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:
- “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.”
- “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.
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:
- they genuinely intend to stay temporarily in Australia; and
- 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:
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.
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 OR the applicant is unable to depart Australia as a result of the COVID-19 pandemic
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)
Although the threshold of “unable to depart” is not clear (e.g. is a financial constraint or particular susceptibility for COVID-19 sufficient?) the explanatory statement surrounding the legislation suggests a broad application:
- “The purpose of the instrument is to provide a pathway for certain former and current holders of temporary visas to lawfully remain in Australia and who would otherwise be required to depart Australia who, but for the COVID-19 pandemic, are unable to leave Australia”
- “The 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.”
Situations in which this may be relevant include:
- Working Holiday makers employed in critical sectors who have not completed the 3 or 6 months of specified work required to apply for a second or third Working Holiday Maker visa and are unable to leave Australia. This visa will allow working holiday makers to remain lawfully in Australia, and continue working, if they wish to do so, until they can return to their home country.
- Those already in Australia with the Seasonal Worker Program whose visas are expiring.
- Holders of other temporary work visas / TSS 482 visa / 457 visa currently employed in critical sectors.
Again, we would recommend you discuss these options with an immigration lawyer prior to submitting a visa application.
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.
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.