Thinking | 18 March 2020

COVID-19 and the visa situation

By Mark Dunphy and Kristopher Kunasingam 

As most are aware, the Australian Government has barred individuals who are physically in China, South Korea, Iran and Italy from entering Australia, unless they are Australian citizens, permanent residents or New Zealand citizens who permanently reside in Australia. Those who are the spouses, de facto partners or children of citizens or permanent residents will also be permitted entry. The bar is not specifically directed at the nationality but those who have physically been in these countries.

Those on work, tourist, training or other forms of temporary visas are barred from entering Australia if they have been to one of the countries above. At this stage, we do not know when the ban will be lifted and will take guidance from the Australian Government.

Individuals who fall within the bar should not attempt entry, as they will be denied entry and have their visas cancelled. If the visa is cancelled, they could be further prevented from entering Australia for up to three years.

What happens if I am in Australia and my visa is about to expire?

The government and the Department of Home Affairs (DHA) have indicated they will take a flexible approach to those physically in the country. We are seeing an increasing number of flights being cancelled at the last minute and our recommendation is not to schedule flights at the last minute. We recommend departing at least two weeks prior to the visa expiring.

For those who do not have the option of departing, they should consider other visa options such as an onshore visitor (subclass 600) visa to extend their stay. This visa should only be used by those who genuinely intend on remaining in Australia for tourism purposes. It will not allow a person to work in Australia. Visa holders should not contemplate remaining in Australia without a valid visa.

Citizenship applications and the COVID-19 situation

Those who wish to apply for citizenship by conferral must satisfy the ‘residence requirement’. This means physically residing in Australia for more than four years, including 12 months as a permanent resident prior to lodgement. DHA have indicated that if a person is not able to return to Australia due to the bar, there is not going to be any concession for those individuals, meaning they are going to have to delay lodging their citizenship applications until they satisfy the ‘residence requirement’.

What if I travelled out on a bridging visa B and cannot re-enter? Can I extend this?

Those who have travelled out of Australia on the bridging visa B cannot extend the visa. If the bridging visa B expires while they are physically outside of Australia, they will need to apply for another type of visa (the suggestion from DHA is a visitor visa), fly in and apply to get their bridging visa A reinstated. Professional assistance should be sought with this process.

I cannot return to Australia but my visa requires me to live there before I can apply for permanent residence

Some visas (eg Subclass 188 Business Innovation or SIV) require visa holders to physically reside in Australia for a minimum period before they can qualify for permanent residence. For those prevented from entering, DHA has indicated they will be assessing this requirement on a case-by-case basis depending on how long the travel restrictions are in place.

Student visa holders and work hour restrictions

International students working with supermarkets or related online distribution facilities will be allowed to work for more than 40 hours a fortnight during this period. DHA has indicated no action will be taken against the individual or employer to ensure the supply of groceries are not affected. This is a temporary measure and will be reviewed in the course of managing this crises.

We will continue bringing updates to you here as events unfold.

Contact

Kristopher Kunasingam

Kristopher leads the firm's migration practice. He specialises in employment-related migration to Australia.

Mark Dunphy

Mark is an employment lawyer experienced in litigious and non-litigious applications of employment and industrial relations law.

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