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This article was written by Tanguy Mwilambwe - National Practice Director - Brisbane

Tanguy is the National Practice Director in the areas of Administrative Law and Immigration Law. He is able to assist clients in court matters throughout most Australian jurisdictions, in relation to Administrative and Immigration decisions. Tanguy has appeared in the Administrative Appeals Tribunal, Federal Circuit Court of Australia, Federal Court of Australia, state courts (including Supreme, District and Magistrates Courts)...

Temporary Activity Visa (Subclass 408)


The Australian government has introduced a new stream of the Temporary Activity Visa called the Covid-19 Pandemic Event subclass 408 visa (408 pandemic visa). This is a temporary visa that accommodates people who have found themselves in unexpected circumstances due to the pandemic. The visa is available to those who are currently in Australia and are unable to leave the country due to COVID travel restrictions.

Who is eligible for this visa?

A person is eligible for the Temporary Activity Visa visa if:

  • they are in Australia and cannot leave due to COVID travel restrictions;
  • they have no other visa available to them.

A person in this situation is eligible for a Temporary Activity Visa for up to 12 months if they are working in a critical sector such as agriculture, food processing, health care, aged care, disability care and child care.

A person in this situation is eligible for the visa for up to three months if they are not working in a critical sector.

Criteria that must be met for a Temporary Activity Visa

The Migration Regulations 1994 provide the primary and common criteria that need to be met in order for a person to be eligible for the 408 pandemic visa. These are:

  1. The person does not intend to engage in activities that will have adverse consequences for employment, for Australian citizens or Australian permanent residents.
  2. The person has adequate arrangements for health insurance during the period of your intended stay in Australia.
  3. The person genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
    1. if they have held a substantive visa – whether they have complied substantially with the conditions to which they were subject; and
    2. whether they intend to comply with the conditions of the 408 pandemic visa;
    3. any other relevant matter.
  4. The person does not hold:
    1. a permanent visa; or
    2. a temporary visa specified by the minister in a legislative instrument made for the purposes of this paragraph.
  5. They have adequate means to support themself during the period of their intended stay in Australia.

Further criteria for the Temporary Activity Visa

In addition to the above, the following further criteria need to also be met.

If the applicant is seeking to remain in Australia to undertake work directly associated with Covid-19 pandemic or in a critical sector, they should:

  • have evidence from an employer of their employment or an offer of employment and that an Australian citizen or permanent resident cannot fill the position;
  • be the holder of a substantive visa that expires in 90 days or less; or
  • have been the holder of a substantive visa that ceased to be in effect not more than 28 days before the application for a 408 pandemic visa is made; and
  • be unable to make a valid application, or meet the Schedule 2 criteria, for:
    1. a visa of the same subclass as the visa mentioned in paragraph (c); or
    2. a temporary visa of any other subclass other than a 408 pandemic visa.

Applicants who are unable to leave the country due to COVID travel restirctions should:

  • explain how the restrictions prevent them from leaving;
  • be the holder of a substantive visa that expires in 90 days or less; or
  • have been the holder of a substantive visa that ceased to be in effect not more than 28 days before the application for a 408 pandemic visa is made.

What are specified critical sectors?

If a person’s employment is not directly associated with the COVID19 pandemic, they may still satisfy the employment requirement if they are employed in critical sectors. Critical sectors include:

  1. agriculture;
  2. food processing;
  3. health care;
  4. aged care;
  5. disability care;
  6. child care;
  7. tourism; and
  8. hospitality.

Applicants working in critical sectors will have permission to work on the 408 pandemic visa. Applicants who do not work in critical sectors will not have permission to work while on this visa. This visa can be granted to a person for up to 12 months if they have permission to work in a critical sector, and up to 6 months if the visa was applied as a visa of last resort (will not have permission to work).

Cost

The Temporary Activity Visa is free. It must be applied for online.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.  

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