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In response to the COVID-19 outbreak, government’s around the world have clamped down on immigration programs in order to stem the transmission of the virus.

This immigration alert pertains to updates in Australia. Given the fluid nature of the situation, we strongly recommend you contact your Hannan Tew adviser prior to making any travel plans.
At a glance

COVID-19 (Coronavirus)

In response to the COVID-19 (Coronavirus) outbreak, government’s around the world have clamped down on immigration programs in order to stem the transmission of the virus. This page pertains to updates in Australia. Given the fluid nature of this unprecedented situation, we strongly recommend you contact your Hannan Tew adviser prior to making any travel plans.

Travel restrictions
  • From 9 pm AEDT on 20 March 2020, only Australian citizens, permanent residents and New Zealand citizens ordinarily resident in Australia are permitted to travel to Australia
  • All other travellers are prohibited from entering Australia for the time being (unless they obtain an exemption)
  • All travellers arriving in Australia, including Australian citizens, must quarantine for 14 days at a designated facility (such as a hotel in their port of arrival). See Coronavirus (COVID-19) advice for travellers. You may be required to pay for the costs of your quarantine. To find out more about quarantine requirements, contact the relevant State or Territory government health department
  • Australian citizens and permanent residents cannot travel overseas due to COVID-19 restrictions (unless they are a permitted traveller or obtain an exemption)
  • Temporary visa holders may depart at any time (provided that they have permission to enter their destination and / or transit country) but they will need to seek permission to re-enter Australia
Other relevant bodies
  • BUPA health processing is experiencing delays
  • Administrative Appeals Tribunal are now to be undertaken remotely
  • VETASSESS has closed offshore assessments
  • VFS Global offices are impacted by delays (if not closed) on a case by case basis
  • Embassies and high commissions are mostly closed or delayed (on a country specific basis)
Visa holders in Australia
  • Temporary visa holders must ensure that they have a visa to remain in Australia
  • Temporary visa holders may depart Australia at any time (provided that they have permission to enter their destination and / or transit country) but they will need to seek permission to re-enter Australia, even if their visa remains valid
  • If a temporary visa has a “no further stay” condition the visa holder must apply to have it removed
Transit
  • At this point in time, only citizens of certain countries can transit through Australia to return home
  • Foreign nationals who have been in China, Iran, the republic of Korea or Italy in the last 14 days will not be permitted to transit through Australia
Travel restrictions

Inbound

From 9pm AEDT 20 March 2020, only Australian citizens, permanent residents and New Zealand Citizens who are usually resident in Australia are permitted to travel to Australia. Immediate family members of the aforementioned and temporary visa holders can only enter if they obtain an exception through here prior to travel.

Note that departure from the country you are in is subject to the rules and decisions of authorities in that country.​

Compulsory isolation
  • All travellers arriving in Australia, including Australian citizens, must quarantine for 14 days at a designated facility (such as a hotel in their port of arrival). See Coronavirus (COVID-19) advice for travellers. You may be required to pay for the costs of your quarantine. To find out more about quarantine requirements, contact the relevant State or Territory government health department.
  • Each Australian State and Territory Government will determine the appropriate ‘designated facilities’ for their State/Territory and the specific arrangements. The relevant ‘designated facility’ will likely be the city of entry where the traveller has cleared immigration, but facilities in other areas may be used if required. Arriving travellers will be transported directly to designated facilities after appropriate immigration, customs and enhanced health checks.
Immediate family members of Australian citizens and permanent residents
  • You must have proof (such as your marriage certificate, evidence of your de-facto relationship such as shared finances or property, your birth certificate or birth certificate for your children) and submit this form.
  • Do not travel until the Department confirms that you can. If the Department grants you permission to travel, you will need to self-isolate for 14 days at ‘designated facilities’ (usually a hotel). You may be required to pay for the costs of your quarantine.
NZ residents usually resident in Australia
  • New Zealand citizens who normally reside in Australia (with a subclass 444 visa or other permanent or provisional visa) can come to Australia. You must carry proof of residency (driver’s licence or documents that show your residency). You will be required to present it at check-in.
Exemptions from the restrictions
  • The Commissioner of the Australian Border Force (ABF) may consider an additional exemption in relation to the travel restrictions currently in place for:​
    • a non-citizen travelling at the invitation of the Australian Government or a state or territory government authority for the purpose of assisting in the COVID-19 response
    • providing critical or specialist medical services, including air ambulance, medical evacuations and delivering critical medical supplies
    • a non-citizen with critical skills or working in a critical sector in Australia
    • a non-citizen whose entry would otherwise be in the national interest, supported by the Australian
    • Government or a state or territory government authority
      military personnel, including those who form part of the Status of Forces Agreement, Commonwealth Armed Forces, Asia Pacific Forces and Status of Armed Forces Agreement
    • a student completing year 11 and 12, with support from the relevant state and territory government
    • case-by-case exceptions may also be granted for humanitarian or compassionate reasons (which may include if visa holders are separated to family members). For temporary visa applicants there are limited circumstances that could be considered compassionate or compelling. Although there is no exhaustive list of what compassionate or compelling means, the Department have advised that this could include (1) care for close relatives who are seriously ill or (2) attending the funeral of a close relative. On the other hand, merely having purchased a ticket is not in itself grounds for compelling or compassionate circumstances.
  • A temporary visa holder must first apply with evidence and obtain permission through here
Travel restrictions

Outbound

As of 12:00 pm AEDT on 25 March 2020 the Health Minister has determined that an Australian citizen or permanent resident must not travel outside of Australia unless they are a permitted traveller or an exemption is granted to them. Exemptions should be applied through here.

Travel restriction
  • The Health Minister has determined that an Australian citizen or permanent resident must not travel outside of Australia (by air or sea or the operator of an outgoing aircraft or vessel) unless they are a permitted traveller or an exemption is granted to them
Permitted travellers
  • You will not need to apply for an exemption if you are:
    • a temporary visa holder
    • ordinarily resident in a country other than Australia
    • airline and maritime crew and associated safety workers
    • a New Zealand citizen holding a Special Category (subclass 444) visa
    • engaged in the day-to-day conduct of outbound and inbound flights
    • associated with essential work at offshore facilities travelling on official government business, including members of the Australian Defence Force
  • You are considered ordinarily resident in a country other than Australia if international movement records show that you’ve spent more time outside Australia than inside for the last 12 to 24 months. You do not need to carry a paper record of your movements with you. If required, Australian Border Force officers at airports can check your movement records in Departmental systems.
  • If you have not spent more time outside of Australia than inside for the last 12 to 24 months, but still consider yourself to be ordinarily resident in another country, you can submit a request for a travel exemption.  
Exemptions
  • You may apply for an exemption in one or more of the below circumstances:
    • your travel is as part of the response to the COVID-19 outbreak, including the provision of aid
    • your travel is essential for the conduct of critical industries and business (including export and import industries)
    • you are travelling to receive urgent medical treatment that is not available in Australia
    • you are travelling on urgent and unavoidable personal business
    • compassionate or humanitarian grounds
    • your travel is in the national interest
Other border restrictions
  • Be aware that countries around the world are implementing their own border restrictions in response to COVID-19 and the international air network is operating under reduced capacity. This may impact your ability and eligibility to enter other countries. 
Background

Transit restrictions

At this point in time, only citizens of certain countries can transit through Australia to return home. Any foreign nationals who have been in China, Iran, the republic of Korea or Italy in the last 14 days will not be permitted to transit through Australia.

Permissible transit
  • Citizens of the following countries can transit through Australia to return home:
    • Cook Islands
    • Nauru
    • Samoa
    • Fiji
    • New Caledonia
    • Solomon Islands
    • French Polynesia
    • New Zealand
    • Timor Leste
    • Kiribati
    • Niue
    • Tonga
    • Marshall Islands
    • Tuvalu
    • Micronesia
    • Papua New Guinea
    • Vanuatu
Transit requirements
  • All transits must occur on the same day as arrival and passengers must remain in the sterile transit area. Check transit facilities at Australian airports prior to your travel arrangements
Foreign nationals departing New Zealand
  • Foreign nationals departing New Zealand can only transit Australia to return home between 12:00 AEDST 21 March 2020 and 11:59 AEDST 26 March 2020. At the end of this period, the exemption is no longer valid. 
Background

Visa holders in Australia

Existing visa holders in Australia can apply for further visas in Australia (noting our comments in “other considerations”), and apply for permanent residency (where satisfying relevant criteria for existing visas). Such applicants would be entitled to bridging visas permitting them to remain in Australia lawfully during processing. Certain visa holders may be eligible for the unique Subclass 408 visa (COVID-19 Pandemic event stream).

No further stay condition (includes 8503, 8534 and 8535)
  • These conditions mean that you won’t be able to apply for most visas until you leave Australia. 
  • If you have less than two months remaining on your current visa, you may be able to request to waive this condition.
Non-resident cannot stay for more than 12 months in any 18 months period (Condition 8558)
  • In these circumstances, you will need to apply for a further visa that will suit your needs. Speak to your Hannan Tew adviser to consider your options. 
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.
  • What this means is that certain temporary visa holders in Australia may be eligilbe for a 408 visa for which there is no government application charge. Read more here.
Applying for other visas
  • If you are able to apply for other visas (for example transition to permanent residence or apply for a further temporary visa) we strongly urge you to speak to your Hannan Tew adviser to consider viable options forward.
Background

Other relevant bodies

In addition to travel restrictions, many other non-essential services in Australia have been shut down or impacted. This includes courts and tribunals, health assessments and other immigration processes which will now lead to delays to overall visa application processing times.

Administrative Appeals Tribunal
  • Interim operational arrangements are in place from 25 March 2020 in response to the COVID crisis.
  • The AAT will not be conducting any ‘in person’ hearings for the foreseeable future and hearings will be conducted by telephone, where the matter is suitable to this format of hearing, including taking witness evidence and interpreted proceedings
  • applications are being triaged and where these are suitable, complete and able to be decided ‘on the papers’, this will be done where cases are decision/hearing ready members may email the AAT to notify that the case is ready for consideration
  • a single central email address will be provided shortly by the MRD for this purpose, members are asked to only use that address and refrain from emailing tribunal members or other AAT officers
  • protection visa hearings – where face to face hearings are less essential, ie where appellants’ credibility is not at issue in the case and the risk of harm well established by other means, the Tribunal will attempt to continue to hear these cases by telephone or possibly even on the papers.
  • Tribunal registry staff and members will be commence working remotely and patience is requested during these challenging times.those who may have difficulty in participating in a telephone conference/hearing due to disability, location, etc should contact the Tribunal to discuss other ways the case may be decided.
  • The Registry will be shutting to the public and members should continue to lodge applications online or by post.
Medical assessments
  • Bupa Visa Medical Services and other Visa Medical Services clinics have reduced services due to requirements of the Department of Health in relation to COVID-19
  • Bupa is again taking new bookings but they are being prioritised based on guidance from the Department of Home Affairs
  • See more information here
Covid-19

Frequently Asked Questions

I am an employer whose business has been forced to close. What do I do about my staff who are on TSS visas?

As a sponsor of TSS visa holders, there are sponsorship obligations in place that must be adhered to.

This includes the obligation in relation to paying your staff according to the amount in the approved nomination and notifying the DHA of relevant changes to your business and/or employment practices.

If you make the decision to terminate a TSS visa-holder’s employment, you are obliged to notify the DHA of this. The employee will then be obliged to find another employer sponsor, apply for a different visa, or depart Australia.

You must ensure your termination complies with relevant work place laws.

There may be options to place your staff on part time employment or Leave With Out Pay (LWOP) and still comply with your sponsorship obligations (see below).

I am an employer whose business may have no choice but to close, but I don’t want to terminate the employment of my staff on TSS visas just yet. Can I give them leave without pay?

Yes, you can choose to give a TSS visa-holder leave without pay (LWOP).

However, please note that under DHA policy, extended LWOP is not considered to be compatible with the purpose of the program.

Additionally, placing staff on LWOP will generally not meet the obligation an employer has to ensure equivalent earnings and an ongoing market salary rate under other sponsorship obligations. This means that the LWOP cannot be indefinite or for an extended period of time. Generally, LWOP would only be acceptable where there are significant personal reasons (such as a workplace injury) and should not be for more than 3 months, unless you are required to provide the leave under Australian workplace laws. In all cases, the DHA expects that:

  1. the arrangement is mutually agreed upon by you and your employee
  2. the process is documented i.e. there is a formal application for LWOP that has been formally approved by the employer

We have had no clarification from the DHA in relation to whether they are going to take a flexible approach to applying this policy. We therefore strongly advise that any LWOP is for an interim period only, during which time you can make decisions about how you want to operate your business moving forward.

I am an employer whose business may have no choice but to close, but I don’t want to terminate the employment of my staff on TSS visas just yet. Can I reduce their hours?

The Department advised on 4 APril 2020 that businesses will be able to reduce the hours of the visa holder without the person being in breach of their visa condition (bearing in mind that the hourly rate should not be reduced).

Please contact us to discuss your options if you are in this position.

I employ international students. Can I give them extra work?

The DHA has advised that visa-holders must adhere to the conditions on their visas, regardless of the current pandemic. This includes the work limitation imposed on their visas.

As such, you cannot employ Students for more than 40 hours a fortnight whilst their course is in session unless you come within one of the specific industries that the DHA has announced is exempt from this:

  1. supermarkets
  2. aged care providers
  3. nurses

I employ working holiday visa holders. Are they still only allowed to work for me for only 6 months?

Again, the DHA has been clear that visa-holders must adhere to the conditions on their visas, regardless of the current pandemic. This includes the 6-month work limitation imposed on working holiday visas. As such, you cannot employ them for more than 6 months. There are penalties that apply to employers who do not employ visa-holders appropriately

I employ working holiday visa holders. Can they apply for permission to work for me for more than 6 months?

There are only limited circumstances in which a working holiday visa holder can work for more than 6 months (for example au pairs, lodging another visa application which would permit full time employment or for exceptional reasons). Though have not yet had any guidance from the DHA , it could be arguable that the pandemic is an exceptional reason. Speak to us if you wish to consider a request for the 6 month limitation to be extended.

I employ someone whose visa expires in 2 weeks. Are they allowed to stay in Australia because of the travel restrictions caused by COVID-19?

It is very important to understand that all visa-holders must maintain their lawful status in Australia, regardless of the COVID-19 pandemic. This requirement has not changed.

Visa-holders who have an imminent visa expiry are expected to apply for a new visa before their current visa expires. This can include Visitor visas. Speak to us immediately if this is a concern as becoming unlawful can have significant impacts on future immigration status in Australia.

One of my staff members holds a TSS visa and couldn’t get back to Australia before the travel restrictions came into effect. The only reason they couldn’t get back was because they couldn’t get a commercial flight. What can they do to get back?

Unfortunately, now that these restrictions are in place, there are only limited circumstances in which a temporary visa holder may return to Australia (see exceptions above). If you wish to apply for an exemption to the travel restrictions, please contact your Hannan Tew adviser as soon as possible.

One of my staff members holds a Bridging Visa B and couldn’t get back to Australia before the travel restrictions came into effect. What can they do to get back?

There is no provision to apply for or be granted or “extend” a Bridging Visa B if the holder is outside Australia. If someone is offshore and their Bridging Visa B ceases, they will be expected to apply for and be granted another visa (e.g. a short stay visitor visa) to return to Australia once the ban has been lifted. Once back onshore, they may be able to apply for a Bridging Visa A. Contact us to discuss any options for people in this position.

Am I still able to sponsor TSS visas?

Yes – the TSS visa program is still available to sponsors. Bear in mind that there are some practical matters to consider in making this decision. For example, if the prospective employee is offshore, they will not be able to travel to Australia until such time as the travel restrictions have been lifted. There may also be practical delays in arranging health and character clearances and English language tests as we understand some agencies are closed.

Disclaimer

The information contained here is offered for informational purposes only and does not constitute legal advice or give rise to an attorney-client relationship between you and our firm. The information: (i) must be regarded as a practical guide for general information and not a process guide for determining the specific immigration requirements of the countries covered, (ii) should not be a substitute for a more indepth analysis of applicable facts and circumstances conducted by competent professionals, and (iii) does not represent an opinion from Hannan Tew or any of its agents with regard to the laws of any of the jurisdictions concerned. The information does not guarantee the outcome or approval of any particular immigration application.

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