Due to workforce shortages, and in an attempt to assist with Australia’s COVID-19 recovery, the Department of Home Affairs has recently made changes to the student visa and the Working Holiday Makers (WHM) program.
Temporary relaxation of working hours for student visas
Effective immediately, the Department has announced a “temporary relaxation of student visa work limits to all sectors of the economy.” This applies to “ongoing students as well as new student arrivals who wish to commence a job prior to course commencement. This means that international students can work before their course commences and work more than forty hours a fortnight in any sector of the economy. This also includes secondary applicants.”
This is a temporary arrangement which will be reviewed by the Government in April 2022.
While the concessions are in place, the Department and the Australian Border Force (ABF) will:
- Exercise their discretion under s116(1)(b) of the Migration Act 1958 to not cancel the visas of students who work in excess of forty hours each fortnight to support employers in the specified industries
- Not refer student visa holders for investigation of any potential offence under s235 of the Migration Act 1958 that might relate to the hours worked by a student visa holder in breach of their visa conditions
- Not refer employers in the specified industries or relevant third-party labour hire companies, as an employer, for investigation of any potential offence under s245AC of the Migration Act 1958 that might relate to allowing a student visa holder to work in breach of their visa conditions.
Students must maintain their course enrolment and attend their course, and also ensure satisfactory progress in their course.
The practical effect of these changes is that all employers can employ student visa holders in excess of forty hours each fortnight without concern for referral to the ABF for a potential offence under the Migration Act.
However, employers should continue to verify the identity of the person and undertake a Visa Entitlement Verification Online (VEVO).
For more details on the temporary relaxation of the student visa please refer to the Department of Home Affairs website.
Greater flexibility for Working Holiday Makers
Until 31 December 2022, Working Holiday Makers (WHMs) working in any sector, anywhere in Australia, may continue to work for the same employer without requesting permission. Previously, work with any one employer was generally limited to six months.
Those WHM who arrive in Australia from 19 January to 19 April 2022 can also apply for a refund of the Visa Application Charge (VAC) for their WHM visa. This applies to those who already have a visa, those who are granted a new visa, and those to travel to Australia within this timeframe.
More information on the WHM changes can be found on the Department of Home Affairs website.
Vaccination requirements
As highlighted by the visa cancellation of Novak Djokovic, Commonwealth entry requirements must be met.
If the person is not fully vaccinated, it is not sufficient to meet state entry requirements where an exemption is sought.
All travellers to Australia must be fully vaccinated (or meet stringent exemption requirements), as well as make a declaration and provide acceptable proof of their vaccination status.
BDO Migration Services comment
This extent of the relaxation of work rights for student visa holders and their accompanying family members and WHMs is unprecedented. It reflects the Commonwealth’s response to current critical skill shortages.
As the conditions for student visa holders will be reviewed in April 2022, employers must continue to monitor the Commonwealth announcements.
Employers must take reasonable precautions to verify the visa status and work rights of foreign nationals, including checking the Department’s VEVO service.
We also recommend that, to avoid civil penalties in relation to work by non-citizens, employers adopt a risk-minimisation compliance approach. This includes reviewing recruitment and employment strategies, formulating appropriate expatriate HR policies and employment contracts, adopting a corporate culture of regular checking of work rights, and ensuring they contract only with those who are fully compliant with the law.
Given the complexity and rapidly changing environment regarding Australian visa and entry requirements, we strongly recommend that both employers and visa applicants seek specialist legal advice.
Please contact Maria Jockel, Global and National Immigration Leader, Legal Principal and Accredited Specialist in Immigration Law; or Rebecca Thomson, Principal Lawyer, BDO Migration Services, with any enquiries.
Disclaimer: This information is provided as a guide only and it has been written in general terms and should be seen as a broad guidance only. This information cannot be relied upon to cover specific situations and you should not act, or refrain from acting, upon the information without obtaining specific professional advice. ©January 2022 BDO Migration Services. All rights reserved.