COVID-19 Legal Updates
The following information is taken from a range of publicly available sources and is not intended as legal advice.
Covid-19: Temporary Activity (subclass 408) visa stream announced
On 3 April 2020, the Australian Government introduced a new visa stream within the Temporary Activity (subclass 408) visa to permit former and current temporary visa holders to remain lawfully in Australia for up to 12 months.
In order to be granted a Temporary Activity (subclass 408) visa in the Australian Government Endorsed Event stream, an applicant must satisfy the following criteria:
Other criteria that an applicant will have to meet include but are not limited to:
Applicants are also not eligible to apply for this visa if they have had a visa refused or cancelled since last entering Australia and no longer hold a substantive visa.
If you would like to speak to one of our immigration lawyers for advice about your eligibility for a Temporary Activity (subclass 408) visa, please feel free to contact us by email at info@clothieranderson.com.au or phone + 613 9347 4022, for a confidential discussion.
In order to be granted a Temporary Activity (subclass 408) visa in the Australian Government Endorsed Event stream, an applicant must satisfy the following criteria:
- be currently in Australia and unable to depart Australia due to the COVID-19 pandemic;
- hold a visa that is 28 days or less from ceasing to be in effect or held a visa that ceased no more than 28 days prior to lodging the Temporary Activity (subclass 408) visa application;
- be unable to apply for the same temporary visa they hold or last held or any other temporary visa other than the Temporary Activity (subclass 408) visa; and
- be part of a response to workforce shortages during the COVID-19 pandemic in relation to areas including agriculture, food processing, health care, aged care, disability care and childcare.
Other criteria that an applicant will have to meet include but are not limited to:
- holding adequate health insurance for the intended period of stay in Australia;
- having adequate means, or access to adequate means, to support himself or herself;
- having a genuine intention to stay in Australia temporarily;
- not owing a debt to the Commonwealth; and
- health and character requirements.
Applicants are also not eligible to apply for this visa if they have had a visa refused or cancelled since last entering Australia and no longer hold a substantive visa.
If you would like to speak to one of our immigration lawyers for advice about your eligibility for a Temporary Activity (subclass 408) visa, please feel free to contact us by email at info@clothieranderson.com.au or phone + 613 9347 4022, for a confidential discussion.
Visa Conditions & COVID-19
COVID-19 and associated border closures and travel bans have created challenges for visa holders in complying with their visa conditions. Below is a summary of the latest advice from the Australian Government addressing relevant visa conditions.
No further stay condition (includes 8503, 8534 and 8535)
If you hold a visa with condition 8503, 8534 or 8535 and cannot depart Australia as planned, you cannot apply for most other visas in Australia unless the condition is waived. You can request the Department to waive these conditions in certain circumstances. If your request is approved, you should then lodge a new visa application before your current visa expires.
https://immi.homeaffairs.gov.au/visas/already-have-a-visa/check-visa-details-and-conditions/waivers-and-permissions/no-further-stay-waiver
Condition 8531 (must not remain in Australia beyond the period of stay permitted by the visa)
If you hold a visa with condition 8531 and cannot depart Australia as planned, you should apply for a further visa before the date on which your visa ceases. If your visa is also subject to condition 8503, you will need to request a waiver of that condition first. The Department understands that some people may not be able to leave Australia due to travel restrictions and will take this into account for any future visa applications.
Consequences of overstaying a visa with condition 8531 attached to it can include forfeiture of a security bond paid by your sponsor, if applicable, and a ban for your sponsor on further sponsorships for a five year period.
Condition 8558 (must not stay in Australia for more than 12 months in any 18 month period)
If you hold a visa with condition 8558 attached to it and have been in Australia for 12 months, cumulatively, within an 18 month period, your visa will nevertheless remain valid until the visa expiry date. You should apply for a further visa if your visa will expire before you can depart Australia. If your visa is also subject to condition 8503, you will need to request a waiver of that condition first.
As the situation is rapidly changing, we recommend that you check the government’s website for updates at: https://covid19.homeaffairs.gov.au/staying-australia. You are also welcome to contact us by email at info@clothieranderson.com.au or phone + 613 9347 4022, for personalised advice about your immigration query.
No further stay condition (includes 8503, 8534 and 8535)
If you hold a visa with condition 8503, 8534 or 8535 and cannot depart Australia as planned, you cannot apply for most other visas in Australia unless the condition is waived. You can request the Department to waive these conditions in certain circumstances. If your request is approved, you should then lodge a new visa application before your current visa expires.
https://immi.homeaffairs.gov.au/visas/already-have-a-visa/check-visa-details-and-conditions/waivers-and-permissions/no-further-stay-waiver
Condition 8531 (must not remain in Australia beyond the period of stay permitted by the visa)
If you hold a visa with condition 8531 and cannot depart Australia as planned, you should apply for a further visa before the date on which your visa ceases. If your visa is also subject to condition 8503, you will need to request a waiver of that condition first. The Department understands that some people may not be able to leave Australia due to travel restrictions and will take this into account for any future visa applications.
Consequences of overstaying a visa with condition 8531 attached to it can include forfeiture of a security bond paid by your sponsor, if applicable, and a ban for your sponsor on further sponsorships for a five year period.
Condition 8558 (must not stay in Australia for more than 12 months in any 18 month period)
If you hold a visa with condition 8558 attached to it and have been in Australia for 12 months, cumulatively, within an 18 month period, your visa will nevertheless remain valid until the visa expiry date. You should apply for a further visa if your visa will expire before you can depart Australia. If your visa is also subject to condition 8503, you will need to request a waiver of that condition first.
As the situation is rapidly changing, we recommend that you check the government’s website for updates at: https://covid19.homeaffairs.gov.au/staying-australia. You are also welcome to contact us by email at info@clothieranderson.com.au or phone + 613 9347 4022, for personalised advice about your immigration query.
Skilled visas, COVID-19 & Condition 8504 - ‘must enter before a specified date'
The Department of Home Affairs is aware that, due to Covid-19, some visa holders and/or family members may not be able to comply with ‘condition 8504’ that may be attached to their visa. This condition requires that visa holders 'must enter before a specified date'.
Failure to comply with visa conditions can render a visa liable for cancellation under the Migration Act 1958. Visa holders are therefore strongly encouraged to make their first entry to Australia by the initial entry date provided in your grant notification where possible. Alternatively, the Department may extend the first entry date and you should liaise with the Department closely concerning this.
This information applies to the following visa subclasses:
- Skilled Independent (subclass 189)
- Skilled Nominated (subclass 190)
- Skilled Regional (subclass 489)
- Skilled Work Regional (subclass 491)
A full advice sheet and further information on travelling from Skilled Program Delivery, South Australia is available here.
If you are concerned about your ability to comply with this or any other conditions of your visa due to Covid-19, we recommend you speak to one of our immigration lawyers. Please feel free to contact us by email at info@clothieranderson.com.au or phone + 613 9347 4022, for a confidential discussion.
COVID-19 & the border
The Department has published detailed information about border processes for non-citizens and non-permanent residents. It can be found here;
https://covid19.homeaffairs.gov.au/
Of most significance are the restrictions on entry for temporary visa holders. Temporary visa holders that are the immediate family ie the spouses/de facto partners, legal guardian or dependent children of Australian citizens or permanent visa holders can enter but will need to provide evidence of the relationship claimed. This should be done via an online link provided for this purpose in advance of the proposed entry to avoid any issues at the border. Evidence to be submitted might include marriage certificate, evidence of your de-facto relationship such as shared finances or property, your birth certificate or birth certificate for your children. Prospective Marriage (subclass 300) visa holders are not permitted to come to Australia at present. The online request to enter Australia can be done using this link;
https://immi.homeaffairs.gov.au/help-support/departmental-forms/online-forms/covid19-enquiry-form
The Commissioner of the Australian Border Force will also consider requests to enter Australia for temporary visa holders ie exemptions to the current travel ban, on the following bases;
Travellers who have a “compassionate or compelling reason” to travel to Australia should also use the above form to apply for an exemption to the travel ban. All persons arriving into Australia will be subject to a mandatory 14 day quarantine period at a designated hotel/facility.
https://covid19.homeaffairs.gov.au/
Of most significance are the restrictions on entry for temporary visa holders. Temporary visa holders that are the immediate family ie the spouses/de facto partners, legal guardian or dependent children of Australian citizens or permanent visa holders can enter but will need to provide evidence of the relationship claimed. This should be done via an online link provided for this purpose in advance of the proposed entry to avoid any issues at the border. Evidence to be submitted might include marriage certificate, evidence of your de-facto relationship such as shared finances or property, your birth certificate or birth certificate for your children. Prospective Marriage (subclass 300) visa holders are not permitted to come to Australia at present. The online request to enter Australia can be done using this link;
https://immi.homeaffairs.gov.au/help-support/departmental-forms/online-forms/covid19-enquiry-form
The Commissioner of the Australian Border Force will also consider requests to enter Australia for temporary visa holders ie exemptions to the current travel ban, on the following bases;
- foreign nationals travelling at the invitation of the Australian Commonwealth Government for the purpose of assisting in the COVID-19 response or whose entry would be in the national interest
- critical medical services, including air ambulance and delivery of supplies, that regularly arrive into Australia from international ports
- people with critical skills (for example, medical specialists, engineers, marine pilots and crews) by exception
- diplomats accredited to Australia and currently resident in Australia, and their immediate family
- case-by-case exceptions for humanitarian or compassionate reasons.
Travellers who have a “compassionate or compelling reason” to travel to Australia should also use the above form to apply for an exemption to the travel ban. All persons arriving into Australia will be subject to a mandatory 14 day quarantine period at a designated hotel/facility.
Temporary Skills Shortage (subclass 482) or Temporary Work (subclass 457) visa holders and reduced work hours
According to the media release by Acting Minister for Immigration, Alan Tudge on 4 April 2020:
We note that employers are still subject to sponsorship obligations including notifying the Department of cessation of employment of a 457 or 482 worker within 28 days of the worker ceasing employment, including in the event of redundancies, or a change in duties of sponsored employee.
It may be appropriate, in some circumstances, to lodge a new nomination reflecting the amended hours and duties. The Fair Work Ombudsman continues to monitor businesses during this period to ensure compliance with superannuation and taxation obligations. If you are a sponsor, and you have employer sponsored workers whose duties or hours have recently changed, or you have concerns about compliance with your sponsorship, tax or superannuation obligations during this period, please feel free to contact us for an appointment.
For a full copy of Acting Minister Tudge’s comments, see this link;
https://minister.homeaffairs.gov.au/davidcoleman/Pages/press-conference-melbourne-cpo.aspx
If you are an employee or employer affected by COVID-19 and need advice about your rights or obligations, please feel free to contact us.
Please note, this information is sourced from a press release and no legislation has yet been passed in relation to the above.
- The Government is making a distinction between employer sponsored workers who have been laid off and stood down. Those who have been stood down or had their hours reduced will be able to keep their visas with the hope that they can resume full-time work when COVID-19 restrictions ease. They will also be able to access up to $10,000.00 of their superannuation.
- Those workers who are laid off or made redundant are only allowed the ordinary 60 day period to find another sponsor or depart Australia.
We note that employers are still subject to sponsorship obligations including notifying the Department of cessation of employment of a 457 or 482 worker within 28 days of the worker ceasing employment, including in the event of redundancies, or a change in duties of sponsored employee.
It may be appropriate, in some circumstances, to lodge a new nomination reflecting the amended hours and duties. The Fair Work Ombudsman continues to monitor businesses during this period to ensure compliance with superannuation and taxation obligations. If you are a sponsor, and you have employer sponsored workers whose duties or hours have recently changed, or you have concerns about compliance with your sponsorship, tax or superannuation obligations during this period, please feel free to contact us for an appointment.
For a full copy of Acting Minister Tudge’s comments, see this link;
https://minister.homeaffairs.gov.au/davidcoleman/Pages/press-conference-melbourne-cpo.aspx
If you are an employee or employer affected by COVID-19 and need advice about your rights or obligations, please feel free to contact us.
Please note, this information is sourced from a press release and no legislation has yet been passed in relation to the above.
Your right to stay in Australia
On 4 April 2020, the Australian Government issued some Information for Temporary Visa holders in Australia. While the Australian Government suggests people on temporary visas ‘return home’, there is no obligation for you to do so if you have a valid visa and wish to remain in Australia. There is also no prohibition on you applying for a further visa in Australia provided you hold a current visa that does not have a ‘no further stay’ condition attached to it and your application can meet all validity requirements.
Citizenship Ceremonies
The Australian Citizenship Act 2007 requires a person to make a pledge of commitment to Australia before a presiding officer. However, the impact of COVID-19 means it is not possible for traditional, in-person citizenship ceremonies to be held.
On 4 April 2020 the Hon. Alan Tudge MP announced that Citizenship ceremonies would occur online via a secure video-link for the foreseeable future. Thus, Australian citizenship will continue to be conferred despite COVID-19.
Applications for Australian citizenship are still able to be accepted during this period, though citizenship interviews have been put on hold.
On 4 April 2020 the Hon. Alan Tudge MP announced that Citizenship ceremonies would occur online via a secure video-link for the foreseeable future. Thus, Australian citizenship will continue to be conferred despite COVID-19.
Applications for Australian citizenship are still able to be accepted during this period, though citizenship interviews have been put on hold.
Legal Challenge of Immigration Detention due to COVID-19
COVID-19 poses a threat to the health and well-being of all people held in immigration detention facilities as detainees may not be able to undertake ‘social distancing’ recommended by health experts to prevent the transmission of the virus.
Clothier Anderson Immigration Lawyers are presently assisting the Human Rights Law Centre to bring a legal challenge to ongoing immigration detention in Australia, due to the danger posed by COVID-19 to detainees. The case has been lodged in the High Court of Australia and challenges the ongoing detention of a chronically ill refugee held in immigration detention in Australia. He arrived in Australia seeking asylum in 2013 and was sent to Manus Island. His well-founded fear of persecution was recognised and he is legally owed protection. He was brought from Papua New Guinea to Australia for medical treatment in early 2019 and has been detained ever since.
This is a test case, which means that the outcome could have wider implications for other people in similar situations. We will provide an update on this case as further developments occur.
Clothier Anderson Immigration Lawyers are presently assisting the Human Rights Law Centre to bring a legal challenge to ongoing immigration detention in Australia, due to the danger posed by COVID-19 to detainees. The case has been lodged in the High Court of Australia and challenges the ongoing detention of a chronically ill refugee held in immigration detention in Australia. He arrived in Australia seeking asylum in 2013 and was sent to Manus Island. His well-founded fear of persecution was recognised and he is legally owed protection. He was brought from Papua New Guinea to Australia for medical treatment in early 2019 and has been detained ever since.
This is a test case, which means that the outcome could have wider implications for other people in similar situations. We will provide an update on this case as further developments occur.
Video Hearings in the Administrative Appeals Tribunal
On 28 April 2020, the Administrative Appeals Tribunal (AAT) published the Migration & Refugee Division COVID-19 Special Measures Practice Direction, which outlines how the Migration & Refugee Division of the AAT will hold hearings via video-link in response to the health concerns raised by COVID-19. The AAT ceased in-person hearings on 23 March 2020 and is now conducting hearings via either telephone or video-link. Such measures make the assessment of credibility of a review applicant or witness by the AAT extremely difficult and careful attention to the preparation of AAT cases is advised.
If you have concerns about how your AAT matter may proceed or be impacted by COVID-19, please do not hesitate to contact us by email at info@clothieranderson.com.au or phone + 613 9347 4022, for a confidential discussion about your options.
If you have concerns about how your AAT matter may proceed or be impacted by COVID-19, please do not hesitate to contact us by email at info@clothieranderson.com.au or phone + 613 9347 4022, for a confidential discussion about your options.
