COVID-19: 408 visa adds offer of employment for aged care service providers, 45 per cent of COVID-19 visas approved

The Subclass 408 – Temporary Activity visa, which under an Australian Government endorsed event stream, has been used to provide a further visa for those working in a critical sector or as a visa of last resort for those stuck in Australia due to the coronavirus pandemic. A new legislative instrument was registered yesterday adding a person who has an offer of employment from an approved aged care provider as a class of person who may be eligible for this visa. Information on the number of approvals show that as of 29 July 2020 roughly only 45 per cent of 408 visa applications under COVID-19 were approved.

Pathway to work rights: offer of employment in the aged care sector for 408 visas

The new instrument that was registered yesterday and which took effect immediately and will apply to new and existing 408 visa applications lodged but not finalised, has added a further class of person who may meet the eligibility requirements for a 408 visa.

The previous instrument was to provide for two circumstances where a further stay in Australia would be warranted if a person’s temporary visa holder was expiring or had just expired and they cannot depart Australia and were unable to meet the requirements of any other visa.

The first was as a visa of last resort. Applicants who met the criteria would be approved a 6-month visa to remain in Australia lawfully and give them time to arrange their departure.

The second was for those working in critical sectors such as agriculture, food processing, health care, aged care, disability care and childcare. They would be granted a 12-month visa with work rights so they can continue to work in that position.

In recognition of critical skill shortages in the aged care sector, the new instrument specifically adds that a visa applicant may be eligible for this visa if they have 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.

The Explanatory Memorandum to the instrument clarifies this change is to allow those who are on temporary visas and who may not have work rights to be eligible and therefore may include, for example, those who may be holding visitor visas. The previous instrument required those to be working in the position, among other things.

Visa applicants are considered to have relevant skills and qualifications for the position if they have received an offer of employment from an approved provider or service provider. Approved providers or service providers are organisations defined under the Aged Care Quality and Safety Commission Act 2018 (Cth).

Any 408 visa applicant must at the time of applying be in Australia and unable to depart Australia as a result of the COVID-19 pandemic and either hold a substantive visa that will expire within 28 days, or had held a substantive visa that expired no more than 28 days. A substantive visa is any visa other than a bridging visa, a criminal justice visa, or an enforcement visa.

Approximately 45 per cent of COVID-19 408 visas approved

Statistics on visa lodgement and approvals of 408 visas under the COVID-19 event show an unexceptional approval rate.

A recent Freedom of Information (FOI) request asked for statistics on total lodgements and approvals for 408 visas specifically under the Australian Government endorsed events stream, for which the COVID-19 pandemic is considered the endorsed event, from 6 April 2020 to 29 July 2020.

With a total of 12,236 visa applicants up to 29 July 2020, only 3,712 were approved visas. As the processing times for the 75th percentile of applications blew out to 44 calendar days in June, discounting all of the applications lodged in July and half in June (as a vast majority were unlikely to be assessed at the time the figures were provided), this leaves an approval rate of roughly 45 per cent.

What decision was made on the 55 per cent or so of other 408 visa applications is anyone’s guess. They would have to have either been refused or otherwise withdrawn by the visa applicant. It is unlikely any were considered invalid applications as these would not be represented in the figures provided. Invalid applications are considered to have never been made.

It seems the Department of Home Affairs is carefully scrutinising the claims made by 408 visa applicants under this stream.