It takes a global pandemic to make a complex, uncertain, frustrating migration system even more complex, less certain, and…so on.
While the situation has been changing on a daily basis, the government’s official line has been that temporary visa holders who are in Australia, and who cannot afford day to day expenses due to losing their employment or other circumstances, should return to their home country.
But what if you don’t want to leave Australia – or can’t?
Or what if you’re a temporary visa holder stuck offshore – how do you get in?
OK. Let’s take a closer look.
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What Australian Travel Restrictions Are in Place for COVID-19 (Coronavirus)?
Australian Permanent Residents and Citizens Entering Australia
Australian Permanent Residents and Citizens are able to travel into Australia, however must undertake a mandatory 14 day quarantine, which will be facilitated by the Australian government (generally in hotel rooms at the place of entry).
Australian Permanent Residents and Citizens Exiting Australia
Conversely, what if you’re an Australian citizen or permanent resident who wants to travel out of Australia?
You’re going to have some challenges.
The Australian government has placed a ban on Australians departing Australia, and there are pretty limited exemptions. You won’t need to apply for an exemption to leave if you’re departing to return to your usual place of residence overseas, or work for an airline, in freight, or in government. You will, however, need to apply online for an exemption to travel if you’re traveling:
- As part of the COVID-19 (Coronavirus) response;
- For work in a critical industry (including import and export);
- To receive urgent medical treatment not available in Australia;
- For urgent and unavoidable personal or business; or
- Your travel is in the national interest.
It is worth noting that many airlines have stopped running international flights, and the flights that are available are at extortionate rates.
Like Australia, most other countries have substantial travel bans in place, and many won’t even be processing visa applications. You’ll need to check on your country of destination before you make arrangements.
Restrictions on Temporary Visa Holders Overseas
Travel restrictions are in place prohibiting visa holders who are currently overseas from traveling to Australia.
Are there any Exemptions to Australian Travel Restrictions for COVID-19 (Coronavirus)?
While there are a number of exemptions, these are granted very selectively and the refusal rate is high.
Exemption 1: Immediate family members of Australian Permanent Residents and Citizens
If you are an immediate family member of an Australian citizen or permanent resident (a married or defacto spouse, a dependant child or a guardian), you may be eligible to enter Australia under the same mandatory quarantine requirements as citizens and permanent residents.
This is relatively straightforward if you’re married to an Australian – a copy of your marriage certificate would be sufficient.
But what if you’re not married?
If you are in a defacto relationship, you will need to show you have shared cohabitation and financial commitment with your partner for at least 6 months. It’s a bit like applying for a Partner Visa, and you may experience similar levels of scrutiny and suspicion. Good evidence of a defacto relationship may include:
- Evidence of a joint bank account;
- Evidence of lease agreements of mortgage documents;
- Birth certificates for biological children;
- Utility bills in both names;
- Mail to the same address.
For children, family books and birth certificates will be important evidence, and for non-biological children it will be important to carry relevant custody documents.
The above lists are not exhaustive, and ultimately the evidence you provide will depend on your unique family circumstances.
Exemption 2: Compelling or Compassionate Grounds for COVID-19 (Coronavirus) Exemptions
If you can convince Immigration that there are ‘compassionate’ or ‘compelling’ reasons to be allowed to travel, you might obtain special permission to enter Australia. There is an online form that can be completed to ask for permission to travel.
Given how recent this situation is, there are limited guidelines from Immigration yet as to what reasons will be considered good enough to travel. However, we can look to other parts of Immigration policy for some guidance.
Compassionate or Compelling Circumstances
Generally, ‘compassionate or compelling’ circumstances are those that effect the interests of Australia, or an Australian citizen or permanent resident. This is a subjective assessment – it is up to an officer at Immigration to decide if these circumstances exist.
The onus is on you as the visa holder (and/or you as the employer of the visa holder) to show unequivocally that these circumstances exist. This means you’re going to need to do more than just provide a couple of sentences in the online form – you are going to need to back it up with detailed submissions and supporting evidence.
So – what would fit into this ‘compassionate or compelling’ category?
It could be anything, really, provided it really stands apart (i.e. it is not a hardship that applies to most people/organisations going through the current crisis) and can be supported by evidence. Some examples include:
- You need to return to Australia to provide primary care to an Australian (where there is no one else to care for that person). You would need to provide a detailed statement regarding the circumstances and supporting medical evidence – ideally a letter from a treating doctor. Things to think about:
- How will the Australian individual be impacted if you can’t travel?
- What financial impact will the Australian encounter?
- Will you not being able to travel cause a drain on Australian communities and/or resources?
- You are providing critical skills and labour to an employer or an industry in need in Australia. This would require a detailed letter/statement from the sponsoring employer, as well as supporting evidence regarding the importance of your role and critical projects relying on you being in Australia. Things to think about would be:
- What are the specific skills, experience and qualifications you have that make you critical?
- What are the specific, critical projects that require your skills and expertise?
- How will those specific projects be of benefit to Australia, both culturally and economically?
- What will the financial impact be on the business or community if the project does not go ahead?
- What efforts has the business made to find these skills in the local workforce? Specific evidence of adverts for the role and responses would be great supporting evidence.
Are There Any Other Travel Exemptions?
Immigration has indicated if you are a temporary visa holder who has ‘established residence’ in Australia, or you are a family member of a subclass 457/482 visa holder, and were established before going offshore temporarily, you may be eligible for an exemption. An ‘established resident’ is not defined in the regulations, however we suspect at least 6 months of previous residence in Australia would be considered good evidence.
There are also some specific exemptions determined by the Commissioner of the Australian Border Force:
- Foreign nationals coming to Australia at the invitation of the Australian government;
- Critical medical services, including medical supplies coming into international ports; and
- Diplomats.
All these exemptions require prior approval from the Australian government before travel. If you or your employee believe you meet one of the requirements above, but you’re not quite sure, we are happy to provide further guidance specific to your situation.
But what about visa holders already in Australia?
The New Subclass 408 COVID-19 (Coronavirus) Stream
A new stream of the subclass 408 visa has been made available to certain visa holders onshore in Australia. You need to meet the following fairly specific requirements to be granted the visa:
- Be in Australia;
- Hold a visa that expires in less than 28 days, or did not expire more than 28 days ago;
- Be unable to depart Australia due to the COVID-19 pandemic;
- Be unable to apply for the same temporary visa they hold or held or any other subclass of temporary visa other than the Subclass 408 visa;
- Be currently working in an area of ‘critical work’ in Australia – this includes agriculture, horticulture, aged care and public health; and
- Not be eligible to apply again for the visa you currently hold, or any other kind of visa onshore. For Working Holiday Visa holders, this means if you are eligible to apply for a further 417 or 462 visa you should do so before applying for a 408 visa.
COVID-19 (Coronavirus) and 457 and 482/TSS Visa Holders
The lack of communication from the government regarding sponsored the impact of COVID-19 on sponsored visa holders has created some understandable anxiety.
While the announced ‘Job Keeper’ program is only for Australian and New Zealand citizens (who meet certain residence criteria), the Red Cross may be given funding by the Australian government to assist temporary visa holders. We recommend you contact the Red Cross directly about this.
The government has announced the following additional measures for 457 and 482/TSS visa holders:
- Visa Validity – If you are a visa holder who has been stood down, but not laid off, you will maintain your visa validity and will have the opportunity to extend it as per normal arrangements.
- Superannuation – If you are a visa holder who has been permanently or temporarily stood down (or who has had their hours decreased) you will be able to access up to $10,000 of your superannuation in this financial year to assist with supporting yourself through the COVID-19 (Coronavirus) crisis.
- Visa conditions – If you are a sponsor, you can reduce the hours of the visa holder without your employee being in breach of their visa condition. Visa holders will continue to only be able to work for your as their sponsor in their nominated role (unless a nomination transfer application is lodged and approved).
- Permanent visa eligibility – If you’re a Temporary Skilled visa holder who has been laid off due to coronavirus you should leave the country in line with existing visa conditions if you are unable to secure a new sponsor or visa. However, should you hold a 4-year 457 or TSS visa and be re-employed after the coronavirus pandemic, your time already spent in Australia will count towards your permanent residency skilled work experience requirements.
COVID-19 (Coronavirus) and Working Holiday Visa (WHV) holders
The following provisions have been announced in relation to Working Holiday Visa holders:
- 6 month employment limitation – If you are a WHV holder who works in agriculture, food processing, health, aged care, disability care and childcare you will be exempt from the six month work limitation with the one employer.
- Further visa eligibility – If you are a WHV holder you will be eligible for a further visa to keep working in agriculture and food production if your current visa is due to expire in the next six months.
New conditions will be placed on your new WHV to manage movement between regions:
- Mandatory isolation period – Conditions will be placed upon visa holders to self-isolate for 14 days before taking up employment. We are anticipating cancellation of visas will occur where there is non-compliance.
- Safe accommodation requirements – Employers will need to commit to providing safe accommodation for agricultural workers that complies with social distancing requirements.
If you employ WHV holders and they are approaching the end of their 6 month employment period, the Department you can apply for a waiver of the 6 month employment limitation. These will be assessed on a case by case basis, and will generally only be granted where there are exceptional circumstances that are out of the ordinary, are unforeseeable, and relate to an Australian permanent resident, Citizen or business.
More information about requesting an extension to work rights can be found here.
COVID-19 (Coronavirus) and Student Visa Holders
If you are a student who has been in Australia longer than 12 months, and you find yourself in financial hardship, you may be able to access your Australian superannuation.
Immigration is also taking a flexible approach where COVID-19 (Coronavirus) restrictions have prevented you meeting your student visa conditions, such as class attendance being provided online.
If you have finished your study and you are unable to depart Australia, you can apply for a Visitor visa (subclass 600). You need to do this before your Student visa expires.
There have been some changes to work rights for some student visa holders. The standard employment conditions continue to apply unless you are:
- Employed in the nursing sector
- Employed by registered supermarkets (from 1 May 2020, this changes and students will only be able to work 40 hours per fortnight)
- Employed in the aged care sector
COVID-19 (Coronavirus) and Visitor Visa Holders
If you or someone you know is in Australia as the holder of a Visitor visa, who cannot depart Australia and who has a visa expiring imminently, you will need to apply for a new visa to remain lawful (i.e. a further 600 visa or some other kind of visa).
Are Visas Still Being Processed?
Yes. Well, mostly.
Employers looking to sponsor visa holders into Australia might have to work a lot harder over the coming months – COVID-19 has lead to a lot of Australians becoming unemployed as well as the contraction of certain industries, so it will become harder to justify, say, why you need to sponsor a chef for an empty restaurant.
Given the rapidly moving situation and the irregular nature of government announcements, if you or your employees have been impacted by COVID-19, and are not sure what the most appropriate approach is, we are happy to provide further guidance specific to your circumstances.
