Coronavirus - Temporary Activity 408 Visas
@pawelskor
The Temporary Activity 408 visa is being widely discussed amongst many Australian businesses and migrant communities as a possible solution for temporary visa holders facing temporary "stand-down" from their current employment, needing to work elsewhere with relevant work rights and remain lawfully in Australia.
This article takes a brief look at what the 408 visa does, before diving into how the Australian Government Endorsed Events stream may or may not be useful to non-Australian citizens in Australia during the COVID-19 (coronavirus) pandemic.
What is the Temporary Activity 408 Visa?
In November 2016, the Department of Home Affairs simplified and reformed some of the numerous Australian work visas by combining five (subclass 401, 402, 416, 420, 488) visas and replacing them with two short-term special activity visas: Training 407 visa and the Temporary Activity 408 visa. The aim was to streamline the sponsorship process, remove red tape by providing online applications for all these visas and uniform a flat pricing structure for visa application fees.
Since 2016, the Temporary Activity 408 Visa has been allowing people to undertake certain activities in Australia for a temporary stay and within the following approved areas:
Australian Government Endorsed Events
Invited Participants
Sports
Religious Worker
Domestic Worker
Superyacht Crew
Research
Staff Exchange
Special Program
Entertainment
How Will the 408 Visa Help?
For a 408 visa applicant to lodge on the basis of an Australian Government Endorsed Event, they must be engaged to perform work that is directly associated with an event “specified in a legislative instrument" made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs).
Recently, it was announced that the coronavirus pandemic has been identified as an Australian Government Endorsed Event ("AGEE") and that the relevant 408 (AGEE) visa will assist workforce shortages relating to areas including public health, aged care, agriculture and critical work relating to the supply of essential goods and services during the pandemic. Until May 2021, this has included agriculture, health care, aged care, disability care, child care and food processing. It is now further to open to the hospitality and tourism sector.
Who Can Apply?
This visa may provide an option for current holders of temporary visas to remain in Australia lawfully if they are nearing the end of their current visa, and are unable to depart Australia (due to the coronavirus) with no other Australian visa option.
While sponsorship is not required, it is expected that a 408 (AGEE) visa applicant will provide evidence of existing employment, or a job offer, in areas including agriculture, public health, aged care, or those relevantly skilled to do critical work relating to the supply of essential goods and services.
Also, visa applicants must:
hold a valid visa with no more than 90 days validity remaining at the time of lodgement (until May 2021, it was no more than 28 days remaining), or
have had no more than 28 days pass since their visa expired, prior to lodgement, and
not have any other suitable visa option. If applicants are eligible for a different type of visa, they are encouraged to do this first
Visa Conditions?
408 visa holders are expected to remain performing the activities and with the business/person declared, and avoid taking on additional work elsewhere.
Further conditions that may be applied to the 408 visa include:
8501: maintaining adequate arrangements for health insurance whilst in Australia
8503: inability to lodge another visa application whilst in Australia (unless it is a protection visa)
Duration of the Visa?
The 408 visa doesn’t provide a pathway to permanent residence and depending on the purpose of the application, the visa could be valid for up to 3 months, or 2 years or 4 years.
However, in relation to a 408 (AGEE) visa granted in response to the coronavirus pandemic, it is understood that once the World Health Organisation (WHO) declares the pandemic over, the visa holder will have 28 days to either depart Australia or apply for another type of visa.
Until then, the visa will be valid for up to 3 months (no work rights) or 12 months (work rights).
457 and 482 Visas Applying for the 408 (AGEE) Visa
There is much talk as to whether the 408 (AGEE) visa could be a suitable alternative for sponsoring employers and 457/482 visa holders or who are unable to maintain employment and compliance with the relevant sponsorship obligations and visa conditions.
For anyone considering the 408 visa, it is important to understand the following, if the visa is granted:
the 408 visa will replace a current visa including a 457 visa or 482 visa
this 408 (AGEE) visa will be valid for the purpose of the pandemic. As soon as the WHO declares the pandemic over, the 408 visa holder will have 28 days to depart or apply for another visa (irrelevant of how long the visa has been approved)
if the 408 visa replaced the 457/482 visa, a new 482 nomination and visa application will be required (including fees, Skilling Australians Fund levy, and respective criteria such as labour market testing, skills, health and character)
the activities declared in the 408 application to be maintained
there is no pathway to permanent residence from the 408 visa
What is the Application Fee?
A 408 (AGEE) visa application fee is nil! Based on recently successful applications, the subsequent application charge of $700 is also not required.
Who Does the 408 (AGEE) Suit?
Despite some commentary, a 408 visa is irrelevant to the likes of NZ Citizen Special Category (444) Visa holders and will provide them with no benefit.
Based on the recent announcements, it appears that the 408 (AGEE) visa would be suitable people including working holiday makers employed in (for example) health care, and who face visa expiration whilst being unable to lodge another visa and return home due to travel restrictions.
Conclusion
Immigration is a frequently changing piece of Australian law, more so, in light of the coronavirus pandemic.
We strongly recommend that employers and visa holders seek expert advice before embarking on a visa that may have unintended consequences now, once the pandemic is over or further down the track.
Cut through the confusion and contact us to discuss your options or subscribe to our newsletters.
References
Migration (LIN 20/122: COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class GG) visa) Instrument 2020