Law Analysis

'COVID visa stream' has overstayed its welcome

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Immigration Minister Andrew Giles in 2021 (image by Matt Hrkac via Wikimedia Commons)

Allowing people to remain in Australia on a 'COVID' visa is creating a policy mess for the Government, writes Dr Abul Rizvi.

THE 'COVID STREAM' of sub-class 408 visas was established by the Coalition Government and should have been closed to new applications soon after international borders re-opened. Failure to close the visa by both the Coalition and Labor governments has created a policy mess affecting over 100,000 people that will be difficult to clean up.

This visa stream has existed in various forms since early 2020. It was designed to enable temporary entrants in Australia whose visas were due to soon expire, or had recently expired, to remain and work lawfully in Australia while international borders were closed.

It has been available on a fee-free basis to a range of temporary visa holders including students, temporary graduates, working holidaymakers and seasonal workers from the Pacific Islands. While this visa stream initially targeted people working in key industries (such as health and aged care), in March 2022 and after international borders had re-opened, the Coalition Government broadened the visa to cover temporary entrants working in, or holding a job offer, in any industry.

This would have been most likely due to the extensive labour shortages at the time. This visa stream provides unlimited work rights which makes it highly attractive.

The new Labor Government elected in May 2022 would have received a briefing on this visa stream and how it could be managed in its incoming government brief. The range of immigration issues on the new Government’s plate at the time, and the ongoing complaints about labour shortages, is likely to have led the Government to put the issue of this visa stream on the back burner.

But it was surprising the Albanese Government didn’t close off this visa stream to new applications in early 2023 and ahead of the re-imposition of limits on student work rights from 1 July 2023. That decision has led to an extraordinary surge in the number of people now on this visa stream. At the end of May 2023, there were 105,292 people in Australia who held a sub-class 408 visa, the vast majority of whom would have received that visa under the fee-free COVID visa stream.

That number would have increased further in June and July 2023 with many applicants awaiting a decision. People who are refused this visa have few options other than to depart, apply for asylum, or just overstay without a visa.

Source: data.gov.au

The number of people holding a sub-class 408 has increased at a phenomenal rate from just 17,613 in June 2021.

The major source nations are essentially Australia’s major student source nations with 17,913 from India, 11,679 from Nepal, 6,369 from China, 5,291 from the Philippines, 5,216 from Colombia and 4,463 from Brazil. No wonder international education lobby groups are desperate for this visa stream to be closed as they are bleeding student fee revenue.

Another dimension of this visa stream is the extent to which Pacific Australia Labour Mobility (PALM) visa holders have been running away from their sponsoring employers and applying for this visa which gives them much more flexibility in where they work and for whom.

Source: data.gov.au

The dip in the number of Pacific Islanders on a sub-class 408 in September 2022 may have been due to the expiry of these 12-month visas. While most may have then re-applied, it would have taken time for the Department of Home Affairs (DHA) to process the applications. There was a large clear-out of bridging visa holders in late 2022.

The Government will undoubtedly be considering how best to now close off this visa to new applications and identify how best to manage the 100,000 plus people who remain on this visa in Australia as well as the large but unknown number (at least to the public) who have already applied but not yet received a decision.

The best outcome would be if the bulk of these visa holders either find another pathway to remain lawful (such as applying for a short, cheap student visa on the basis of a Certificate III course in aged or disability care would be highly attractive) or they return home.

But many will not have the money to even do a short, cheap Certificate III course, especially if they must also restrict work to 24 hours per week. This may be particularly difficult for Pacific Island nationals who entered on a PALM visa and don’t have the English level to do such a course or the money.

The Government may need to step in and help them access appropriate training.

The worst outcome would be if a large portion sees no other option but to apply for asylum as the only means of remaining lawful (at least for a few years). 

Dr Abul Rizvi is an Independent Australia columnist and a former Deputy Secretary of the Department of Immigration. You can follow Abul on Twitter @RizviAbul.

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