Article
13.1: Definitions
For the purposes of this Chapter:
(a) business person means a national of a Party who is
engaged in trade in goods, the supply of services, or the
conduct of investment activities;
(b) business visitor means a national of a Party who is
seeking to travel to the other Party for business purposes,
including for investment purposes, whose remuneration and
financial support for the duration of the visit is derived from
sources outside the granting Party, and who is not engaged in
making direct sales to the general public or in supplying goods
or services themselves.
For the purposes of qualifying under this category, a
national seeking temporary entry under the present category,
shall present13-[28]
(i) proof of nationality of a Party;
(ii) documentation demonstrating that the business person will be so engaged and describing the purpose of entry; and
(iii) evidence demonstrating that the proposed business activity is international in scope and that the business person is not seeking to enter the local labour market.
Each Party shall provide that a business person may satisfy
the requirements of subparagraph (b)(iii) by demonstrating
that:
(A) the source of remuneration for the proposed business activity is outside the territory of the Party granting temporary entry; and
(B) the business person's principal place of business and the actual place of accrual of profits, at least predominantly, remain outside such territory.
(c) contractual service supplier means a national:
(i) who has high level technical or professional qualifications, skills and experience and:
(A) who is an employee of an enterprise of a Party that has concluded a contract for the supply of a service within the other Party and which does not have a commercial presence within that Party; or
(B) who is engaged by an enterprise lawfully and actively operating in the other Party in order to supply under a contract within that Party; and
(ii) who is assessed as having the necessary qualifications, skills and work experience accepted as meeting the domestic standard in the granting Party for their nominated occupation.
Nothing in (A) or (B) above shall preclude a Party from
requiring an employment contract between the national and the
enterprise operating in the granting Party.
(d) dependent means:
(i) For Australia, a person who meets the requirements for a dependent or dependent child as defined in the Migration Regulations 1994.
(ii) For Chile, a family member who lives with the business person, including the parents, children and the concubine.
(e) executive means a national who primarily directs the
management of an enterprise, exercises wide latitude in
decision making, and receives only general supervision or
direction from higher level executives, the board of directors,
or stockholders of the enterprise. An executive would not
directly perform tasks related to the actual provision of the
service or the operation of the enterprise.
(f) granting
Party means a Party who receives an application for
temporary entry from a national of the other Party who is
covered by Article 13.2.
(g) immigration formality means a visa,
employment pass, or other document or electronic authority
granting a national of one Party the right:
(i) in the case of business visitors, to enter and visit the granting Party;
(ii) in the case of executives and their accompanying spouses, intra-corporate transferees and their accompanying spouses and contractual service suppliers and their accompanying spouses, to enter, reside and work in the granting Party; or
(iii) in the case of dependents of executives, intra-corporate transferees and contractual service suppliers, to enter and reside in the territory of the granting Party.
(h) immigration measure means a measure affecting the entry
and sojourn of aliens.
(i) intra-corporate transferee means an employee of an
enterprise of a Party established in the territory of the other
Party through a branch, subsidiary or affiliate which is
lawfully and actively operating in that Party, who is
transferred by that enterprise to fill a position in the
branch, subsidiary or affiliate of the enterprise in the
granting Party, and who is:
(i) a manager which means a national who will be responsible for the entire or a substantial part of the operations of the enterprise in the granting Party, receiving general supervision or direction principally from higher level executives, the board of directors or stockholders of the enterprise, including directing the enterprise or a department or subdivision of it; supervising and controlling the work of other supervisory, professional or managerial employees; and having the authority to establish goals and policies of the department or subdivision of the enterprise; or
(ii) a specialist which means a national with advanced trade, technical or professional skills. The person seeking entry must be assessed as having the necessary qualifications or alternative credentials accepted as meeting the granting Party's domestic standards for the relevant occupation.
For the purposes of qualifying under this category, a
national seeking temporary entry under the present category,
shall present13-[29]
(A) proof of nationality of a Party;
(B) documentation demonstrating that the business person will be so engaged and describing the purpose of entry; and
(C) documentation demonstrating the attainment of the relevant minimum educational requirements or alternative credentials.
(j) spouse means:
(i) For Australia, a person who meets the requirements for a spousal relationship as defined in the Migration Regulations 1994.
(ii) For Chile, a person who meets the requirements for a spousal relationship under Chilean domestic laws and regulations.
(k) temporary entry means entry into the territory of a
Party by a business person of the other Party without the
intent to establish permanent residence.
Article
13.2:
Scope and Coverage
1. This
Chapter shall apply to measures affecting the movement of
nationals of a Party into the territory of the other Party
where such persons are:
(a) business visitors;
(b) contractual service suppliers;
(c)
executives of a business headquartered in a Party, establishing
a branch or subsidiary of that business in the other Party;
or
(d) intra-corporate transferees.
2. This
Chapter does not apply to measures affecting nationals seeking
access to the employment market of a Party, nor shall it apply
to measures regarding citizenship, nationality, permanent
residence, or employment on a permanent basis.
Article
13.3:
General Obligations
1. Each Party shall apply expeditiously its measures relating to
the provisions of this Chapter so as to avoid unduly impairing
or delaying trade in goods or services or conduct of investment
activities under this Agreement.
2. Nothing
in this Agreement shall prevent a Party from applying measures
to regulate the entry of nationals of the other Party into, or
their temporary stay in, its territory, including those
measures necessary to protect the integrity of, and to ensure
the orderly movement of nationals across, its borders provided
that such measures are not applied in such a manner as to
nullify or impair the benefits accruing to the other Party
under the terms of this Chapter and Chapter 9 (Cross-Border
Trade in Services).
3. The sole
fact of requiring nationals to meet eligibility requirements
prior to entry to a Party shall not be regarded as nullifying
or impairing the benefits accruing to the other Party under
this Chapter and Chapter 9 (Cross-Border Trade in
Services).
4. Any
measure regarding temporary entry of business persons adopted
and maintained by a Party at its own initiative or as a result
of an agreement between the Parties, that provides for more
liberal access for and/or treatment of business persons covered
by this Chapter, shall be accorded to business persons covered
by this Chapter. However, with respect to such
measures adopted or maintained by a Party at its own
initiative, any more liberal access and/or treatment under such
measures shall only be accorded for so long as the measures are
in place.
Article
13.4:
Grant of Temporary Entry
1. Each
Party shall grant temporary entry to business persons,
including spouses and dependents of intra-corporate
transferees, who are otherwise qualified for entry under
applicable measures including those relating to public health
and safety and national security, in accordance with this
Chapter, including the provisions of Annex 13-A.
2. Each
Party shall ensure that fees charged by its competent
authorities on applications for an immigration formality do not
constitute an unjustifiable impediment to the movement of
nationals under this Chapter.
3. The
temporary entry granted by virtue of this Chapter does not
replace the requirements needed to carry out a profession or
activity according to the specific laws and regulations in
force in the territory of the Party authorising the temporary
entry.
Article
13.5:
Provision of Information
1. Each
Party shall:
(a) make publicly available explanatory material on all relevant measures which pertain to or affect the operation of this Chapter, including any new or changed measures;
(b) no later than six months after the date of entry into force of this Agreement provide the other Party with a consolidated document describing the requirements for temporary entry under this Chapter in such a manner as will enable business persons of the other Party to become acquainted with them; and
(c) maintain appropriate mechanisms to respond to inquiries from the other Party, and interested persons of the other Party, regarding measures affecting the temporary entry and temporary stay of nationals of the other Party.
2. Each
Party shall collect and maintain, and make available upon
request to the other Party in accordance with its domestic law,
data respecting the granting of temporary entry under this
Chapter to business persons of the other Party who have been
issued immigration documents.
Article
13.6:
Consultations
1. The
Parties agree to consult on any issue raised by a Party that
relates to this Chapter. Such consultations may
include:
(a) consideration of suggestions to further facilitate temporary entry of business persons;
(b) consideration of the development of common criteria and interpretations for the implementation of this Chapter; and
(c) any concerns regarding a refusal to grant temporary entry under this Chapter.
2.
Consultations shall include officials from the Parties'
immigration authorities.
Article
13.7:
Dispute Settlement
1. A Party
may not initiate proceedings under Chapter 21 (Dispute
Settlement) regarding a refusal to grant temporary entry under
this Chapter or a particular case arising under Article 13.3
unless:
(a) the matter involves a pattern of practice;
(b) the business person has exhausted the available domestic remedies regarding the particular matter; and
(c) the Parties have undertaken consultations in accordance with Article 13.6.
2. The
remedies referred to in paragraph 1(b) shall be deemed to be
exhausted where there is undue delay in the remedial process
which is attributable to the Party in which the process is
undertaken.
Article
13.8:
Relation to Other Chapters
1. Except
for this Chapter, Chapters 1 (Initial Provisions), 2 (General
Definitions), 20 (Institutional Arrangements), 21 (Dispute
Settlement), and 23 (Final Provisions), no provision of this
Agreement shall impose any obligation on a Party regarding its
immigration measures.
2. Nothing
in this Chapter shall be construed to impose obligations or
commitments with respect to other Chapters of this
Agreement.
Article 13.9: Application of
Regulations
1. To the
extent possible, each Party shall, on request, provide to
interested persons a concise statement addressing comments
received on proposed and existing regulations relating to the
temporary entry of business persons.
2. Where an application for an immigration formality is required
by a Party, the Party shall process expeditiously complete
applications for immigration formalities received from
nationals of the other Party covered by Article 13.2, including
further immigration formality requests.
3. Each
Party shall upon request, and within a reasonable period after
a complete application by a national covered by Article 13.2
requesting temporary entry is lodged, notify the applicant
of:
(a) receipt of the application;
(b) the status of the application; and
(c) the decision concerning the application, including, if approved, the period of stay and other conditions; or if refused, the reasons for refusal and any avenues for merits review.
Temporary Entry for Business
Persons
Section 1
1. In the
case of Chile:
(a) Business
persons who enter Chile under any of the categories set out in
Article 13.2, including spouses and dependants of
intra-corporate transferees, shall be deemed to be engaged in
activities which are in the country's interest.
(b) Business
persons who enter Chile under any of the categories set out in
Article 13.2 and are issued a temporary visa shall have that
temporary visa extended for subsequent periods provided the
conditions on which it is based remain in effect, without
requiring that person to apply for permanent residence.
(c)
When a national:
(i) has been granted the right to temporary entry under Article 13.4 for longer than 12 months; and
(ii) has a spouse;
Chile shall, upon application by an accompanying spouse of a
national of Australia who meets Chile's criteria for the
grant of an immigration formality, grant that accompanying
spouse the right of temporary entry, stay, work and movement,
for an equal period to that of the national.
(d) Business
persons who enter Chile may also obtain an identity card for
foreigners.
Section 2
2. In the
case of Australia:
For the purposes of this Section of the Annex:
service seller means a national who is a sales
representative of a service supplier of that Party who is
seeking temporary entry to the other Party for the purpose of
negotiating, or entering into, agreements for the sale of
services for that service supplier, where such a representative
will not be engaged in making direct sales to the general
public or in supplying services directly.
Short Term Temporary Entry
(a) Australia
shall, upon application by a business visitor of Chile who
meets Australia's criteria for the grant of an
immigration formality, grant that business visitor, through a
single immigration formality, the right of temporary entry to,
and stay and movement in, Australia, consistent with the
purpose of the visit, for a period of up to 90 days. A
business visitor of Chile who is a service seller may stay for
a period of up to 12 months.
Long Term Temporary Entry
(b) Australia
shall, upon application by a contractual service supplier, an
executive or an intra-corporate transferee, who is a national
of Chile who meets Australia's criteria for the grant of
an immigration formality, grant that person, through a single
immigration formality, the right of temporary entry to, and
stay, work and movement in, Australia. These rights shall
be granted for an initial period of time, sufficient to supply
relevant services and consistent with the purpose of the visit,
for:
(i) an intra-corporate transferee, who meets the definition of an intra-corporate transferee and who is a manager, for a period of up to four years, with the possibility of further stay;
(ii) an intra-corporate transferee, who meets the definition of an intra-corporate transferee and who is a specialist, for a period of up to two years, with the possibility of further stay; and
(iii) a contractual service supplier for a period of up to one year, with the possibility of further stay.
(c)
When a national:
(i) has been granted the right to temporary entry under Article 13.4 for longer than 12 months; and
(ii) has a spouse;
Australia shall, upon application by an accompanying spouse
of a national of Chile who meets Australia's criteria for
the grant of an immigration formality, grant that accompanying
spouse the right of temporary entry, stay, work and movement,
for an equal period to that of the national.
13-[28]In addition to the requirements in
Article 13.1(b)(i) to (iii), temporary entry will only be
granted to business persons who also meet the requirements of
a Party's immigration measures.
13-[29] In addition to the requirements in
Article 13.1(i)(A) to (C), temporary entry will only be
granted to business persons who also meet the requirements of
a Party's immigration measures.