The Skills in Demand 482 visa has become a vital pathway for skilled workers seeking employment in Australia. This visa requires a sponsoring employer to nominate the applicant for a specific role. We often have questions about "self-sponsorship". But is self-sponsorship for the 482 visa a viable option, or is it bound to face refusal? Let’s explore this question in detail.
Understanding Self-Sponsorship
Self-sponsorship refers to the scenario where an individual owns their own business and wants to use that entity to sponsor themselves for a 482 visa. This approach involves the usual steps of a 482 visa application process:
- Sponsorship Approval: The business must apply to become an approved sponsor through the Department of Home Affairs.
- Nomination of a Position: The business must nominate a position that aligns with the applicant’s skills and is on the relevant skilled occupation list.
- Visa Application: The skilled person applies for their visa application, proving qualifications, work experience, English ability and in some cases skills assessment, as well as health and character requirements.
Legal Framework and Requirements
The Department of Home Affairs has specific requirements for businesses sponsoring 482 visa applicants, whether they are self-sponsored or not. These include:
- Genuine Need for the Position: The business must demonstrate a genuine need for the role within its operations.
- Market Salary Rates: The nominated position must meet Australian market salary rates to ensure compliance with fair work standards.
- Labour Market Testing (LMT): In most cases, businesses are required to prove that they have advertised the role locally and were unable to find a suitable Australian candidate.
- Financial Capability: The sponsoring business must have sufficient financial resources to support the employment of the visa holder.
Challenges of Self-Sponsorship
While self-sponsorship is theoretically possible under the current visa regulations, it faces significant challenges:
1. Proving Genuine Need
The Department of Home Affairs scrutinizes self-sponsorship applications closely. Proving a genuine need for the position can be difficult if the business is newly established or lacks substantial operations. For example, if the applicant is the sole proprietor and the only employee, the department may question the legitimacy of the role.
2. Labour Market Testing Compliance
Labour market testing requires advertising the role and proving that no suitable Australian candidate is available. This can be challenging in self-sponsorship cases, as it may appear that the role was tailored specifically for the applicant.
3. Financial Viability
Some people may establish a new business to try to sponsor themselves. A newly established business may struggle to provide evidence of financial stability, such as cash flow statements, tax returns, or contracts. Without these, it becomes challenging to demonstrate that the business can meet its sponsorship obligations.
4. Perception of Conflict of Interest
Self-sponsorship inherently involves a potential conflict of interest, as the applicant is both the sponsor and the beneficiary. This can raise concerns with the Department of Home Affairs about the integrity of the application and is the element that undermines genuine need and labour market testing requirements as above.
Successful Self-Sponsorship: Key Considerations
While challenging, self-sponsorship is not impossible. Applicants who are determined to pursue this pathway must consider the following:
- Comprehensive Business Plan: Develop a robust business plan that outlines the operational structure, revenue model, and market opportunities. Highlight how the nominated position is essential for business success. Even for established businesses, a business plan or a letter to the same effect will help to explain to a case officer why the role is needed to be filled for the business to keep running.
- Independent Validation: Engage third-party professionals, such as accountants or business consultants, to validate the business’s financial and operational viability. This creates a degree of separation so that all claims are not being made by the one person.
- Transparency in Labour Market Testing: Conduct genuine labour market testing and maintain detailed records to demonstrate compliance. For self-sponsorship circumstances, it is even more important that full evidence (including a candidate matrix indicating who has applied and the rigorous recruitment processes including candidate review, interviewing and deliberation were conducted) is given to the Department.
- Seek Expert Advice: Immigration lawyers or registered migration agents can provide valuable insights into meeting the stringent requirements of self-sponsorship in your specific circumstances.
Case Studies: Success and Refusal
Success Story
https://jade.io/article/937335
This is the case of PROJECT 42 PTY LTD whose nomination for CEO/MD for the multimedia consulting company was refused by the Department of Home Affairs. The case highlighted that there is no rule precluding self-sponsorship, but that there are strict requirements that maintain the system’s integrity.
The business had six staff, including events manager, video editor, office manager, graphic designer and public relations and social media managers.
The position to be filled closely matched the nominated occupation.
As the Tribunal Member was convinced that the position was genuine and a genuine search for an Australian citizen or permanent resident who could have filled the role instead had been conducted, they approved the nomination.
Refusal Example
https://jade.io/article/778692
In this Tribunal matter, Sarab Trading International Pty Ltd were not successful in sponsoring the manager, who was the owner, director and the only employee.
The ANZSCO occupation selected was 134999 Specialist Manager nec. The Tribunal Member did not find that this occupation was likely to be appropriate and was a highly specialised occupation that did not match well with the role or the business.
The business was an export business.
The business had only one employee, the person nominating himself.
The Tribunal found that the nominated position was not genuine.
It is important to note again that the Tribunal noted there was nothing preventing “self-sponsorship nominations” and so did not address it directly in this way, however in this case, the strict integrity requirements (namely the requirement to prove a “genuine position”) meant that this nomination was not successful.
What’s the difference?
What makes the difference is evidence that can demonstrate there is a genuine need for the role. In the successful story, that business was able to show more evidence that they have a genuine need to sponsor the person in that role.
Decision makers will consider all aspects of the position and of the business, to determine if it appears to be a genuine arrangement, or if the application has been contrived to secure a migration outcome for the nominated person.
The Verdict: Will It Work or Be Refused?
Self-sponsorship for the 482 visa is a high-risk pathway. We will generally counsel most persons to consider alternative visa pathways due to the very high risk that the applications are rejected. Success depends on meticulous planning, compliance with visa requirements, and the ability to present a convincing case to the Department of Home Affairs. While it is not explicitly prohibited, the additional scrutiny applied to such applications makes refusal a common outcome.
For those considering self-sponsorship, the key is preparation. Maintain transparency in compliance and seek professional guidance, both for the visa process and for external support such as with accounting and recruitment. With a good case, self-sponsorship can be done, but it is very risky.
How can Work Visa Lawyers help you?
Our team of registered migration agents and immigration lawyers can assist you with your 482 visa application or any other Australian visa application.
Since 2011, we have assisted thousands of applicants and businesses with Australian immigration matters.
Contact us or book an appointment for more information.
Author: Luke Edwards - Immigration Lawyer
Sources:
https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/skills-in-demand-visa-subclass-482
