Article By: Andrew Rowe, Migration Agent & Laura Andreazza, Lawyer Cappello Rowe Lawyers Griffith

The current Covid-19 pandemic and the associated travel bans have created significant concerns for visa holders, especially holders of student or work visas and their employers/sponsors. This remains a developing situation as the Government continues to determine how best to deal with the domino effect of this pandemic, including the potential unintentional breaches of visa conditions and the ongoing economic disruption.

Australia’s Current Travel Restrictions

Australian citizens and permanent residents are restricted from travelling overseas as of midnight on 20 March 2020.

Australian citizens, permanent residents and New Zealand citizens holding a subclass 444 visa and who usually reside in Australia may return to Australia during the travel ban.

An immediate family member of an Australian citizen or permanent resident who is holding a temporary visa may travel to Australia upon providing necessary evidence and seeking prior approval.

All individuals entering Australia are required to self-isolate for 14 days.

These restrictions have created significant concerns for businesses, including:

1. Where the business has recently sponsored an offshore applicant for a working visa which has been approved;
2. Where the holder of a working visa is currently onshore but the business is required to shut down and/or reduce hours of employees; and
3. Workforce shortages for employers of essential services which are unlikely to cease operation and generally rely upon visa holders to complete seasonal work, including for example farmers requiring fruit pickers.

The restrictions have also caused concerns for visa holders themselves who are now at risk of unintentionally breaching Australian visa conditions.

Employers

Many holders of working visa are restricted to working certain hours for certain employees, completing certain duties (including for example conditions 8107 and 8607). Reducing your visa holder’s hours, making them redundant or temporarily laying them off may result in their visa cancellation as it will likely be regarded as the holder having ceased employment.

The holder is permitted to work remotely where possible, assuming they are continuing their usual duties in accordance with their conditions; however, the holder of a visa with either condition 8107 or 8607 will not be permitted to complete duties outside of their nominated role.

If you are seeking to nominate a 457/482 visa holder for permanent residency, employers must consider the viability of their business in these uncertain times and may be required to withdraw the application if they cannot declare with certainty that the applicant’s salary and nominated position will be available for at least 2 years.

Visa holders and visa conditions

Many conditions are still being considered and, in some instances, the Department are considering circumstances on a case by case basis. Largely, visa holders and applicants are still be required to meet and uphold the majority of their visa conditions and eligibility criteria (if applying). Visa conditions and issues which have been considered to date include:

1. No further stay conditions (including 850, 8534 and 8535)

These conditions mean you cannot apply for most visas until you leave Australia.

If your visa has this condition attached and has less than two months until its expiry the holder should request a waiver of this condition. If the request is approved, the holder will be able to make a further visa application.

2. Work limitations

Holders of student visas currently in Australia will temporarily be permitted to work additional hours for some employers such as supermarkets. Students enrolled in nursing can also undertake work to help in the health crisis.

3. Visa expiring and condition 8558 (non-resident cannot stay for more than 12 months in any 18- month period)

If your visa is due to expire, you must apply for a new visa before your current visa expires. Generally, you will be granted a bridging visa to remain in Australia lawfully until your visa application is determined.

4. Visa holders (excluding permanent residents) who are offshore but hold a valid visa

Holders of these visas will be required to apply for a new visa, if their visa expires before the travel ban is lifted.

5. Can’t provide requested information and documents to the Department within the stipulated time frame

The Department is providing additional time as necessary. Applicants and visa holders should communicate with the Department regarding the expected delays and request extensions where necessary.

6. Student visas

Significant challenges face holders of student visa who may be unable to meet their study requirements. Holders may be required to apply for new visas in some circumstances.

Other possible changes and leniencies

The Government has been called on to consider further options for temporary visa holders who may still remain in Australia and are effectively ‘trapped’ due to the reduced number of international flights and the unaffordability of such transit for many visa holders. Particular regard is being had to seasonal workers, as some industries fear a work shortage with the return of many backpackers to their home country.

Temporary visa holders whose visas are shortly due to expire run the risk of becoming illegal due to the above mentioned implantabilities in returning home. This may have an impact on their ability to apply for and be granted future visas. Where possible, holders are encouraged to apply for further visas to remain lawful in Australia.

If you are unsure of your obligations as a visa holder or sponsor, or your visa is about to expire our registered Migration Agent at Cappello Rowe is able to assist! Contact us on 6962 3433 or via email at info@cappellorowe.com.au