Everything you need to know about the residence and income requirements for 491-to-191.

Jason ZHANG///MARA-registered migration agent,

Newstars Group CTO, gold-medal study-abroad and migration consultant at the Melbourne branch, pen name Mitu Weiyuan.

He has extensive experience handling migration and study-abroad matters, enjoys using migration law to solve all kinds of visa problems, and specialises in tackling tricky, complex cases. He has authored dozens of in-depth study-abroad and migration articles for Newstars, helping applicants understand not just what to do, but why.

  Suppose in a given financial year you spend 4 months in China, then return to Australia to work for 8 months — as long as your income over those 8 months reaches $53,900, that’s enough. You can still apply for the 191 PR visa once you have held the 491 for a full three years, without needing to make up the 4 months spent in China.

  Of course, if you stay in China long-term, how to satisfy the income requirement becomes a separate question.

After reading the above, many of you might ask:Can I go back to China to work long-term, as long as I declare an income of $53,900 each year when I lodge my Australian tax return?

The answer is:In theory, yes — but this approach is very risky.Living overseas the whole time while somehow earning $53,900 in Australian income looks very suspicious. In theory, if you own a business in a regional area of Australia that pays out dividends of that amount each year, or you own several properties in a regional area earning that much in rent, then it genuinely could work.But if it’s employment income while you’re overseas (so-called remote work), it can easily be found to be fabricated.So applicants are advised not to go further down this risky path.

Now here’s the question: regarding the annual income of $53,900, which three years does it actually refer to?

According to the migration law shown below, the income across three“relevant income years” financial years’notice of assessment span needstaxable income to reach the prescribed amount (which is, in fact, $53,900).

What is a notice of assessment, and what is taxable income?

Notice of assessment

It’s the assessment notice the Tax Office issues after you lodge your tax return each financial year — it shows your taxable income, how much tax you paid, and so on. The image below is a client’s tax notice for the 2017-18 financial year,taxable income is simply your income minus any work-related deductions:

What are relevant income years?

Based on the original migration law text shown below, a relevant income year is simply:any completed financial year, prior to lodging the 191 visa application, during which you held a regional provisional visa (that is, a 491 or 494 visa) (holding the visa for only part of that year still counts).

• Basic fact:Australia’s financial year runs from 1 July each year to 30 June the following year.

So here’s the question:Suppose Xiao Ming’s income in the financial year his 491 was granted (2020.7.1-2021.6.30) wasn’t enough — can he still lodge his 191 visa application on 1 April 2024?

Answer:Of course not.If the income for the financial year in which the 491 was granted doesn’t meet the requirement, the lodgement date naturally has to be pushed back, until the income requirement is met across three financial years. So, at the earliest, Xiao Ming would have to wait until after 1 July 2024 to lodge (and since tax returns take time to process, it might not be until late July or August)

So, a quick tip:

if your 491 visa is granted in the first half of a financial year (for example, August or September), you should try to meet the income requirement within that same financial year, so you can lodge your 191 application in August or September three years later. But if you’re granted your 491 in the second half of a financial year (for example, April or May), and your income for that financial year is relatively limited, then you’re better off waiting until the new financial year starts in July to focus on earning, then lodging in July three years later.

My regular salary is only $40,000, which doesn’t meet the $53,900 requirement — what should I do?

Some of you might be worried about having a lower salary while holding the 491 visa. Actually, this problem is very easy to solve: just take on an extra job (please read on patiently). During your regular job, your employer pays you and reports your income through your TFN. At other times, you can absolutely register an ABN and work as a sole trader, taking on extra work on weekends (for example, driving for Uber, mowing lawns for people, and so on). For work like lawn mowing, even if your client pays you in cash, it should still be declared as income and taxed accordingly — so you understand what I’m getting at?

I live in a regional area — can I work remotely for an employer in Sydney, Melbourne, or Brisbane?

This question comes up often, probably because finding work in regional areas is genuinely more difficult.Many would like to ask, can I set up an ABN but take on work from companies in Sydney or Melbourne?Or, put another way, I live in a regional area, but I buy a business/investment/rental property in Sydney, Melbourne, or Brisbane, and collect dividends/rent from it each year, or something along those lines?

The author’s view is that this approach is highly inappropriate, and it’s strongly recommended that you don’t attempt it.The author has already covered, in the previous section, the solution for when your income isn’t enough — so why go looking for trouble on a risky path?

The 491 visa carries condition 8579, which requires living, working, and studying to all take place in a regional area.Remote work may look like working in a regional area, but in reality it distorts the purpose the legislator had in mind when drafting condition 8579.According to the Department of Home Affairs’ Procedures Advice Manual (PAM), the purpose of condition 8579 is as followsto promote economic development in regional communities (as shown in the image below), and working remotely for a Sydney employer doesn’t achieve this. 

Also, again according to PAM, although the employer can indeed be located in a metropolitan area, or even overseas, it is required thatbe operating in a DRA through a local office of branch (as shown in the image below). 

Therefore, practices like remote work, or remotely purchasing a business, all go against the original intent of the 491 legislators, after all, no one has actually done this in practice — it’s purely a risky theory.

So it’s strongly recommended that 491 holders not take the risk, in case they discover, three years down the track, that this path doesn’t work, at which point their migration journey would be completely derailed.