Overview

The Migration Regulations 1994 were amended in 2020 to address the urgent need to manage the impact of the COVID-19 pandemic on Australia's workforce, particularly in sectors experiencing critical shortages. This was enacted through the legislative instrument LIN 20/122, which was made under subregulation 2.07(5) and paragraphs 408.229(b) and (c) of Schedule 2 to the Migration Regulations 1994. The policy objective was to provide a legal pathway for certain temporary visa holders to remain in Australia and contribute to essential work during the pandemic, particularly in areas such as agriculture, aged care, and public health. By specifying the COVID-19 pandemic as a qualifying event, the instrument enabled individuals who were unable to leave Australia due to the pandemic to apply for a Subclass 408 visa, ensuring continuity in the supply of essential goods and services. This legislative change was made under the authority of the relevant Commonwealth Departments, in coordination with the whole of government response to the pandemic.

Scope and Application

The Migration (LIN 20/122: COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class GG) visa) Instrument 2020 applies to persons who are either currently holding or have held a temporary visa that is 28 days or less from ceasing to be in effect, and who are unable to leave Australia due to the COVID-19 pandemic. This instrument aims to facilitate a pathway for these individuals to lawfully remain in Australia and engage in critical work related to essential goods and services. It applies to a specified class of persons involved in areas such as agriculture, aged care, and public health to help address workforce shortages during the pandemic. The instrument operates nationally and is made under subregulation 2.07(5) and paragraphs 408.229(b) and (c) of Schedule 2 to the Migration Regulations 1994. It specifies the COVID-19 pandemic as declared by the World Health Organization on 11 March 2020, as an event for the purpose of granting the Subclass 408 visa, and also exempts the visa application charge for the applicants falling within the specified class of persons. The instrument commences on the day after it is signed, and prior commencement is allowed as it does not disadvantage or impose any liabilities on any persons. The instrument is exempt from disallowance under the Legislation (Exemptions and Other Matters) Regulation 2015, and a Statement of Compatibility with Human Rights is not required.

Key Provisions

The instrument LIN 20/122, made under subregulation 2.07(5) of the Migration Regulations 1994, specifies the COVID-19 pandemic as declared by the World Health Organization on 11 March 2020 as an event for paragraph 408.229(b) of Schedule 2 to the Regulations. This provision enables applicants undertaking work directly associated with the COVID-19 pandemic to be eligible for a Subclass 408 visa (Temporary Activity) if they meet certain criteria. Specifically, the instrument aims to assist temporary visa holders who are unable to leave Australia due to the pandemic and who possess skills necessary to address workforce shortages in critical sectors. Entities and individuals governed by this Act are required to ensure that applicants for the Subclass 408 visa meet the specified conditions. This includes being in a class of persons outlined in the instrument, such as those holding a visa that is 28 days or less from ceasing to be in effect or having held such a visa no more than 28 days prior. Additionally, applicants must be unable to apply for the same temporary visa they hold or held or any other subclass of temporary visa apart from the Subclass 408 visa. The obligations extend to ensuring that the applicants are engaged in or have the relevant skills to undertake critical work related to the supply of essential goods and services during the pandemic. Breaches of the provisions set out in the instrument could result in civil or criminal consequences, although the explanatory statement does not explicitly detail these. Given the nature of the legislation and the critical nature of the work involved, non-compliance could potentially lead to penalties under the Migration Act 1958 or other related Acts. The exact penalties would depend on the specific breach and could range from fines to more severe sanctions, depending on the gravity of the offence. The instrument's design to facilitate lawful presence and employment during the pandemic suggests that the authorities take a stringent approach to ensure that only eligible individuals benefit from these provisions.