News

Updated guidance on immigration response to Covid-19 Pandemic

Covid-19 immigration visa impact

Background

Home Affairs and the Federal Government have announced multiple changes to the immigration system since the beginning of the crisis. The scope of the immigration response to the Covid-19 pandemic is drastic and the Federal government has collaborated with the immigration profession, employer groups, unions, and other NGOs to identify remedies which will support temporary residents. However, more needs to be done.

While the changes have been broadly welcomed, there have been a number of criticisms of the government’s refusal to extend the JobKeeper supplement to temporary visa holders. This is of particular significance to the 139,000 temporary work visa holders (Subclass 482 Temporary Skill Shortage and 457 Temporary Work visas) impacted by the economic crisis.

Further, urge employers to adopt a conservative approach to press releases and government announcements. These initial updates are distinct from the legal changes which may be subsequently implemented. We must wait for release of relevant legal instruments before we can understand how the changes will impact temporary visa holders and employers.

Finally, it is also worth noting that additional changes may be forthcoming. The government has cautioned that the crisis response will be lengthy. More changes will be needed to adapt the immigration system as the situation evolves.

Border Closure

The closure of the Australian border affects people seeking to enter Australia. Certain groups will continue to have the right to enter Australia:

  • Citizens and Permanent Residents can enter Australia but must self-quarantine at port of arrival for 14 days.
  • Immediate family members of Citizens and Permanent Residents can enter Australia but must self-quarantine at port of arrival for 14 days. This includes Partner and Child visa holders.
  • New Zealand citizens (with a Subclass 444 visa, permanent or provisional visa) who are usually resident can enter Australia but must self-quarantine at port of arrival for 14 days.

Temporary visa holders will only be able to enter Australia where an exemption applies:

  • Invitation of Australian government relating to Covid-19 response
  • Medical services such as air ambulance and delivery of supplies
  • Critical skills (medical, engineers, marine pilots and crews)
  • Diplomats and immediate family
  • Case-by-case exceptions for humanitarian or compassionate reasons

At present there is little information available on what constitutes a valid humanitarian or compassionate reason. Applications for an exemption can be made through the Home Affairs website.

JobKeeper & JobSeeker support

The JobKeeper package passed the Commonwealth Parliament late on the evening of the 8th April. The Bill passed without amendment, meaning the JobKeeper package will not be extended to temporary residents, with the exception of the New Zealand Citizen Subclass 444 visa holder cohort (see below).

The past few weeks have seen a groundswell of support from opposition political parties, unions, employer and community groups to expand government support (JobKeeper, JobSeeker) to temporary migrants. Pressure to extend goverment support may continue, particularly if stories emerge of temporary visa holders suffering extreme hardship due to the crisis.

We consider the Federal government’s push back derives from several key factors

  • the potential to limit the size of the stimulus by not limiting the package by excluding the million or more temporary migrants affected
  • the expectation that post-pandemic unemployment figures will be a major issue for the economy
  • these unemployment issues will be magnified by the media in a narrative about ‘Aussie jobs’ which depicts temporary migrants as ‘takers’ rather than contributors to the economy.

Arrangements for Temporary Visa Holders

Visitor visa holders

The government has urged international Visitor visa holders to depart Australia:

‘There are 203,000 international visitors in Australia, typically on a visa lasting three months or less. International tourists should return to their home country as quickly as possible, particularly those without family support. Thousands are already doing this and others should follow their lead.’

Hon Alan Tudge MP, Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Press Release, 4 April 2020

While the Minister distinguishes between Visitors in Australia who have local family support and those who without, he has urged all to return home. Unfortunately, this ignores the fact many Visitor visa holders are engaged in important family activities, such as childcare or other support.

The recommendation also ignores the reality that some international borders are closed including to citizens of those countries. It also fails to take account of the humanitarian impact of encouraging visitors to return to countries with current or imminent public health crises.

At present we do not expect government to make further concessions to Visitor visa holders. In some cases these individuals may qualify for the new Subclass 408 Temporary Activity – Covid-19 Pandemic stream.

Subclass 417 Working Holiday and Subclass 462 Work and Holiday visa holders

The government has loosened restrictions on Sc 417 Working Holiday Makers and Sc 462 Work and Holiday Makers (collectively ‘WHM’) in response to the Covid-19 pandemic:

  • WHMs who work in health, aged and disability care, childcare, agriculture or food processing are exempted from the six month work limitation with one employer
  • Further, this cohort will be eligible for a further visa to keep working in these critical sectors if their current visa is due to expire in the next six months
  • Conditions will be placed upon visa holders to self-isolate for 14 days before taking up employment in a different region (including termination of visas where there is non-compliance)
  • To support implementation of self-isolation arrangements for visa holders and avoid spread of COVID-19 the government is working with states and territories on enforcement and sanction mechanisms.
  • Employers will need to commit to providing safe accommodation for agricultural workers that complies with social distancing requirements.
  • Arrangement will also need to be in place for a declaration between employers and employees that all protocols necessary to ensure human health and accommodation requirements have been met.

No information is available at present in relation to the self-isolation, accommodation, or employment declarations required. Further information to follow.

Subclass 500 International Student visa holders

Sc 500 International Student visa holders are likely to be one of the most seriously impacted cohorts, with courses suspended or drastically altered. Approximately 60% of International Students rely on income earned in Australia to support themselves.

Working Hours

  • International students working in major supermarkets were exempted from the work limitation of 40 hours per fortnight. Working hours will return to the maximum 40 hours a fortnight effective 1 May as the government expects additional Australians to be recruited for these roles.
  • International students working in aged care and as nurses continue to have their hours extended to support these critical sectors

Access to superannuation

  • International students who have been in Australia for 12 months or more will be able to access up to $10,000 in superannuation.
  • International students in their first 12 months are expected to support themselves given their visa application commitment that they had sufficient funds to support their stay in Australia.

It is not expected that further concessions will be granted to international students at this time and government has urged those who do not have sufficient finances to support themselves over the next 6 months to return home.

Compliance with visa conditions

The Government has stated it will adopt a flexible approach in cases where Coronavirus has prevented international students meeting their visa conditions (such as not being able attend classes).

Subclass 485 Temporary Graduate Visa Holders

Subclass 485 Temporary Graduate visa holders will be able to access up to $10,000 in superannuation this financial year.

If the government does take a broader approach to government support at a later time, this may be one cohort who benefit.

Temporary Skill Shortage 482 visa holders

A number of amendments are proposed for the 482 visa program. Any changes are expected to also apply to the remaining cohort of 457 visa holders.

Stand down and unpaid leave

  • Minister Tudge announced that where 482 and 457 visa holders have been stood down but not terminated their visa will continue and they will not be deemed in breach of their visa conditions to not cease work or breach of the sponsor’s obligations.
  • Leave without pay (LWOP) has historically been permitted for 482 and 457 visa holders, provided it occurs in a manner consistent with Australian employment laws. Home Affairs’ Procedural Advice Manual stipulates that LWOP should only occur for 3 months, except in where the employer is complying with a specific employment law obligation such as maternity leave or exceptional circumstances apply.
    • While exceptional circumstances have not been defined, it is possible that LWOP during the Covid-19 pandemic may be considered exceptional.
    • Further information is expected from Home Affairs on this matter.
  • Visa renewals will continue to be available in these circumstances though it is unclear whether Home Affairs will accept applications for permanent residency where an employee has been

Reducing to part time

  • Businesses can reduce the hours of the visa holder without breaching visa conditions. No guidance has been provided as to how this will occur at this time.

Termination and departing Australia

  • Termination will trigger Condition 8607 / 8107 and visa holders will have 60 (in some cases 90) days to find another sponsor, apply for another visa, or depart the country.
  • Where a MLTSSL visa holder ceases work but is subsequently re-employed after the pandemic they will be able to count this time towards their permanent residency work experience requirements.

Access to superannuation

  • 482 visa holders will also be able to access up to $10,000 of their superannuation this financial year.

The above is a summary of the Ministers’ statement and no legal information has been released at this time. In the interim we recommend businesses adopt a conservative approach and consult with their migration agents.

Guidance on managing temporary sponsored work visa holders

  • Ensure visa holders roles and duties remain consistent with their nominated position
  • Employers should engage with visa holders to confirm agreement to arrangements
  • Seek specific advice on pro-rata / part time arrangements but the following principles will apply:
    • Hourly rate should not change
    • Reduced hours should be by negotiation
    • Keep records of negotiations and agreement
    • Any reduced hourly rate would require a new 482 Nomination application
  • LWOP should follow a structured process including written applications and confirmation
  • Discretion should be used if LWOP arrangements are to extend beyond 3 months and efforts should be made to document the circumstances surrounding the arrangements
  • Any stand down should follow similar approach.

Further specifics to follow as legislative arrangements and policy finalised.

Seasonal Workers & Pacific Labour Scheme

Announcements to facilitate SWP and PLS workers have been implemented. These include:

  • Seasonal Worker Programme and Pacific Labour Scheme workers can extend their stay for up to 12 months to work for approved employers subject to these employers ensuring pastoral care and accommodation needs of workers are met to minimise health risks to visa holders and the community.
  • Approved employers under the Seasonal Worker Programme and Pacific Labour Scheme will need to continue engaging with the Department of Education, Skills and Employment on labour market testing to ensure recruitment of Australians first.
  • Where No Further Stay Condition applies a visa holder may be eligible under the 408 Covid-19 Pandemic stream (see below)

Further specifics to follow as legislative arrangements finalised.

New Zealand Citizens

The government has clarified the following arrangements for New Zealand Citizens who hold Subclass 444 Special Category visas in Australia:

  • New Zealander citizens who hold Subclass 444 visas and who arrived before 26 February 2001 are eligible to  access Australian welfare payments and the JobKeeper payment.
  • New Zealander citizens who hold Subclass 444 visas and who arrived after 2001 have access to the JobKeeper payment.
  • New Zealander citizens who hold Subclass 444 visas who have lived in Australia for 10 years or more also have access to JobSeeker payments for six months.

New Subclass 408 Activity visa – Covid-19 Pandemic Stream

The government has created a new stream for the Subclass 408 Activity visa, the Covid-19 Pandemic Stream. This visa will facilitate visa renewal for a number of temporary visa holders, and lapsed temporary visa holders, in Australia to renew for a further 12 months. The government has publicly spoken about the visa applying to Subclass 403 Pacific Labour Scheme, Seasonal Workers, and Working Holiday Makers. No visa charge will apply to the application and the arrangements are available now.

As drafted, this visa stream would provide certain temporary visa holders the ability to extend their time in Australia. However, the groups who would benefit do not appear to be those addressed in media releases, for example, Visitor visa holders and 482 visa holders who cannot renew their work visa would benefit, while other groups, such as WHMs would not be in a position to extend. We expect further clarification on this issue.

To be eligible, applicants:

  • Must not be able to return to their home country; or
  • Would not normally be able to renew onshore; or
  • Are be part of the workforce in a critical service in Australia, including but not limited to agriculture, aged care and public health
  • Must hold a visa which is 28 days from expiring or
  • have held a visa in the last 28 days
  • be unable to apply for the same temporary visa they hold or held or any other class of visa

Setting expectations for post-pandemic

It is likely that employers will see a significant tightening of the employer sponsored migration program after the pandemic. Employers should consider the potential impact of the following on their organisations:

  • Increased barriers to obtaining employer sponsorship
  • Focus on local unemployment ‘Aussie Jobs’ – Home Affairs have already issued requests for evidence that temporary visa applications are not impacting Australians
  • Any barrier to visa applications and renewals are also likely to include those who are already employed on sponsored visas, such as the TSS 482.
  • The changes to the unemployment environment may result in changes to MLTSSL / STSOL, with the likely outcome a reduction of eligible occupations

Conclusion

The immigration response to the Covid-19 pandemic remains dynamic and we expect changes to continue on an ongoing basis. Further concessions may be rolled out for impacted visa holders in Australia however for the time being only NZ Citizens will have access to government support.

The government has made announcements that the public should expect the pandemic response to last 6 months or more. Businesses should seriously consider the impact of immigration restrictions on their operations during this time. One key factor will be if, or how, organisations can respond to the needs of their own temporary visa holders who are not eligible for government support.

Organisations should look beyond the pandemic period to understand the impact of economic changes to their operations. The Prime Minister’s references to protecting sovereignty along with existing evidence of increased scrutiny on temporary visa applications suggest a potential clamp down on temporary migration after the pandemic passes. This could last for a number of years and bring widespread change to the local labour market. Employers would be well advised to consider how their business would respond to such changes.