Self Sponsor Visa Australia

Introduction

You may have heard the term ‘self-sponsorship’ and may be wondering what it actually means. It refers to a scenario where you are, in effect, sponsoring yourself for a visa to Australia. In the most common scenario envisaged, you might establish a business in Australia, and then nominate a position for yourself to fill in that business via a temporary or permanent skilled visa. Or you might have a material stake in a business that is owned with another party. But is it possible to succeed? Can you sponsor yourself in Australia?

Self-Sponsorship?

The answer is its very risky and not recommended as a first option. If there are other options (such as a general skilled migration visa, or national innovation visa, or even a partner visa) then these should be applied for first.

If you don’t have any other better options though, you may wish to consider the merits of a ‘self’ sponsorship visa application. This sort of visa application is not strictly prohibited in the migration provisions, and is referred to in immigration policy for the employer sponsored and regional employer sponsored visa subclasses with the statement that “policy settings do not prevent individuals from sponsoring themselves”. That  said, it can be a high risk strategy to pursue, given the inherent requirements for approval of a nominated position under the relevant skilled visa programs.

If a self sponsor visa Australia is a strategy that you are considering, we recommend that the you obtain expert advice. A registered migration agent like the team at PAX Migration Australia will explain the requirements that you would need to meet, and the potential issues that you would face by taking this route. We know the immigration system inside and out, as a result of lodging thousands of applications, and we have learnt what the Department and Government look for when it comes to deciding whether to approve an application.

It is important to point out that a self sponsorship application will involve a decision being made by a senior case officer at the Department of Home Affairs. If that decision is positive, you will receive the visa which is what we aim to achieve every time. In some cases, your visa may be refused, most likely because the case officer refused the nomination application. We can then appeal the decision to the Administrative Review Tribunal, which will hear your case with fresh eyes, not bound by the decision by Home Affairs. It is here where we will have greater chances of success by relying on the legislation and case law, rather than the personal discretion of a case officer.

We have provided some information below about self sponsorship that has been drawn from current published policy by Home Affairs. This is the guiding material that the Department of Home Affairs (the Department) case officers are expected to follow in making decisions on whether to approve or refuse applications. Importantly, immigration policy is a guide only. It is not legally binding on the Department, that is, it may choose to apply policy, and it is expected that it will do so, but it is not a requirement. Nevertheless, it is still highly useful to review policy as it does give us an insight into how the Department is likely to apply the law.

Having The Right Information And Advice Is Important

As always in migration, being fully informed is key. Having the right and most up-to-date information is critical to maximising your chances of a successful outcome on your case. Avoid the risk of a refusal, and the consequent wasted time and money that comes with that, by getting it right the first time. PAX Migration Australia are the experts when it comes to all things migration. Talk to us today to understand exactly what is involved in applying for a self sponsor visa Australia and how you might succeed.

As noted, the majority of what we discuss below is sourced from immigration policy; this material is not widely or freely published. A key benefit of seeking advice from a registered migration agent or immigration lawyer is the fact that they have access to this important data source, which can be extremely useful in applying for a visa, as it provides an important insight into how the Department is likely to decide.  

In our analysis, we focus on two skilled migration programs, namely, the Subclass 482 Temporary Skill Shortage (TSS) visa and Subclass 494 Skilled Employer Sponsored Regional (SESR) (Provisional) visa.

Skilled Sponsorship

First up, let us take a look at the TSS visa program and what it entails.

TSS Visa Program

This program is designed to assist employers to help address skills shortages in their businesses. It does this by enabling them to source genuinely skilled overseas workers to fill critical labour shortages. The TSS program consists of the following three visa streams:

• Short-term stream – this stream enables employers to source genuinely temporary overseas skilled workers to fill short-term positions in a range of occupations for a period of up to two years (or up to four years in certain circumstances);
• Medium-term stream – this stream is for employers to source highly skilled overseas workers to fill medium-term critical skills for up to four years. A pathway to permanent residence is available after three years;
• Labour Agreement stream – this stream enables employers to enter into a labour agreement with an employer who has demonstrated that they are unable to fill a position in the Australian labour market, and where other standard visa programs are not available.

As a TSS visa holder, you can work in Australia for your approved sponsor in your approved occupation only. You can bring eligible dependant family members with you to Australia. You would also be permitted unrestricted travel to and from Australia whilst the TSS visa remains valid.

What Is The TSS Application Process?

The TSS program application process comprises of three stages, namely:

1. Sponsorship application – the employer must apply for Standard Business Sponsorship (SBS) approval;
2. Nomination application – the employer must nominate a position in their business for the TSS prospective visa applicant or TSS visa holder to fill;
3. Visa application – the nominated overseas worker must apply for a TSS visa.

In the case of a labour agreement, the sponsorship stage of the process is replaced with the negotiation and signing of a Labour Agreement. TSS nomination and visa applications are still required.

Also be mindful that a sponsorship approval lasts for five years. This means that whilst the sponsorship approval is in place, only a nomination and visa application is required to be lodged.

A further point to note is that all three applications can be lodged at the same time.

Accredited Sponsors

As part of the sponsorship application process, certain entities may apply for accredited status if they meet additional requirements. Becoming an accredited sponsor for the TSS visa is also an option. As an accredited sponsor, an entity will receive priority processing for all applications lodged under the TSS visa programme, as well as streamlined processing of certain nomination applications. The entity’s applications will be processed ahead of other non-accredited nomination and visa applications, which in most cases will be within 5 days.

SESR Visa Program

The SESR visa is a provisional visa which provides a pathway to permanent residence via the Subclass 191 (Permanent Residence (Skilled Regional)) visa. The program is designed to assist employers in regional Australia to fill labour shortages with skilled overseas workers where they are unable to source Australian workers. SESR visa holders must be willing to live and work in a designated regional area for a specified period. Dependent visa holders must also live, work and study in specified areas of regional Australia.

The SESR program consists of the following visa streams:

• Employer Sponsored stream – this stream enables employers in regional Australia to recruit skilled overseas workers to work in specified skilled occupations for a period of five years. A pathway to permanent residence is available to SESR visa holders after three years, provided they meet specified requirements;
• Labour Agreement stream – this stream is designed to assist employers in regional Australia to source appropriately skilled overseas workers to fill labour shortages by entering into a labour agreement with the Commonwealth. Nominated skilled overseas workers are able to work in an occupation specified in the labour agreement for a period of five years. Visa holders are also eligible to apply for permanent residence after three years.

As a SESR visa holder, you must work in Australia for your approved sponsor in your approved occupation only. You must also live and work (and, if relevant, study) only in a designated regional area of Australia. As a SESR visa holder, you are permitted to bring eligible dependant family members with you to Australia, provided that your dependants satisfy the secondary criteria. Dependent SESR visa holders are permitted to work and study in Australia (but with the caveat that they must live, work and study only in a designated regional area).

SESR visa holders also have unrestricted travel rights to and from Australia whilst the visa is valid.

What Is The SESR Application Process?

The SESR application process mirrors that of the TSS program, that is:

1. Sponsorship application – the employer must apply for Standard Business Sponsorship (SBS) approval;
2. Nomination application – the employer must nominate a position in their business for the SESR prospective visa applicant or SESR visa holder to fill;
3. Visa application – the nominated overseas worker must apply for a SESR visa.

In the case of a labour agreement, the sponsorship stage of the process is replaced with the negotiation and signing of a Labour Agreement. SESR nomination and visa applications are still required.

As with the TSS visa program, the sponsorship lasts for five years. Further, all three applications can be lodged concurrently.

What Is Required For An Employer To Become A Standard Business Sponsor?

An employer must satisfy a number of specified requirements for sponsorship approval, which include the following:

• Lawfully operating a business;
• Having a strong record of, or a demonstrated commitment to, employing local labour, and declaring that they will not engage in discriminatory recruitment practices; and
• There is no adverse information known to the Department about the employer or a person associated with the employer, or it is reasonable to disregard such information.

Who Can Be A Standard Business Sponsor (SBS)?

The types of entities that can be a SBS include:

• sole traders
• partnerships
• proprietary companies
• public companies
• government departments
• statutory authorities
• not-for-profit-organisations
• educational institutions

A trust cannot be approved as a sponsor as it is not a ‘person’, which is a requirement for approval as a sponsor. In such a case, the trustee is, in effect, the ‘person’ who may apply to be a sponsor. The trustee may be an individual, company or partnership.

Sole Traders

It is important to note that a sole trader, which is where an indivudal owns and operates a business, cannot sponsor themselves. Why? Because the employment must be based on a contractual relationship between an employer and employee. In the case of a sole trader sponsoring themselves, such a contractual relationship cannot exist because the employer and the employee would be the same person. Thus a self employed visa Australia would not be possible in this circumstance.

Partnerships

A partnership structure involves a relationship between persons carrying on a business together to make a profit. It is based on a contractual arrangement between the partners. Partnerships are governed by partnership legislation enacted by each State/Territory. The fundamental principle is that a partnership is not separate from its partners.

Approved sponsors must ensure that their sponsored visa holders are engaged as employees. Given that a partner may have an ownership interest in the partnership, it may be difficult for a partnership seeking to nominate a partner, to demonstrate an employer/employee relationship. In such circumstances, the onus would be on the sponsor to establish that an employer/employee relationship does in fact exist.

Companies

In contrast, a company is a legal entity that is separate from its owners (shareholders). It may therefore, in theory. be used to self-sponsor. That is, you could start a business in Australia, and have that business sponsor you for an employer sponsored visa, provided prescibed requirements are met, which generally include the following:

• you must genuinely start a business operating in Australia
• the business must be an entity (ie. not sole trader)
• you must have a business plan
• the business must have a role to be filled with ‘skilled’ labour
• that role cannot reasonably be sourced from an Australian citizen or permanent resident
• you have the ‘skills’ to do that job

The business must be trading, that is, you cannot simply set up a shelf company. The Department will examine whether you are open for business and are actually advertising to customers. Note that it is possible for applicants who are new or start-up businesses (that have operated for less than 12 months) to meet the ‘lawfully operating’ criterion if they provide evidence to demonstrate that they are in fact operating, even if they have been doing so only for a short period of time.

As we have noted above in this article, applying for an Australia self sponsored visa is a highly risky strategy to pursue and is not recommended. The main area of risk comes into play at the nomination stage of the application process. Therefore, although you may be able to get the sponsorship approved, it is when it comes to nominating the positon where you are highly likely to hit a road-block.

Let us now turn to the nomination stage of the application process, and examine why issues for a self sponsor visa Australia may arise at that point.

Why Is A Self Sponsor Visa Australia So Risky?

Nominating A Position

The nomination stage of the application process for a business sponsorship involves the employer nominating an occupation for a prospective TSS/SESR visa applicant or existing TSS/SESR visa holder. This is the second step in obtaining a TSS or SESR visa, and is vital in answering the question ‘can you sponsor yourself in Australia?’

A key requirement for nomination approval is that the position associated with the nominated occupation is genuine.

The TSS and SESR programs are designed to enable employers to bring in skilled workers to work in genuine positions where they cannot source an appropriately skilled Australian. It should not be used by businesses to:

• create a position – that is, to facilitate the entry, or stay, of the nominee and/or a family member to Australia rather than using more appropriate visa pathways where available; and/or
• nominate a position that, despite its title or listed duties, does not in fact align with an eligible occupation as described in ANZSCO – that is, ‘dress up’ a semi-skilled position in order to facilitate a visa for a person.

Immigration policy points to the economic impacts of the COVID-19 pandemic, and notes that it is critical that job opportunities for Australian workers are prioritised. When considering whether the position is genuine, Immigration will pay particular attention to nominations made by a business which employs, or which has recently previously employed Australian workers in the same or similar occupations. According to policy, factors that may indicate that a position is not genuine includes the following:

• retrenchment have been made by the employer in the previous 12 months;
• a reduction of hours worked by Australian workers during the previous 12 months;
• a reduction in pay and conditions of Australian workers within the previous 12 months;
• employment of one or more temporary visa holder/s on conditions less favourable than Australian workers; and
• recruitment of one or more temporary visa holders beyond the ordinary scope of the business.

Further, the requirement is not that the position itself must be genuine or ‘needed’, but rather, it is that the position associated with the nominated occupation must be genuine. That is, the position must exist and also be what it purports to be.

In assessing the ‘genuineness’ of the nominated position, the Department is not concerned with the commercial aspect of the decision as to whether it makes good business sense to hire a particular worker or pay them a particular salary. It is, however, the department’s role to prevent the misuse of the TSS/SESR visa programs through the creation of non-genuine positions.

When Further Scrutiny Is Applied

According to immigration policy, further assessment may be appropriate if there are doubts as to the veracity of the required certifications, that is:

• the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO;
• the qualifications and experience of the nominee are commensurate with the qualifications and experience specified for the occupation in ANZSCO;
• the occupation is a position in the person’s business or a business of an associated entity of the person.

Note these certifications are relevant to applications under the short-term and Medium-term streams of the TSS program in the most common scenario (there are other provisions that apply in specified circumstances).

In addition to doubts about the above, Immigration is likely to further scrutinise the application where there is information which suggests that:

• the nominated position may have been created to secure a migration outcome for the nominee and/or any of their family members;
• the tasks of the position do not substantially align with the tasks of the nominated occupation as described in the ANZSCO; or
• the position may not be consistent with the nature of the business.

Why? Because in these scenarios, the nominated position may not actually exist, or while existing, may not be what it has been presented as in the nomination application.

Has The Nominated Position Been Created To Secure A Migration Outcome?

If the Department has concerns that a position has been created to facilitate the entry or stay of the nominee and one or more of the factors below apply, further assessment is warranted according to immigration policy:

• The nominee is a relative or personal associate of an officer of the sponsoring business
• The nominee is a director or owner of the sponsoring business.
• The nominee is currently in Australia and already working for the sponsor and the nominee’s immigration history in Australia suggests that their primary motive is to stay in Australia on any type of visa
• The business has been in existence for a very short period of time (for example, the business was created in the last 3-6 months and appears to have just been “created” for the purpose of migration)
• The proposed salary is significantly lower than industry standards, or is above AUD$250,000 and this does not appear to be consistent with labour market conditions
• The business has a relatively small turnover that could indicate that, at the nominated salary provided, it would be difficult to support the number of proposed employees at the business
• The business does not employ any, or employs very few, Australian employees
• There is evidence that the business may have received, or will receive, payment from the nominee for lodging the nomination

The above policy settings do not prevent individuals from sponsoring themselves (that is, ‘self-sponsorship’). However, in such cases, there needs to be another reason for the position being created. It cannot just be to facilitate a long-term stay in Australia and/or create a pathway to permanent migration.

Such arrangements can be approved under policy if there will be a genuine economic benefit to Australia (for example, an innovative IT entrepreneur intends to move their business to Australia, which will support growth in the technology sector and create jobs for Australians).

Other Circumstances Which Warrant Further Scrutiny By The Department

Apart from concerns of the Department around the nominated position being created to secure a migration outcome (which we have focused on in this article), it is also likely to examine the application more closely if the tasks of the position do not align with the nominated occupation, or if the position is inconsistent with the nature of the business. If your case concerns these elements, we highly recommend that you speak with a migration professional to assess the risk/s that may arise with your application, and the key factors to be aware of according to immigration policy.

Assessment Of Genuineness Of The Nominated Position

In assessing whether the position associated with the nominated occupation is genuine, immigration policy notes the following factors as adding weight to the genuineness criterion being met:

• The position is a highly skilled position with specific tasks outlined in ANZSCO
• The position fits clearly within the scope of the activities of the business
• The business has provided evidence that demonstrates that the new position is required
• There is evidence relating to a previous worjer employed in the position (for example, there was a previous TSS holder in the position or the business has indicated that an Australian was previously holding this position but has since left)
• There is evidence that the position has been advertised and filled through a transparent recruitment process
• The business has provided evidence of having checked if the nominee is eligible for any licensing and/or registration requirements

Immigration policy also provides guidance as to factors that may not support the requirement that the position associated with the nominated occupation is genuine.

We recommend that you refer to our article on Employer Sponsored Visas for a further discussion in regards to the genuine position criterion as part of the nomination application.

As you can see from the above discussion, the question of whether the position associated with the nominated occupation is genuine is a highly subjective one. It is not a clear cut question but rather, will depend on the individual circumstances of each case. Meeting this criterion can be challenging even in more straight-forward applications which do not involve a self sponsor visa Australia. We strongly recommend engaging a migration agent or immigration lawyer to assist you with your case; they are equipped with the knowledge, skills and experience to steer you in the right direction. This may involve crafting detailed and researched submissions to argue your case and set out your reasons as to why you believe that your application meets the genuine position criterion.

Labour Market Testing (LMT)

Another key requirement for nomination approval for a TSS or SESR visa is that prescribed Labour Market Testing (LMT) has been carried out (note that there are exceptions to this criterion in specified circumstances).

Under the LMT requirement, essentially, the nominated position must have been advertised in Australia in accordance with specified criteria, including the manner in which LMT must be undertaken, and for a specified period. Note that you need to carefully check the LMT criteria that applies to the specific visa subclass which is being applied for, as there are variations in the rules.

The existence of the LMT requirement is a further factor that can make self-sponsorship more difficult to have approved. The sponsoring business needs to evidence exactly how it has sought to employ Australian workers and demonstrate that appropriately skilled employees cannot be sourced in the Australian labour market to meet the nomination requirements.

Employer Nomination

We note that the above discussion has focused on the factors to be aware of when considering a self-sponsorship under the TSS and SESR programs. Similar considerations also apply in regard to the permanent residence Subclass 186 Employer Nomination Scheme (ENS) visa program. A key requirement for nomination approval is that “the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator.” Similar factors need to be considered and addressed in this regard as were discussed for the TSS/SESR visa programs.

The above discussion highlights the complexity involved in applying for a self employed visa Australia.

Before you do anything, talk to the experts in migration law at PAX Migration Australia.

Another Potential Avenue To A Self Sponsor Visa Australia?

If you are considering a self employed visa Australia, another possible avenue you may like to take a look at is a National Innovation Visa. The NIV program is aimed for individuals who are seeking to own and manage a business, conduct business and investment activity, or to undertake an entrepreneurial activity in Australia.

Get More Information

Employer Sponsored Skilled Visas

To learn more about applying for an employer sponsored visa, please see the following articles:

Australian Skilled Migration Visa List

Employer Sponsored Visas

Employer Nomination Migration Scheme

Labour Agreement Visa

Employer Sponsor Visa Requirements

Subscribe to our newsletter for regular updates and additional information.

Contact us to book a no-obligation consultation to learn more about why a self sponsor visa Australia is extremely risky and is not recommended, and to obtain tailored advice on other visa options.

* * * * * * * * * * * *

In conclusion, the above discussion outlines some of the key issues that arise when considering an Australia self sponsored visa.

Australia’s migration laws are complex, and each case is different. We recommend that you seek professional advice before you proceed with applying for any visa to Australia.

Several terms are defined in the migration provisions. It is vital to have a good understanding of these terms and how they apply in practice. Detailed advice about these is beyond the scope of this article and we would therefore recommend that you seek further information in this regard. As Registered Migration Agents, we can help you navigate the immigration laws and advise on how we can expect those laws to be applied in practice.

For up to date advice on applying for a visa to Australia, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide. Contact us for a no obligation discussion on how we may be able to assist you to achieve your migration goals in Australia.