Here are some of the latest developments in Australian and New Zealand Immigration Law:
- Permanent Residence Pathway for Short-Term Skilled Visa Holders
- The Five Steps of New Zealand’s Border Re-Opening
- Concessions for Subclass 417 and 462 Working Holiday Maker visa holders
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Permanent Residence Pathway for Short-Term Skilled Visa Holders
On Friday, 18 March 2022, the Australian Government released an amendment to legislation regarding permanent residence pathways for subclass 482 and 457 visa holders on the Short-Term Skilled Occupation List (STSOL).
From 1 July 2022, a Subclass 457 or 482 visa holder nominated in an STSOL occupation will now have access to a permanent residence pathway through the Subclass 186 Temporary Residency Transition Stream (TRTS).
Short-Term subclass 482 visa holders will be eligible to apply for permanent residency under the TRTS stream provided that:
- They have worked in the nominated occupation for a period of 3 years in the 4 years immediately prior to the TRTS application;
- They have been in Australia for at least 12 months between 1 February 2020 and 14 December 2021; and
- They are currently employed by a person “actively and lawfully operating a business in Australia”.
People who on 18 April 2017, held or had applied for a subclass 457 visa that was subsequently granted will also have access to this permanent residence pathway, provided that:
- They must have worked in the nominated position/occupation for a period of 2 years in the 3 years immediately before the TRTS application is submitted whilst holding a subclass 457 or 482 visa;
- At the time of application, the person is employed by a person actively and lawfully operating a business in Australia; and
- The applicant meets all other requirements for the TRTS stream.
It is currently unclear whether the new pathway will include a concession for the TRTS age requirement. The grandfathering/transitional arrangements that ended on 18 March 2022 permitted applicants up to the age of 50, however all other TRTS applicants must be under the age of 45 to be eligible. As the prior arrangements have now been repealed, clarification regarding the age requirement will be required in the future.
The amendment also introduces concessions for visa holders that have been affected by unpaid leave or reduced work periods due to the COVID-19 pandemic. The concessions lower the work requirement for specified subclass 457 visa holders that have been subject to a COVID-19 reduced work or unpaid leave period to the following:
- If the specified 457 visa holder was not employed in the nominated position on a full-time basis or was on unpaid leave due to the pandemic (‘COVID-19 reduced work period’), a period of 2 years less any COVID-19 reduced work period (not including any other unpaid leave) is suitable to meet the work criteria.
- If the specified 457 visa holder was not employed in the nominated occupation and was on unpaid leave (‘COVID-19 unpaid leave period’), a period of 2 years less any COVID-19 unpaid leave period (not including any other period of unpaid leave) is suitable to meet the work criteria.
These concessions also extend to all other persons applying through the TRTS scheme:
- If the applicant was affected by a COVID-19 reduced work period, a period of 3 years less any COVID-19 reduced work period (not including any other unpaid leave) is suitable to meet the work criteria.
- If the applicant was affected by a COVID-19 unpaid leave period, a period of 3 years less any COVID-19 unpaid leave period (not including any other period of unpaid leave) is suitable to meet the work criteria.
The Instrument also provides exemptions to 457 visa holders that were not able to access prior transitional arrangements, as they were nominated in an occupation that was not on the Medium-Term Skilled Occupation List (MTSOL). The instrument exempts people in this position from meeting the occupation criteria and allows them access to the new pathway to permanent residency on 01 July 2022 without the need to apply for a short-term subclass 482 visa to be eligible.
The introduction of this new pathway will aim to assist Australian businesses in critical sectors such as hospitality and healthcare to alleviate acute skill shortages that are still being faced as the Australian economy recovers from the COVID-19 pandemic.
The Five Steps of New Zealand’s Border Re-Opening
On 3 February 2022, Prime Minister Jacinda Arden announced that New Zealand’s borders would be incrementally re-opening to the world in five steps. The announcement also included the removal of Managed Isolation and Quarantine (MIQ), replaced with self-isolation for vaccinated travellers.
Currently, New Zealand has executed two steps of its five-part-plan, which includes the removal of the self-isolation requirement for vaccinated travellers, and permits unvaccinated New Zealand citizens to enter New Zealand without MIQ or self-isolation.
We’ve outlined the New Zealand border re-opening below:
Step 1 (27 February 2022):
New Zealand’s borders will open to New Zealanders, and other eligible travellers coming from Australia.
Step 2A (04 March 2022):
New Zealand’s borders open to New Zealanders, and other eligible travellers coming from anywhere in the world. New Zealand citizens are not required to enter MIQ or self-isolation regardless of vaccination status, however vaccination requirements apply to all non-citizens (unless exempt).
Step 2B (13 March 2022):
The critical worker border exception was expanded to include workers earning at least 1.5 times the median wage for roles longer than 6 months, and workers will not be required to show that their skills are ‘not readily obtainable in New Zealand’.
Temporary workers earning at least 1.5 times the median wage can apply to bring partners and dependent children to NZ, without showing their skills are ‘not readily obtainable in New Zealand’. The Working Holiday visa program will also be gradually opening between 13 March and 13 September 2022.
Step 3A (12 April 2022):
The New Zealand border will open to:
- Australian citizens and permanent residents arriving from anywhere in the world;
- Temporary work and student visa holders who still meet their visa requirements (including offshore visa holders); and
- Up to 5,000 international students.
Step 3B (1 May 2022):
The New Zealand border will open to visa-waiver travellers and existing (both onshore and offshore) holders of valid visitor visas
Step 4 (July 2022):
The New Zealand border will open to holders of the Accredited Employer Work Visa (AEWV). The AEWV will mostly be limited to roles that pay above the New Zealand median wage (currently NZD$27.00/hr).
Step 5 (October 2022):
The New Zealand border will fully re-open, and normal visa processing will resume for all categories of visa (unless closed or paused). Border exceptions will be phased out.
To stay up to date with changes to the New Zealand border re-opening, please refer to the NZ Government website.
Concessions for Subclass 417 and 462 Working Holiday Maker visa holders
On 3 March 2022, several new instruments were released regarding the regulation of subclass 417 and 462 Working Holiday Maker (WHM) visas. These instruments have been released to enable further WHM visas to be granted to visa holders in Australia affected by the COVID-19 pandemic.
Commencing on 5 March 2022, the definition of “onshore COVID-19 affected visa” will be extended to WHM visa holders who were in Australia on 20 March 2020. Holders of onshore COVID-19 affected visas that apply in Australia on or before 31 December 2022 for another WHM visa will be afforded a concession whereby their previous WHM visa (COVID-19 affected) will be treated as though it never existed. This allows WHM holders to essentially replace their previously held WHM visa.
These applications for WHM visas can be made without a valid passport, however it will need to be provided to the Department before the WHM can be granted. This is to grant concessions to applicants who have been unable to renew passports due to the COVID-19 pandemic and enable them to apply for this visa despite not holding a valid passport at the time of application.
Additionally, specified work in the sectors of tourism and hospitality carried out after 21 June 2021 in Northern Australia, Remote, and Very Remote Australia, will now meet the definition of specified Subclass 417 work.
The specified work may include the following services:
- Accommodation (hotels, motels, BnBs, hostels)
- Food & Beverages (cafes, restaurants, catering, takeaway)
- Hospitality clubs (pubs, taverns, bars)
- Services provided directly to tourists (guides and operators, outdoor instructors, museum and gallery workers, event and entertainment venue workers)
For a full list of newly specified Subclass 417 work, please refer to this instrument.
The minister will also be granted the discretion to exempt holders of certain passports from meeting ‘specified work’ requirements when applying for a 2nd or 3rd WHM visa. This ministerial exemption will be introduced within two years of the new Australia-UK Free Trade Agreement entering into force. Procedural fairness processes for Ministerially specified ‘excluded employers’ have also been introduced, where the Minister must provide written notice explaining the reasons for the designation of ‘excluded employer’ and provide 28 days for the employer to respond.