Anne O’Donoghue
Immigration Solutions Lawyers, Sydney
anne@immigrationsolutions.com.au

Jiaxi (Cathy) Li
Immigration Solutions Lawyers, Sydney
cathy.li@immigrationsolutions.com.au

Lihini Konara
Immigration Solutions Lawyers, Sydney
lihini@immigrationsolutions.com.au

Introduction

Although Covid-19 restrictions are beginning to ease around the world,^[1] many people continue to work remotely, aided by ever-improving technology.

In Australia, the Families in Australia Survey: Towards COVID Normal found that among employed respondents, 67 per cent were sometimes or always working from home, compared to 42 per cent pre-Covid-19.^[2]

Australia is facing reform to ensure the economy can cope with this new working option long-term. This article analyses how Australian immigration law reflects the ongoing demand for remote work at present and makes recommendations for the design of remote work immigration law going forward.

Employer-sponsored scheme (subclass 457/482 visa)

The subclass 457/482 visa is a temporary, employer-sponsored visa which allows the visa holder to work for a sponsor temporarily. Following condition 8607, the subclass 457/482 visa holder cannot hold employment with the sponsor for more than 60 consecutive days.

The holder of a subclass 457/482 visa must be able to prove their employment and is required to properly record evidence of their remote work. The visa will be cancelled if the visa holder fails to prove continuous employment.

Subject to the nominated occupation, the visa holder may be eligible to apply for permanent residency through the visa 186 Temporary Residence Transition stream after working for the sponsor for at least three years.

Neither the Migration Act (1958) or the Migration Regulation (1994) specify how the Department of Home Affairs will assess remote working. Each application is assessed on a case-by-case basis due to the nature of the nominated occupation; for example, some occupations, such as a chef, usually would not be allowed to work remotely as their role requires them to work onsite for the sponsor.​​​​​​​

Visitor visa

With increasing globalisation and ever-improving technological support, more businesses are considering hiring overseas employees and only coming to Australia for specific events such as an onsite investigation or an annual meeting, etc. However, a Visitor visa is not an option for people who wish to work in Australia for a short period. Employees in this scenario will need to consider other temporary working visa options.

As stated in clause 600.261 of Schedule 2, Migration Regulations (1994), the applicant can only visit Australia to engage in business visitor activity, for example, a general business or employment enquiry.​​​​​​​^[3] Moreover, condition 8101 is imposed on these visas, which states that ‘the holder must not engage in work in Australia’. Hence, if Australian businesses hire overseas employees who work remotely and only come to Australia for specific events, a working visa is required during the stay in Australia.

The Visitor visa holders who need to work for their overseas employer during their visit period in Australia are also subject to condition 8010. Although no legislation further clarifies the requirement, the Department of Home Affairs has enacted a policy for ‘online work’, stating that:

‘Applicants wishing to work online (for example, stockbroker wanting to check emails, share prices etc. online) may apply for a Tourist stream visa if the online work is incidental to a holiday. If the applicant is holidaying in Australia for a short period, and just wishes to keep on top of work back home (that is, the online work is incidental to their trip), this is not of concern in terms of condition 8101.'^[4] 

Working Holiday visa (subclass 417) and Work and Holiday visa (subclass 462)

The Working Holiday (subclass 417) visa and Work and Holiday (subclass 462) visa allow eligible passport holders, who are usually between 18 and 30 years’ old (inclusive) to have an extended holiday in Australia while working to help fund their trip.

These visas are granted under condition 8547, which requires the visa holder to work for the same employer for no longer than six months. However, pursuant to the Working Holiday Maker programme’s policy, working holidaymakers may work for the same employer in Australia for more than six months without requesting permission if the work is in different locations and work in any one location does not exceed six months. Working from home or working remotely during Covid-19 are considered as working in different locations.^[5] 

The policy also notes: ‘The employment limitation applies only to businesses operating in Australia. The work should be considered on a case-by-case basis, but could include online jobs and journalism. However, work for a foreign business for which the applicant must obtain a licence or registration to perform in Australia would be subject to condition 8547.’^[6]

Conclusion

In conclusion, although there are some enacted policies under immigration law to clarify the requirements of the relevant visa categories for remote work, current Australian immigration law does not provide clear guidance for those working remotely from Australia for foreign entities.

With the development of relevant technology like virtual reality and augmented reality, remote work is in demand, especially in the ‘post-pandemic period’. It is recommended that the government consider the changing working environment and publish more legislation to bridge the gap between immigration law and new employment practices.