Immigration Updates - April 2022 - Gilton Valeo Lawyers

Here are some of the latest developments in Australian and New Zealand Immigration Law:

TRTS Age Exemption for Legacy 457 Visa Holders
Third Short-Term TSS Visa Can Now Be Lodged Onshore
Clarification on Applications for ETA Visitor Visas (Subclass 601)
Unvaccinated Australians now free to travel

If you want to learn more about any of these changes, our firm and everything we offer, visit our website or connect with us on Facebook, Instagram, LinkedIn or Twitter.

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TRTS Age Exemption for Legacy 457 Visa Holders

Effective 1 July 2022, ‘legacy’ subclass 457 visa holders will be granted an exemption from the age requirement (under 45) for the subclass 186 (TRTS) scheme.

A ‘legacy’ subclass 457 holder is someone that:

Held a subclass 457 visa on or after 18 April 2017; and
Remained in Australia for a total of at least 12 months between 1 February 2020 and 14 December 2021 (no requirement for consecutive stay).

The transitional arrangements for legacy subclass 457 holders commonly known as the ‘grandfathering provisions’ which ceased on 18 March 2022, extended the age requirement for subclass 186 (TRTS) applications to under 50 years of age.

However, the previous legislative instrument implemented on 17 March 2022 which introduced a permanent residence pathway for short-term visa holders, and re-introduced TRTS arrangements for legacy subclass 457 holders, did not specify whether an age exemption or concession would continue to apply to these transitional pathways.

Thankfully, clarification has now been provided, and subclass 457 holders which are able to meet the ‘legacy’ criteria outlined above will not be subject to the general age requirement. We’ve developed a case study to help you understand if this may apply to you:

Case Study:

Steve is currently 51 years old and has been nominated in the occupation of ‘ICT Sales Representative’ which is on the short-term skilled occupation list (STSOL). Steve applied for a short-term subclass 457 visa on 1 May 2017, which was subsequently granted on 1 September 2017. The subclass 457 visa expired on 1 September 2019, and to remain in Australia lawfully he applied onshore for a short-term subclass 482, granted on 1 October 2020. Steve currently holds the short-term subclass 482, which expires later this year on 1 October 2022. Steve has not departed Australia since arriving here in 2017 and is now exploring his options for permanent residence prior to his visa expiry.

Eligibility Advice:

Steve would be able to meet the definition of ‘legacy 457 visa-holder’ as:

He held a subclass 457 visa on or after 18 April 2017; and
He remained in Australia for a total of 12 months between 1 February 2020 and 14 December 2021 as he did not depart Australia since arriving in 2017.

Therefore, he would be able to access the age exemption for TRTS applications. As Steve is currently 51 years old, without this exemption he would be unable to access the permanent residency pathway which generally precludes applications from applicants over 44 years old (unless exempt). Provided that Steve is able to meet all other requirements for a grant of a subclass 186 (TRTS) visa, he would have access to permanent residency.

Third Short-Term TSS Visa Can Now Be Lodged Onshore

Effective 1 July 2022, you will not need to depart Australia to apply for a third short-term subclass 482 (TSS) visa if:

You remained in Australia for a total of at least 12 months between 1 February 2020 and 14 December 2021 as the holder of a short-term subclass 482 visa; and
The short-term subclass 482 application is made before 1 July 2023.

Previously, visa holders who have held more than one short-term subclass 482 (TSS) visa were required to depart Australia and apply for a third short-term TSS visa offshore. However, the implementation of this COVID-19 concession follows the trend of the Government encouraging short-term visa holders that work in critical sectors to remain in Australia to assist struggling businesses in critical areas such as health care, hospitality, and the tourism industry.

This may also enable short-term visa holders that have changed employers to remain in Australia and meet the 3-year employment requirement in their nominated occupation for the newly introduced permanent residence pathway. This concession is currently slated to end on 1 July 2023, subject to any further legislative instruments implemented by the Minister. Please refer to the below case study if you’re still confused!

Case Study:

Jessica is currently 28-years old and nominated as an ICT Account Manager (currently on the STSOL). She arrived in Australia on 15 March 2018 whilst holding a short-term subclass 482 visa granted on 1 March 2018. This visa subsequently expired on 1 March 2020, and she changed employers before applying for a second subclass 482 visa. She was subsequently granted a second short-term subclass 482 visa on 1 November 2020 and has since remained in Australia. Jessica’s second visa expires on 1 November 2022, and she is concerned that she will have to depart Australia to apply for another visa offshore as she would not be eligible for a permanent residency pathway due to the work requirement.

Eligibility Advice:

Jessica would not have to depart Australia to apply for a third short-term subclass 482 visa after her current visa expires as:

She remained in Australia for at least a total of 12 months between 1 February 2020 and 14 December 2021 as the holder of a short-term subclass 482 visa holder, and;
She would be applying for her third short-term subclass 482 visa prior to 1 July 2023 since her visa expiry is in November 2022.

Therefore, Jessica could make the application for her third short-term subclass 482 onshore in Australia prior to her visa expiry and continue to stay and work in Australia until she meets the work-requirement to be eligible for permanent residency under the new TRTS pathway for short-term visa holders.

Clarification on Applications for ETA Visitor Visas (Subclass 601)

In a new legislative instrument, effective 6 April 2022, all eligible passport holders must make applications for ETA Visitor Visas via the “AustralianETA” app published by the Department of Home Affairs. The app contains an application form which must be completed and submitted to apply for an ETA Visitor Visa.

Despite this requirement, you may still apply for an ETA Visitor Visa offshore by providing details of your eligible ETA Passport to a diplomatic, consular, or migration office maintained by, or on the behalf of the Commonwealth, or to an office of a Ministerially approved agent with whom an ETA Visitor Visa application can be lodged.

Additionally, ETA visas may still be provided whilst in immigration clearance by presenting an ETA-Eligible passport to an officer and requesting an ETA visa.

You can download the AustralianETA app from the Google Play Store or the App Store.

Unvaccinated Australians now free to travel

From 18 April 2022, unvaccinated Australian citizens and permanent residents will no longer require a travel exemption to depart Australia. This request is no longer required and has been finalised.

The Australian Government still recommends Australians be fully vaccinated against COVID-19 and travel with proof of vaccination status documentation. That said, the Australian Government has indicated that unvaccinated Australian citizens and permanent residents are strongly discouraged from international travel due to the health risks.