January 2, 2021
Legislative Instrument – F2020L01639 – Migration Amendment (Temporary Graduate Visas) Regulations 2020, amends the Migration Regulations to provide COVID concessions to allow SC 485 Temporary Graduate Visas (TGV) applicants to apply offshore and introduces the opportunity for second regional SC 485 TGV Post Study stream visas to be granted under specified conditions.
This Instrument substitutes and provides definitions for the following terms under Regulation 1.03.
Designated regional area – original definition replaced with – … means a part of Australia specified in an instrument under new Reg 1.15M. This is an inclusive term that provides for the total area covered by the definitions of designated city or major regional centre and designated regional area and may also be used to describe either area.
Designated city or major regional centre means Perth, Adelaide, the Gold Coast, the Sunshine Coast, Newcastle/Lake Macquarie, Wollongong/Illawarra, Canberra, Geelong and Hobart
Designated regional centre or other regional area means all other areas of regional Australia apart from Sydney, Melbourne, Brisbane, and Perth, Adelaide, the Gold Coast, the Sunshine Coast, Newcastle/Lake Macquarie, Wollongong/Illawarra, Canberra, Geelong and Hobart (ie the areas listed in the definition of a designated city or major regional centre).
Postcodes – the postcodes that define these areas are those in LIN 19/217 Regional Areas Instrument 2019
Schedule 13 – 9302 – amendments made by Schedule 1 of these Regulations apply in relation to visa applications made on or after the commencement of that Schedule on 20 January 2021. Applications for a second Subclass 485 (Temporary Graduate) visa in the Post-Study Work stream can be made from that date.
Schedule 13 – 9303 – makes clear that the areas specified as a regional centre or other regional area on 20 January 2021, are also taken to be a regional centre or other regional area for all purposes relating to the assessment of where an applicant was living, working or studying before 20 January 2021.
Schedule 13 – 9304 – ensures that an area that was a designated regional area under the old definition continues to be a designated regional area under the new definition, for the purposes of assessing where the applicant lived, studied and worked before 20 January 2021. When assessing where an applicant lived, studied, or worked after 20 January 2021, the new definition and new legislative instrument under the new version of regulation 1.15M will be applicable.
Applicants must hold a first Post Study Work 485 visa at TOA for a subsequent Post Study Work 485 visa ie the subsequent application must be made before the first TGV expires (Sch 1: Reg 1229(3)(1); 1229(4)(a)(v): Sch 2: new Reg 485.211(b),(c) and (d)).
All applicants must have graduated from a regional education instruction and held a first Post Study Work 485 visa.
Applicants must have lived, worked and studied only in a designated regional area for two years continuously on their first Post Study Work 485 immediately before applying for the second TGV.
All applicants, primary and members of their family unit, must be in Australia to apply for the second TGV application. No offshore application COVID concession applies to these applicants (Sch 1:Reg 1229(3)(f) and (g))
No evidence of English language proficiency is required for applications for second Post Study Work 485s (Sch 2: Reg 485.212 (2))
A new AFP check is not required for applications for second Post Study Work 485s (Sch 2: Reg 485.213(2))
NOTE: Visa holders may move within designated regional areas or other regional areas, or within designated city or major regional areas on their first Post Stidy 485 visa, but the requirements of the second Post Study 482 prevent visa holders from moving between these categories, eg from a regional area to a designated city, while holding that visa. Any move between the categories on the first Post Study 485 may affect eligibility for the two year Post Study 485.
A maximum of two Post Study Work 485s may be held.
Those who have graduated, held a Post Study Work 485 and only lived, worked and studied in a designated regional centre or other regional area will be eligible for the grant of a second two year Post Study Work 485 (Sch 2: Regs 485:232 and 485.511).
Applicants eligible to be granted the two year Post Study visa are prevented from applying for a one year Post Study visa (Sch 2 Reg, 485.233(1)(c).
NOTE: The applicant must have lived and studied at a campus in a regional centre or other regional area, prior to the grant of the first Post Study 485. The applicant for a second Post-Study Work 485 must have continued living in that area, or in some other area that is also a regional centre or other regional area, while holding the first Subclass 485 visa. A break in the continuity of residence is permissible after finishing study, provided that the Subclass 485 visa holder lived, worked and studied only in a regional centre or other regional area for at least the period of two years immediately before applying for the second visa.
NOTE: This could include remote work for an employer located elsewhere and distance education provided by an educational institution located elsewhere.
Those who have graduated, held a Post Study Work 485 and only lived, worked and studied in a designated city or major regional area will be eligible for the grant of a subsequent one year Post Study Work 485 (Sch 2: Regs 485:233 and 485.512)
Note: New Regulation 485.233 uses the broader definition of studying, living and working in a designated regional area as its basis, thus an applicant who has completed some of their time in a designated regional centrer or other regional centre but cannot meet the full requirements for Reg 485.232 may still be eligible to apply for a second one year TGV visa.
The second Post Study Work 485 commences when the first Post Study Work 485 expires or would have expired ie the grant of the second Post Study Work 485 does not cease the first Post Study Work 485 enabling the holder to gain the full benefit of both visas (Regs 485.232(b) and 485.233(b)).
New Condition 8601 is inserted into Schedule 8 – this condition requires the primary and secondary second Post Study Work 485 holders to live, work and study only in the relevant designated regional areas for which their visas were granted.
Applicants and MOFU must declare in their applications that they will abide by this condition.
The visa may be cancelled under s 116(1)(b) of the Migration Act id the visa holder does not comply with this condition.
Schedule 1 of this Instrument commences on 20 January 2021