Read on for a more detailed look at how the Subclass 408 COVID-19 Visa works.

What are the purposes of Subclass 408 COVID-19 Visa?

The Australian Government introduced this visa to let you:

• remain in Australia if you have no other visa options and are unable to depart Australia due to COVID-19 travel restrictions
• remain in Australia to continue your work in critical sectors including agriculture, food processing, health care, aged care, disability care and child care during the COVID-19 pandemic.

Who is eligible for the Subclass 408 COVID-19 Visa?

You are eligible to apply for this visa if you are seeking to remain in Australia to undertake work directly associated with the COVID-19 pandemic. The Department of Home Affairs have stated that this visa is intended for people who are working in critical sectors including agriculture, food processing, health care, aged care, disability care and child care during the COVID-19 pandemic. They also explained that the purpose of this visa is to provide a pathway for certain former and current holders of temporary visas to lawfully remain in Australia and who would otherwise be required to depart Australia who, but for the COVID-19 pandemic, are unable to leave Australia.

Therefore, if you are currently employed in or have a job offer letter from an employer in a critical sector, then great. If not, you may still apply if you have “relevant skills” to undertake critical sector work. See below for more on eligibility for those with “relevant skills”.

The Subclass 408 COVID-19 Visa Legislative Instrument and Explanatory Statement

The Subclass 408 COVID-19 Visa was created pursuant to a legislative instrument known as LIN 20/122 made by the Delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 3 April 2020 under subregulation 2.07(5) and paragraphs 408.229(b) and (c) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

Section 6 of LIN 20/122 sets out details about the class of persons eligible for this visa:

“6 Class of persons

For paragraph 408.229(c) of Schedule 2 to the Regulations, an applicant for a
Subclass 408 visa is in a class of persons in relation to the event specified in
section 5 if, at the time of application, the applicant is:

(a) in Australia; and

(b) unable to depart Australia as a result of the COVID-19 pandemic; and

(c) either:

(i) the holder of a temporary visa that is 28 days or less from ceasing to
be in effect; or

(ii) was the holder of a temporary visa that ceased to be in effect not
more than 28 days before the application for a Subclass 408 visa is
made; and

(d) unable to make a valid application, or meet the Schedule 2 criteria, for:

(i) a visa of the same Subclass as the visa mentioned in paragraph (c);
or

(ii) a temporary visa of any other Subclass other than a Subclass 408
visa. ”

For a better understanding about this visa, we can take a look at the Explanatory Statement that accompanied this LIN 20/122.

Paragraph 5 of the Explanatory Statement states:

“5. The purpose of the instrument is to provide a pathway for certain former and current holders of temporary visas to lawfully remain in Australia and who would otherwise be required to depart Australia who, but for the COVID-19 pandemic, are unable to leave Australia. The instrument limits the class of persons who can be granted the visa to those who hold a visa that is 28 days or less from ceasing to be in effect, or held a visa that is no more than 28 days from ceasing to be in effect. It further limits the class of persons to those who are unable to apply for the same temporary visa they hold or held or any other subclass of temporary visa other than the Subclass 408 visa.”

This paragraph is quite self explanatory. It specifically talks about the eligible class of persons as being those who are unable to apply for the same temporary visa they hold or held or any other subclass of temporary visa other than the Subclass 408 visa. In other words, you can apply for this Subclass 408 COVID-19 Visa if you cannot apply for any other visa provided your substantive is 28 days or less from ceasing to be in effect, or you held a visa that is no more than 28 days from ceasing to be in effect.

Paragraph 6 of the Explanatory Statement states:

“The purpose of the instrument is also to implement a measure to respond to workforce shortages during the COVID-19 pandemic in relation to areas including, but not limited to, agriculture, aged care and public health. The instrument is designed to allow holders of temporary visas who are engaged in or have the relevant skills to undertake critical work relating to supply of essential goods and services, provided the applicant falls within the class of persons specified by the instrument.”

The above wording may be interpreted to mean that applicants “who are engaged in” critical work relating to supply of essential goods and services are eligible. Additionally, applicants who “have the relevant skills” but are not currently working may also eligible. This interpretation is consistent with the intended purpose of this visa. Since this instrument was intended to respond to workforce shortages, it makes sense to allow people who are not already in the workforce, who do not already have jobs but have the relevant skills and wish to undertake work in critical sectors, to apply for this visa. For example, a person on a visitor visa or student visa, who possess relevant skills such as a registered nurse, should be eligible to apply even if they do not currently engage in nursing work in Australia. It would not make sense to confine or limit the pool of eligible applicants to only those to are already in jobs. The express purpose of this visa is to respond to workforce shortages. As such, the achievement of this objective is furthered by expanding the workforce, and by including people who have the relevant skills but do not yet have a job.

It is important to note that the Migration Act 1958, Migration Regulations 1994, LIN 20/122 and its accompanying Explanatory Statement, and Procedural Instructions on the Subclass 408 visa do not expressly require applicants for the Subclass 408 COVID-19 Visa to be employed or have a job offer letter in order to be eligible for this visa. However, the applicant must demonstrate that they are seeking to remain in Australia to undertake work directly related to the COVID-19 pandemic. To do this, it would be helpful to show that the applicant has the relevant skills and is seeking to undertake work in a critical sector. This may include showing that the applicant is actively communicating or interviewing with employers in critical sectors to fill critical sector jobs.

If you are a temporary visa holder and want to continue to remain and work in in Australia, this Subclass 408 COVID-19 Visa may be perfect for you

In summary, if you are temporary visa holder in Australia, and you wish to remain in Australia to live and work, the Subclass 408 COVID-19 Visa may suit your needs. Whether you are currently on a work visa that is about to expire, or on a student visa with limited work rights, or on a visitor visa with no work rights, you may be eligible for the Subclass 408 COVID-19 Visa. Since the Subclass 408 COVID-19 Visa was introduced in response to the pandemic, the improving situation in Australia may lead the Australian Government to close receiving applications this visa stream in the near future. For those interested in applying, it may be a good idea to lodge your application sooner rather than later.