Detail Question Of The Week



462 Work and Holiday Visa - Working for different employers

Category:Visitor and Working Holiday Visa

Question asked

I am currently on a 462 Work and Holiday Visa from the USA. My visa expires at the end of Feb 2017 but my 6 month limit with one employer (company A) is about to expire on 13 October. I am considering moving onto the payroll of my bosses non-related company (company B) but would continue to work for the same company (A). Company B would then charge Company A for my services. My understanding is that I shouldn't do this but I also have heard of many people doing similar. I'm looking to get on a permanent visa in the future (probably 189) and my concern is that if I do what I have proposed above that it will come back to bite me when applying for another visa. Can you advise on what can possibly happen if I go the above route and if it could cause problems for me when applying for a visa in the future?

FYI we have already considered the sponsorship option and it won't work as the company doesn't meet certain requirements to become a sponsor.

Answer provided by our agents

Dear J.

There are several aspects you may wish to consider.

1) A condition 8547 is attached to subclass 462 visa. This condition does not allow subclass 462 visa holders to work more than 6 months for 1 employer. If subclass 462 visa holders do so the Department considers it as breach of visa condition. A consequence of breach of visa conditions may be a cancellation of the visa.

2) Most of visas require visa applicants to have been compliant with the conditions that were attached to a visa previously held. If this provision is included in the requirements for a visa you are applying for but you have not been compliant, the Department may consider you do not meet all the requirements for a visa you are applying for.

3) Section 101 of the Migration Act 1958 states in applying for a visa, an applicant requires to answer all of the questions in the application form (either paper or electronic) and all of the answers need to be correct. A possible consequence of non?compliance with this provision may be a cancellation of visa.

4) There is Public interest criterion (PIC) 4020. Most of visas require the applicants to meet this criterion and subclass 189 is one of them.

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The Department’s policy states the following:

Public interest criterion (PIC) 4020 enables refusal of a visa if the applicant provides a bogus document, or information that is false or misleading in a material particular in relation to the application for the visa, or in relation to a visa that the applicant held in the period of 12 months before the application was made. It also enables refusal where the applicant fails to satisfy the
delegate as to their identity.

PIC 4020 also enables refusal where the applicant or a member of their family unit was previously refused a visa because of a failure to meet these requirements:
- If the applicant or a member of their family unit was previously refused a visa under PIC 4020 because they provided bogus documents or false or misleading information. This refusal must have occurred between the 3 years before the current application was made and the time of decision on the current application.
- If the applicant or a member of their family unit was previously refused a visa under PIC 4020 because they failed to satisfy as to identity. The refusal must have occurred between the 10 years before the current application was made and the time of decision on the current application.

As a result of a PIC 4020 refusal, if an applicant, applies for another visa for which PIC 4020 is a criterion, they may not be able to satisfy the PIC for a period of three years, if they provided false or misleading information or a bogus document, or ten years if they failed to satisfy as to identity.

Throughout this instruction, for ease of reference the "three year period" and "ten year period" are collectively referred to as "non?grant" period/s. This terminology is not an apt descriptor. The 10 year period is not able to be waived so a more apt descriptor might be "exclusion" period, however being subject to the 10 year period does not prevent an applicant from making other applications during the 10 year period. The 3 year period is able to be waived and so could not aptly be described as an "exclusion" period. In the hopes of reducing confusion, or multiple descriptors for these periods, the department has collectively labelled them as "non?grant" period/s. It is important to remember that the three year 'non?grant' period referred to in PIC 4020(2) can be waived.

Section 65 delegates have discretion to waive the requirement in PIC 4020(1)(a) and/or 4020(1)(b), and discretion to waive the three year requirement in PIC 4020(2) if certain preconditions are met.

Those preconditions are met if the delegate is satisfied that compelling circumstances that affect the interests of Australia, or compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen justify the grant of a visa. If they are satisfied of those matters, the delegate may exercise discretion to waive the requirements of PIC 4020(1)(a), 4020(1)(b), and/or 4020(2). There is no waiver provision in relation to the identity requirement PIC 4020(2A) or (2B).

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PIC 4020 sets out the following:

PIC 4020
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5?reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.

(2) The Minister is satisfied that during the period:
(a) starting 3 years before the applicatio
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA) However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

(2A) The applicant satisfies the Minister as to the applicant’s identity.
(2B) The Minister is satisfied that during the period:
(a) starting 10 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa; neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA) However,. subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause
(2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;justify the granting of the visa.
(5) In this clause: information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an
application, whether or not the decision is made because of that information.

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As you can see the above, a consequence of your action could be very serious.

It would be best to keep compliant to the visa conditions attached to your visa at all times in order to achieve your goal.

If you need further services from myself or a registered migration agent, please contact Amy at amy.jacobson@ask?an?agent.com.au or visit https://www.ask?an?agent.com.au/visa?quote ? and don't forget to mention your Question ID so that I can keep providing immigration services to you.

Migration Agent