Last updated: 8 January 2021

Home Affairs have provided a fact sheet on the COVID-19 Subclass 408 – Temporary Activity visas with some important details:

• Critical sectors are currently considered to be: agriculture, food processing, health care, aged care, disability care and childcare;

• To apply to work, applicants will need to provide evidence confirming their date of employment, which critical sector the applicant is working in, and evidence that no Australian citizen or permanent resident can fill the position. For doctors and nurses, they must also provide evidence of their qualifications (and likely AHPRA registration) and a letter of offer from a hospital or clinic. Those approved this visa on the basis of working in a critical sector will have work rights and may be granted a visa for a further 12 months;

• Those approved this visa because they have no other choice (visa of last resort) will be granted a visa for up to 6 months to remain in Australia lawfully. They will need to provide a statement stating why they cannot apply for another visa, why they are unable to depart Australia before their current visa expires, and what actions they are taking to arrange their departure as soon as travel restrictions are lifted and/or flight availability resumes;

• For new and unfinalised 408 visa applications from 7 September 2020, offers of employment in the aged care sector, even for a visa applicant who does not have work rights, is added as a class of person who may meet the criteria for approval;

• For new and unfinalised 408 visa applications from 7 January 2020, offers of employment in the agriculture, food processing, health care, aged care, disability care and childcare sectors, even for a visa applicant who does not have work rights, is added as a class of person who may meet the criteria for approval;

• Subclass 403 – Temporary Work (International Relations) visa in the Seasonal Worker Program stream, or who were the holder of a 403 visa that ceased no more than 28 days before applying, can apply for a 408 visa, but must be employed or have an offer of employment only in the agriculture sector and from an approved employer under the Seasonal Worker Programme;

• Any visa application applying to work in a critical sector can make an application when their substantive visa will expire within 90 days or less.

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The instrument that enables any temporary visa holder in Australia who cannot leave Australia as a result of the coronavirus pandemic and who is unable to make a valid application or meet the requirements for any other visa to apply for a Subclass 408 – Temporary Activity visa was registered yesterday.

The instrument creates a class of person to satisfy certain criteria for this visa if they are affected by the COVID-19 pandemic, which is ironically classified as an Australian Government endorsed event. Typically, these events are short-term sporting and festival events, such as the recent Women’s T20 World Cup 2020.

The class of person who can be considered for this visa must be in Australia and unable to depart Australia as a result of the COVID-19 pandemic and is either the holder of a temporary visa that is less than 28 days from expiring or was the holder of a temporary visa that expired not more than 28 days before they lodge their 408 visa application.

Importantly, visa applicants must be unable to make a visa application, or meet the Schedule 2 criteria, for the same subclass of visa they hold or last held; or a temporary visa of any other subclass other than a Subclass 408 visa. Effectively, this requirement means that a 408 visa is the visa of last resort for anyone who cannot leave Australia and cannot meet the requirements for any other visa.

The Explanatory Memorandum also states that this visa is also a response to workforce shortages in critical sectors such as agriculture, aged care and public health and who meet the above criteria. This is especially relevant to Subclass 403 – Temporary Work (International Relations) visa holders in the Seasonal Worker stream, and working holiday makers (Subclass 417- Working Holiday visa and Subclass 462 – Work and Holiday visa holders) who cannot meet the requirements for a further working holiday visa but are working in a vital sector, as announced over the weekend by the acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. Current advice from the Department of Home Affairs (Home Affairs) also states that a 408 visa may be appropriate for any temporary visa holders working in these sectors. This includes Subclass 500 – Student visa holders and employer sponsored Subclass 457 – Temporary Work (Skilled) visa and Subclass 482 – Temporary Skill Shortage visa holders. Seasonal workers holding 403 visas with a visa condition 8503 – No Further Stay attached will have this condition automatically waived.

The visa application charge is nil.

Many temporary visa holders will, however, want to consider what visa they will be eligible for other than a 408 visa as this may affect their rights to apply for a better visa in the future. Examples include the visa necessary to hold or have recently held for a Subclass 485 – Temporary Graduate visa, or a Subclass 186 – Employer Nomination Scheme visa under the Temporary Residence Transition stream.

Given the advice from Home Affairs and unless further guidance is provided, it would be wise for visitor visa holders (Subclass 601- Electronic Travel Authority visa, Subclass 651 – eVisitor visa, and Subclass 600 – Visitor visa) in Australia to consider applying for an onshore Subclass 600 – Visitor visa, if possible. As the criteria for all 408 visas require health insurance and to be genuine visitor, among other requirements, there is little sense for visitor visa holders to apply for a 408 visa. This is potentially why the 408 visa is being used primarily for those with existing work rights.