COVID-19: Visa options for temporary visa holders in Australia with upcoming expiry dates

On 4 April 2020 the Australian government announced a number of updates for temporary visa holders. You can read a summary of these updates here. Among other things, the government advised that:

1. “Temporary visa holders who are unable to support themselves over the next six months are strongly encouraged to return home. For these individuals it’s time to go home, and they should make arrangements as quickly as possible.”
2. “Whilst citizens, permanent residents and many New Zealanders have access to unconditional work rights and government payments (including the new JobKeeper and JobSeeker payments), temporary visa holders do not.”

The messaging makes this a particularly tough time for temporary visa holders in Australia.

Whilst the Australian government has taken many difficult factors into account in making its recommendations, it is understandably not possible for all temporary visa holders to simply “return home”. For example, they may have financial constraints, be particularly susceptible to COVID-19, have travel restrictions abroad, or even more pragmatically, find that Australia is their current home.

This article sets out the short-term fixes for temporary visa holders reaching upcoming visa expiry dates. Longer term options may also be available, so we would recommend you reach out to your immigration lawyer before making any decision.

No further stay visa condition

Firstly, temporary visa holders need to be aware that if you hold a visa with condition 8503, 8534 or 8535 you are ordinarily prevented from applying for a further visa whilst onshore. This is known as the “no further stay” condition. You can request to waive this condition through this form if your visa will expire in less than four weeks. If your request is approved, you should make a new visa application before your current visa expires.

We understand that Department policy will be lenient in that the situation regarding COVID-19 would likely constitute a “major change” that could warrant the removal of the “no further stay” condition.

However, if your request is not approved, you would be expected to depart the country prior to your visa expiry.

Visitor visas

Assuming you do not have any “no further stay” conditions, the most common way to extend your stay is by applying an onshore Visitor visa (also referred to as the “Tourist visa”).

In making such an application, a temporary visa holder must primarily show that:

1. they genuinely intend to stay temporarily in Australia; and
2. they have adequate means to support themselves.

Given the government’s messaging encouraging temporary visa holders to return to their home country, it is important to pay particular attention to these matters by providing sufficient information in relation to the above points. A simple breakdown is as follows:

Genuine Stay

Evidence of funds

Has the applicant complied substantially with the conditions of previous visas (e.g. provide a statement regarding your previous visa record in Australia) Does the applicant intend to comply with the conditions to which the visa will be subjected (for example, provide information regarding what funds and accommodation you have arranged for the short term given you are not ordinarily permitted to work on a Visitor visa) Any other relevant matters, such as the difficulty of obtaining flights out of the country, evidence of tickets that were cancelled, projected start dates of new employment overseas or events you are expecting to attend

Bank statements and/or passbooks Letters from banks and/or other financial institutions concerning your financial position and access to the funds Air tickets that have already been purchased Available credit card funds

Bear in mind that the government lodgement fees for this onshore Visitor visa application are $365 per person.

Given the government’s recent messaging, we would recommend you speak to an immigration lawyer prior to proceeding with such an application.

Subclass 408 visa (COVID-19 Pandemic event stream)

The 408 visa includes a particular stream known as the “Australian Government endorsed event”. On 6 April 2020 the government issued a new legislative instrument in which the COVID-19 Pandemic event will be considered an Australian Government endorsed event.  The measure is temporary in nature, will be subject to ongoing review and will be wound back appropriately in line with the end of the pandemic.

The Department has also prepared a useful FAQ document answering many of the key questions relating to eligibility and application of this visa.

What this means is that certain temporary visa holders in Australia may be eligible for a 408 visa for which there is no government application charge.

Standard 408 criteria

Additional criteria for COVID-19

The applicant does not intend to engage in activities that will have adverse consequences for employment or training opportunities, or conditions of employment, for Australian citizens or Australian permanent residents The applicant has adequate arrangements for health insurance during the period of the applicant’s intended stay in Australia The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted The applicant does not hold a permanent visa The applicant has adequate means to support himself or herself or access to adequate means to support himself or herself during the period of the applicant’s intended stay in Australia The applicant is at least 18

The applicant seeks to enter or remain in Australia to undertake work directly associated with the COVID-19 pandemic (see working in critical sectors below) OR the applicant is unable to depart Australia as a result of the COVID-19 pandemic (see unable to depart below) Either the Applicant is the holder of a temporary visa that is 28 days or less from ceasing to be in effect OR was the holder of a temporary visa that ceased to be in effect not more than 28 days before the application for a Subclass 408 visa is made Either the applicant is unable to make a valid application for the same temporary visa they hold OR any other temporary visa (other than the Subclass 408 visa)

Working in critical sectors

The legislative instrument notes that “[t]he purpose of the instrument is also to implement a measure to respond to workforce shortages during the COVID-19 pandemic in relation to areas including, but not limited to, agriculture, aged care and public health. The instrument is designed to allow holders of temporary visas who are engaged in or have the relevant skills to undertake critical work relating to supply of essential goods and services, provided the applicant falls within the class of persons specified by the instrument.”

Department policy also confirms that:

1. Working holiday makers working in critical sectors such as agriculture, food processing, health care, aged care, disability care and childcare who are not eligible for any other visa and are unable to return to their home country can apply for the COVID-19 Pandemic event visa.
2. Seasonal Worker Programme visa holders with visas due to expire within 28 days are also able to apply for the COVID-19 Pandemic event visa.
3. Other temporary visa holders whose visas are about to expire, have no other visa options, are unable to return to their home country and who are working in critical sectors may apply for the COVID-19 Pandemic event visa. Evidence of this work will need to be submitted with the application.

Unable to depart

Other temporary visa holders may apply for the COVID-19 Pandemic event visa only where there is no other visa option and it is not possible to leave Australia due to the COVID-19 pandemic. This will allow the individual to remain lawfully in Australia until it is safe and practical for them to return to their home country.

In either scenario, we would recommend you discuss these options with an immigration lawyer prior to submitting a visa application.

Can I extend my Student visa?

Under Australian migration law, it is not possible to extend a Student visa (practically what happens is that you apply for a further Student visa).

You may be able to apply for a further Student visa if you have not yet completed your course (for example your semester has been deferred) and your current visa is expiring. In these cases you will still need to pass relevant criteria of the Student visa including the provision of evidence that you are a genuine temporary entrant.

In applying for a further Student visa onshore prior to your current visa expiry, you will also ordinarily be granted a bridging visa to remain in Australia during visa processing.

Other visas

A host of other visas when lodged onshore can lead to automatic grant of bridging visas which will permit individuals to remain in Australia during processing. This includes, for example, Student visa applications and Partner visa applications. Depending on your circumstances, these applications may be more appropriate than the temporary visas noted above.

Any questions?

Due to the fluidity of the situation regarding COVID-19 and Australia’s borders, the above should be seen as a guide only. We strongly recommend you speak to your Hannan Tew adviser if any of the above applies to you. Feel free to contact us by email at [email protected] or phone +61 3 9016 0484 for a confidential discussion.

THIS DOCUMENT DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP. PLEASE CONSULT AN IMMIGRATION PROFESSIONAL FOR UP TO DATE INFORMATION.