COVID-19: Fact sheets, visa cancellations on health grounds and reapplying student and visitor visa applicants
/The novel coronavirus outbreak, now referred to as COVID-19, has gripped major news outlets over the last couple of months and shaken confidence in the world economy in recent days as nations battle the spread of the virus and protect its citizens.
The Australian Government was relatively quick to respond including implementing travel restrictions for people from mainland China and international travellers who have spent time in mainland China within the previous 14 days with few exceptions and quarantining returning Australian citizens and permanent residents. This is despite the detrimental economic effects on Australia’s tourism and education sectors that substantially rely on Chinese visitors and students.
Amid the upheaval, the Department of Home Affairs (Home Affairs) have created various fact sheets for those affected, including:
People in and outside Australia whose visa may be affected by travel restrictions, such as if their visa has or is about to expire, those with visa conditions that may prevent further applications in Australia, and Bridging visa holders;
Affected Student visa holders in and outside Australia.
Immediate family members of Australian citizens and permanent residents; and
With extended travel restrictions, there are potentially disastrous situations for affected visa holders. How disastrous depends of course on their situation and ultimately how flexible Home Affairs will be when applying policy to those affected when workarounds are sought.
Student visa holders who cannot return to Australia to commence or resume their courses should contact their education provider and seek to defer their studies to avoid their student visa being cancelled for non-compliance with visa condition 8202, which requires visa holders to be enrolled and satisfy course progression. The issue with deferring studies will be that they may be required to seek a further student visa to complete their studies and therefore need to lodge another student visa application. A common misconception with student (and other) visas is that Immigration can “extend“ the duration of a granted student visa, which is simply not possible.
Another outcome of COVID-19 is the addition of four new legislative instruments to account for visa applicants for visitor and student visas who have had their visas cancelled as a result of not meeting the more stringent border control measures that were implemented on 1 February 2020.
Due to visa cancellations as reported by Home Affairs, to allow these visitors, students and student guardians to be granted the visas they held at arrival, legislative instruments were created this week to define them a class of person for a Subclass 600 – Visitor visa and Subclass 500 – Student visa or Subclass 590 – Student Guardian visa, and when applying, the visitor visa application charges and student visa and student guardian application charges are nil.
This requires the applicants to be in Australia, to have held their respective visa that was cancelled under section 116(1)(e) of the Migration Act 1958 (Cth) as a result of the risk in relation to Public Health Emergency of International Concern (PHEIC) designated by the World Health Organisation (WHO), essentially COVID-19, and who makes this application within 3 months of their visa being cancelled.
Section 116 is a discretionary visa cancellation power used on situation-specific grounds and generally where the visa holder was never entitled to hold that visa or no longer is entitled to hold that visa. Section 116(1)(e) is used to cancel a visa if the presence of the visa holder is, may, or might be a risk to the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.
Given the wide possibilities of what can be constituted safety and to whom the risk could involve, this power as suggested by policy can cancel a visa when criminal charges have been brought to a visa holder or a conviction obtained for offences such as family violence, child exploitation and drug manufacturing.
Specifically on health grounds, aside from active tuberculosis or public advocates against government policy such as anti-vaxxers, and if not refused a visa beforehand, it would take a deadly infectious disease or virus like COVID-19 to be grounds for visa cancellation and not simply the common cold.