ABIL Global: Australia, South Africa

December 28, 2016

By Immigration Group

This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.

Megaphone SpeakerAustralia has announced changes to certain temporary activity visas effective November 19, 2016. Also, in South Africa, there are several options for the divorcing foreign spouse.

Australia

Australia’s Department of Immigration and Border Protection has announced changes to certain temporary activity visas effective November 19, 2016. These changes do not affect the subclass 457 visa.

The following visas will be closed as of November 19:

(a)  Subclass 401—Temporary Work (Long Stay Activity) Visa. This visa included four streams:

  • Exchange stream—to work in a skilled position under a reciprocal staff exchange arrangement
  • Sports stream
  • Religious worker stream
  • Domestic worker stream

(b)  Subclass 402—Training and Research Visa, which has permitted occupational trainees to undergo training in Australia;

(c)  Subclass 416—Special Program Visa, allowing participation in cultural exchanges;

(d)  Subclass 420—Temporary Work (Entertainment Visa); and

(e)  Subclass 488—Super Yacht Crew Visa.

Beginning on November 19, 2016, four new visa subclasses will be introduced (or continued):

1.    Subclass 400—Temporary Work (Short Stay Specialist Visa)

The current subclass 400 visa enables the visa holder to live and work in Australia for a period of up to 3 months normally, but up to 6 months in special circumstances. It has proven to be an extremely useful visa. It allows the visa holder to undertake short-term highly specialized non-ongoing work or to participate in an activity or work relating to Australia’s interest.

2.    Subclass 403—Temporary Work (International Relations Visa)

This visa is for people wishing to enter Australia on a temporary basis:

  • In relation to a bilateral agreement;
  • To represent a foreign government or to teach a foreign language in an Australian school;
  • To undertake full-time domestic work for a diplomat;
  • As a person with statutory privileges or immunities; or
  • To participate in seasonal worker programs.

3.    Subclass 407—Training Visa

This visa supplants the current subclass 402 Training and Research Visa.

4.     Subclass 308—Temporary Activity Visa

This visa is available for those wishing to enter Australia on a temporary basis to:-

  • Work in the entertainment industry;
  • Participate in non-ongoing cultural or social activities;
  • Observe or participate as an academic in a research project;
  • Undertake full-time or religious work;
  • Participate in a special program to enhance international relations and cultural exchange;
  • Participate in high-level sports and/or training;
  • Work in a skilled position under a staff exchange arrangement;
  • Participate in an Australian government-endorsed event;
  • Work as a super yacht crew member; or
  • Undertake full-time domestic work on behalf of senior foreign executives.

Related regulations have not yet been published. We do not know how any of the above activities are defined and whether such definition will expand or limit availability.

Parent Visa. Australia has a contributory parent visa system whereby each parent must pay a sum of AUD$43,600 before the grant of this visa. The Minister of Immigration and Border Protection has stated that parents have made substantial claims on the Australian national medical benefit scheme far in excess of the sums paid by them to obtain the visa. There is a strong possibility that the sum payable by a parent to obtain this visa will be substantially increased in the not too distant future.

South Africa

There are several options for a divorcing spouse in South Africa. Under South Africa’s Immigration Act, 13 of 2002, a foreign national can qualify for a visa to reside in South Africa as a spouse under two common scenarios: where he or she is (1) in a spousal relationship with a South African citizen (or permanent resident); or (2) accompanying another foreign national to South Africa who is coming on a long-term, temporary residence visa, such as to work.

Much like counseling newlyweds about the possibility of divorce, amid the excitement of moving to a new country little is said in law about what happens if things fall apart in the spousal relationship.

But as a starting point, for an expat to qualify for a visa based on being a spouse, the couple either must be in a formally registered union—for example, a civil union or marriage—or, if unmarried, must have been in an unregistered life partnership for at least two years.

Foreign spouses of South Africans can also get permission to work without their needing, or their employers needing, to meet the usual requirements for a work visa. Spouses traveling into the country to accompany their non-South African spouses who will be working in South Africa do not qualify for permission to work (unless they qualify for a work visa in their own right).

If the spousal relationship fails, the Act and regulations require the foreign national to notify the Department of Home Affairs as soon as the relationship ends. At that point, the Department may withdraw the foreign spouse’s visa and he or she will be required to leave the country.

But what does one do in certain special situations; for example, if the spouse wishes to remain in South Africa after a divorce because the children need to remain in the country or because South Africa has become the spouse’s home and he or she has nowhere else to go?

These types of situations have created a number of policy challenges for the Department. As a matter of logic, almost invariably the spousal relationship will end before the marriage is formally ended by a divorce. However, it is not unknown for couples to separate acrimoniously and with the intent of divorcing (at which point, strictly speaking, the notice referred to above should be given to the Department) only to reconcile before such divorce. As a result, the Department has adopted the practice that notice of termination of the relationship does not need to be furnished to the Department until the divorce occurs.

However well-intentioned the Department’s policy is, it can create a problem where the foreign spouse is in the middle of divorcing and needs to extend his or her spousal visa. A corollary of the termination policy is that the spousal visa must be deemed to be valid until the divorce happens. But the prescribed requirements to extend a spousal visa include that the “principal” visa holder (or South African) must formally confirm support for the extension application. Getting that confirmation in the midst of an acrimonious divorce is often either unlikely to happen or may only be obtained at the price of the principal’s securing some benefit in the negotiations.

In practice, the way to address this is for the foreign spouse to approach the Department separately to explain the circumstances and seek permission to file the extension application without the need for the spouse’s support. The applicant must show “good cause” for this request. This term is not defined, which allows the Department considerable leeway in determining what constitutes good cause in any given case.

If the Department is duly persuaded, it will issue a written authorization recording which requirements have been waived. The applicant then applies for the extension of the visa and submits the authorization letter to document what is not required. If the request is declined, an administrative appeal may be made.

A potential downside to this process is that it is entirely on an ex parte basis. This means that if the other party/spouse has valid grounds to oppose the extension application, he or she will not have an opportunity to be heard until becoming aware of the visa extension. However, at that time, he or she can approach the Department on the matter, as it does have the discretion to withdraw a visa.

Assuming a divorce is granted and the spouse needs to remain in South Africa, he or she must notify the Department of this development. The Department may then withdraw the visa, but in practice the applicant can ask for the fact of the divorce to be noted and to be allowed a reasonable opportunity to apply for and obtain a more appropriate visa.

If the expat ex-spouse needs a work visa because he or she now needs to work, whether for self-support, to support the family, or just for the sake of his or her own dignity, the applicant must use the same procedure as described above to seek a waiver of the “offending” requirements of the work visa with which the applicant cannot reasonably comply due to his or her circumstances.

Again, if either the special request or the visa itself is declined, the applicant has the right to appeal that decision.

In conclusion, while the process for addressing the post-spousal relationship for the expat spouse in South Africa is somewhat inelegant, it does work.