In early April the Federal Government announced plans to introduce a new visa stream to enable temporary residents to remain during the Covid-19 pandemic and work in critical areas of the economy.
Clarification of operation of the 408 AGEE COVID-19 visa
Home Affairs have now issued further materials with additional details on how the 408 AGEE COVID-19 visa is expected to operate. The visa will only be available in limited circumstances, including where no alternative visa is available to perform the intended activities (if working in a critical sector), the current visa is about to expire, or the person is unable to leave Australia.
The visa has two purposes:
- to provide those who are working in Australia in a critical sector the ability to remain in Australia; and
- to provide a short term visa to remain in Australia to those who are unable to obtain another visa or return home due to the coronavirus.
Critical sectors are defined as agriculture, food processing, health, aged and disability care, or childcare. These critical areas may change over time and Home Affairs may add or remove sectors based on need.
We consider that the scope of the 408 AGEE COVID-19 visa is overly restrictive. Hammond Taylor expects a number of visa holders are likely to be negatively affected as a result. While the new visa stream will enable some visa holders to remain in Australia the lack of access to work rights for many impacted visa holders is likely to make this time extremely difficult and place significant financial pressure on them.
Eligibility for the 408 AGEE COVID-19 visa
The visa stream has an extremely narrow application:
Working Holiday and Work and Holiday Visa holders
Working Holiday and Work and Holiday Visa holders (collectively referred to here as 'WHV') can access the 408 AGEE COVID-19 pandemic visa to continue to work if engaged in a critical sector. These visas will be granted for a maximum of 12 months. Evidence of employment must be provided. Employment must be ongoing or an offer of employment – potential future work is not acceptable. See further information below
Seasonal Worker Programme
Seasonal Worker Programme visa holders will be granted a 408 AGEE COVID-19 visa to continue work. These visas will be granted for a maximum of 12 months. The Department will automatically waive the 'No Further Stay' Condition 8503 attached to the current visa. Evidence of employment must be provided.
Other temporary visa holders
Other temporary visa holders may be granted the 408 AGEE COVID-19 visa where they have no other visa options. The requirement the applicant 'not be eligible for any other visa option' is likely to be interpreted broadly – meaning that if a person is eligible to apply for an Onshore Visitor visa they will be ineligible for the 408 AGEE COVID-19 visa.
Those who are not working in a critical sector will be granted a visa without work rights.
Those working in a critical sector must provide evidence.
These visas will be granted for a maximum of 6 months. Shorter periods may be granted depending on circumstances.
Other temporary visa holders who have a 'No Further Stay'
Other temporary visa holders who have a 'No Further Stay' condition 8503, condition 8534 or 8535 must apply separately for a waiver of the visa condition within the 28 days prior to visa expiry. If approved, you can then apply for the new 408 AGEE COVID-19 pandemic visa.
Bridging Visa holders
Persons on a Bridging Visa whose last substantive visa expired less than 28 days ago will be able to apply. If working in a critical sector, they will need to provide evidence.
Persons on a Bridging Visa who are barred under section 48 of the Migration Act from making a further application onshore will not be eligible.
No other persons are contemplated to fall within the scheme. This means that any visa holder who qualifies for a further Visitor visa or visa of another class will not be eligible for the 408 visa.
Refusal of a 408 visa application may result in a section 48 bar if the person does not hold a valid visa at the time of refusal.
Further information for Working Holiday 417 Visa holders
In early April the Federal Government announced plans to facilitate the stay of WHV holders to work in critical areas of the economy during the Coronavirus pandemic. One of these changes is the waiver of the 6 month work limitation with one employer for those employed in a critical sector. The second, more significant, change is the introduction of the new 408 AGEE COVID-19 visa.
This visa pathway is limited to only people who will be engaged to work in a critical area who cannot obtain an alternative visa to perform work. Alternative visas could include a Temporary Skill Shortage Subclass 482 visa or a further WHV. Refer to Hammond Taylor's checklist and template pack for more information.
The new pathway means that WHV holders, engaged in critical work, who did not complete the required period of 'specified work' to qualify for a 2nd or 3rd Working Holiday visa will be eligible to remain in Australia.
It is critical that WHV applicants have ongoing work or an offer of employment when applying for the 408 AGEE COVID-19 visa.
WHV holders should be aware that despite these changes, there is no scope to 'defer, freeze, or extend a WHM visa' and age restrictions on the WHV continue to apply. People who fall into these categories should consider other visa pathways, including the Subclass 408 Temporary Activity COVID-19 stream, if they wish to remain in Australia.
Any time completed on the 408 visa will not count towards a subsequent 2nd or 3rd WHV.
Applying for the 408 COVID-19 Pandemic stream
All applicants must complete the same online application form through ImmiAccount.
To qualify you must:
- Apply online from Australia
- Have less than 28 days remaining on your current visa or your last substantive visa must have expired less than 28 days ago.
- Demonstrate that there is no other visa available for you to complete your intended activity
- Have and maintain adequate healthcare during your stay in Australia
- If subject to Condition 8503, 8534 or 8535, you must obtain a waiver prior to applying unless you are a Seasonal Worker Programme visa holder
When making your online application in ImmiAccount you should:
- Be aware there is no application fee for the visa but when completing the online form it is necessary to select 'YES' to the Visa application charge concession question on page 2 and then select 'NIL VAC'.
- When completing the online form, apply under the Australian Government Endorsed Event stream
- Select the 'COVID-19 Pandemic Event' in the event details
- Attach the requested evidence above as well as any additional information
To obtain work rights
You must provide the following evidence from your employer:
- Confirmation of the critical sector you will work in (a letter from your employer)
- Proof you are engaged in ongoing work in a critical sector (Payslips, contract of employment or letter from your employer)
- No Australian citizens or permanent residents were available to perform the work
- The dates of your employment
More information is available in our checklist & templates to assist applicants.
Issues to be aware of post-lodgement
Applicants should be aware of the following:
- You will obtain a Bridging Visa to remain until a decision is made. The Bridging Visa will have the same conditions as your current visa.
- You may need to complete a medical examination if instructed by Home Affairs
- Applications associated with work rights will receive priority processing
- If you travel, across state borders or to different areas within a state you may need to self-isolate for 14 days. You should check state government health websites for further information.
Support from Hammond Taylor
Given the unprecedented crisis, Hammond Taylor is providing visa applicants and employers with complimentary templates and a checklist to assist with the preparation of the 408 AGEE COVID-19 pandemic visa application.
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.