COVID-19 Update: Australian Immigration and Border Restrictions

By 19 June 2020August 18th, 2020No Comments

With the economy opening and the end of the financial year upon us, we are seeing a huge increase in activity by employers and individuals interested in permanent residence and citizenship.

We thought it would be helpful to reach out with a few common COVID-19 questions we are receiving.

Can we still lodge visas?
Absolutely. The Department of Home Affairs is still receiving and processing temporary and permanent visa applications, although people overseas are only being processed if they have been given permission to travel to Australia (or that is pending). In fact there is currently a surge on lodgements because Immigration fees typically go up on 1 July each year.

Do we still need to do Labour Market Testing?
Yes the usual rules for LMT still operate.

Will our employees be able to travel?
Sponsored workers need the permission of the Commissioner of the Australian Border Force to be able to enter Australia. Permission on this ground is only granted where the person has ‘critical skills’. While there is some guidance on what is critical, each case will need to be assessed individually. Those visa holders already in Australia can depart but should seek permission to come back before they leave or they may not be able to return to Australia even if they have a job, family and a home here.  Australian citizens and permanent residents generally need permission to depart.

There is no confirmed news on when the borders might open and offshore processing will resume. From the information we have been able to gather, the most likely scenario is that New Zealand citizens will be able to travel once our state borders are open. Overseas students might be allowed to travel from July/August with a pilot program for a ‘secure corridor’ now being prepared. Some time after that, they may start to let in families of TSS visa holders already in Australia. Depending on how that goes and the COVID-19 numbers in Australia, we might start to see some loosening of restrictions for sponsored workers in the last quarter of this year.

We are doing lots of incoming and outgoing exemption requests so call us if you would like to know more or need some assistance.

What if a sponsored worker has been stood down?
TSS and subclass 457 visa holders who have been stood down, but not laid off, will maintain a valid visa and businesses will have the opportunity to extend their visa as per normal arrangements. If your employee has been laid off you need to notify the Department in the usual way. While it is a bit unclear as to whether the Department expects employers to notify temporary stand downs, if you think any stand down could go on for much longer, you should contact us to discuss the best approach.

Can we reduce the working hours of a sponsored employee? 
Yes, for now – provided that the salary remains the same on a pro-rata basis. The usual rule is that all sponsored positions should be full-time, so this is a special flexibility for COVID-19.  It is unclear how long this will go on for but you should expect that you could be asked at some time in the future to demonstrate why you still need the sponsored employee if there is no full-time work. Also, there has been no announcement about how reduced hours might impact the permanent residence eligibility date for the sponsored employee given that it generally excludes periods where the person was not employed full-time. We will have to wait and see whether reducing work hours impacts PR or not. If you have concerns, you should contact us.

Can we reduce the wages of a sponsored employee?
Probably, provided that it is temporary, applies to Australians and sponsored employees alike and that the new salary is still at market rate. The usual requirement is that an employer would need to lodge a new nomination with LMT and market rate evidence, however, the policy section of the Department has advised us that, during COVID-19, it will be sufficient to notify them of the temporary change. Contact us if you have or intend to adjust wages (or hours or both) and we can work out what needs to be done as this can have other implications.

Will the occupation list change?
There has been no announcement about changes to the occupation list. The changes that were due to take place in March this year have been put on hold. The lists are driven by the availability of skills in Australia. Depending on the longer-term impact of COVID-19 on unemployment and the political debate about ‘Australians first’, some changes might be expected.  We will advise clients as soon as we have any official announcement. Until then, it is business as usual on occupations.

Wrap up
Our focus at the moment is very much on helping clients gear up for re-opening, dealing with the large number of requests about borders, managing onshore populations as usual, dealing with the increased level of permanent residence and citizenship questions and ensuring you all remain compliant. If you would like any more information about any of the above or just want to catch up generally on where things are at just give us a call.

Good luck everyone. There is light at the end of the tunnel!

DISCLAIMER This information is current as of 19 June 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Have more specific questions about your visa? Get in touch with Ajuria Lawyers today.

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Author Ron Kessels

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