On 4 April 2020, an announcement by the Acting Minister for Immigration set out the approach to be taken in respect of the 2.17 million temporary visa holders in Australia affected by the coronavirus health and economic crisis.
Outlined in a detailed statement on 4 April 2020, the overriding message from Acting Minister Tudge is that the Government’s approach to temporary visa holders in Australia will depend on the type of temporary visa held and the purpose for which the visa was granted. The Government’s advice to depart Australia given to a person who is in Australia on a temporary Visitor Visa on holidays (203,000), or a Student Visa holder who can no longer support themselves financially (565,000) will differ significantly to that of highly skilled temporary work visa holders employed in industries with proven skill shortages, especially Health services (approximately 8,000).
Government support initiatives for temporary visa holders in Australia affected by the Coronavirus crisis are varied and their availability again conditional upon the type of temporary visa held. Recent initiatives include access to Australian Superannuation of up to $10,000.00 for Skilled Temporary Work Visa holders (Subclass 482 and 457 visa holders) and some international students, as well as access to the JobKeeper payments for businesses that employ New Zealand Citizens in Australia on a Subclass 444 Special Category visa, and further access to support for New Zealand Citizens who arrived in Australia prior to 26 February 2001 or who have resided in Australia for more than 10 years.
Types of temporary visa holders in Australia
Australian immigration laws provide for a number of different types of temporary visas for Australia and specify the period of stay permitted and the purpose for which a holder can travel to and remain in Australia.
Temporary visas also commonly include a right to travel and re-enter Australia on the visa. This right to re-enter Australia is currently restricted by travel bans on entry to Australia but does not affect temporary visa holders right to depart Australia.
Temporary visa holders are entitled to remain in Australia for as long as the visa is valid for stay and they continue to satisfy the conditions of their particular visa. Where temporary visa holders breach the conditions of a temporary visa, the visa may be subject to cancellation.
The impact of the Coronavirus will be different depending on the type of visa held, the applicable conditions and the circumstances at the time of expiry of the visa.
A snapshot of Temporary Visa holders in Australia as of 31 December 2019 shows the various categories of temporary visas held by visa holders in Australia, with updated figures provided by the Acting Minister for Immigration in his announcement on 4 April 2020:
The Migration Act and Regulations continue to govern the rights of a person to stay in Australia on a visa as well as the Government’s cancellation powers, however, announcements made by the Acting Minister for Immigration provide some key guidance as to the policy approach to be taken by the Government in managing the impact of the Coronavirus on temporary visa holders in Australia.
Some of the key points for temporary visa holders can be summarised as follows:
- Temporary visa holders in Australia who cannot support themselves financially are being encouraged to return to their country of nationality.
- Temporary visa holders in Australia are not prevented from departing Australia but should contact the Embassy or Consulate of their country of nationality if they require information or assistance regarding their return.
- Temporary visas will not presently permit holders to re-enter Australia due to current travel bans unless exemptions apply.
- Temporary visa holders in Australia are not usually entitled to Government financial support, however, in the present circumstances Government support will be provided to some New Zealand Citizens. Other measures will be available to some temporary visa holders in Australia by enabling them to access their Australian superannuation.
- Temporary visa holders in Australia who are unable to depart Australia due to COVID-19 (Coronavirus) Travel Restrictions in their country of nationality may be eligible to apply for a Subclass 408 visa to remain lawfully in Australia during the crisis.
- Visitors are being encouraged to return to their country of nationality.
- Visitors in Australia are not prevented from departing Australia but should contact the Embassy or Consulate of their country of nationality if they require information or assistance regarding their return.
- Visitor visa conditions must continue to be satisfied, this includes, condition 8101 ‘no work’ imposed on all Visitor Visas. Refer to your Visa Grant Notice for this and other specific conditions. Visitor visas can be cancelled for a breach of visa conditions.
For Skilled Temporary Work Visa holders…
- Temporary work visa conditions must continue to be satisfied, this includes, condition 8607 that a visa holder not cease employment for more than 60 days with their current sponsor and work only in the nominated occupation, unless exempt.
- Temporary work visa holders who have been ‘stood down’ by their sponsoring employer but not ‘laid off’ “will maintain their visa validity and businesses will have the opportunity to extend their visas as per usual requirements,” announced Acting Minister Tudge on 4 April 2020.
- Presumably, the words ‘maintain their visa validity’ used by Acting Minister Tudge means that the Department of Home Affairs considers being ‘stood down’ as not ceasing employment for the purposes of a breach of condition 8607 and/or associated breaches of sponsorship obligations by the business. This is similar to the policy approach taken by the Department of Home Affairs where an employee takes Leave Without Pay (LWOP) when they are a temporary work visa holder.
- Regarding visa extensions required, usual requirements include a new Nomination Application by the Australian Business Sponsor meeting Labour Market Testing, Market Salary and Genuine need position requirements. The sponsoring Australian business will also be required to pay a substantial Skilling Australians Fund Charge to lodge a Nomination Application for a sponsored worker. These criteria may be very difficult for Australian sponsoring businesses to satisfy during this time.
- Temporary work visa holders who have been ‘stood down’ and find themselves in financial hardship may be able to access their Australian superannuation.
- Temporary work visa holders who are offered reduced hours by their employer may be able to work under these arrangements. The Sponsorship Obligations of Australian business sponsors generally ensure that temporary overseas workers are only employed on a full-time basis but the announcement of the Acting Minister Tudge to allow for these arrangements may assist sponsors in avoiding a breach of sponsorship obligations.
- Temporary work visa holders who are laid off due to the Coronavirus and held a 4-year visa in an occupation on the Medium Long Term Skilled Occupation List who depart Australia and subsequently return may be offered some concessions to count previous time worked in Australia when applying for Australian Permanent Residence in the future. This would require an amendment to the Migration law relating to the pathway to Australian permanent residence, so should be considered once that pathway has been confirmed as a legislative change.
- Temporary work visa holders may also be able to avoid cancellation where they are able to find a new employer sponsor or make an application for a different type of visa within the 60 day period.
Read more about Skilled Temporary Work visas.
For Working Holidaymakers…
- Working holidaymakers who are working in critical sectors of health, aged and disability care, agriculture and food processing, and childcare will be permitted to work beyond the usual 6 month period with the same employer and to apply for a further visa if their current visa is expiring in the next 6 months.
For International Students…
- International Students had to demonstrate they had available funds to support themselves while studying in Australia to be granted a Student Visa and that they were a genuine temporary entrant for a stay in Australia.
- International Students can generally work up to 40 hours per fortnight. Where working in Aged Care or Supermarkets, exceptions may be offered to the usual visa conditions until 1 May 2020 to meet immediate labour shortages.
- International Students must otherwise continue to meet all student visa conditions, however, the Acting Minister for Immigration has indicated they will be flexible in the approach taken to a breach of a condition which was due to the impact of Coronavirus.
- International Students who have been in Australia for more than 12 months who find themselves in financial hardship may be able to access their Australian superannuation.
For New Zealanders…
- Exemptions to the travel ban on entry to Australia will be considered for New Zealand Citizens usually resident in Australia.
- New Zealand Citizens (arrived prior to 26 Feb 2001) will have access to JobSeeker payments and employers can access JobKeeper payments
- New Zealand Citizens (arrived after 26 Feb 2001) employers will be able to access JobKeeper payments. If also resided in Australia for more than 10 years, JobSeeker payments may be available.
- New Zealand Citizens will be able to access their Australian Superannuation.