Migration (Transitional operation of regulation 5.19 for certain 457 visa holders) Amendment Instrument (LIN 20/190) 2020

Administered by Department of Home Affairs

Legislation au F2020L01446 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Migration Regulations 1994

Migration (Transitional operation of regulation 5.19 for certain 457 visa holders) Amendment Instrument (LIN 20/190) 2020

(subregulation 5.19(6))

  1. The instrument, LIN 20/190, is made under subregulation 5.19(6) of the Migration Regulations 1994 (the Regulations).
  2. In accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA), the instrument amends the Migration (IMMI 18/052: Transitional operation of regulation 5.19 for certain 457 visa holders) Instrument 2018 (F2018L00285). 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. IMMI 18/052 operates to:
    • provide that ‘specified person’ means a person who, on 18 April 2017, held a Subclass 457 (Temporary Work (Skilled)) visa (Subclass 457 visa), or was an applicant for a Subclass 457 visa that was subsequently granted; and
    • provide that these specified persons are specified for the purposes of subparagraph 5.19(5)(a)(iii) of the Regulations; and
    • determine different periods of time for the purposes of paragraphs 5.19(5)(e), (f) and (g) of the Regulations for specified persons; and
    • exempt specified persons from the operation of paragraph 5.19(5)(c) of the Regulations.
  4. Paragraphs 5.19(5)(e), (f) and (g) of the Regulations set out the requirements for approval which must be met if the nomination relates to a visa in a Temporary Residence Transition stream, which are as follows:
    • during the period of 4 years immediately before the application is made, the person identified in the nomination application (the ‘identified person’) must have held a Subclass 457 visa or a Subclass 482 visa for at least 3 years (see paragraph 5.19(5)(e));
    • if paragraph 5.19(5)(f) applies to the identified person—the person must have been employed in the position in relation to which the relevant Subclass 457 or Subclass 482 visa was granted for at least 3 years (not including any periods of unpaid leave) during the period of 4 years immediately before the application is made;
    • if paragraph 5.19(5)(g) applies to the identified person—the person must have been employed in the occupation in relation to which the relevant Subclass 457 or Subclass 482 visa was granted for at least 3 years (not including any periods of unpaid leave) during the period of 4 years immediately before the application is made.
  5. The purpose of LIN 20/190 is to amend IMMI 18/052 to determine different periods of time for the purposes of paragraphs 5.19(5)(f) and (g) of the Regulations, for new classes of persons who are specified for the purposes of theses paragraphs. Subregulation 5.19(6) of the Regulations provides that the Minister may, by legislative instrument, determine different periods of time for the purposes of paragraph 5.19(5)(e), (f) and (g) for persons specified in the instrument.
  6. Specifically, LIN 20/190 provides that:
    • for paragraph 5.19(5)(f) of the Regulation—in relation to a person who has had one or more ‘coronavirus reduced work periods’ during the ‘concession period’, that paragraph is applied as if a reference to a total period of at least 3 years were a reference to a total period of at least 3 years (or, if the persons is a ‘specified person’, at least 2 years) less the total length of the ‘coronavirus reduced work periods’; and
    • for paragraph 5.19(5)(g) of the Regulations—in relation to a person who has had one or more ‘coronavirus unpaid leave periods’ during the ‘concession period’, that paragraph is applied as if a reference to a total period of at least 4 years were a reference to a total period of at least 3 years (or, if the person is a ‘specified person’, at least 2 years) less the total length of the ‘coronavirus unpaid leave periods’.
  7. The term ‘concession period’ means the concession period mentioned in subregulation 1.15N(1) of the Regulations. The concession period is defined in subregulation 1.15N(1) of the Regulations as the period that commences on 1 February 2020 and ends on a day specified by the Minister.
  8. The terms ‘coronavirus reduced work period’ and ‘coronavirus unpaid leave period’ are defined in subsections 7A(3) and 7B(3) of LIN 20/190 respectively, and operate as outlined below.
    • A person in relation to whom there are one or more ‘coronavirus reduced work periods’ is a person who has been placed on unpaid leave or has had their hours reduced due to the COVID-19 pandemic, during the period of 4 years (or, if the person is a ‘specified person’, of 3 years) immediately before their application for a nomination application was made.
    • A person in relation to whom there are one or more ‘coronavirus unpaid leave periods’ is a person who has been placed on unpaid leave due to the COVID-19 pandemic, during the period of 4 years (or, if the person is a ‘specified person’, of 3 years) immediately before their application for a nomination application was made.
  9. The amendments in LIN 20/190 is in response to the COVID-19 pandemic, which has severely disrupted Australia’s labour market. Many workers who are employed by businesses operating within Australia have been stood down, have had their hours reduced or have been required to take unpaid leave. In response to this, the Australian Government has decided to ensure that these persons are not disadvantaged by the fact that they were temporarily stood down or had their hours reduced, by recognising this period of time as time that they were employed and, for the purposes of paragraph 5.19(5)(f) of the Regulations, as on a full-time basis.
  10. Furthermore, item 5 of LIN 20/190 inserts an application provision stating that the amendments made by items 2 to 4 of Schedule 1 to LIN 20/190 apply in relation to an application made on or after 1 February 2020. These amendments seek to ensure that all impacted Subclass 457 or Subclass 482 visa holders continue to be eligible to apply for permanent residence, even if they made their application for nomination prior to the commencement of the amendments. As such, the amendments do not apply to disadvantage applicants’ rights, nor are any liabilities imposed as a result of the amendments made by LIN 20/190. The instrument does not contravene subsection 12(2) of the Legislation Act 2003.
  11. In addition, item 1 of Schedule 1 to LIN 20/190 makes a change to the citation of IMMI 18/052. The name of IMMI 18/052 has been changed to reflect the updated content of IMMI 18/052 and the instrument is now cited as ‘Migration (IMMI 18/052: Specified Persons and Periods of Time for Regulation 5.19) Instrument 2018’.
  12. Section 17 of the Legislation Act 2003 requires consultations which are appropriate and reasonably practicable to be undertaken. Consultation was undertaken with a range of stakeholders and Commonwealth Departments as part of the whole of government response to the COVID-19 pandemic.
  13. The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 42656).
  14. Under 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.
  15. The instrument commences on the day after registration on the Federal Register of Legislation.

Overview

The Migration Regulations 1994, enacted by the Parliament of Australia, address the regulation of migration and visa operations within the country. In response to the COVID-19 pandemic, the Migration (Transitional operation of regulation 5.19 for certain 457 visa holders) Amendment Instrument (LIN 20/190) 2020 was introduced to provide transitional support to certain 457 visa holders who faced employment disruptions due to the pandemic. This instrument aims to ensure that these workers are not disadvantaged by the temporary reduction in their work hours or periods of unpaid leave. The instrument modifies the periods of time required for certain eligibility criteria, thereby offering flexibility and recognising the impact of the pandemic on employment. LIN 20/190 amends the Migration (IMMI 18/052: Specified Persons and Periods of Time for Regulation 5.19) Instrument 2018, determining different periods of time for specified persons affected by coronavirus-related reduced work periods or unpaid leave. The policy objective is to support affected workers in maintaining their eligibility for permanent residence without imposing any additional liabilities or disadvantaging their rights. This legislative amendment ensures that workers impacted by the pandemic continue to have the opportunity to apply for permanent residency, reflecting the government's commitment to mitigate the adverse effects of the COVID-19 crisis on the labour market.

Scope and Application

The Migration Regulations 1994 Migration (Transitional operation of regulation 5.19 for certain 457 visa holders) Amendment Instrument (LIN 20/190) 2020 applies to individuals who held a Subclass 457 visa (Temporary Work (Skilled)) on 18 April 2017 or were applicants for such a visa that was subsequently granted, referred to as 'specified persons'. These specified persons are subject to transitional provisions under regulation 5.19 of the Migration Regulations 1994, which set out the requirements for approval for nomination applications in the Temporary Residence Transition stream. The instrument amends the Migration (IMMI 18/052: Transitional operation of regulation 5.19 for certain 457 visa holders) Instrument 2018 to account for periods of reduced work or unpaid leave due to the COVID-19 pandemic, which occurred during the four years immediately before an application for nomination is made. It applies at a national level across Australia, as the instrument is made under the Migration Act 1958, which is a Commonwealth Act. The instrument does not specify any exclusions or exemptions beyond those already outlined in the original instrument, IMMI 18/052. The instrument extends the application of the original instrument by incorporating the effects of the COVID-19 pandemic on employment periods, thereby ensuring that the specified persons are not disadvantaged in their eligibility for nomination applications.

Key Provisions

The primary operative sections of LIN 20/190 are those that amend the Migration (IMMI 18/052: Transitional operation of regulation 5.19 for certain 457 visa holders) Instrument 2018 (F2018L00285). Specifically, LIN 20/190 modifies paragraphs 5.19(5)(f) and (g) of the Migration Regulations 1994 by introducing different periods of time for the purposes of these paragraphs for individuals who experienced coronavirus-related reduced work periods or unpaid leave during a defined concession period. This means that for these individuals, the required period of continuous employment may be reduced to account for these exceptional circumstances. This amendment ensures that those affected by the COVID-19 pandemic are not disadvantaged when applying for permanent residence. The obligations imposed by LIN 20/190 on the parties it governs include ensuring that the application of paragraphs 5.19(5)(f) and (g) of the Migration Regulations 1994 takes into account the specific circumstances of individuals who have experienced reduced work hours or unpaid leave due to the COVID-19 pandemic. This requires employers and applicants to provide documentation or evidence that demonstrates the impact of the pandemic on their employment status. This amendment is designed to provide equitable treatment for those affected by the pandemic, ensuring that their eligibility for permanent residency is not unfairly hindered by the disruptions caused by the COVID-19 crisis. LIN 20/190 does not introduce any new offences or penalties; rather, it modifies existing requirements to address the unique challenges posed by the COVID-19 pandemic. However, non-compliance with the amended provisions could potentially result in an individual not meeting the eligibility criteria for permanent residence. This would mean that their application could be rejected if they fail to provide the necessary evidence of their reduced work periods or unpaid leave. The instrument does not specify any particular civil or criminal consequences for non-compliance, but it does outline the criteria that must be met to be considered for the transitional provisions. The legislative instrument LIN 20/190, which amends the Migration Regulations 1994, introduces specific provisions to accommodate individuals who were affected by the COVID-19 pandemic. By modifying the periods of time required for continuous employment under paragraphs 5.19(5)(f) and (g), the instrument ensures that those who experienced reduced work hours or unpaid leave due to the pandemic are not unfairly disadvantaged. The obligations and requirements imposed by the instrument focus on the accurate documentation and evidence of these exceptional circumstances. While no new offences or penalties are introduced, failure to comply with the amended provisions could lead to the rejection of an application for permanent residence. The instrument is designed to provide a fair and equitable solution for those impacted by the pandemic, ensuring that their eligibility for permanent residency is not hindered by the unique challenges they faced.

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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.