Search
  • Kingstone Lawyers

15 COVID arrangements - Department of Home Affairs Update



The following notice has been sent by MIA today:

Will any concessions be available for visa holders unable to comply with their current visa conditions?

The department is taking a flexible approach to visa holders in these circumstances, including in the following situations:

  • Requests for waiver of the ‘No Further Stay’ condition (8503, 8534 and 8535)

  • Timeframes in relation to health, character and English language requirements for applicants.


Will international student graduates be provided with an extended application period where they have not been able to return onshore to lodge their Subclass 485 applications?

The Migration Regulations allow international students to apply for a Temporary Graduate Visa up to six months after the expiry of their student visa. This means that most students who completed higher education studies in Semester 2 of 2019 will have until September 2020 to apply for a Temporary Graduate Visa.


Will the 12 months living in Australia immediately prior to citizenship applications be enforced for those who have been prevented from returning to Australia due to the travel ban?

The Australian Citizenship Act 2007 (the Act) sets out the legislative requirements for Australian citizenship by conferral, which includes having to meet the general residence requirements at section 22. The general residence requirement requires applicants to have been lawfully present in Australia for a period of four years, including at least 12 months as a permanent resident, immediately prior to making an application. Applicants may be absent from Australia for no more than 12 months in total during the four year period, including no more than 90 days in the 12 months immediately prior to lodging an application. It is noted that the Act, includes several ministerial discretions which may be applied to assist a person to meet the general residence requirement in limited circumstances. There is no legislative authority under the Act for either the Minister or a delegated decision maker to waive any of the legal requirements for conferral of Australian citizenship.


Will concessions be available for students who have been unable to return to Australia due to the travel ban and have undertaken online courses during this period to ensure the continuity of their academic progress during the travel ban?

The Department of Home Affairs plays no role in authorising the modes of study for international students and is guided by education sector regulators, the Tertiary Education Quality and Standards Agency (TEQSA) and the Australian Skills Quality Authority (ASQA), on whether students can count online learning towards completion of their course.


Has the Department devoted extra resources to processing urgent waiver requests?

Yes


Has the Department considered allowing visitor visa applicants in this situation to lodge paper applications, thus bypassing the ImmiAccount system which would prevent online applications being made?

No. Online applications can be diverted to available staff anywhere.


Will security bonds be seized where the VH has not departed the country in accordance with their visa conditions as a result of the travel ban?

The decision regarding forfeiture of a bond is discretionary. Visa holders must remain lawful and abide by the conditions of the visa held. Where a visa holder is not compliant, the Department will assess the forfeiture of each bond on a case by case basis.


What arrangements have been put in place to allow BVB holders offshore to extend the validity of the BVB while they are prevented from returning to Australia?

There is no ability to “extend” a BVB travel period after grant. Non-citizens will need to apply for a further visa to return to Australia.


Will BVB holders’ whose visas expire while overseas because of the ban be able to apply offshore for a further BVB?

No. There is no ability to “extend” a BVB travel period after grant. Non-citizens will need to apply for a further visa to return to Australia.


Would consideration be given to issuing BVB holders adversely affected by the travel ban with very short stay visitor visas so they can get back onto their BVAs quickly?

If a BVB expires before the holder can return to Australia, they will need to apply for another visa (such as a short stay Visitor visa) once the travel restrictions have been lifted. Decisions on Visitor visa applications will be made on a case by case basis. Once onshore, the person will need to apply for a BVA to remain lawful after the Visitor visa expires.


What evidence of the relationship be required to be provided for entry to Australia of de facto partners?

If a de facto relationship has not been previously declared and evidenced to the Department, documents can be submitted via https://immi.homeaffairs.gov.au/help-support/departmental-forms/online-forms/australian-immigration-enquiry-form. Documents might include:

Evidence of a child/ren of the relationship and shared responsibility for care and support of children;Evidence of shared finances or purchases, such as joint loan agreements for real estate, cars, major household appliances, operation of joint bank accounts;Evidence that a de facto couple are living together (or at least not living separately and apart permanently), such as joint ownership of residential property, joint residential leases, joint rental receipts, joint utilities accounts, correspondence addressed to either or both parties at the same address.Any other documents that demonstrate that a de facto couple is in a genuine and continuing relationship.


How will those with cancelled temporary visas have these reinstated?

Persons are being notified in writing of their visa cancellation and provided with advice on how to seek revocation of the visa cancellation decision. Visas will be reinstated for people who can demonstrate they have been outside of mainland China for a minimum period of 14 days or if they fall within one of the existing exemption categories. Remaining revocation requests will be prioritised for consideration by the Department after the temporary travel restrictions have been lifted.

If an individual thinks their visa may have been cancelled under the enhanced border control measures, they should contact visa.cancellations@homeaffairs.gov.au for further information.


Will the cancelled visa holders need to seek revocation under s129?

Yes. Non-citizens whose visas were cancelled offshore under s128 will need to apply for revocation in accordance with s129.


How will students who were in China on 1 February, but who have now not been in China for 14 days be able to board flights to Australia?

Students who have spent more than 14 days in another country to which COVID-19 restrictions do not apply, can travel to Australia. Passports or visas with date stamps are accepted as evidence of leaving the Chinese border at least 14 days prior.


How will we interpret residency requirements for business skills visas in this context?

This will be assessed on a case-by-case basis depending on how long the travel restrictions are in place.


58 views

 Kingstone Lawyers (ABN 41 633 503 321) is a legal practice incorporated under the Legal Professional Uniform Law.

Liability limited by a scheme approved under the Professional Standards Legislation.

© 2020 by Kingstone Lawyers Pty Ltd