If you are an Australian citizen or permanent resident seeking to re-settle your parents in Australia permanently, there are a number of Parent visa options available. The eligibility requirements for these visas can get a little complex but generally speaking, if you have lived in Australia for the last 2 years, and you are an only child or at least half of your siblings (including half and step) are living in Australia, you may be eligible to sponsor your parent for a Permanent Parent visa.

In broad terms, there are two streams of parent visas: contributory and non-contributory visas. The primary difference between these two streams is that, for contributory visas, the applicant pays extra fees (more than $43,600) to secure faster processing. You may be asking – is it worth the money?

For all Parent visa subclasses, the Department of Home Affairs sets a strict cap on the number of visa places available in any year. In practical terms, this creates a queue system where new lodged applications are placed in line and visa applications are considered on a “first in, first out” basis. The queue for Contributory Parent visas moves much faster while non-contributory visas stall – there has been no advancement in that queue for at least the last 9 months.

Current estimates published by the Department of Home Affairs suggests that processing time on a contributory visa lodged now would take approximately 4.8 years until a final decision is made while non-contributory parent visa applicants can expect to wait up to 30 years for a decision!

If you hear of anyone wanting help to bring parents to Australia we would be happy to help navigate all this.

DISCLAIMER This information is current as of 29 June 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

With the economy opening and the end of the financial year upon us, we are seeing a huge increase in activity by employers and individuals interested in permanent residence and citizenship.

We thought it would be helpful to reach out with a few common COVID-19 questions we are receiving.

Can we still lodge visas?
Absolutely. The Department of Home Affairs is still receiving and processing temporary and permanent visa applications, although people overseas are only being processed if they have been given permission to travel to Australia (or that is pending). In fact there is currently a surge on lodgements because Immigration fees typically go up on 1 July each year.

Do we still need to do Labour Market Testing?
Yes the usual rules for LMT still operate.

Will our employees be able to travel?
Sponsored workers need the permission of the Commissioner of the Australian Border Force to be able to enter Australia. Permission on this ground is only granted where the person has ‘critical skills’. While there is some guidance on what is critical, each case will need to be assessed individually. Those visa holders already in Australia can depart but should seek permission to come back before they leave or they may not be able to return to Australia even if they have a job, family and a home here.  Australian citizens and permanent residents generally need permission to depart.

There is no confirmed news on when the borders might open and offshore processing will resume. From the information we have been able to gather, the most likely scenario is that New Zealand citizens will be able to travel once our state borders are open. Overseas students might be allowed to travel from July/August with a pilot program for a ‘secure corridor’ now being prepared. Some time after that, they may start to let in families of TSS visa holders already in Australia. Depending on how that goes and the COVID-19 numbers in Australia, we might start to see some loosening of restrictions for sponsored workers in the last quarter of this year.

We are doing lots of incoming and outgoing exemption requests so call us if you would like to know more or need some assistance.

What if a sponsored worker has been stood down?
TSS and subclass 457 visa holders who have been stood down, but not laid off, will maintain a valid visa and businesses will have the opportunity to extend their visa as per normal arrangements. If your employee has been laid off you need to notify the Department in the usual way. While it is a bit unclear as to whether the Department expects employers to notify temporary stand downs, if you think any stand down could go on for much longer, you should contact us to discuss the best approach.

Can we reduce the working hours of a sponsored employee? 
Yes, for now – provided that the salary remains the same on a pro-rata basis. The usual rule is that all sponsored positions should be full-time, so this is a special flexibility for COVID-19.  It is unclear how long this will go on for but you should expect that you could be asked at some time in the future to demonstrate why you still need the sponsored employee if there is no full-time work. Also, there has been no announcement about how reduced hours might impact the permanent residence eligibility date for the sponsored employee given that it generally excludes periods where the person was not employed full-time. We will have to wait and see whether reducing work hours impacts PR or not. If you have concerns, you should contact us.

Can we reduce the wages of a sponsored employee?
Probably, provided that it is temporary, applies to Australians and sponsored employees alike and that the new salary is still at market rate. The usual requirement is that an employer would need to lodge a new nomination with LMT and market rate evidence, however, the policy section of the Department has advised us that, during COVID-19, it will be sufficient to notify them of the temporary change. Contact us if you have or intend to adjust wages (or hours or both) and we can work out what needs to be done as this can have other implications.

Will the occupation list change?
There has been no announcement about changes to the occupation list. The changes that were due to take place in March this year have been put on hold. The lists are driven by the availability of skills in Australia. Depending on the longer-term impact of COVID-19 on unemployment and the political debate about ‘Australians first’, some changes might be expected.  We will advise clients as soon as we have any official announcement. Until then, it is business as usual on occupations.

Wrap up
Our focus at the moment is very much on helping clients gear up for re-opening, dealing with the large number of requests about borders, managing onshore populations as usual, dealing with the increased level of permanent residence and citizenship questions and ensuring you all remain compliant. If you would like any more information about any of the above or just want to catch up generally on where things are at just give us a call.

Good luck everyone. There is light at the end of the tunnel!

DISCLAIMER This information is current as of 19 June 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Since its launch in November 2019, the Global Talent Independent (GTI) Program has generated some interest. Our office has been involved with applications in the various sectors and has had a number of liaison discussions with the talent program team in Canberra. Nothing like getting a GTI visa grant for our clients!

The program seeks to attract “the best and the brightest” from around the world by offering a streamlined and priority pathway to permanent residence if candidates are distinguished in one of the seven identified GTI industries and are likely to be able to command a salary in Australia above the Fair Work High Income Threshold (FWHIT), currently $148,700. There is also a stream for recent PhD or Masters graduates in the target sectors.

The seven identified GTI industries are: AgTech; Space & Advanced Manufacturing; FinTech; Energy & Mining Technology; MedTech; Cyber Security; Quantum Information, Advanced Digital, Data Science & ICT.

These permanent applications are fast-tracked and processed with priority. Even during the COVID-19 pandemic disruption, applications are still being processed with a focus on the Australian based applicants.

A recent Freedom of Information Request indicates that the government is no way close to filling the 5,000 spots allocated to this program. This may largely be due to the lack of public information on the program. It is clearly a perfect opportunity to lodge applications specially for those candidates currently based in Australia.

Please contact an Ajuria Lawyers adviser if you require further information at www.ajurialawyers.com or +61 (0)2 9222 6100.

DISCLAIMER This information is current as of 18 May 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Hospitality has been one of the industries hit hardest by the COVID-19 pandemic. Many of our clients have been deeply affected. We all hope that it will be over soon but we all need to plan for some level of disruption or change to usual business operations for some time to come.

There are a number of things that hospitality employers need to consider and work into your planning, processes and communications.

1. Renewals of visas and applications for permanent residence will be scrutinised more closely and should be planned for well in advance. Rejections of applications are a real possibility and this will need to be communicated to employees prior to lodgement.
2. Changes to employment arrangements for sponsored visas and other visas with work restrictions could be in breach of immigration laws and sponsorship obligations and/or impact future renewals or permanent residence and so should not be made without careful consideration and advice.
3. High levels of unemployment could lead to policy changes by Government that make it more difficult for hospitality employers to sponsor new employees until the economy is fully recovered.

1.    Renewals and PR applications
Clients are still lodging subclass 482 Temporary Skill Shortage (TSS) applications to ‘renew’ current visa holders whose visas are expiring. Clients are also supporting permanent residence applications where they can.

The Government’s position is that visa holders who have been stood down temporarily can still lodge a TSS application and apply for permanent residence, however, the usual rules continue to apply to those applications.

This means:

• Labour Market Testing (LMT) is still required. Where this is not possible, employers must consider lodging at least a nomination for an employee whose visa will be expiring in coming months (possibly up to a year) to ensure that previous LMT can still be relied on for that nomination. Even so, close scrutiny of the LMT should be expected and employers need to be prepared to demonstrate why no Australia could be found.
• Genuine Position –  In all cases an employer must show that there is a genuine position/need for the sponsored employee.  Obviously, this will take some care in explaining how the position is still needed in a shut down or restricted operations situation. Employers should expect a call or a written request from the Department asking about this and it is an area that could lead to an increase in application rejections and the need for an appeal.
• Genuine Temporary Entrant Requirement – In cases where employees are in two-year occupations and have had a previous TSS visa they will need to prove that they are a ‘Genuine Temporary Entrant’. We expect that this will also be more heavily scrutinised in coming months because of COVID-19.
• Use of 408 visa – Employees in essential services who cannot depart and cannot be sponsored because of the employer’s circumstances, might be able to apply for the Government’s new COVID-19 stream of the subclass 408 temporary visa for a short period, but eligibility will need to be assessed on a case by case basis.

2.    Changes to employment arrangements
Many clients and their employees have asked whether they can make changes to the employment conditions of sponsored employees or those on student or working holiday maker visas.

The Government’s position is that, for the most part, visa conditions and employment arrangements must remain unchanged and that the employee should depart Australia if there is no work in their role or within the terms of their visa. The exceptions to this are:

• Sponsored workers can work part-time or be temporarily stood down without being in breach of their visa conditions or the employer breaching sponsorship obligations but we do not know what impact this could have on future permanent residence applications. While we expect there could be a change in policy, under current rules this period would not be counted towards permanent residence. Salary should remain at the pro-rata rate as specified in the nomination for any hours worked (and also meet any employment law requirements). Sponsored workers cannot change occupation without a new nomination.
• Working holiday visa holders still need to change employer every six months 6 months unless they are in essential services such as medical, agriculture, aged care. Food preparation in a venue style setting (packing meals for home delivery etc) is not seen as an essential service.
• Student visa holders employed in hospitality are still limited to 40 hours per fortnight while their course is in session.

3.    What the future might hold 
Messaging from the Government clearly indicates that unemployment rates in Australia will have an impact on future policy direction in relation to TSS visas. While there is no way to know exactly how things will go and no announcements about this have been made, employers might want to factor into their planning the possibility that:

• Travel to Australia might be restricted for quite some time. When it opens employers could well be asked to pay for the costs of any incoming employee needing to isolate (currently this is paid by the Government).
• Certain hospitality occupations might be removed from the TSS list. If this happens, it is most likely to be short-term occupations such as Cook and Café or Restaurant Manager. The industry will need to convince Government of why high unemployment does not necessarily mean less skill shortages in these roles.
• New TSS applications for new hires are likely to be heavily scrutinised and will need additional supporting material and arguments to demonstrate why a sponsored employee is needed.
• Processing may well be much slower, requests for further information more common and rejections and appeal a much more likely possibility than before COVID-19. This will require careful communication and explanation with employees and candidates to set expectations and also guard against candidates quitting their existing jobs on the assumption of a transfer.

We will keep monitoring the situation for all the latest developments and please do not hesitate to contact us if you would like to discuss anything in this update or just to catch up.

We will all get through this together.

DISCLAIMER This information is current as of 14 May 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Following yesterday’s announcement by our PM to tourists that ‘it’s time to go home’, the acting Minister for Immigration, the Hon Allan Tudge made an announcement this morning relating to other temporary visa holders in Australia.

With 2.17 million in Australian on temporary visas, the government’s stated priority is to protect the health and livelihoods of Australians, support critical industries, and assist with the rapid recovery post the virus.

We are yet to receive information on the specifics of these announcements and how these will be applied on a practical basis.

We will continue to monitor these announcements closely and will update you when we get more information.

The following is a summary of what we know at this time.

TSS/457 visa holders

• Cannot access JobSeeker or JobKeeper allowances.
• Will be able to withdraw $10,000 from superannuation for this financial year.
• Will be able to keep their current visas and apply to renew their visa if they have been temporarily stood down but not laid off, but it is still unclear how the Department will assess the need for the position or Labour Market Testing.
• Will need to find another sponsor or depart the country if they have been laid off/made redundant.
• Will be able to work less hours without being in breach of their visa condition.
• Will be able to count time already spent working in Australia prior to Covid-19 pandemic towards permanent residency requirements if they hold a 4 year visa.
• No announcement made on relaxation of employment limitations for those that have been stood down.

Working Holiday Makers and Seasonal Pacific Islander workers

• Will not receive government assistance and will be expected to depart Australia if they do not have the confidence to sustain themselves over the next six months.
• Will be able to work for more than six months for one employer if they work in critical sectors – heath, aged and disability care, agriculture and food processing.
• Will be eligible for a further visa to keep working in these critical sectors if their current visa is due to expire in the next six months.

International students

• Will be able to access their Australian superannuation if they have been in Australia longer than 12 months and are in financial hardship.
• Will be taken to have met their visa conditions even if they could not attend class because of Covid-19.
• Are able to work for more than 40 hours per fortnight if they are working in aged care or as nurses.
• Will continue to be able to work for more than 40 hours per fortnight if they are working in major supermarkets up until 1 May 2020 after which their hours must not exceed 40 hours per fortnight as more Australians will take these roles.
• Maybe eligible for discounted tuition – contact your college/institution.

Other temporary visa holders in Australia

There are 185,000 other temporary visa holders in Australia, about half of them temporary graduate visa holders.

• Will be able to access their Australian superannuation if needed.

New Zealanders

• Continue to have unlimited work rights and access to Medicare.
• Will have access to welfare payments and the JobKeeper payment if they hold a 444 visa and arrived in Australia before 26 February 2001.
• Will be eligible for the JobKeeper payment but not JobSeeker or other welfare payments if they hold a 444 visa and arrived in Australia after 26 February 2001.
• Will be expected to return to New Zealander if they cannot support themselves.

For all the latest information join our free weekly webinar: Tuesday, 7 April 2020.  Register here.

DISCLAIMER This information is current as of 4 April 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

We thought we should provide you an update of what we are hearing and what we are doing to work with you and your employees in this period of turmoil.

FAQ, Webinars and Consultations
In addition to our regular client alerts and catch ups with you, we are offering the following additional services to help employers and employees:

• Free on-line FAQs that are updated daily: For Employees and For Employers
• Free weekly webinars with the latest information: Register through our website
• Discounted one on one consultations with our experts: Book through our website

Updates from Government
We are in regular discussions with Government about their approach to the crisis. This is the latest information we have:

• The Department is still open for business and is processing visas: temporary and permanent. Because of the travel bans, the focus has shifted to processing on-shore cases but offshore applications can still be lodged. Some delays in processing can be expected with offshore applications effectively frozen.
• No decision has yet been made on whether or not financial assistance will be extended to temporary visa holders. At this point in time, JobSeeker assistance and the newly announced JobKeeper wage subsidy are limited to Australian citizens and permanent residents and some New Zealand citizens. Details can be found here.
• There have been no significant changes to the usual rules for visas and sponsorship obligations. Visa holders and employers must still comply with visa conditions, and must still ensure that an application for another visa is lodged for any expiring visa holder. The usual rules for Labour Market Testing and justifying the need for a sponsored employee still remain and may even become more stringent as unemployment increases.
• Employers must still advise of changes to their business operations or to the employment conditions of sponsored visa holders. You should contact us before making changes or as soon as possible after these have been implemented so we can assist you with compliance.

What employers are doing
This is obviously dependent on the particular industry and unique business operations but broadly:

• Employers are trying to maintain the visa status of critical staff. Where financial circumstances of the company or the individual do not allow for renewals of sponsored visas, we are working with companies and their employees to find alternatives.
• Many companies are changing their recruitment strategies from offshore to onshore. We have noticed an increase in the number of nomination transfers as employers seek to sponsor workers already in Australia and expect this to increase further over coming months.
• Some employers are seeking to adjust working conditions by reducing hours and salaries or having employees take leave without pay. This can be accomplished in most circumstances and we can work with you on the best way to do this in a compliant fashion for immigration purposes.

What employees are asking
These are the questions we are being asked most often and our answers:

Q: Is there government financial support available?
A: No announcements have been made about financial assistance for temporary visa holders. At this time there is no assistance available.

Q: What if my visa expires?
A: You must either apply for a new visa, or depart Australia, before your visa expires.

As temporary visa holders, you can still depart Australia if you can find a flight but you should be aware that you will not be able to return to Australia until after the travel bans are lifted and we have no way of knowing when this will be. Also, if you are a sponsored worker, your return to Australia may be subject to your employer being able to show that there is still a genuine need for you at that time. You should speak to your employer before making this decision.

If you will be remaining in Australia, you will need to apply for a new visa before your current visa expires in order to avoid becoming unlawful. If your employer is unable to sponsor you, then the decision about what visa you can/should apply for will need to be determined on a case by case basis.

Q: What if I am stood down?
A: You must still abide by the work (or no work) conditions attached to your visa. For 457 or TSS visa holders, this means you can only work legally for your sponsor and cannot work for any other business or for yourself. Doing otherwise would be in breach of your current visa. We don’t expect the Department to cancel visas if you are temporarily stood down but they could consider doing this at some point if you have been made redundant and do not find an alternative sponsor.

Q: What about PR?
A: At this time we expect employer sponsored PR applications to be processed as usual. We do not know yet what, if any, impact temporary shutdowns and stand downs will have on PR applications. Provided you are still employed by your sponsor and they are able to offer you two years of employment, the impact should be minimal.  You will need to speak to your sponsor about whether your PR application can still be lodged, as this is a decision to be made by your employer about whether they are in a position to support the application at this time.

Our advice to employers at this stage is to assume for the moment that all rules and regulations continue to apply as before and to speak to us if you have any questions or concerns. Please notify us immediately of any changes to your business operations or the conditions of any sponsored worker. This can be done via our Migration Desk portal or by email to our teams. Of course, feel free to call us as always.

We are expecting an update from Government any day soon so please be assured we will update you as soon as this is received.

We understand that this is a very difficult period for all and are here to support you and your employees in any way that we can. Don not hesitate to make any suggestions as to what more we can do or to just call and say hello.  Together we will all come out of this on the other side.

DISCLAIMER This information is current as of 2 April 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

The New Zealand government is increasing its alert level to the highest level, level 4, in response to the Covid-19 crisis from 11.59pm on Wednesday, 25 March 2020.  This means that everyone is instructed to stay at home, businesses and educational facilities are closed (other than those deemed essential services) and travel will be severely limited.  This will last for at least four weeks.

Under an epidemic notice, Immigration New Zealand have advised the following in relation to temporary visa holders:

• Those whose temporary visas (visitor, student, work) are expiring on or before 31 March 2020 must submit a new application before their current visa expires, or leave the country. In submitting a new application, an interim visa will be issued as per normal, which will allow those people to remain lawfully in the country whilst their new application remains pending.
• Those whose temporary visas (visitor, student, work) are due to expire between 1 April and 9 July 2020 will have their visas extended automatically until the end of September 2020.

Immigration New Zealand’s ability to continue processing any applications during the Level 4 status will be severely curtailed, and as such we advise that you should be prepared for delays across all visa categories.

Please note that the travel restrictions that have been in place since 11.59pm on Thursday, 19 March 2020 remain in force.  In summary, New Zealand’s borders are closed to everyone except for:

• New Zealand citizens and resident visa holders with valid travel conditions (including Permanent Resident Visa holders)
• Partners and dependent children (up to age 24) of New Zealand citizen and resident visa holders with valid travel conditions, providing they are travelling together as a group
• Australian citizens and permanent residents who are normally resident in New Zealand
• Some further exemptions in very limited situations

Please refer to here for specific information from Immigration New Zealand, and here for up to date information from our Ministry of Health.

DISCLAIMER This information is current as of 24 March 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

During these difficult times we sincerely hope everyone is ok.

We are liaising with Government and our clients to work out the best way through the current crisis and wanted to bring you the latest information and insights.

Travel ban
The travel ban was extended last Friday to effectively exclude all temporary visa holders. There has been no broadening of this policy and in fact it seems to be tightening. Under the current ban, temporary visa holders including TSS and 457 cannot re-enter Australia until this ban is lifted.

There are very limited exceptions and these are being looked at on a case by case basis by the Commissioner of the Australian Border Force (ABF). Any exemption must be requested BEFORE travelling to Australia and it will be extremely difficult to obtain. Further information on the exemptions can be found here.

Offshore Processing
We expect that all offshore processing of visas will soon be placed on hold. Many clients are choosing to continue lodging applications to be at the head of the queue as soon as processing resumes. We will work with your business to determine the best approach.

Expiring Visa Holders
Visa holders in Australia will need to lodge a new visa application before the current visa expires or they will become unlawful. There is no current exception to this rule. We will be working with clients and visa holders to ensure that all visa holders remain lawful. If you have concerns about any employee, please let us know.

Redundancies and Stand Downs
Our thoughts are with all of our clients in the hospitality sector and others who have been left with no choice but to make staff redundant or stand them down.

We are starting to receive a large number of enquiries from worried clients and former employees and have made representations to Government suggesting some simple changes to the current rules and polices that would help greatly until we are all through this. If you need assistance or would like to understand what we are doing please contact us.

Support
We will be providing the following complimentary services to support employers and visa holders during the crisis:

For employers

• FAQ that will be updated as information comes to hand.
• Free webinar on Thursday, 26 March at 10am AEDT which will explain the latest advice and policies.
  Reserve your spot now.

For visa holders (please circulate to them as required)

• FAQ that will be updated as information comes to hand.
• Free webinar on Thursday, 26 March at 12 noon AEDT which will explain the latest advice and policies. Your employees can reserve a spot here.

For visa holders and other individuals wanting more personalised visa advice, they can book a consultation with one of our lawyers.

If you know of people needing assistance please feel free to pass on any of the above free resources.

If there is any other way we can assist you at this difficult time please let us know.

DISCLAIMER This information is current as of 24 March 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

With the Novel Coronavirus outbreak, countries around the world including Australia are taking steps to minimise the impact of the spread for public health and economic reasons. This is having a dramatic effect on employers and our thoughts are with all of you and your staff.

Below are answers to the most common questions we are receiving:

Should our Australian employees travel out of Australia?
This is a personal and business decision, but the fact that the Department of Foreign Affairs has issued a level 4 travel warning for all countries should show how dangerous the Australian Government believes travel to be. DFAT has also published an urgent message for all Australian citizens to return to Australia as soon as possible if they intend to, suggesting that Australia might close our borders to Australians at any time.

Also, given the travel bans in effect from 9pm AEDT on 20 March 2020, anyone who departs now may not be able to return for some time unless one of the limited exemptions apply.

What will happen if our employees are returning to Australia from overseas?
Only Australian citizens, New Zealand Citizens, Australian permanent residents and the immediate families of these groups are able to enter Australia. Others will be denied boarding a flight and even if they manage to travel, will have their visa cancelled on entry.

If your employee is permitted to enter Australia they will need to self-isolate for 14 days. Each Australian State or Territory will have their own penalty that will be imposed if this self-isolation is not adhered to.
Temporary visa holders who are seeking to enter on the basis of their relationship to an Australian will need to complete this form and submit evidence BEFORE they travel.

What will happen if we have an employee whose visa will expire before they can leave Australia?
These employees will need to apply for another visa. The decision about what visa they can/should apply for will need to be determined on a case by case basis and we can help you and the employee with this decision.
If the employee does not apply for another visa before their current visa expires, then they will become unlawful and subject to possible detention and removal from Australia (once that is possible). Becoming and remaining unlawful, even in this crisis, can have very serious consequences on the employee’s ability to return to Australia in future and on future applications for visas or Australian citizenship.

Can we still sponsor for work visas?
There is nothing to prevent you from sponsoring an employee for a new work visa to come to Australia or to extend a visa if an employee is already in Australia. For employees overseas the advantage of lodging the application is that you may speed up processing once the bans are lifted. For employees in Australia applications will need to be lodged to maintain status or transition to permanent residence, which many employees are seeking to do.

However, there obviously some considerations that need to be taken into account:

• Medical checks and police clearances may be hard or impossible to obtain where these are required.
• The Department of Home Affairs states “As the Department focuses its efforts on managing the impact of COVID-19 on its critical services and employees, other non-critical services may not be delivered within expected timeframes. We apologise for the inconvenience and appreciate your patience during this period.”
• Employees who are overseas will not be able to travel until the current bans are lifted.

Can we reduce the hours of our sponsored workers?
In some circumstances part time work is possible for sponsored workers (e.g. returning from maternity leave of because of health reasons), but under current policy it is not appropriate where it occurs due to a decline in business. This is because the TSS is designed to fill genuine skill shortages in the Australian labour market where appropriately skilled Australians cannot be sourced. However given the pandemic we believe there would be a strong ground for an employer to argue that in these circumstances part time work is acceptable until things settle down and  provided it is being applied equally to Australians (ie you are not discriminating against foreign workers). If you are to move a sponsored worker to part time work, you must:

• Ensure the pro-rata hourly rate of the approved nominated salary of the sponsored person does not decrease
• the role and duties must remain consistent with the position approved at nomination
• this arrangement is mutually agreed on by the buisness and sponsored person. Please maintain written evidence to demonstrate this agreement.

Note too that part time work will affect PR eligibility at a later stage.

What happens if we need to lay off a sponsored worker?
Immigration’s policy in relation to temporary sponsor workers has not been updated on the Coronavirus but we expect the government could decide to apply a flexible approach, but the following is the current policy position.

If the employment is not terminated but the person has been stood down under the Fair Work Act or under a provision in an employment contract the policy recommends advising the Department that of any ‘lay offs’ and explaining that this is temporary and employment is intended to resume. While cancellation is still legally possible, there are obviously powerful factors suggesting that the Department would not move to cancellation in the current circumstances as the legal result of cancellation is detention and removal from Australia, neither of which would seem possible/practical. We can advise the Department on your behalf.

What happens if the sponsored worker takes Leave Without Pay ?
If the sponsored visa holder goes on Leave Without Pay by agreement then this period should not, however, generally exceed 3 months unless:

• the sponsor is obliged to provide the leave under Australian workplace laws; or
• exceptional circumstances apply (which they clearly do).

For any LWOP it is expected that,

• the arrangement is mutually agreed upon; and
• there is a formal application for leave without pay that has been formally approved by the employer (including leave applications that are processed and approved electronically)
• Employees who have been stood down or take LWOP may later be delayed in their eligibility for permanent residence, but we don’t expect this to be the most urgent issue for people at the moment.

What happens if the sponsored worker is made redundant?
A sponsored visa holder can cease employment temporarily but this must not exceed 60 consecutive days. A sponsored visa holder is considered to have ceased employment if the employer, or employee, gives written notice that employment will cease, or has ceased, on a particular date and that date has passed.

In this circumstance, the employee would need to find a new sponsor, lodge a different visa application or face the possibility of visa cancellation. Each employee would need separate advice.

Our comments in relation to the reasons why the Department might not move to cancellation in the current crisis applies here as well.

Do we have to pay return travel costs?
Only if the employee (or the Department) asks for it in writing and in a format that complies with the law. Please contact us if you are asked so that we can advise further.

Remember that all of your obligations as a sponsor continue to apply throughout this crisis.

How can Ajuria Lawyers assist further?
We can provide information, help and assistance to you and your employees. Please contact us to find out how.

Please note: This information is current as at 20 March 2020 and may change. It is meant as general information and should not be relied upon as legal advice.

Photo by Artur Tumasjan on Unsplash

DISCLAIMER This information is current as of 20 March 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

With the Novel Coronavirus outbreak, countries around the world including Australia are taking steps to minimise the impact of the spread for public health and economic reasons. There is no doubt that in this interconnected world, visa holders too may be impacted.

Whilst we await the Australian Government’s further announcements, and without commenting on the legality of employment decisions that may stem from a downturn in business, employers of sponsored employees must be mindful of the following:

Travel

The Department of Foreign Affairs and Trade has raised its travel advisories for the following countries:

• China – Do not travel
• Iran – Do not travel
• Republic of Korea – Do not travel
• Italy – Reconsider need to travel with do not travel to parts of northern Italy

Foreign nationals (excluding permanent residents of Australia) who have been to the above countries will not be allowed to enter Australia for 14 days from the time they have left or transited through those countries.
Australian citizens and permanent residents will still be able to enter, as will their immediate family members (spouses, legal guardians or dependants only). They will be required to self-isolate at home for 14 days from the day they left China, Iran or the Republic of Korea.

 Effect on sponsored employees

• If the employment of sponsored employees ends, employers are required to notify the Department within 28 days of the last working date, and sponsors are required to pay return travel costs for the employee and any accompanying family member if that request is made in writing;
• Future applications to sponsor overseas workers may be adversely impacted if Australian workers in the same nominated occupations are made redundant;
• Part-time work is currently available to existing TSS visa holders if returning to work after a period of sick leave, for example, however the pro-rata hourly rate of the approved nominated salary must not decrease, and the role and duties must remain consistent. Part-time work must be mutually agreed and is currently not appropriate where it occurs due to a decline in business;
• Part-time work and Leave Without Pay arrangements will have implications for permanent residence eligibility under the Temporary Residence Transition stream (requiring 3 years of full-time employment), unless special provisions are announced;
• Reduction in salary for sponsored employees is only permissible if a new nomination is approved, and the employer is able to provide new supporting evidence of market rates.
• Last but not least, this is a timely reminder of the requirement for sponsored employees to maintain private health cover if not eligible for Medicare.

Effect on visa processing

• There are considerable delays in being able to arrange health /police checks from certain countries, such as China and Hong Kong and Italy where services have been limited;
• Slower processing of applications – we have seen processing of TSS applications be delayed where the applicant has been in a “high risk” country.

Effect on future citizenship/RRV eligibility

• Permanent residents of Australia who are currently unable to enter Australia due to illness, may, unless special provisions are announced, have their eligibility for Australian Citizenship or Resident Return visas impacted if they are outside of Australia for significant periods of time.

DISCLAIMER This information is current as of 11 March 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.