COVID-19 Concessions for Subclasses 887, 888, 188, 790 and 485

Legislative Instrument – F2020L01181- Migration Amendment (COVID-19 Concessions) Regulations 2020 (the COVID-19 Concessions Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to ensure that temporary and provisional visa holders, including individuals who are on a pathway to permanent residence, are not disadvantaged by circumstances beyond their control, including border closures, restrictions imposed on businesses and the general economic downturn related to COVID-19. The amendments provide concessions to visa requirements and conditions where the impact of COVID-19 would otherwise prevent or disrupt visa holders and applicants from meeting them.

Schedule 1 to the COVID-19 Concessions Regulations amends the Migration Regulations in six Parts, please see a summary of the changes below:

Schedule 1, Part 1 – COVID-19 concession period

• inserts concession period as a defined term in the Migration Regulations.
• The concession period commences on 1 February 2020 (as the date on which the Australian Government first introduced travel restrictions in relation to COVID-19) and ends on a date specified by the Minister in a legislative instrument. Given the ongoing health situation and associated uncertainty, an end date has not been specified in the COVID-19 Concessions Regulations.

Schedule 1, Part 2 – Subclass 887 (Skilled – Regional) visas

The amendments include changes to:

• allow both primary and secondary provisional visa holders and primary and secondary former provisional visa holders (whose visas expired during a concession period) to apply for a Subclass 887 visa while outside Australia during a concession period;
• allow Subclass 887 visas to be granted to applicants who are outside Australia;
• provide provisional visa holders and former provisional visa holders (whose visas expired during a concession period) with a concession toward the requirement to live for two years in a specified regional area. The applicant is taken to have lived in a specified regional area for six months (or a longer period specified in a legislative instrument) if the applicant was outside Australia during a concession period and made the application during the concession period;
• reduce the requirement for full-time work in a specified regional area from 12 months to nine months (or a shorter period specified in a legislative instrument) if the applicant held a provisional visa during a concession period and the application is made no later than three months after the end of the concession period; and
• The reference above to provisional visas is a reference to the Subclass 489 visa and to four skilled visas which previously provided a pathway to the Subclass 887 visa but are now closed to new applications being the Subclass 475 visa, the Subclass 487 visa, the Subclass 495 visa and the Subclass 496 visa.

Schedule 1, Part 3 – Subclass 888 (Business Innovation and Investment (Permanent)) visas and the Subclass 188 (Business Innovation and Investment (Provisional)) visas

The amendments include changes to:

• allow applications for a Subclass 888 visa to be made by a primary and secondary former Subclass 188 visa holder whose visa ceased during a concession period when travel was restricted due to the COVID-19 pandemic as long as the application is made no more than 3 months after the end of the concession period;
• ensure that holders and former holders of a Subclass 188 visa who are not able to meet the requirements to hold a visa, or not able to meet the Australian residency requirements for a Subclass 888 visa, as a result of COVID-19 travel restrictions, are still able to apply for and be granted the visa if certain requirements are met;
• allow former holders of a Subclass 188 visa in the Business Innovation stream (qualifying visa), who held the visa during a concession period, to apply for a Subclass 188 visa in the Business Innovation Extension stream as long as the qualifying visa was granted before 1 July 2019 and the application is made no more than 3 months after the end of the concession period;
• allow Subclass 188 visa holders and former holders affected by COVID-19 travel restrictions to apply for up to two Subclass 188 visas in the Business Innovation Extension stream (previously only one visa extension is available);
• modify the investment requirements for applicants for a Subclass 888 visa in the Investor stream who hold or held a Subclass 188 visa granted before 1 July 2019, so that investments can be withdrawn or cancelled during a concession period where the holder of a Subclass 188 visa in the Investor stream has met the requirement to live in Australia for two years;
• modify the investment requirements for applicants for a Subclass 888 visa in the Significant Investor stream who hold or held a Subclass 188 visa granted before 1 July 2019, so that they are able to withdraw or cancel their balancing investment component during a concession period, while maintaining their investment component in venture capital and emerging companies;
• as a consequential amendment, amend the primary criteria for the Subclass 188 visa in the Significant Investor Extension stream so that applicants who first held a Subclass 188 visa granted before 1 July 2019 are not prevented from accessing the visa if they have withdrawn or cancelled investments in accordance with the concession above; and
• ensure that visa holders whose visa is subject to a condition requiring them to hold an investment throughout the visa period are still able to comply with the condition after withdrawing or cancelling investments under the new arrangements.

Schedule 1, Part 4 – Subclass 790 (Safe Haven Enterprise) visas

The amendments allow SHEV holders or former SHEV holders to count periods of time during a concession period towards the 42-month requirement even if they:

• receive Special Benefit payments; or
• are unemployed; or
• work outside a SHEV regional area, provided the work is in an essential service specified by the Minister in a legislative instrument.

Schedule 1, Part 5 – Subclass 485 (Temporary Graduate) visas

The amendments include changes to:

• allow applicants to apply for a Subclass 485 visa while in or outside Australia during a concession period;(Item 34)
• allow applications to be made outside Australia during a concession period without the usual requirement to have held a student visa within the six month period immediately before making the application; and (Item 35)
• extend the period to meet the Australian Study Requirement from six months to 12 months for applicants prevented from returning to Australia due to COVID-19 travel restrictions during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020; (Item 36 and 37)
• allow applicants to be granted a Subclass 485 visa while in or outside Australia during a concession period; and (Item 38)
• allow applicants that applied for a SC 485 outside Australia during a concession period to be granted a sc 485 visa in or outside of Australia even if the concession period has ended. (Item 38)

Schedule 1, Part 6 – Application and transitional provisions

Part 6 amends Schedule 13 to the Migration Regulations to provide for the application of the amendments and transitional arrangements

• The amendments made by Parts 2 (SC 887), 3 (SC 888) and 4 (SC 790) of Schedule 1 apply in relation to a valid visa application made on or after 19 September 2020.
• For the purposes of the application of paragraph(b) of condition 8557 in Schedule 8, the amendment made by item 10 Part 3 of Schedule 1 applies in relation to a complying significant investment held by the holder of a Subclass 188 visa in the Significant Investor stream, or the Significant Investor Extension stream, that was granted before 1 July 2019 as if the amendment was in force at the time the visa was granted
• The amendments made by items 34 to 37 of Part 5 (SC 485) of Schedule 1 apply in relation to a valid visa application made on or after 19 September 2020.
• The amendments made by item 38 of Part 5 (SC 485) of Schedule 1 apply in relation to a valid visa application made before, on or after 19 September 2020.
• Please refer to the summary in Schedule 1, Part 5 above to see the corresponding changes for Parts 34 to 38.

Changes to the Australian Citizenship Test

Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Alan Tudge has announced that from 15 November 2020, there will an updated Australian Citizenship Test with a clear focus on Australian values.

The Acting Minister stated “The updated Citizenship Test will have new and more meaningful questions that require potential citizens to understand and commit to our values like freedom of speech, mutual respect, equality of opportunity, the importance of democracy and the rule of law.”

The updated Citizenship Test will comprise of 20 multiple-choice questions, including five
questions on Australian values. A person will be required to correctly answer all five of the
questions on Australian values, with a mark of at least 75 per cent overall, to pass the test.There will be no changes to the English language or residency requirements for citizenship.

An updated version of the Australian Citizenship: Our Common Bond resource is available for download to assist applicants to prepare for the test. This includes information on the new
Australian values component and an updated practice test.

From 30 October 2020, most new visa and citizenship applicants will be required to affirm the
updated Australian Values Statement (AVS). The updated AVS will better reflect the shared
values of Australian society, including the rule of law, freedom of religion, freedom of speech,
freedom of association and equality of opportunity for all people in Australia.

For more information you can read the full media release here and refer to the information of the Department’s website here.

source: https://www.mia.org.au/membersresources/mia-notices/mia-notice-70–18-september-2020