Salomonn Migration and Advocacy

Debunking the Myth Regarding EOI for Global Talent Visas

    You are currently here!
  • Home
  • Uncategorized Debunking the Myth Regarding Expressions of Interest for Subclass 858 Global Talent Visas
Debunking the Myth Regarding Expressions of Interest for Subclass 858 Global Talent Visas, Raymond Salomonn

Debunking the Myth Regarding Expressions of Interest for Subclass 858 Global Talent Visas

November 28, 2023 Raymond Salomonn Comments Off

Many have recently questioned whether an expression of interest is necessary to submit a valid application for the subclass 838 Global Talent Visa.

Item 1113 of Schedule 1 of the Migration Regulations 1994 prescribes how to lodge a valid application for subclass 858 global talent visas. The validity requirements prescribed in item 1113 are listed in general terms below:

  • the form using which the application can be lodged (i.e. the internet form);
  • visa application charges for primary applicant and all accompanied family members, if there are any;
  • first and second installments of the visa application charges and the circumstances under which they are payable,
  • where the applicant can be at the time of the application lodgement, i.e., applicant may be in or outside Australia but not in immigration clearance;
  • types of visas applicants must hold if they are in Australia at the time of lodgement;
  • the accompanied family members of the primary applicant can be made part of the application;
  • if the visa applicant chooses “distinguished talent” pathway, a completed form 1000 must accompany the application at the time of application;
  • if the visa applicant chooses “intelligence or security” pathway, then the Minister (for Immigration) must have received advice from the minister responsible for intelligence and security or from the Director-General of Security that the applicant has provided specialised assistance to the Australian government in matters of security;
  • alternatively, an endorsement by the Prime Minister’s special envoy for global business and talent attraction that the applicant is likely to make a significant contribution to the Australian economy if granted a subclass 858 global talent visa.

For subclass 858, schedule two of the Migration Regulations 1994 specifies a number of additional requirements. These requirements are considered during the processing of the visa application, once the validity threshold of the application is met. A lot of these requirements will be discussed in another article. However, schedule 2 for subclass 858 includes an intriguing requirement for global talents, i.e., applicants who are below the age of 18 or above 55 would be required to provide evidence that they would be of “exceptional benefit” to the Australian community. This unequivocally demonstrates Australia’s readiness to accept authentic professionals from any industry, regardless of their age, on the condition that such migration proves advantageous for the country.

What constitutes “exceptional benefit” to the Australian community is not written in the law. In this regard, decisions rendered by the Administrative Appeals Tribunal (AAT), the Federal Circuit and Family Court of Australia, and the Federal Court of Australia provide guidance.

The case of Hwang, the visual artist:

An interesting case worth mentioning here is AAT decision in the matter of Hwang[1] (the visual artist case). Mr Hyun Ho Hwang, a Korean national, had his application for subclass 858 visa refused on the grounds that insufficient evidence was presented to establish that the nominator for the visa possessed a national repute in the same field of the arts as the applicant. Consequently, the delegate concluded that the applicant failed to satisfy the criteria outlined in clause 858.212(2)(c). Mr. Hwang then sought review at the Administrative Appeals Tribunal.

At paragraph 44, in assessing whether the Applicant’s calibre was of exceptional benefit to Australia, the Tribunal had regard to the consideration of the meaning of ‘exceptional’ in Hatcher v Cohn [2004] FCA 1548; (2004) 139 FCR 425 as apposite. In Hatcher v Cohn, Kiefel J stated at [49]-[50]:

Exceptional circumstances in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person, and which set them apart from other persons in a comparable situation may amount to exceptional circumstances … The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted unless the limitation appears from the relevant statutory provision.

At [45] in Hwang, the Tribunal considered that the statutory context does operate limit or qualify the otherwise ‘wide operation’ of the word insofar as cl 858.212(2)(a) requires the applicant to establish that his record of achievement is not only ‘exceptional’ but is also outstanding and, in addition, is internationally recognised as such. Additionally, the Tribunal also observed that, at this time, there is no definitive ruling from the Court regarding the definition or interpretation of the phrase “internationally recognised record of exceptional and outstanding achievement.”

The myth of EOI: fact vs fiction

To return to the original point, a lot of people do not understand the EOI requirements for subclass 858 global talent visas. The law does not stipulate in Schedule 1 or Schedule 2 of the Migration Regulations 1994 that a subclass 858 global talent visa applicant must have received an invitation to apply. As a matter of fact, the term “expression of interest” is not mentioned in any of the schedules of the Regulations. Therefore, submitting an expression of interest prior to submitting an application for a subclass 858 global talent visa is not a mandatory prerequisite. Consequently, this raises the question as to how this myth originated.

Candidates for subclass 858 global talent visas are exceptionally bright, well-known on a global scale, and leaders in their respective fields. A certain degree of self-assurance and pride is a natural consequence of having such a high level of acceptance on a global scale. As a result, many GTV candidates believe that any information they can find on the website of the Department of Home Affairs regarding their application for an Australian permanent visa will be sufficient for their journey. A significant number of them do not realise how complicated the legal framework governing migration in Australia can be. This applicants’ self-administration of Australian migration law for subclass 858 visas has led some to believe that submitting an EOI is the initial step in the visa application process.

What does EOI do then?

A successful outcome in expression of interest (EOI) would only mean that the applicant is going to receive priority processing in the visa application. The processing time for subclass 858 global talent visa applications will be extended for applicants who submit valid visa applications without submitting an expression of interest. At the moment, it can take between two and three years for a global talent visa application to be processed if this application is lodged without an expression of interest.

Additional interesting points: make Australia home while you wait

An application for a global talent visa can be made from outside or inside Australia. Applicants who submit their applications from within Australia will be granted bridging visas to remain in the country while their applications are being processed. This means that a person who enters Australia on a Subclass 600 visitor visa and is not subject to condition 8503 “No Further Stay” is indeed eligible to apply for a global talent visa while in Australia and could benefit from a bridging visa that grants them full-time permission to work, study, engage in any lawful activity they desire, and medicare entitlements.
Another beauty of this application is that the applicant may be in or outside Australia when the visa is granted. This means that the minister will grant a global talent visa to an applicant regardless of the applicant’s geographic location if the visa processing is completed while the applicant is travelling outside of Australia.

About Raymond Salomonn

Raymond Salomonn is an experienced registered migration agent. He is qualified to represent and prepare candidates for global talent visas on account of his expertise, experience, and credentials. Each visa application is unique in quality, merit, and appearance. Mr. Salomonn endeavours to elicit this uniqueness from each applicant in his migration practise. His perspective extends beyond the mere completion of a visa application form. It involves embellishing a visa application with every conceivable accomplishment and embellishment that could adorn the distinguished career of a gifted individual. Mastery of this craft is essential in order to effectively convey the success-seeking narratives of his clients.

Raymond Salomonn takes the time to understand the nature of the application and create this strategy solely tailored for individual clients.

[1] Hwang (Migration) [2023] AATA 3808.