New regulations commenced over the weekend to provide concessions for several visa subclasses due to the effect the coronavirus pandemic has on visa applicants being able to meet certain criteria.

With international borders closed and Australia entering its first recession in 30 years, visa requirements may be hard, and in some cases, impossible to meet. An example is when a potential applicant must be in Australia at the time of applying for a visa but cannot obtain a travel exemption to enter Australia despite holding a valid visa.

These concerns also apply to some mandatory procedures too. For example, all permanent visa applicants must undertake a visa medical to meet public interest criteria, yet for states like Victoria, no appointments can be made due to the state’s ongoing second lockdown.

For visa medicals, the Department of Home Affairs has rightfully given applicants more time as it is outside the control of the visa applicant. According to Bupa, visa applicants do not need to contact the Department of Home Affairs to request an extension of time. As visa medicals are almost always a criterion assessed after lodging, extensions can simply be a matter of policy.

For other issues, regulatory intervention is necessary.

New regulations, which came into force on Saturday, intends to address some of these matters for certain visa subclasses.

Concession periods

A new definition in the Migration Regulations 1994 (Cth) (the Regulations) creates a concession period that started on 1 February 2020. This does not have an end date yet but can be determined by the Minister in a subsequent instrument. Furthermore, as concession periods are ingrained in the Regulations, concession periods may be specified in the future.

How concession periods apply depends on the visa subclass.

Subclass 485 – Temporary Graduate visas

Perhaps the most popular visa among the subclasses that are amended, key changes include:

• Primary visa applicants and any combined family members in a 485 visa application can be either inside or outside Australia when they lodge this application provided it was lodged during a concession period.

• The requirement that primary applicants must have held an eligible student visa within six months of applying for a 485 visa now only applies to those who are in Australia when applying.

• The Australian study requirement for both the Graduate Work stream and Post-Study stream can be met within 12 months if the 485 visa applicant was outside Australia for all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 and if they were unable to apply within six months of satisfying the Australian study requirement because of that absence from Australia. This greatly assists those who were stuck overseas during this period. As concession periods and the regulations now allow offshore 485 visa applications overseas, this concession will not apply in the future and will revert back to six months.

• Visa applicants can be outside Australia when this visa is granted only if the 485 visa application was lodged during a concession period.

Subclass 887 – Skilled – Regional visa

For this permanent visa subclass, those who hold, or held, the required provisional visa, such as the Subclass 489 – Skilled Regional (Provisional) visa, can be inside or outside Australia if they apply during a concession period and can also be granted this visa if outside Australia. Applications by children born overseas to relevant eligible visa applicants can also be included in an 887 visa application.

Concessions are also provided for the length of time they must be living and working in a specified regional area. One of the major requirements for this visa is that the applicant has lived in a specified regional area for at least 2 years and have worked full-time for at least 12 months as a holder of a certain visa.

Two further key features on these changes are:

• Where an applicant makes an application during a concession period and is overseas when they apply, they will have taken to have lived in a specified regional area for at least 6 months, meaning that the two-year residency period is reduced to 18 months. They must hold a specified provisional visa or related bridging visa, or held of one of those visas that expired during the concession period. There is also the possibility of extending the concession period beyond 6 months if travel restrictions continue.

• While the residency concession only applies to offshore 887 visa applicants, the employment concession applies to both onshore and offshore applicants. This is because of the impact COVID-19 has had on employment in Australia. The full-time work experience requirement is reduced from 12 months to 9 months if the applicant held one of the qualifying provisional visas or a related bridging visa during a concession period. They must, however, lodge their 887 visa application no later than three months after the end of the concession period.

Subclass 888 – Business Innovation and Investment (Permanent) visas

The most important aspect of the concessions for business skills visas is that they will only apply to those who were granted a Subclass 188 – Business Innovation and Investment (Provisional) visas before 1 July 2019. This is because some may have been 188 visa holders for many years and on track to apply for an 888 visa before COVID-19 made requirements much difficult to meet.

Key features include:

• The complying investment under the Investor and Significant Investor stream is taken to continue to be met during a concession period even if the 188 visa holder or 888 visa applicant withdraws funds from, or cancels a part of their complying investment.

• 188 visa holders will not be in breach of visa condition 8557, which requires them to hold a significant complying investment for the duration of their visa if they withdraw or cancel an investment during a concession period.

• As with 887 visas, many 188 extension streams and 888 streams will allow valid applications made if the 188 visa expired during a concession period, provided that the application is made no later than three months after the end of the concession period during which the visa was held.

• Applicants for a 188 visa in the Business Innovation stream can have their business or businesses for which they have an ownership interest accumulate the necessary two years of operation over different periods rather than a continuous period of two years.

• Those holding a 188 visa in the Business Innovation Extension stream can be granted a second Business Innovation Extension stream for a period of eight years.

• Periods of residence in Australia for many 888 visa streams are taken to be in Australia if the visa applicant is overseas during a concession period.

Subclass 790 – Safe Haven Enterprise visas

SHEV visa holders are required to meet minimum work and/or study requirements in a SHEV regional area for at least 42 months and not receive certain social security benefits to be eligible for a further visa.

The COVID concession will allow SHEV holders to count periods towards the 42-month requirement if they are receiving certain social security benefits, are unemployed, or employed in a non-SHEV area and working in an essential service.

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Overall, while these amendments will be welcomed by many, it may not have gone far enough, particularly in relation to certain time of application criteria. English language abilities springing to mind.

Many if not most 485 visa applicants are required to accompany their application with evidence of meeting certain English language thresholds in an approved test. The difficulty with this is obvious when testing has been suspended in part of Australia and elsewhere around the world. These amendments will not assist if regulations for English are not changed. Other visas, such a Subclass 186 – Employer Nomination Scheme visa also requires English to be met at the time of application.

It may prove pointless to be able to lodge a valid application but be later refused because of not satisfying an equally affected criterion.