If you have applied for a Subclass 186 or 187 visa, do you have to perform the work in Australia?
We have received appeal cases recently in relation to visa refusal decisions received for not meeting the following requirement:
(a) the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument.
Most decisions pointing to this legal requirement would be as to whether the purported occupation corresponds to the tasks of an occupation appearing on the occupation list. As this list is updated every 6 months, there is a high chance that occupations may be removed from the list causing a refusal based on this legal requirement.
However, recent decisions have seen case officers focusing specifically on “tasks… will be performed in Australia”.
Under policy, this is generally considered met unless there is strong evidence to the contrary. Cases in the past have also confirmed this.
1317571 [2014] MRTA 2453
In this case, it was acknowledged by the Tribunal that although the company had its international headquarters in United States and the nominated position of Accountant would be required to provide financial reporting information not only to the Australian authorities but also to its United States office, it was still satisfied that the work would be performed in Australia, thereby satisfying r 5.19(4)(h)(i)(A).
1420334 (Migration) [2016] AATA 3251 (12 February 2016)
This case is another recent case which explicitly held that even if the nominee were to spend a large amount of time in another country in fulfilling his duties, there is nothing preventing a finding that the tasks would still be performed in Australia overall.
The Tribunal simply acknowledged the nominee’s statement that he would be based in the Sydney office.
These are all cases suggesting that there is no requirement for the nominee to be performing 100% of his roles and duties in Australia.
If you have received a recent decision based on this requirement, we would suggest you seek professional advice immediately! There may be high chances of success at appeal.
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If you have any questions or would like us to assist you with your visa decision, please contact us for more information.
At Agape Henry Crux, our lawyers are well trained to handle highly complex matters so book one of our lawyers to seek professional advice now by calling 02) 72002700 or email us to book in a time at info@ahclawyers.com.
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