COVID-19 Changes Affecting Temporary Visa Holders
Recently, the Australian government, particularly Prime Minister Scott Morrison and acting Immigration Minister Alan Tudge, announced new measures in respect of Australian immigration, particularly with respect to temporary visa holders. In difficult times such as these, it can be confusing to navigate the ever changing landscape of rules and regulations and, accordingly, Ramsden Lawyers takes this opportunity to provide some clarity as to the situation at present.
Student Visa holders
It is a requirement on application for a Student Visa that the applicant is able to support themselves for the first year of their stay.
First year students
As a result, Student Visa holders have been encouraged to rely on family support, part-time work where available and their own savings to sustain themselves in Australia.
Student in Australia for over 12 months
Student Visa holders have been in Australia longer than 12 months and face financial hardship, they will be able to access their Australian superannuation.
Government assistance for students
International students will not be able to access any government benefits or welfare payments, such as the JobKeeper payment, which has been introduced to deal with the economic downturn caused by the COVID-19 pandemic.
Relaxation of restrictions/ conditions or Student Visa Holders
Student Visa holders have traditionally been restricted by limited working rights, allowing them to work a maximum of 40 hours per fortnight whilst studying in Australia. In light of the virus, international students working in critical sectors such as, aged care and as nurses have had these hours extended to support these sectors. Further, international students employed in major supermarkets have also had hours extended to assist with the high demand faced by the industry. At this stage, this is a temporary measure, and hours for these workers will return to the usual limits from 1 May 2020. Whether this is extended will be contemplated by the Australian Government closure to the time when further understanding of the situation is available.
Where Student Visa holders have difficulty meeting their visa conditions due to the COVID-19, such as an inability to attend classes, the Government has indicated that they will exercise discretion and flexibility when considering these cases. This is likely to be on a case by case basis.
Temporary Skilled Visa holders
Where Temporary Skilled Visa holders (for example, Temporary Skill Shortage visa (subclass 482) or Temporary Work (Skilled) visa (subclass 457) have lost their job, in terms of the validity of their visa, the key difference is whether they have been ‘stood down’ or ‘laid off and/or made redundant’.
Put simply, to be ‘stood down’ is a temporary period where the employee cannot be usefully employed due to a stoppage of work out of the employer’s control, and is intended to relieve an employer of the obligation to pay wages to employees who cannot be usefully employed in these circumstances. Usually, where someone is temporarily ‘stood down’, there is a chance that they will be hired once the period passes.
Laid off/ employment terminated
In contrast, where an employee is ‘laid off’, this may mean that the company has shut its doors and the individual is made redundant or fired, and there is no chance of being re-hired (for example, if the employer can’t reopen their business after the lock-down restrictions).
Effects on visa validity
Accordingly, if a Temporary Skilled Visa holder has been stood down, they will maintain their visa validity. Further, flexibility will also be demonstrated, allowing businesses to reduce the hours of the Temporary Skilled Visa holder without the person breaching the conditions of their visa, which is usually detrimental to a visa holder given it is against the conditions of the visa.
Alternatively, where a Temporary Skilled Visa holder is laid off, and are unable to find an alternate employer to take over the sponsorship of their visa within 60 days, their visa is likely to be cancelled (as would be the usual case with terminating employment with the sponsor). Evidently, this can be a stressful situation for an individual to find themselves in, however, it is important to keep in mind that there may be other options or avenues available in order to remain in Australia.
Government assistance for Temporary Visa Holders
Temporary Skilled Visa holders are not classed as “eligible employees” for the purpose of the Job Seeker or Job Keeper payment initiatives available from the Australian Government. Although, the government have announced that they will be able to access their Australian superannuation if required.
Working Holiday Visa holders
The Government has implemented more flexible measures for some Working Holiday Visa holders in order to support ‘critical sectors’, being health, aged and disability care, agriculture and food processing, and childcare.
Notably, Working Holiday Visa holders working in the above critical sectors will have the six month work limitation waived, meaning that they will be able to work for the same employer for over six months.
Additionally, it was announced that Working Holiday Visa holders who work in the above-noted critical sectors will be allowed to extend their visas to continue supporting these industries, if their current visa is due to expire within the next six months.
The Minister for Agriculture, Mr David Littleproud, stated, “What we are saying to those visa holders is that if you’re prepared to stay in this country and help us get through this Corona virus then we’ll extend your visa.”
We caution that although the term is phrased “extend,” once each year of the working holiday visa expires, the applicant is required to make a new application for a subsequent working holiday visa. While they are inked, they are separate applications.
These Working Holiday Visa holders will also be granted early-access to their Australian superannuation, if required.
Visitor Visa holders
The Government has stated that “International tourists should return to their home country as quickly as possible, particularly those without family support.” If you cannot depart Australia as planned, it is important that you check your permitted stay period, visa expiry date and visa conditions to make sure you remain lawful in Australia.
Under Australian migration law, it is not possible to ‘extend’ a visitor visa. You must apply for a new visa before your current visa expires. You can apply to remain in Australia as a visitor.
When you are applying for the new visa there are strict criteria and relevant conditions on your current visa that must be considered. For example, if your current visa is subject to a no further stay condition, you will need to make an application for a waiver of that condition first before going on to apply for the next visa. Once you apply for the subsequent visa, you may be granted a bridging visa that will keep you lawful in Australia until a decision is made on your visa application.
How can we help?
Evidently, the above changes are significant to the Australian immigration landscape, and may cause some confusion or difficulty for temporary visa holders in Australia. If you find yourself uncertain of your current status in Australia in light of the COVID-19 pandemic, or if you need assistance in extending your current visa, please do not hesitate to reach out to our experienced team of immigration lawyers at Ramsden Lawyers, who can offer you a reduced-fee consultation to discuss your circumstances and options.
Ensuring that you remain lawful at all times, gaining professional advice and providing yourself with enough time to consider your options before the expiry of your current visa is important.