Visa Cancellations and Visa Refusals Critical Strategies During COVID-19
COVID-19 and Immigration Law - Understanding the effects of COVID for your immigration practice and your clients
In the work visas landscape, COVID-19 has proven to be a disruption for most of us in the industry. Without the knowledge to navigate this terrain, sponsors, visa applicants and holders alike are struggling with the situation at hand. In order to assist you with this situation, we have collated a series of strategies that are arising in immigration law at present.
In response to the pandemic, it is crucial to understand COVID-19:
The nature of this virus
Terminology commonly used (e.g. flattening the curve)
Response taken by our Government
Differing pattern of the virus’ spread in countries utilizing alternate intervention methods
Historical statistics on migration patterns and case studies of businesses affected by previous pandemics
The importance in analysing data and keeping up with other areas of law, allows a pre-emptive and robust treatment for your clients, as well as, positioning your business advantageously.
COVID-19 and Immigration Law - Flattening the Curve
Flattening the curve refers to slowing down the spread of a virus so that fewer people need to seek treatment at any given time.
Ultimately, all people will be infected but over a longer period of time but because the rate of infection is slowed, it means there is less stress on the health care system.
In Australia, 30 March 2020, public health orders were issues to impose ‘lock-down’ and ‘social distancing’ measures which precluded movement/activity unless essential. This legislative Order is set to expire on 29 June 2020 unless a new order is put into place. Since then, a number of changes have been effected for the Order.
Certain premises are ordered to close – i.e. pubs and registered clubs, food and drink premises, entertainment facilities, casinos, recreation facilities (indoor), salons, etc.
Limited non-citizens have been able to enter Australia to date. No one has been approved a 408 COVID-19 visa yet.
Key requirements which no longer met due to COVID-19 - a key focus on the Temporary Work Visas (Subclass 482 Formerly Known as Subclass 457)
Genuine Need - due to increased unemployment rates, lack of work, etc.
Inapplicability Conditions –
E.g. Restaurants/Cafes restricted to work in takeaway only but most occupations such as Chef, Cook, Restaurant Manager are all caveated.
E.g. Fitness Centres – non-essential service so mandatory lockdown
E.g. Accountant – turnover over $1m AUD
Financial Viability
Restaurant Manager/Cook/Chef
7 The position is involved in mass production in a factory setting.
8 The position is in a limited-service restaurant.
Limited service restaurant includes
(a) a fast food or takeaway food service;
(b) a fast casual restaurant;
(c) a drinking establishment that offers only a limited food service;
(d) a limited service cafe, including a coffee shop or mall cafe;
(e) a limited service pizza restaurant.
Due to the public health orders, all eateries, restaurants etc. are mandatorily shut down and can only operate as a takeaway food service.
The Discrimination Act exempts everything listed under the Migration Act 1958 making certain restrictions such as age requirements and caveats like such lawful.
If your visa is already granted, then your visa may be potentially cancelled, because the current employment in a takeaway based business may be considered a breach of the visa conditions which requires you to work in the nominated occupation.
Accountant
6 The position is a clerical, bookkeeper or accounting clerk position.
19 The position is in a business that has an annual turnover of less than AUD1,000,000.
21 The position is in a business that has fewer than 5 employees.
Focusing on the inapplicability conditions of 19 and 21, the consequences of the COVID-19 pandemic increased unemployment rates and caused a serious negative financial impact on businesses.
If the business will no longer be able to meet the inapplicability conditions for the requirements of the work visas, then other visas that may still allow them to sponsor the prospective employee.
These methods can be used as a temporary measure to wait until the next financial year for which the business turnover increases or employment rates increases.
Health Assessments
S 65
Pursuant to s 65(1)(a)(i), when a s 65 delegate is deciding whether to grant or refuse the visa, they are required to consider the health criteria.
BUPA
In Australia, availability for health assessment appointments has reduced to protect the health of customers and staff.
BUPA introduced a ‘Request for Appointment’ Form for which they would prioritise appointments based on guidance from the Department of Home Affairs. If your assessment was deemed to be a priority type assessment then BUPA would contact you to book in the appointment.
In light of the latest announcements in Australia, this request form has been closed. We can see that the availability of appointments is at least 1.5 months away (end of June).
Outside of Australia
Availability of Panel Physicians are also affected depending on the city which the applicant is located in and whether affected by the local lockdown laws (if any).
For example, in China, due to the mass lock-down, the appointment availabilities are also reduced.
A person who has contracted COVID-19 may not pass the health assessment as it may be considered a ‘public health risk’ – 4005(1)(b) or 4007(1)(b)
Financial Viability
Principles for negotiating amendments to commercial lease in good faith. Different States have different applications; National Cabinet Mandatory Code of Conduct
Retail and Other Commercial Leases (COVID-19) Regulation 2020 Enacting the following restrictions and prohibitions in relation to ‘impacted lessees as defined in the regulation
If a Sponsor applies for rent reduction on this basis, this would affect their ability to meet the genuine need legal requirements where there is an assessment of financial viability.
Visa Cancellation
Overview of Power Under s116
All visas including permanent visas can be cancelled under s 116.
The most common grounds of visa cancellation are
Breach of Visa Condition (ceasing work, no longer working in the correct occupation etc.) (116(1)(b))
Circumstance for grant no longer exists (116(1)(a))
Presence may be a risk to the health of the Australian Community (116(1)(e))
S 116(1)(e) is a common ground for officers to cancel visas at immigration clearance if temporary visa holders attempted to travel to Australia.
Temporary visa holders outside of Australia may be cancelled without notice
E.g. due to cease of employment (travel bans restricting their entry to Australia) or that their presence in Australia may be, would be or might be a risk to the health of the Australian community or an individual. It is a wide power that can be used.
Under s 140, secondary visa holders can also be cancelled if the primary visa applicant has been cancelled a visa.
A mere charge can cause visa cancellation under r 2.43(p)(ii) for BVE holders – e.g. spitting or coughing Cancellation on this basis will pre-empt even to lodge a valid BVE application.
COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 Broad range of amendments proposed to assist in containing the spread of COVID-19, including changes to health, justice, corrections, planning, better regulation, local Government, and community services. These amendments will give public authorities the legislative powers needed to respond to this crisis. Amendments were proposed to a wide range of legislation, including some key statutes summarised below: Amendments to the Public Health Act include granting police officers the power to arrest a person if they have reasonable grounds for suspecting that person is in breach of a public health order relating to COVID-19, and making police officers authorised officers under the Public Health Act for the purposes of issuing penalty notices to those in breach of public health orders.
Review RIghts or Request for Revocation
S 116
NOICC will be received providing a prescribed period for response. An extension of time may be granted under r 2.44 which deals with the prescribed periods for response.
May have review rights
S 128
There are no rights for merits review.
Can request for revocation. The Minister may revoke the decision on the basis of s 131.
no prescribed factors
Outside of their control
S 140
There may be rights to merits review.
However, the visa cancellation is taken to be revoked by operation of law should the decision to cancel the primary visa holder’s visa be revoked.
Exclusion Period
3 year exclusion periods apply in certain scenarios.
4014 –
Upon departure as an unlawful non-citizen, they will most likely be affected by a 3 year exclusion period. Given that upon cancellation, the non-citizen will no longer hold a visa, if they depart like so, they will be affected by a 3 year exclusion period.
Exemptions apply in 4014(5) (e.g. leaving within 28 days)
4013 –
The 3 year exclusion occurs upon cancellation on certain grounds.
4013 3 year exclusion period is invoked if cancelled on the grounds of s 109, s 116(1)(d), 116(1AA), 116(1AB), s 133A or s 128 or s 133C on one of those basis. May also be affected if cancelled on the basis of some grounds in r 2.43.
S48 Bar
Visa Cancellation causes the former visa holder to be subject to s 48 bar. In the case we described before about a Bridging Visa E holder being cancelled the BVE can prevent him/her from even being able to lodge a valid bridging visa E application.
To remain in Australia, they would need to consider the prescribed visas.
In one of our previous cases we managed to get a former BVE visa holder cancelled on grounds of r 2.43(p)(ii) through the minister exercising his personal powers directly.
R 2.25 is the solution.
Job Keeper Scheme
On 08 April 2020, the Federal Parliament passed the Coronavirus Economic Response Package (Payments and Benefits) Bill 2020 and the Coronavirus Economic Response Package Omnibus (Measures No. 2) Bill 2020.
JOBKEEPER PAYMENT
Under the scheme, called JobKeeper Payment, certain eligible employers are eligible for financial assistance in the form of a subsidy to assist employers in retaining their staff if they are able to demonstrate an estimate decline in their turnover of at least 30 percent
Temporary Visa Holders are not eligible
Note that this is turnover and not net profit
JOBKEEPER FLEXIBILITY
The JobKeeper scheme also gives employers who are eligible to receive JobKeeper Payment the authority to make ‘JobKeeper Enabling Directions’
These directions are designed to provide eligible employers with greater flexibility in managing the hours, duties and location of their workforce.
All JobKeeper enabling Directions will cease to have effect on 28 September 2020.
JobKeeper Enabling Directions
The JobKeeper scheme also enables eligible employers to direct employees to perform different duties to those they usually perform or perform their duties from a different location.
One obvious example in the present environment is café and restaurants where they are limited to takeaway and delivery which affects nominated occupation, such as cooks and chefs.
Another obvious example is a direction to work from home – the strict terms of many industrial instruments potentially preclude such a direction as well.
Decrease in the number of working hours, 20 percent pay cut, forced leave (paid & unpaid) are some of the other measures businesses have taken.
Job Keeper Flexibility
Stand Down (JobKeeper stand down direction)
Standing down employees can occur in two (2) ways:
General Fair Work Act Provisions:
S 524 of the Fair Work Act (Cth) states that an employer can only stand down staff without pay if they cannot be a useful and productive employee due to a stoppage of work that the employer cannot reasonably control and be responsible for. Leave entitlements should continue to accrue during this shut down for the employees. This is because during the shut-down period, the employment relationship is in effect – frozen or suspended.
They are still considered to be ‘employed’ for the period of stand down even if they are not being ‘paid’.
If there is an employment contract, award or enterprise agreement which applies then they cannot rely on the General Fair Work Act provision for standing down their employees.
Under the Temporary JobKeeper enabling stand down directions
There are limitations to stand down employees under the Fair Work Act. Stand down is considered a drastic step and our observation is that there appears to be a range of situations on whether some of these stand downs are challenged in the Fair Work Commission.
For an employer to be eligible to issue a JobKeeper enabling stand down direction, amongst other conditions, the employer:
Must be qualified for the Job Keeper scheme and entitled to JobKeeper payments for the employee for the period that the direction applies: refer to s 789GDC of the Fair Work Act and s 9 of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020
A shutdown means that a business is operating in a reduced capacity and cannot operate in any significant way. In a shutdown of business operations, employees can be directed to take annual leave by their employer. For award-covered employees, for example, clerical staff, eight weeks’ notice must be given of forced leave. In New South Wales and Western Australia, employers can also direct employees to take long service leave, but only with a month’s notice. Other States necessitate between two and three months’ notice and in Tasmania, the whole policy of directing employees to take leave is disallowed. As an employer, if they cannot provide written notice, it is vital that they instead come to an agreed arrangement with their employee, otherwise, they may be breaking the current laws.
Job Flexibility
A new Schedule was inserted into 99 different awards by the Fair Work Commission which provided employees with 2 weeks of unpaid pandemic leave and the ability to take twice as much annual leave at half their normal pay if their employee agrees.
Under the JobKeeper Scheme, a qualifying employer may request an eligible employee to take paid annual leave (as long a balance of at least 2 weeks remains) or the ability to take twice as much annual leave at half their normal pay if their employee agrees.
If an eligible employee is directed to take unpaid leave, they must receive at least the amount of the JobKeeper payment from the qualifying employer for the period they are on unpaid leave.
Leave Without Pay is available for SBS and 457/482 visa holders but this arrangement should be mutually agreed upon by the sponsor and sponsored person and a formal application for LWOP has been made and formally approved.
Consequences for Standard Business Sponsors
Sponsorship sanction due to:
Change of duties resulting in the visa holder no longer working in the approved occupation
Reduction in earnings
Reduction in hours of work
No longer meet the caveats that were imposed on the nominated occupation
Resulting in adverse information attached to the Sponsor affecting pending and future applications
No longer meet the requirements for approval of pending applications (e.g. genuine need and caveat)
May not be able to lawfully stand down 457 visa holders that are not eligible under the JobKeeper Scheme
Even if the general Fair Work Act provisions allows stand down or leave without pay, this may impact whether the Sponsor meets the obligations under Migration Act.
Consequences for 457 Visa Holders
Visa Cancellation on a number of grounds including
circumstances for grant no longer exist
Breach of visa condition
Ceased to have a genuine intention to perform the nominated occupation
Sponsor failed to comply with sponsorship obligations (2.43(1)(l))
Pending visa applications may be refused
Adverse information by association with the Sponsor who may be found in breach of sponsorship obligations
Breaching Visa Conditions
How Can Agape Henry Crux Help
Our firm has created a Special COVID-19 Taskforce to help our clients battle through and find solutions during this Pandemic. Our team is equipped and trained to advise you on across a wide range of issues you may be encountering. You can contact our team on +61 2 7200 2700.
We speak fluent English, Korean, Burmese, Mandarin, Cantonese, Indonesian and Malay. If these aren’t your language, we can also help you arrange an interpreter
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