The Background

Since 11 March 2020 when the World Health Organisation characterised the COVID-19 as a global pandemic, many countries have taken unprecedented and immediate actions preventing the rapid spread of the virus. This includes travel restrictions banning foreign travelers from entering into their border. In Australia, the most recent travel restrictions, effective from 20 March 2020, continued to apply to all temporary visa holders coming to Australia, except for some prescribed exemptions.

The Impact

Understandably, whilst the implementation of travel restriction is for the purpose of easing public health emergency, those who are subject to the restriction would suffer detriments in various ways and to a great extent. The eligible applicants for a subclass 485 Temporary Graduate visa are one of the most-affected groups under the current policy of travel ban.

In accordance with item 1229 of schedule 1 and clauses 485.221 and 485.231 of schedule 2 under the Migration Regulations 1994 (Cth), within 6 months from the date of completing their eligible courses, the applicants must lodge their application onshore for a subclass 485 Temporary Graduate visa in order for their applications to be valid and be eligible for approval subsequently. This means if the eligible applicants are unable to be present in Australia before the conclusion of 6 months period, they will be automatically deprived of the entitlement to a Temporary Graduate visa.

These eligible 485 visa applicants mostly completed their study in Nov 2019 and Dec 2019. Because of the impact of bushfire in Australia in conjunction with Christmas and New Year Holidays as well as conventionally long school holidays for international students, many of them travelled back to their home countries visiting their family. As a predominant majority of them were holding student visa which would be expired on 15 March 2020, they were planned  to arrive at Australia before the expiry date of their visa so as to lodge an valid application for a Temporary Graduate visa.

However, due to the initial travel restrictions imposed on 01 Feb 2020 and the subsequent intensified measures of total lockdown, most of them still remain offshore to date. As there is no sign of lifting the international travel ban until the end of this financial year, it would be extremely likely that those affected applicants would lose their entitlement to a subclass 485 Temporary Graduate visa.

The Compassionate Needs

It ought to be acknowledged that the entitlement to apply for a subclass 485 visa with unlimited work rights appeals to the graduates completing eligible courses in Australia. On the one hand, allowing them to stay and work in Australia after graduation will be a significant venue for them to accumulate work experience before returning their home countries; on the other hand, an extension of permitted period of stay in Australia will accommodate their post-graduation needs for packing baggage, meeting friends and experiencing life in Australia which they may not be able to do while studying. Given the importance of having a Temporary Graduate visa, it would be unjust and disproportionate if they are prevented from making valid application as a result of unintended impact of the travel restrictions.

Our Request

At the current stage, for the consideration of public health interests, we understand that it would be unrealistic to lift the travel ban for those impacted. However, to balance the eligible 485 visa applicants’ compassionate needs and to reduce the uncertainty caused by the restrictive measures, we urge that there is feasible solutions which do protect public interests on the one hand and unharm the legitimate needs of those affected on the other.

In order to cope with impact of COVID-19 caused to the onshore temporary visa holders,  delegate of the Minister was conferred power to make legislative instrument specifying the requirements for making application for a subclass 408 visa as a result of COVID-19 Pandemic event.

By analogy to the making of 408 COVID-19 legislative instrument, we request that the Acting Minister for Immigration Hon Alan Tudge to exercise his conferral power to make a legislative instrument likewise allowing those affected eligible 485 visa applicants to make a valid application for a Temporary Graduate visa beyond the 6 months period of completing their study.

In particular, the legislative instrument could waive the requirements of lodging location and time limitation specifically for those affected applicants or alternatively there will be a new stream under the current 485 visa scheme identifying those affected applicants as the eligible applicants and extending the application deadline from 6 months to 9 or 12 months. This would provide sufficient timeframe for the affected applicants to lodge a 485 visa application by the end of this year when the situation of COVID-19 pandemic is expected to relieve.

We believe this would be a win-win for both the public health and the eligible 485 visa applicants who are affected by the travel restrictions.