On 9th July 2020, the Australian Government announced special visa concessions for Hong Kong people wanting refuge in Australia from the political instability in Hong Kong (HK): https://minister.homeaffairs.gov.au/alantudge/Pages/hong-kong-visa-arrangement-20200709.aspx.
The primary objective of the policy is to provide a safe haven for those affected by the controversial new National Security Law introduced in Hong Kong. The arrangements favoured mainly HK people already in Australia and we believe legislative amendments will be required to enable the policy changes.
Concessions were less direct for people living in HK. To access the onshore concessions, HK citizens have to first get to Australia before they can access the concessions, such as coming to Australia on student visas.
The government has also announced that it would target Global Talent or Business Innovation and Investment Visa (BIIV) applicants in HK but did not disclose how it would do this. It also vaguely said that it would give Permanent Residency opportunities to Hong Kong based staff when their HK businesses were relocated to Australia.
This article will look at the concessions currently available to HK citizens presently in Australia and those in HK.
Hong Kong visa holders in Australia
There are approximate 10,000 HK Special Administrative Region (SAR) passport holders in Australia, who are on student, temporary graduate and temporary skilled visas. In summary the following are concessions currently available to them:
For Graduate subclass 485 visa holders, Temporary Skill Shortage (TSS) subclass 482 and Temporary Work (Skilled) subclass 457 visa holders: they can extend their visas for an additional 5 years with a pathway to permanent residency (PR) at the end of that period.
For Student subclass 500 visa holders: they will be eligible for a 5-year graduate visa when they complete their studies with a pathway to PR at the end of that period.
For those on Skilled Work Regional (Provisional) subclass 491 and Skilled – Regional (Provisional) subclass 489 visa holders, existing arrangement will remain in place to relieve skills shortages in regional Australia, with pathways to PR after 3 years (2 years for 489 visa holders).
Interestingly, the Temporary Graduate subclass 485 visa used to be available to a primary applicant on only one occasion. But arising from the government’s announcement it appears that this rule is being amended and HK citizens with this visa may be able to obtain an extension.
Hong Kong citizens in Australia on other visas
There are still many HK people on other types of visas presently in Australia, such as Working Holiday subclass 417, Electronic Travel Authority subclass 601 (including Visitor subclass 600) visas. After the COVID-19 pandemic outbreak, many previous working holiday makers have also transferred their visas into a Temporary Activity subclass 408 visa under the COVID-19 stream.
To be favoured by the current arrangements, HK citizens can consider applying for a subclass 500 student visa. When the minimum 2 years study is completed at a University, the graduate will be eligible for a 5-year graduate subclass 485 visa with a PR pathway.
We should mention that for the Vocational Education & Training (VET) sector, to be eligible for a subclass 485 Graduate Skilled visa, the applicant who obtained a trade level qualification (such as a Vocational level Certificate or Diploma) must have their occupation on the Medium and Long-term Strategic Skills List (MLTSSL).
There is no concession on this requirement from the announcement, so student applicants in this circumstance will not be eligible for the subclass 485 concession. To access the concession HK students must choose an occupation from the MLTSSL to secure the subsequent 485 concession.
Protection Visa Options
Australia has international obligations to protect people who are refugees or who will suffer significant hard if they return to HK. However, this does not mean that all HK citizens applying for Protection Visas in Australia will be granted them. To be eligible, they need to substantiate that they qualify for these protection provisions.
ABC News has reported that there are already at least 62 onshore Protection subclass 866 visa applications from Hong Kong citizens between November 2019 and July 2020.
To support a protection visa claim, an applicant needs to provide substantial evidence to prove that they meet the refugee definition or will face significant harm if they return to HK. If they meet these high threshold requirements, Australia will consider granting them a subclass 866 Protection Visa.
If you are a Hong Kong citizen in Australia and you are likely to face persecution arising from the new HK Security Law , or from other activities that might get you into serious trouble if you returned to HK, you should contact Rostron Carlyle Rojas Lawyers on 07 3009 8444 to make an appointment with us to discuss this issue confidentially. Our lawyers have strong experience in Protection Visas, and can provide you with honest appraisals of your PV prospects.
Applying from Hong Kong
As mentioned earlier the visa concessions are not as generous for HK citizens applying for visas from outside Australia. To access most of the available concessions they have to be in Australia. Hence, for these HK citizens they can formulate the following strategies:
HK citizens can apply for a TSS visa – provided they meet the updated skills lists and other TSS requirements, they could be granted a 5-year visa from which a pathway to a longer stay can then be developed; or
Apply for a Student subclass 500 visa – come to Australia on that visa, and then apply for the concessions currently available, such as applying for the 5-year graduate visa when they complete their studies, or find an alternative PR pathway that may be available to them before the expiry of their visa.
Or apply for a visa under the Global Talent or Business Innovation and Investment Visas – the Australian government has announced that such applications will be welcomed.
With a similar British education system in HK, there is already a large number of HK students who have chosen to study in Australia each year. Under the new arrangement, it is anticipated that increased student numbers from HK will continue to arrive in Australia in future.
Meanwhile, these prospective student applicants should be reminded that the General Temporary Entry (GTE) requirement for international students is still likely to be enforced. This means that anyone applying for a student visa must prove that they are genuine students who are not seeking to remain in Australia at the end of their studies. This GTE rule applies equally to HK applicants but whether they will be enforced rigorously is yet to be seen. Therefore, a visa refusal is possible if the applicant is blasé about GTE when applying for the student visa.
Australia is also always trying to attract the best and brightest through the Global Talent and Business Innovation and Investment Visa programs, and the government sees many HK citizens would be eligible for them.
In addition, the government is looking at developing new incentives to attract export-oriented Hong Kong based businesses to relocate to Australia. It is expected that they may not just be economic incentives, but it would also permit these companies with critical Hong Kong based staff to relocate with the business. Again this initiative has to be fully spelt out yet but it is possible that arising from this that there may be other pathways developed for these staff members to acquire Australian permanent residency.
As can be seen these concessions to HK citizens are still evolving and are not fully matured yet, and many of these changes are complicated.
If you are a HK citizen in Australia or in HK, and you wish to discuss your own or your family’s situation we recommend that you seek a consultation with us for an honest appraisal of options that may be available to you and your family. As lawyers, we will treat the information you give us with utmost confidence.
Our team of experienced migration lawyers at Rostron Carlyle Rojas Lawyers can assess your eligibility for the Australian government’s concessions and/or your suitability for other available migration programs. We will listen to you and we will provide comprehensive advice regarding your eligibility, address the important threshold issues, and guide and assist you in preparing a decision-ready application.
Please contact any one of us in the Migration team for assistance, or call (07) 3009 8444:
• Peter K K Lee, Special Counsel: [email protected]
• Clayton Hellen, Senior Associate: [email protected]
• Shanalee Johal, Lawyer: [email protected]