Business VisitorVisitor

Do you really need a work visa to Australia? Or are you just undertaking “Business Visitor Activities”?

By February 15, 2019 February 28th, 2019 No Comments

With the complexity of obtaining work authorisation in Australia, many businesses often look to a variety of temporary visas which permit “business visitor activities” (but not work authorisation) to send foreign employees into Australia. These visas are generally simple to prepare and fast to process, and includes the:

  • Electronic Travel Authority (subclass 601) (ETA);
  • eVisitor (subclass 651) (eVisitor) visa; or
  • Visitor (subclass 600) (Visitor) visa in the Business Visitor stream. 

Two key questions arise from this:

    1. What are the business visitor activities; and
    2. If you are a business visitor, which visa is appropriate for you?

1. Business Visitor Activities

The term business visitor activity  is defined in regulation 1.03 to include:

  • making general business or employment enquiries;
  • investigating, negotiating, entering into or reviewing a business contract;
  • activities relating to official government to government visits; and
  • participation in a conference, trade fair or seminar unless there is payment for participation.

This stream expressly excludes the visa holder:

  • from working for or supplying services to an organisation or person in Australia;
  • from supplying services or direct selling goods to the public (retail); or
  • from entering the Australian labour market or the retail trade.

Department policy summarises the above by noting that: “by way of example, an executive board member may attend a meeting on a business visitor visa provided they do not undertake work duties on behalf of an Australian business.” Right, fair enough.

Ok, so what do the permissible activities actually mean?

Fortunately, Department policy provides more guidance on the actual elements of the permissible activities.

(a) Making general business or employment enquiries

In relation to general business or employment the activity is restricted to making inquiries.

These include activities such as:

  • identifying new business or employment opportunities;
  • purchasing goods from Australia;
  • establishing contact with Australian based people or organisations involved in the prospective employment or business;
  • attending business meetings including at an affiliated business in Australia but not if the visa holder is providing services to that business;
  • fact finding;
  • identifying new business or employment opportunities;
  • visiting an Australian company that provides goods or services to their visitor’s business offshore to conduct quality assurance activities or ensure that certain required standards are met; and
  • attending a job interview.

That is, any of those specific business enquiries, or a range of those enquiries are expressly permitted by Department policy without work authorisation. It would be useful for individuals seeking to establish business interests in Australia.

(b) Contract related activities

Investigating, negotiating, entering into, or reviewing a business contract means that the activity needs to be in relation to an actual or prospective contract relating to business rather than personal matters.

Contract related activities include:

  • investigating or negotiating business contracts or trade agreements;
  • signing contracts for sale of goods or services;
  • review a contractual arrangement;
  • providing legal advice on behalf of the overseas company involved in business contract negotiations relating to the contract and not providing legal advice/services to the general public or a business based in Australia;
  • buying real estate in Australia to add to a business investment portfolio;
  • visiting an Australian company that produces goods for their business to conduct quality assurance activities or ensure that certain required standards are met (contractual review); and
  • a lawyer providing legal advice related to a contract to a person not based in Australia.

Again, these explicitly permitted activities support the Department’s position that those who are seeking to establish work in Australia (through contracts in this instance) do not require work authorisation.

(c) Official government visits

In relation to government to government visits, activities that are part of the official visit and do not involve activities specified in below are acceptable.

Examples include attending:

  • government to government meetings;
  • international government conferences; and
  • government-employed representatives undertaking inspections for the purpose of meeting bilateral obligations.

Visits may be at all levels of government but must involve a government representative overseas visiting a government representative in Australia and the visit must be recognised by their respective government agencies.

(d) Conferences, trade fairs and seminars

Under Department policy, participation in conferences, trade fairs and seminars on an unpaid basis is permitted under the definition.

However, if the activity at a trade fair for example involved the sale of goods direct to the general public, the that activity would be prohibited under the expressly excluded activities.

Further, if a participant was paid by the organiser of a conference, trade fair or seminar to attend or appear then this would constitute undertaking work or supplying services and is not permitted under the definition of business visitor activity. Individuals wishing to undertake this type of paid activity should apply for a Subclass 400 Short Stay Activity visa.

Which activities are clearly not business visitor activities?

The activities that are allowed under the definition of business visitor activity are further restricted by the items specifically excluded in the definition.

  • from working for or supplying services to an organisation or person in Australia
  • from supplying services or direct selling goods to the public (retail) or
  • from entering the Australian labour market or the retail trade.

Although the sale of goods or services to business (that is, wholesale) is permitted as a business enquiry or contract related activity, the sale of goods and services directly to the Australian public is also prohibited under the exclusions in the definition. The practical operation is that it would prevent a company representative at a car show, for example, from participating in the sale of any of their company’s vehicles to a member of the public. They are permitted to sell their product to a company or organisation on a trade basis. They are also allowed to provide general information about the product to a company representative or a member of the public making inquiries.

In general, activities that are not permitted are:

  • engaging in employment in Australia;
  • performing highly specialised work even if there is a contractual arrangement; the visa holder cannot undertake work activities that the visa does not allow;
  • making direct sales or supplying services to the general public;
  • providing training, system development, and/or post-sale implementation/support/maintenance;
  • delivering a presentation at a conference (or series of conferences) as part of a pre-negotiated contract that provides a material benefit to the visitor such as a professional motivation speaker;
  • retail activities – making direct sales of goods or services to the Australian general public. This includes selling goods at a trade fair to the public;
  • domestic staff (for example, nanny) wanting to accompany their employer on a holiday to Australia to undertake their normal household duties;
  • an artist selling paintings that are being promoted at a local gallery; and
  • an overseas lawyer participating in contract negotiations and providing unrelated legal advice (for example, regarding a criminal matter) to a client – the first part is considered a business visitor activity, whereas the second part is work.

2. Who is eligible for which visa?

If you are an individual who will only be undertaking business visitor activities in Australia, which visa is most appropriate for you? The eligibility regarding the short-term non-work visas depend on the country of passport. The below table provides a general summary:

ETA (Subclass 601)

(Usually processed < 1 day | Apply through here)

eVisitor (Subclass 651)

(Usually processed < 1 day | Apply through Immi Account)

Visitor (Subclass 600)

(Usually processed within 1-2 months | Apply through Immi Account)

Brunei – Darussalam

Canada

Hong Kong (SAR PRC)

Japan

Malaysia

Singapore

Korea, Rep of (South

United States)

Austria

Belgium

Bulgaria

Croatia

Cyprus

Czech Republic

Denmark

Estonia

Finland

France

Germany

Greece

Hungary

Iceland

Ireland

Italy

Latvia

Liechtenstein

Lithuania

Luxembourg

Malta

Monaco

The Netherlands

Norway

Poland

Portugal

Romania

Republic of San Marino

Slovak Republic

Slovenia

Spain

Sweden

Switzerland

United Kingdom – British Citizen

Vatican City

All other nationalities

Any questions?

If you need to travel to Australia for business, or believe you might need work authorisation, speak to us in the first instance to put your mind at ease. A quick chat early on might lead to a much more cost effective and time saving choice, or protect you from being detained in Australia for work without proper authorisation. Contact us by email at [email protected] or phone +61 3 9016 0484 to obtain further guidance.

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