes the sponsorship test if the sponsor has an approved sponsorship application and has, in writing, agreed to being a sponsor for the applicant and any dependents. The letter must also acknowledge that the sponsor is aware of their obligations as a sponsor. These obligations differ depending on which activity the applicant is being sponsored to be in Australia for.
We will explore becoming a temporary activity sponsor for the 408 visa in a later article, so bookmark immiNews!
Supporters only need to produce, in writing, a letter of support for the applicant (and dependents, if applicable). The letter should contain the following information:
- Identifying the event, activity or work and details
- Date(s) and location(s)
- Why the applicant is needed and their duties; this criteria may be fulfilled with evidence of a contract
- Remuneration (not allowance)
- Support that will be provided to the applicant during their stay
Applicants who are unpaid may not pass the sponsorship or support test as it is against Australian workplace law. However the Department of Immigration and Border Protection (DIBP) recognises that there may be circumstances under which the applicant will not be paid. It must be assessed that the activity is truly voluntary and an Australian citizen or permanent resident would likewise perform the duties without compensation. Certain activities such as religious work, which we will explore in greater detail further down this article, are not ones that typically attract a wage.
No adverse consequences
The applicant’s activity in Australia must not have adverse consequences for employment, training opportunities or conditions of employment for Australian citizens and permanent residents. The activities cannot give doubt as to why the duties are not being extended to an Australian citizen or permanent resident. This of course, is assessed in relation to the kind of activity the applicant is looking to enter Australia for.
Typically short stay (under 3 months) activities are considered to fulfil this requirement. The DIBP may however request for further evidence of the activity being for social and cultural purposes if they find something to be suspect in the application.
With longer stays, the activity should relate to cultural and social outcomes. The officers will assess if the activity will introduce different perspectives and if the activity is part of a cooperative arrangement with overseas organisations that will give rise to benefits to the Australian organisation and community.
The applicant (and dependents, if any) is required to have health insurance arrangements for their period of stay in Australia. Applicants for terms of under 3 months are taken to have met this requirement unless their responses for the health questions presented in the application form indicates that they may require medical attention. Longer term applications should come with evidence of health insurance to cover their intended stay.
Genuine temporary entrant (GTE)
The DIBP assesses this criteria similarly to how they would for student visas. For short stays, it is taken that applicants who hold ETA eligible passports or eVistor eligible passports are taken to meet this criteria without further investigation. Otherwise, the following factors considered:
- Immigration history: A history of failed visa applications, cancelled visas and similar suspicious visa activity will raise red flags
- Circumstances in home country: The state of the applicants’ home country refers to a bad economy, political instability, has compulsory military service commitments
- Position created: The DIBP will check to see if the activity was created for the sake of the applicant – indicators may include family and community ties
- Applicant’s background: The applicant’s personal background will be scrutinised for their relevance to the activity for which they seek entry into Australia for; have they performed the activity before and for other countries and if they possess the required skills for the activity.
- English proficiency: Whilst no English tests are required, it is expected that the applicant possesses the appropriate competency level of English to perform the activity.
Should the grant of the 408 visa result in the applicant having stayed for a total of four years (cumulative through their migration history) in Australia through temporary visas, this may call into question the legitimacy of being a GTE for the 408 visa. The rule is discretionary and as long as the applicant has a genuine activity for which they are travelling into Australia for and has no intentions to prolong their stay, there should be no problems.
Adequate means of support
The applicant needs to show that they will be able to support their stay in Australia. This may come in the form of:
- Remuneration from the activity. Documentation includes contracts and agreements
- Sponsor or third party support (allowance, accommodation, transport and so forth). Documentation includes contracts and agreements
- Support from a Government or overseas employer. This can be demonstrated through associated documents
- Loans. Financial documents to support this will suffice as evidence
- Existing personal funds or that of a close family member. This is evidenced through bank statements for the 6 months prior to application
These are ballpark figure guidelines for the amount of financial support that is considered to be adequate:
- AUD $19,830 a year for the primary applicant
- AUD $6,940 a year for their partner; and
- AUD $2,970 a year for each child
- AUD $8,000 a year for each school-aged child for schooling costs
No payment for visa
The applicant cannot be paying for sponsorship as a means of entry into Australia. The applicant’s previous 3 years of immigration history will be looked at and if there is no evidence to the contrary, the applicant is taken to have met this criteria.
In our next article, we will discuss the requirements for religious workers under the Temporary Activity 408 visa. So please subscribe, and like us on Facebook and Linkedin where we post our awesome immiNews articles.
Managing Director & Migration Agent, Australian Immigration Law Services