Migration (LIN 20/229: COVID‑19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class GG) visa) Instrument 2020

made under subregulation 2.07(5) and paragraphs 408.229(b) and (c) of Schedule 2 to the

Migration Regulations 1994

Compilation No. 2

Compilation date:                              14 May 2021

Includes amendments up to:            F2021L00573

Registered:                                         28 May 2021

About this compilation

This compilation

This is a compilation of the Migration (LIN 20/229: COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class GG) visa) Instrument 2020 that shows the text of the law as amended and in force on 14 May 2021 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part 1—Preliminary                                                                                                                                        1

1............ Name............................................................................................................................. 1

3............ Authority....................................................................................................................... 1

4............ Definitions..................................................................................................................... 1

6............ Application.................................................................................................................... 1

6A......... Application of amendments made by LIN 20/283......................................................... 2

6B......... Application of amendments made by LIN 21/038......................................................... 2

Part 2—Event, classes of persons and visa application charge                                            3

7............ Event............................................................................................................................. 3

8............ Classes of persons......................................................................................................... 3

9............ Visa application charge.................................................................................................. 5

Endnotes                                                                                                                                                                 6

Endnote 1—About the endnotes                                                                                                        6

Endnote 2—Abbreviation key                                                                                                            7

Endnote 3—Legislation history                                                                                                         8

Endnote 4—Amendment history                                                                                                       9

Endnote 5—Editorial changes                                                                                                          10

Part 1—Preliminary

1  Name

(1)     This instrument is the Migration (LIN 20/229: COVID‑19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class GG) visa) Instrument 2020.

(2)     This instrument may be cited as LIN 20/229.

3  Authority

                   This instrument is made under the following provisions of the Regulations:

                     (a)  subregulation 2.07(5);

                     (b)  paragraph 408.229(b) of Schedule 2;

                     (c)  paragraph 408.229(c) of Schedule 2.

4  Definitions

Note:          The expressions permanent visa, substantive visa and visa application charge are defined in subsection 5(1) of the Migration Act 1958.

                   In this instrument:

approved provider has the same meaning as in the Aged Care Quality and Safety Commission Act 2018.

COVID‑19 pandemic means the pandemic declared by the World Health Organization on 11 March 2020, caused by the coronavirus COVID‑19.

Regulations means the Migration Regulations 1994.

service provider of a Commonwealth‑funded aged care service has the same meaning as in the Aged Care Quality and Safety Commission Act 2018.

Subclass 408 visa means a Subclass 408 (Temporary Activity) visa.

substantive temporary visa means a substantive visa, other than a permanent visa.

6  Application

                   This instrument applies to an application for a Subclass 408 visa that is either:

                     (a)  made on or after commencement of this instrument; or

                     (b)  made but not finally determined before commencement of this instrument.

6A  Application of amendments made by LIN 20/283

                   The amendments made by Schedule 1 to the Migration (COVID‑19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class GG) visa) Amendment Instrument (LIN 20/283) 2020 apply in relation to the following applications for a visa:

                     (a)  an application made, but not finally determined, before the commencement of that Schedule;

                     (b)  an application made on or after the commencement of that Schedule.

6B  Application of amendments made by LIN 21/038

                   The amendments made by Migration (COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class CG) visa) Amendment Instrument (No. 2) (LIN 21/038) 2021 apply to the following applications for a visa:

                     (a)  an application made, but not finally determined, before the commencement of that instrument;

                     (b)  an application made on or after the commencement of that instrument.

Part 2—Event, classes of persons and visa application charge

7  Event

                   For paragraph 408.229(b) of Schedule 2 to the Regulations, the COVID‑19 pandemic is specified.

8  Classes of persons

             (1)  For paragraph 408.229(c) of Schedule 2 to the Regulations, an applicant for a Subclass 408 visa is in a class of persons in relation to the event specified in section 7 if, at the time of application, the applicant:

                     (a)  is in Australia; and

                     (b)  is unable to depart Australia as a result of the COVID‑19 pandemic; and

                     (c)  either:

                              (i)  is the holder of a substantive temporary visa that is 90 days or less from ceasing to be in effect; or

                             (ii)  was the holder of a substantive temporary visa that ceased to be in effect not more than 28 days before the application for a Subclass 408 visa is made; and

                     (d)  is unable to make a valid application, or meet the criteria set out in Schedule 2 to the Regulations, for:

                              (i)  a visa of the same Subclass as the visa mentioned in paragraph (c); or

                             (ii)  a substantive temporary visa of any other Subclass other than a Subclass 408 visa.

             (2)  For paragraph 408.229(c) of Schedule 2 to the Regulations, an applicant for a Subclass 408 visa is in a class of persons in relation to the event specified in section 7 if, at the time of application, the applicant:

                     (a)  is in Australia; and

                     (b)  is unable to depart Australia as a result of the COVID‑19 pandemic; and

                     (c)  either:

                              (i)  is the holder of a substantive temporary visa, which has a condition attached prohibiting the holder from working in Australia; or

                            (ia)  is the holder of a substantive temporary visa that is 90 days or less from ceasing to be in effect; or

                             (ii)  was the holder of a substantive temporary visa that ceased to be in effect not more than 28 days before the application for a Subclass 408 visa is made; and

                     (d)  is in receipt of an offer of employment from an approved provider or a service provider of a Commonwealth‑funded aged care service to undertake work in the aged care sector.

             (3)  For paragraph 408.229(c) of Schedule 2 to the Regulations and subject to subsection (4), an applicant for a Subclass 408 visa is in a class of persons in relation to the event specified in section 7 if, at the time of application, the applicant:

                     (a)  is in Australia; and

                     (b)  either:

                              (i)  is the holder of a substantive temporary visa that is 90 days or less from ceasing to be in effect; or

                             (ii)  was the holder of a substantive temporary visa that ceased to be in effect not more than 28 days before the application for a Subclass 408 visa is made; and

                     (c)  is employed by, or in receipt of an offer of employment from, an employer in the:

                              (i)  aged care sector; or

                             (ii)  agriculture sector; or

                            (iii)  child care sector; or

                            (iv)  disability care sector; or

                             (v)  food processing sector; or

                            (vi)  health care sector; or

                           (vii)  tourism and hospitality sector; and

                     (d)  is unable to make a valid application, or meet the criteria set out in Schedule 2 to the Regulations, for:

                              (i)  a visa of the same Subclass as the visa mentioned in paragraph (b); or

                             (ii)  a substantive temporary visa of any other Subclass other than a Subclass 408 visa.

             (4)  For the purposes of subsection (3), if the applicant:

                     (a)  is the holder of a Subclass 403 (Temporary Work (International Relations)) visa in the Seasonal Worker Program stream that is 90 days or less from ceasing to be in effect; or

                     (b)  was the holder of Subclass 403 (Temporary Work (International Relations)) visa in the Seasonal Worker Program stream that ceased to be in effect not more than 28 days before the application for a Subclass 408 visa is made;

the applicant must, in relation to employment in the agriculture sector, be employed by, or in receipt of an offer of employment from, an approved employer under the Seasonal Worker Programme.

Note:          Subparagraphs 8(1)(c)(ii) and 8(2)(c)(ii) above are in accordance with the requirements in Schedule 1 to the Regulations. Item 5 of the table under subitem 1237(3) of Schedule 1 to the Regulations sets out additional requirements for applicants who do not hold a substantive visa, which has the effect that an applicant who does not hold a substantive visa must have held a substantive visa that ceased to be in effect not more than 28 days before making an application.

9  Visa application charge

                   The classes of persons mentioned in section 8 are specified for the purposes of subparagraph 1237(2)(a)(i) of Schedule 1 to the Regulations.

Note:          Subparagraph 1237(2)(a)(i) provides that the first instalment amount of the visa application charge is nil for an applicant in a class of persons specified in a legislative instrument made for the purposes of that subparagraph.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Endnote 5—Editorial changes

In preparing this compilation for registration, the following kinds of editorial change(s) were made under the Legislation Act 2003.

Sections 6B and 8

Kind of editorial change

Give effect to the misdescribed amendments as intended

Details of editorial change

Section 3 of the Migration (COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class CG) visa) Amendment Instrument (No. 2) (LIN 21/038) 2021 provides as follows:

3          Amendment

                 Schedule 1 amends Migration (LIN 20/229: COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class CG visa) Instrument 2020.

The title to be amended reads “Migration (LIN 20/229: COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class CG visa) Instrument 2020” rather than the correct title of “Migration (LIN 20/229: COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class GG) visa) Instrument 2020”.

This compilation was editorially changed by applying the amendments from Schedule 1 of the Migration (COVID-19 Pandemic event for Subclass 408 (Temporary Activity) visa and visa application charge for Temporary Activity (Class CG) visa) Amendment Instrument (No. 2) (LIN 21/038) 2021 to give effect to the misdescribed amendments as intended.