Joshua Le Vay, Senior Associate, Sydney
The Government’s recent White Paper Australia in the Asian Century highlights the promise of Asia for Australian businesses. At the same time, regions such as South America, Africa and Central Asia are becoming increasingly important destinations for business. If your company looks to these rapidly developing regions for new opportunities, it is inevitable that at some stage you will consider sending employees there.
Yet, just as the countries in these regions differ enormously in language, culture and history, their immigration requirements vary significantly too and some jurisdictions are particularly hard to access. From an immigration perspective, the world’s developing regions present significant challenges.
Work or business: what’s the difference?
When deciding whether to send a staff member overseas, the first question to ask is whether they require a visa or not. This is not as straightforward as it sounds. Factors such as the purpose and duration of the trip and the nationality of your employee impact their need for a visa.
For instance, a visa may not be required for certain non-visa nationals if the purpose of their trip is ‘business’ as opposed to ‘work’. The consequences of inadvertently carrying out activities as a business visitor which are considered by the host country to constitute work can be serious for both your employee and your company. However, assessing the purpose of a trip is rarely simple. Each country has its own definition of work and business. Moreover, the definition is often not clear-cut: a visitor enters this grey area at their own risk. To ensure compliance and avoid the risk of being refused entry, it is essential to examine this issue before travelling.
A visa is almost always required if a person intends to work, however short the duration of their assignment. In addition, work authority usually needs to be secured in the destination country before the visa application can be made. In some countries it can take weeks to secure this authority, and typically your company, as the employer, must be established there. Unlike Australia, many countries require both a visa and separate work authority/permit for an overseas employee to work and reside in the country.
Give yourself enough time
Even if work authority is not required, it is important to allow sufficient time to obtain a visa, if needed, before the intended date of travel. Visa processing times vary and expedited processing is not always available. Applications are typically paper-based and require the applicant to surrender their passport, which is held until the visa is issued. Some countries do not have a diplomatic post or a visa processing facility in Australia, in which case the employee’s application and passport must be sent overseas for processing. It is also important to know where to apply to. For example, visa applications for Guinea and Mauritania are processed in Tokyo, and those for Angola are processed in Singapore. It is therefore advisable to ensure that travel arrangements are flexible.
It also important to appreciate that consulates of a particular country do not necessarily share the same requirements and can exercise discretion differently. Furthermore, if your employee is not Australian they may need to have a particular immigration status or meet a residence requirement in order to apply to the relevant consulate in Australia. Certain nationalities may also be subject to additional checks.
De facto partners may lose out
Employees who wish to bring de facto partners with them often face greater challenges. De facto partners may not be recognised, in which case they will be ineligible for a dependant visa. To complicate the picture, one consulate of a particular country may recognise a de facto partner whereas another consulate of the same country located elsewhere in Australia may not. Unfortunately it may not be possible to choose the more favourable consulate since its jurisdiction is often determined by the residential address of the applicant. Further, where a de facto or spouse visa is issued, it frequently does not provide a right to work.
Got the visa? It’s not over yet
Once the visa is issued, your employee may find they have to meet further obligations or take additional steps once they enter the destination country. In India, for instance, there is normally a requirement to register with a regional office within 14 days of arrival on a work visa. In China, a sponsored work visa is valid for only 90 days, within which time an application for a residence permit must be made.
What to consider
If your company intends to send employees from Australia for business or work to another country, it’s important to bear in mind that:
The definition of business or work in one country is not necessarily the same in another, and there are penalties for non-compliance
Sufficient planning is required in order to obtain the relevant visa in good time
Your employee’s family should be closely considered - in many cases their applications will need to be separately managed
The rights and conditions attached to a visa need to be clearly understood
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