Updated guidance on immigration response to COVID-19 pandemic – Immigration

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Background

Home Affairs and the Federal Government have announced
multiple changes
to the immigration system since the beginning
of the crisis. The scope of the immigration response to the
Covid-19 pandemic is drastic and the Federal government has
collaborated with the immigration profession, employer groups,
unions, and other NGOs to identify remedies which will support
temporary residents. However, more needs to be done.

While the changes have been broadly welcomed, there have been a

number
of
criticisms
of the government’s

refusal
to extend the JobKeeper supplement to temporary visa
holders. This is of particular significance to the 139,000
temporary work visa holders (Subclass 482 Temporary Skill Shortage
and 457 Temporary Work visas) impacted by the economic crisis.

Further, we urge employers to adopt a conservative approach to
press releases and government announcements. These initial updates
are distinct from the legal changes which may be subsequently
implemented. We must wait for release of relevant legal instruments
before we can understand how the changes will impact temporary visa
holders and employers.

Finally, it is also worth noting that additional changes may be
forthcoming. The government has cautioned that the crisis response
will be lengthy. More changes will be needed to adapt the
immigration system as the situation evolves.

Border Closure

The closure of the Australian border affects people seeking to
enter Australia. Certain groups will continue to have the right to
enter Australia:

  • Citizens and permanent residents can enter Australia but must
    self-quarantine at port of arrival for 14 days.

  • Immediate family members of Citizens and Permanent Residents
    can enter Australia but must self-quarantine at port of arrival for
    14 days. This includes Partner and Child visa holders.

  • New Zealand citizens (with a Subclass 444 visa, permanent or
    provisional visa) who are usually resident can enter Australia but
    must self-quarantine at port of arrival for 14 days.

Temporary visa holders will only be able to enter Australia
where an exemption applies:

  • Invitation of Australian government relating to Covid-19
    response

  • Medical services such as air ambulance and delivery of
    supplies

  • Critical skills (medical, engineers, marine pilots and
    crews)

  • Diplomats and immediate family

  • Case-by-case exceptions for humanitarian or compassionate
    reasons

At present there is little information available on what
constitutes a valid humanitarian or compassionate reason.
Applications for an exemption can be made through the Home
Affairs website
.

JobKeeper & JobSeeker support

The JobKeeper package passed the Commonwealth Parliament late on
the evening of the 8th April. The Bill passed without
amendment, meaning the JobKeeper package will not be extended to
temporary residents, with the exception of the New Zealand Citizen
Subclass 444 visa holder cohort (see below).

The past few weeks have seen a groundswell of support from
opposition political parties, unions, employer and community groups
to expand government support (JobKeeper, JobSeeker) to temporary
migrants. Pressure to extend goverment support may continue,
particularly if stories emerge of temporary visa holders suffering
extreme hardship due to the crisis.

We consider the Federal government’s push back derives from
several key factors

  • the potential to limit the size of the stimulus by not limiting
    the package by excluding the million or more temporary migrants
    affected

  • the expectation that post-pandemic unemployment figures will be
    a major issue for the economy

  • these unemployment issues will be magnified by the media in a
    narrative about ‘Aussie jobs’ which depicts temporary
    migrants as ‘takers’ rather than contributors to the
    economy.

Arrangements for Temporary Visa Holders

Visitor visa holders

The government has urged international Visitor visa holders to
depart Australia:

‘There are 203,000 international
visitors in Australia, typically on a visa lasting three months or
less. International tourists should return to their home country as
quickly as possible, particularly those without family support.
Thousands are already doing this and others should follow their
lead.’
Hon Alan Tudge MP, Acting Minister for Immigration,
Citizenship, Migrant Services and Multicultural Affairs,
Press Release
, 4 April 2020

While the Minister distinguishes between Visitors in Australia
who have local family support and those who without, he has urged
all to return home. Unfortunately, this ignores the fact many
Visitor visa holders are engaged in important family activities,
such as childcare or other support.

The recommendation also ignores the reality that some
international borders are closed including to citizens of those
countries. It also fails to take account of the humanitarian impact
of encouraging visitors to return to countries with current or
imminent public health crises.

At present we do not expect government to make further
concessions to Visitor visa holders. In some cases these
individuals may qualify for the new Subclass 408 Temporary Activity
– Covid-19 Pandemic stream.

Subclass 417 Working Holiday and Subclass 462 Work and Holiday
visa holders

The government has loosened restrictions on
Sc 417 Working Holiday Makers and Sc 462 Work and Holiday
Makers
(collectively ‘WHM’) in response to the Covid-19
pandemic:

  • WHMs who work in health, aged and disability care, childcare,
    agriculture or food processing are exempted from the six month work
    limitation with one employer

  • Further, this cohort will be eligible for a further visa to
    keep working in these critical sectors if their current visa is due
    to expire in the next six months

  • Conditions will be placed upon visa holders to self-isolate for
    14 days before taking up employment in a different region
    (including termination of visas where there is non-compliance)

  • To support implementation of self-isolation arrangements for
    visa holders and avoid spread of COVID-19 the government is working
    with states and territories on enforcement and sanction
    mechanisms.

  • Employers will need to commit to providing safe accommodation
    for agricultural workers that complies with social distancing
    requirements.

  • Arrangement will also need to be in place for a declaration
    between employers and employees that all protocols necessary to
    ensure human health and accommodation requirements have been
    met.

No information is available at present in relation to the
self-isolation, accommodation, or employment declarations required.
Further information to follow.

Subclass 500 International Student visa holders


Sc 500 International Student
visa holders are likely to be one
of the most seriously impacted cohorts, with courses suspended or
drastically altered. Approximately 60% of International Students
rely on income earned in Australia to support themselves.

Working Hours

  • International students working in major supermarkets were
    exempted from the work limitation of 40 hours per fortnight.
    Working hours will return to the maximum 40 hours a fortnight
    effective 1 May as the government expects additional Australians to
    be recruited for these roles.

  • International students working in aged care and as nurses
    continue to have their hours extended to support these critical
    sectors

Access to superannuation

  • International students who have been in Australia for 12 months
    or more will be able to access up to $10,000 in
    superannuation.

  • International students in their first 12 months are expected to
    support themselves given their visa application commitment that
    they had sufficient funds to support their stay in Australia.

It is not expected that further concessions will be granted to
international students at this time and government has urged those
who do not have sufficient finances to support themselves over the
next 6 months to return home.

Compliance with visa conditions

The Government has stated it will adopt a flexible approach in
cases where Coronavirus has prevented international students
meeting their visa conditions (such as not being able attend
classes).

Subclass 485 Temporary Graduate Visa Holders


Subclass 485 Temporary Graduate
visa holders will be able to
access up to $10,000 in superannuation this financial year.

If the government does take a broader approach to government
support at a later time, this may be one cohort who benefit.

Temporary Skill Shortage 482 visa holders

A number of amendments are proposed for the
482 visa program
. Any changes are expected to also apply to the
remaining cohort of 457 visa holders.

Stand down and unpaid leave

  • Minister Tudge announced that where 482 and 457 visa holders
    have been stood down but not terminated their visa will continue
    and they will not be deemed in breach of their visa conditions to
    not cease work or breach of the sponsor’s obligations.

  • Leave without pay (LWOP) has historically been permitted for
    482 and 457 visa holders, provided it occurs in a manner consistent
    with Australian employment laws. Home Affairs’ Procedural
    Advice Manual stipulates that LWOP should only occur for 3 months,
    except in where the employer is complying with a specific
    employment law obligation such as maternity leave or exceptional
    circumstances apply.

    • While exceptional circumstances have not been defined, it is
      possible that LWOP during the Covid-19 pandemic may be considered
      exceptional.


    • Further information is expected from Home Affairs on this
      matter.


  • Visa renewals will continue to be available in these
    circumstances though it is unclear whether Home Affairs will accept
    applications for permanent residency where an employee has
    been

Reducing to part time

  • Businesses can reduce the hours of the visa holder without
    breaching visa conditions. No guidance has been provided as to how
    this will occur at this time.

Termination and departing Australia

  • Termination will trigger Condition 8607 / 8107 and visa holders
    will have 60 (in some cases 90) days to find another sponsor, apply
    for another visa, or depart the country.

  • Where a MLTSSL visa holder ceases work but is subsequently
    re-employed after the pandemic they will be able to count this time
    towards their permanent residency work experience
    requirements.

Access to superannuation

  • 482 visa holders will also be able to access up to $10,000 of
    their superannuation this financial year.

The above is a summary of the Ministers’ statement and no
legal information has been released at this time. In the interim we
recommend businesses adopt a conservative approach and consult with
their migration agents.

Guidance on managing temporary sponsored work visa holders

  • Ensure visa holders roles and duties remain consistent with
    their nominated position

  • Employers should engage with visa holders to confirm agreement
    to arrangements

  • Seek specific advice on pro-rata / part time arrangements but
    the following principles will apply:

    • Hourly rate should not change

    • Reduced hours should be by negotiation

    • Keep records of negotiations and agreement

    • Any reduced hourly rate would require a new 482 Nomination
      application


  • LWOP should follow a structured process including written
    applications and confirmation

  • Discretion should be used if LWOP arrangements are to extend
    beyond 3 months and efforts should be made to document the
    circumstances surrounding the arrangements

  • Any stand down should follow similar approach.

Further specifics to follow as legislative arrangements and
policy finalised.

Seasonal Workers & Pacific Labour Scheme

Announcements to facilitate SWP and PLS workers have been
implemented. These include:

  • Seasonal Worker Programme and Pacific Labour Scheme workers can
    extend their stay for up to 12 months to work for approved
    employers subject to these employers ensuring pastoral care and
    accommodation needs of workers are met to minimise health risks to
    visa holders and the community.

  • Approved employers under the Seasonal Worker Programme and
    Pacific Labour Scheme will need to continue engaging with the
    Department of Education, Skills and Employment on labour market
    testing to ensure recruitment of Australians first.

  • Where No Further Stay Condition applies a visa holder may be
    eligible under the 408 Covid-19 Pandemic stream (see below)

Further specifics to follow as legislative arrangements
finalised.

New Zealand Citizens

The government has clarified the following arrangements for New
Zealand Citizens who hold Subclass 444 Special Category visas in
Australia:

  • New Zealander citizens who hold Subclass 444 visas and who
    arrived before 26 February 2001 are eligible to access Australian
    welfare payments and the JobKeeper payment.

  • New Zealander citizens who hold Subclass 444 visas and who
    arrived after 2001 have access to the JobKeeper payment.

  • New Zealander citizens who hold Subclass 444 visas who have
    lived in Australia for years or more also have access to JobSeeker
    payments for six months.

New Subclass 408 Activity visa – Covid-19 Pandemic
Stream

The government has created a new stream for the Subclass 408
Activity visa, the Covid-19 Pandemic Stream. This visa will
facilitate visa renewal for a number of temporary visa holders, and
lapsed temporary visa holders, in Australia to renew for a further
12 months. The government has publicly spoken about the visa
applying to Subclass 403 Pacific Labour Scheme, Seasonal Workers,
and Working Holiday Makers. No visa charge will apply to the
application and the arrangements are available now.

As drafted, this visa stream would provide certain temporary
visa holders the ability to extend their time in Australia.
However, the groups who would benefit do not appear to be those
addressed in media releases, for example, Visitor visa holders and
482 visa holders who cannot renew their work visa would benefit,
while other groups, such as WHMs would not be in a position to
extend. We expect further clarification on this issue.

To be eligible, applicants:

  • Must not be able to return to their home country; or

  • Would not normally be able to renew onshore; or

  • Are be part of the workforce in a critical service in
    Australia, including but not limited to agriculture, aged care and
    public health

  • Must hold a visa which is 28 days from expiring or

  • have held a visa in the last 28 days

  • be unable to apply for the same temporary visa they hold or
    held or any other class of visa

Setting expectations for post-pandemic

It is likely that employers will see a significant tightening of
the employer sponsored migration program after the pandemic.
Employers should consider the potential impact of the following on
their organisations:

  • Increased barriers to obtaining employer sponsorship

  • Focus on local unemployment ‘Aussie Jobs’ – Home
    Affairs have already issued requests for evidence that temporary
    visa applications are not impacting Australians

  • Any barrier to visa applications and renewals are also likely
    to include those who are already employed on sponsored visas, such
    as the TSS 482.

  • The changes to the unemployment environment may result in
    changes to MLTSSL / STSOL
    , with the likely outcome a reduction
    of eligible occupations

Conclusion

The immigration response to the Covid-19 pandemic remains
dynamic and we expect changes to continue on an ongoing basis.
Further concessions may be rolled out for impacted visa holders in
Australia however for the time being only NZ Citizens will have
access to government support.

The government has made announcements that the public should
expect the pandemic response to last 6 months or more. Businesses
should seriously consider the impact of immigration restrictions on
their operations during this time. One key factor will be if, or
how, organisations can respond to the needs of their own temporary
visa holders who are not eligible for government support.

Organisations should look beyond the pandemic period to
understand the impact of economic changes to their operations. The
Prime Minister’s references to protecting sovereignty along
with existing evidence of increased scrutiny on temporary visa
applications suggest a potential clamp down on temporary migration
after the pandemic passes. This could last for a number of years
and bring widespread change to the local labour market. Employers
would be well advised to consider how their business would respond
to such changes.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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