Since the pandemic turned the world upside down, HR teams have been busy navigating a welter of changes. For many this has included a succession of ‘new normals’ in the realm of visa applications and compliance.

What are the implications of managing and deploying staff into and out of Australia in an environment where the borders are, for the most part, closed? This article answers some of the most frequently asked questions about visas and compliance. 

Employee visa conditions and sponsor obligations 

It has been a particularly challenging time for businesses, sponsors and visa holders. In recognition of the economic pressures on businesses throughout the COVID-19 pandemic, there have been some policy announcements from the Department of Home Affairs in relation to subclass 482 Temporary Skill Shortage (and the older 457) visa holders specifically:

• If a sponsored employee’s hours have been reduced for a temporary period due to a business downturn, they will not be in breach of their visa conditions;
• If a sponsored employee is ‘stood down’ for a temporary period due to a business downturn, they will not be in breach of their visa condition; and it will not impact their ability to apply for permanent residence via the ‘temporary residence transition stream’ (provided the employment relationship didn’t cease).

It is important to remember that accredited and standard business sponsors have an obligation to notify the Department of Home Affairs when certain things occur, including: 

• End of employment of their sponsored visa holders for any reason, including redundancy;
• A change of employment conditions, including a salary decrease, increase in hours, or change of duties (even if temporary).

If a sponsored visa holder is made redundant, they will have 60 days in Australia to either find a new sponsor and lodge a nomination transfer application, lodge a different kind of visa or depart Australia.

Immigration experts Ariel Brott and Karen Bromham will discuss COVID-19’s impact on businesses employing foreign staff and what HR should be doing in AHRI’s webinar COVID-19 and visas:a definitive guide for HR on November 18, 2020. AHRI members can attend for free.

Working Holiday visa holders

Many businesses in Australia employ Working Holiday visa holders to fill skills gaps on a seasonal basis. With the borders closed, businesses that rely on a steady stream of these workers are suddenly coming up short in their recruitment efforts. 

In response to this, the department  has allowed Working Holiday Visa holders undertaking certain activities to work beyond their six-month employment limitation.  These activities are: work assisting to maintain Australia’s food supply; work in the healthcare and medical sectors; and bushfire recovery efforts.

Visa holders working in industries outside those listed above can also apply for an exemption from the usual six month limitation on working for a single employer. We are finding the department is generally granting these extensions, provided  you can demonstrate  a strong business case (via a letter of support and submissions) that the employee is required and cannot be replaced.

What if someone’s visa is expiring?

With the collapse of international travel, many visa holders will struggle to book flights to depart Australia in time before their visas expire – or will not wish to depart at all. Luckily, there are a number of options available to allow temporary visa holders to remain lawfully in Australia:

Skilled employer sponsored visas
If we’re talking about someone you employ, or would like to employ, then the good news is that while processing has slowed significantly, onshore employer-sponsored visas are still being processed. Provided the visa applicant meets visa requirements, this is a great option to allow businesses to retain valuable skills, while also assisting staff to remain in Australia. Visa applications in some occupations are now being prioritised for assessment. The Department of Home Affairs has created a ‘Priority Migration Skilled Occupations List’, or PMSOL, which lists occupations to be considered in high demand. These occupations are primarily high level construction, IT and medical roles.Given the high unemployment rate in Australia, the department has recently flagged that employer-sponsored visas will be scrutinised more heavily, including:

• Labour Market Testing (LMT) – a new LMT requirement has been introduced, and we are anticipating assessment of LMT evidence will be a lot more stringent.
• Businesses who have retrenched skilled employees leading up to lodgement may have trouble sponsoring.
• Evidence to show the applicant is being paid the ‘market rate’ for the role will be assessed more stringently.
• Employers should provide as much evidence as they can to show the role is genuinely required in the business, even throughout the pandemic.

Basically, it’s going to be harder to see applications approved for the foreseeable future. Visa requirements and processing are changing on an almost weekly basis so the application process will require closer management leading up to and after lodgements

COVID-19 ‘government endorsed’ 408 visa

In March, when it became clear the COVID-19 pandemic was going to be a long-term concern, the Department of Home Affairs introduced a special stream of the subclass 408 visa.  This stream is intended for people who have a visa expiring, are unable to depart Australia, and have no other visa options.The 408 COVID-19 visa is available to two different applicants:

As a ‘visa of last resort’, for applicants who have absolutely no other visa option. In this case, visas will generally be granted without work rights, and in many cases subject to a “no further stay” condition, precluding any further applications in Australia; or for people working in ‘critical sectors’ during the pandemic, which includes agriculture, food processing, health care, aged care, disability care and child care.

Processing of these visas has been inconsistent.  They are usually taking several months, and there has been feedback that some visas lodged for applicants working in critical sectors are, bizarrely, being granted with no work rights and a ‘no further stay’ condition.  Further, visas are generally being granted for quite short periods of time (i.e. two months).

So, while it might be a great option in certain circumstances, it takes some assessment to ensure a 408 COVID-19 visa is appropriate. 

There may be other options depending on the circumstances. For example: 

• Student visas will typically permit up to 40 hours of work per fortnight.  
• A Training visa might be appropriate where there will be a structured, supervised training plan in place. 
• If someone is just looking to buy some time to depart and doesn’t need to work, a Visitor visa might be more appropriate.

What if a staff member’s visa has already expired?

As you are no doubt aware, it is essential that all foreign citizens employed by your business have both a valid visa and the right to work. If you allow someone without a visa to keep working, the ramifications can range from warnings through to fines and sponsorship sanctions. It is essential, particularly during this time, that:

• You regularly check the visa status of overseas employees;
• You have policies in place for what happens when someone’s visa is due to expire; and
• You take action with plenty of time – don’t leave a new application to the last minute!

If you discover that a member of staff has become unlawful, you should seek immediate professional advice. The wrong move at this point could gravely jeopardise your ability to employ them, their current visa status, and any options for the business to make future such applications – not to mention potential cost to reputation. 

As a general comment, the subclass 408 visa alluded to earlier can be lodged within 28 calendar days of a visa expiring. It may also be possible to lodge a visitor visa to buy a little time, but again, this won’t allow the applicant to work.

If the applicant’s visa has expired more than 28 days ago, and another visa is out of reach, they will need to apply for a Bridging Visa E to regulate their status and avoid being detained. A Bridging Visa E will generally be granted without work rights, however an application for work rights can be made if the applicant can show they are suffering financial hardship.

Sponsoring a staff member who isn’t yet in Australia

As many will be aware, this is not an easy time to get temporary visa holders into Australia. Most sections of the Department of Home Affairs have stopped processing (nearly all) offshore applications, including applications for subclass 482 TSS visas where the applicants are outside of Australia at the time of lodgement. 

The main exception is the subclass 400 visa – these are still being processed for highly skilled individuals working in critical sectors. However, even if a visa is granted, the staff member will still need to cross our shuttered border, and there is no guarantee an exemption will be available to them.

Travel restrictions into Australia

Australia currently has some of the strictest travel restrictions in the world, and these extend not only to people entering Australia, but also to Australians wanting to depart.  

The Australian Border Force is responsible for ensuring compliance, as well as assessing applications for exemptions.  While more detailed guidelines as to how these applications are assessed, our practical experience is that the application of this policy can be inconsistent. 

It’s also important to note that every person entering Australia, regardless of their nationality and visa status, has to complete 14 days of mandatory quarantine when they arrive in Australia (with very limited exemptions).

1. Australian citizens and permanent residents
Staff who hold an Australian passport, or are Australian permanent residents, can enter Australia without prior approval.

2. Temporary visa holders
Travel restrictions currently in place only allow temporary visa holders to travel to Australia in limited circumstances.  Some categories of temporary visa holder are automatically exempt – at least in theory:

• An Australian citizen or a permanent resident of Australia 
• An immediate family member of an Australian citizen or permanent resident 
• A New Zealand citizen usually resident in Australia and their immediate family members 
• Airline crew, maritime crew, and associated safety workers 
• A diplomat accredited to Australia, including their immediate family members (each member of the family unit must hold a valid subclass 995 visa) 
• A person transiting Australia for 72 hours or less. 
• A person recruited under the Government approved Seasonal Worker Program or Pacific Labour Scheme 
• A person who holds a Business Innovation and Investment (Provisional) (subclass 188) visa 

It is important to note that just because an employee strongly believes they are in one of the above categories (i.e. that they are an immediate family member of an Australian), that does not mean the Department of Border Protection will agree. If there is any ambiguity or doubt, we strongly recommend you apply for a manual travel exemption prior to departure, rather than risk being turned away at the airport at the point of origin, or worse, in Australia.

“It is essential that all foreign citizens employed by your business have both a valid visa and the right to work. If you allow someone without a visa to keep working, the ramifications can range from warnings through to fines and sponsorship sanctions.”

For all other circumstances, a separate travel exemption application must be made.  The most regularly made applications for exemptions fall under the following two categories:

1) Critical skills

Critical skills including medical staff (nurses, doctors, specialists), engineers, pilots and crews.  Or otherwise, skills that are critical to Australia’s COVID-19 economic recovery, or have strong economic, health, social or employment outcomes for Australian citizens. While the policy is broad, we have found that if the role doesn’t fit into the specific examples listed above, you will need to work very hard and present a very high level of evidence to show why the exemption should be granted.  Letters of support, submissions regarding economic benefit, and supporting third party evidence would be a baseline for what should be provided.  Ideally letters from industry governing bodies or a local Member of Parliament will be provided in support.

2) Compassionate and compelling circumstances

Applicants need to demonstrate that there are compassionate and compelling circumstances that, if not taken into account would result in serious, ongoing and irreversible harm and continuing hardship to them or an Australian citizen. The age, mental and physical health of people involved can be taken into account. Again, the bar to prove compelling and compassionate circumstances is set high.  A recent Freedom of Information request showed that under 10% of applications submitted based on compassionate and compelling circumstances have been approved.Processing inconsistencies have been an additional challenge. The guidelines posted by the Border Force Commissioner are certainly helpful, however in reality, you can submit two similar applications, and receive a positive outcome for one, and a refusal for the other.The positive thought is that the Australian Border Force is not charging a fee to lodge travel exemption applications (yet!), and there is no limit to the number of times an application can be lodged. We have seen applications succeed after multiple attempts, although the successful attempt typically did a better job making the case for exemption.

Departing Australia

The ability to depart varies greatly depending on your passport and visa status.

1. Temporary visa holders are free to leave. Of course, that assumes they are able to book an outgoing flight.
2. Australian citizens and permanent residents

Australians will only be approved to depart if they fall into any of the following categories:

• Their travel is as part of the response to the COVID-19 outbreak, including the provision of aid 
• Their travel is essential for your business/employer
• They are travelling to receive urgent medical treatment that is not available in Australia
• They are travelling outside Australia for three months or longer
• They are travelling on compassionate or humanitarian grounds 
• Their travel is in the national interest

If one of your Australian employees is required to travel for business reasons, it will require very detailed submissions and supporting evidence. For many Australians, the difficulty they currently have departing Australia has come as a surprise.  Until recently, figures coming out of the Australian Border Force showed only 25% of outbound travel exemptions for Australians being approved.  While it is obvious people should not currently be travelling without a good reason, the media has reported on some truly tragic stories of Australians unable to depart in order to deal with serious family matters.

Support for temporary visa holders

While the Government has reacted to COVID-19 quickly and strongly in some respects, the assistance provided to overseas visa holders has been disappointing.  The general message from Home Affairs has been that visa holders should return home if they are unable to support themselves during their stay. Initially, visa holders  impacted by COVID-19 were able to access up to $10,000 of their superannuation, however applications for this closed on 24 September 2020.

Temporary visa holders unfortunately do not have access to JobKeeper or JobSeeker payments. The Red Cross has set up a fund with support from Australia’s Federal and State governments for visa holders in Australia who are suffering extreme financial hardship. 

The situation with both travel restrictions both onshore and offshore Australian visa applications is fluid and still rife with uncertainties.  Australian businesses will likely be dealing with the fall out for years to come.  So as an HR professional what can you do to assist your employer over the coming months?

Five key action points 

• Do a full review of your overseas workforce, to ensure you are aware of the visa status of each employee and important dates like visa expiries. 
• Have a plan in place to deal with employees who have visas expiring or who the business wants to return in a long-term capacity
• Communicate with department heads regarding their future travel requirements, for both them and their team members
• Find a way to stay across the rapid changes to travel restrictions and visa applications when they happen
• Seek advice when you’re uncertain

Ariel Brott is chair of AHRI’s International HR Management Network Forum committee and Melbourne-based partner and Accredited Specialist immigration lawyer at Global Mobility Immigration Lawyers (GMIL).