Migration (COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class GG) visa) Amendment Instrument (LIN 20/283) 2020

Administered by Department of Home Affairs

Legislation au F2021L00025 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Migration Regulations 1994

Migration (COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class GG) visa) Amendment Instrument (LIN 20/283) 2020

(subregulation 2.07(5), paragraphs 408.229(b) and (c) of Schedule 2)

  1. The instrument, LIN 20/283, is made under subregulation 2.07(5) of the Migration Regulations 1994 (the Regulations) and paragraph 408.229(b) and (c) of Schedule 2 to the Regulations.
  2. In accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA), the instrument amends the Migration (LIN 20/229: COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class GG) visa) Instrument 2020 (F2020L01145), made under subregulation 2.07(5) and paragraphs 408.229(b) and (c) of Schedule 2 to the Regulations. Subsection 33(3) of the AIA states that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
  3. An applicant is eligible for the grant of a Subclass 408 (Temporary Activity) visa (Subclass 408 visa) if the applicant is undertaking work directly associated with an event specified in a legislative instrument for the purposes of paragraph 408.229(b) of Schedule 2 to the Regulations and the applicant is in a class of persons specified in an instrument in relation to the event for the purposes of paragraph 408.229(c) of Schedule 2 to the Regulations.
  4. The visa application charge (VAC) amount is nil for an applicant in a class of persons specified in a legislative instrument made for the purposes of subparagraph 1237(2)(a)(i) of Schedule 1 to the Regulations and under subregulation 2.07(5) of the Regulations.
  5. The instrument operates to amend LIN 20/229, to specify in new subsections 8(3) and (4) an additional class of persons, who are eligible to apply for a Subclass 408 visa in relation to the COVID-19 pandemic, with a nil VAC, for the purposes of paragraph 408.229(c) of Schedule 2 and subparagraph 1237(2)(a)(i) of Schedule 1 to the Regulations, respectively.
  6. Under new subsection 8(3), an applicant is in a class of persons in relation to the COVID-19 pandemic, if the applicant:
    1. holds or held a substantive temporary visa which is either 90 days or less from ceasing to be in effect or ceased to be in effect not more than 28 days before the visa application is made; and
    1. is currently employed, or has received an offer of employment, in one of the following sectors: aged care, agriculture, child care, disability care, food processing or health care.
  7. New subsection 8(4) creates a subset of the class of persons specified in subsection 8(3). Subsection 8(4) specifies separate requirements for applicants in relation to employment in the agricultural sector if the applicant:
    1. holds or held a Subclass 403 (Temporary Work (International Relations)) visa in the Seasonal Worker Program stream that is 90 days or less from ceasing to be in effect or ceased to be in effect not more than 28 days before the visa application is made; and
    2. is employed, or has received an offer of employment, from an approved employer under the Seasonal Worker Programme.
  8. The above requirement maintains the link between Seasonal Worker Programme participants and their approved employers and maintains the employment framework, which is managed by the Department of Education, Skills and Employment.
  9. An applicant seeking to be included in the new class of persons, must also be in Australia and unable to apply for:
    1. the same substantive temporary visa they currently hold; or
    2. the same substantive temporary visa they previously held; or
    3. any other substantive temporary visa other than the Subclass 408 visa.
  10. The instrument amends the class of person specified in subsection 8(2) of LIN 20/229 to include any applicant whose substantive temporary visa is 90 days or less from ceasing to be in effect. This is beneficial to applicants in this class as they may now apply for a Subclass 408 visa before their current visa expires. This amendment ensures the 90 day timeframe is applied consistently in relation to aged care work under either subsection 8(2) or (3) of LIN 20/229.
  11. The instrument responds to workforce shortages as a result of the COVID-19 pandemic by facilitating a pathway for relevantly skilled and qualified, current and former substantive temporary visa holders to work in the above mentioned critical employment sectors, provided they fall within the class of persons specified in the instrument.
  12. The instrument applies, at new section 6A, to applications made on or after commencement of the instrument and to applications made but not finally determined before the instrument commences. This approach ensures those who applied for a Subclass 408 visa before the commencement of the instrument are not required to re-apply for a Subclass 408 visa after the instrument commences.
  13. Consultation with the Department of Agriculture, Water and the Environment and the Department of Education, Skills and Employment as part of the whole of government response to the COVD-19 pandemic was undertaken before the instrument was made.
  14. The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 43219).
  15. The maker of the instrument (Acting Senior Executive Service Band One, Immigration Programs Division) was appropriately delegated by the Minister (Ministerial Instrument-making Powers) Delegation 2020/252.
  16. Under paragraph (b) of item 20 of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, the instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
  17. The instrument commences on the day after it is registered on the Federal Register of Legislation.

Overview

The Migration Regulations 1994, amended by the Migration (COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class GG) visa) Amendment Instrument (LIN 20/283) 2020, addresses workforce shortages due to the COVID-19 pandemic by facilitating a pathway for relevantly skilled and qualified, current and former substantive temporary visa holders to work in critical employment sectors such as aged care, agriculture, child care, disability care, food processing, and health care. This amendment is made under the authority of the Minister for Immigration, facilitated by the Acting Senior Executive Service Band One, Immigration Programs Division, and exempt from disallowance under the Legislation (Exemptions and Other Matters) Regulation 2015. The policy objective of the amendment is to provide a streamlined process for affected individuals to apply for a Subclass 408 visa with a nil visa application charge, ensuring they can continue to work in essential sectors without financial barriers.

Scope and Application

The Migration Regulations 1994 Amendment Instrument (LIN 20/283) amends the Migration (COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class GG) visa) Instrument 2020 to further facilitate the grant of a Subclass 408 visa to relevant applicants during the COVID-19 pandemic. This instrument applies to applicants who are in Australia, currently employed or have received an offer of employment in certain critical sectors such as aged care, agriculture, child care, disability care, food processing, or health care, and whose substantive temporary visa is either 90 days or less from ceasing to be in effect or ceased to be in effect not more than 28 days before the visa application is made. The instrument also applies to applicants who hold or held a Subclass 403 visa in the Seasonal Worker Program stream and are employed or have received an offer of employment from an approved employer under the Seasonal Worker Programme. These amendments ensure that applicants can apply for the Subclass 408 visa before their current visa expires, thereby addressing workforce shortages as a result of the COVID-19 pandemic. The instrument applies to applications made on or after its commencement and to applications made but not finally determined before the instrument commences. The instrument operates nationally within Australia, and its application is not restricted by state or territory boundaries. The instrument is exempt from disallowance, and no Statement of Compatibility with Human Rights is required.

Key Provisions

The Migration Regulations 1994 Amendment Instrument (LIN 20/283) introduces specific provisions concerning the Subclass 408 (Temporary Activity) visa and the visa application charge (VAC) for the Temporary Activity (Class GG) visa in response to the COVID-19 pandemic. These provisions are detailed in new subsections 8(3) and 8(4) of the Migration (LIN 20/229: COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class GG) visa) Instrument 2020. Subsection 8(3) identifies a new class of persons eligible for the Subclass 408 visa with a nil VAC, specifically those who hold or held a substantive temporary visa that is within 90 days of expiring or ceased to be in effect not more than 28 days before the visa application and are currently employed or have received an offer of employment in the aged care, agriculture, child care, disability care, food processing, or health care sectors. Subsection 8(4) further refines this class by specifying additional requirements for applicants in the agricultural sector, who must hold or have held a Subclass 403 (Temporary Work (International Relations)) visa under the Seasonal Worker Program and be employed or have received an offer of employment from an approved employer in this program. The obligations under the amended instrument include that applicants must meet the specified criteria to be considered part of the eligible class of persons. This includes being in Australia and unable to apply for the same substantive temporary visa they currently hold or previously held, or any other substantive temporary visa other than the Subclass 408 visa. The instrument also ensures that the 90-day timeframe is consistently applied to all relevant applicants, allowing those whose temporary visa is within 90 days of expiring to apply for the Subclass 408 visa before their current visa expires. This change provides a clear pathway for eligible individuals to transition into critical employment sectors amidst the workforce shortages caused by the pandemic. There are no specific offences, penalties, or civil/criminal consequences outlined in the explanatory statement for breaches of the provisions in LIN 20/283. However, any failure to comply with the eligibility criteria or other requirements set out in the instrument may result in the application for a Subclass 408 visa being refused or the visa being cancelled if granted. The general provisions of the Migration Act 1958 and the Migration Regulations 1994 apply, which may include penalties for providing false or misleading information in a visa application. These penalties can include fines, imprisonment, or both, depending on the severity of the offence. The instrument is exempt from disallowance under the Legislation (Exemptions and Other Matters) Regulation 2015, and therefore, a Statement of Compatibility with Human Rights is not required. The instrument commences on the day after it is registered on the Federal Register of Legislation.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.