Hong Kong Nationals – Migration Legislation Amendment

In direct response to current political pressures within the Hong Kong Special Administrative Region (SAR) and to that region’s decision, from January 31st 2021, to cease recognition of British National Overseas (BNO) passport holders, for immigration and identification purposes, on July 9th 2020, the Australian Government has introduced adjusted visa conditions for affected Subclass 457, 482 and 485 visa holders, as covered in the Migration Amendment (Hong Kong Passport Holders) Regulations 2020.

Under these regulations (Schedule 1) said visa holders receive retrospective concessions, implemented to protect the terms of their Australian visas. Furthermore, for certain HKSAR and BNO passport holders, the instrument provides pathways to permanent residency.

The following amendments apply:

TEMPORARY VISA SUBCLASSES

Various amendments to the Regulations provide BNO passport holders and HKSAR passport holders with equivalent concessions.

Clause 10101: Protects SC457 visa holders who held BNO passports at the time of visa grant, by providing continuity of the visa until July 8th 2025.

Should the visa have ceased since July 9th 2020, it may be re-enlivened (subject to reason for cessation).

Employers may continue employment of said visa holders, without requirement to apply for a new nomination, under SC482.

Condition 8107 remains.

SUBCLASS 482 – Granted before July 9th 2020

Clause 10102: Similarly, existing SC482 visas, held by BNO visa holders on July 9th 2020, will remain in effect until July 8th 2025. In an instance where the visa has ceased since July 9th 2020, it may be re-enlivened (subject to reason for cessation) and employers may continue employment, as above.

SUBCLASS 482 – Granted on or after July 9th 2020

Clause 10103: For affected holders of BNO passports, provides a grant period of five years for SC482 visa holders, whether the application was made before, on or after July 9th 2020.

Same re-enlivened provisions apply.

SUBCLASS 485 – Granted before July 9th 2020

For BNO passport holders, similar conditions apply with effective date to July 8th 2025 and comparable re-enlivened provisions.

SUBCLASS 485 – Granted on or after July 9th 2020 and before November 3rd 2021

Clause 10105: For affected holders of BNO passports, provides a grant period of five years for SC485 visas, where the application was made after July 9th 2020 and before November 3rd 2021 (unless the current visa is a second SC485).

SUBCLASS 485 – Granted from November 3rd 2021

Under Clause 485.513, these visas will be granted to qualifying BNO passport holders for a period of five years.

PERMANENT RESIDENCY PATHWAYS – HKSAR and BNO passport holders

Within Subclass 189 and Subclass 191 visa classes, from March 5th 2022, Schedule 2 of subject instrument will insert a new Hong Kong stream:

SUBCLASS 189 – Skilled Independent Visa/Hong Kong stream

Amendments to Sub item 1137 (4G) of Schedule 1 of the Migration Regulations 1994 now provide a Hong Kong stream for the Points Tested SC189 visa, directed to applicants who have demonstrated a strong commitment to Australia.

  • Primary applicant must hold a HKSAR or BNO passport
  • Application must be made by the primary holder of SC457, 482 or 485 visa covered by Hong Kong concessions, valid until July 8th 2025 or for five years.
  • Unless transitional SC457 conditions apply, applicant must have held said visa for four years.
  • Must have been usually resident in Australia for four years
  • Both primary and secondary applicants must meet PIC 4007.
  • Even after turning 23 years of age, providing they continue to live in the primary visa holder’s family, children will continue to be considered members of the family unit and included in the SC457,482 or 485 visa grants.

TRANSITIONAL ARRANGEMENTS – Subclass 457 visa holders

Clause 10106 (1): Now provides, in Schedule 13 of the Migration Regulations, that the holder of a SC457 visa granted on or after July 9th 2020 need not have held that qualifying visa for four years prior to applying for the SC189 visa.

Clause 10101 (2): Now effectively disregards the date of the grant of qualifying visas covered by the HK concessions.

SUBCLASS 191 – PERMANENT RESIDENCE _ Skilled Regional Visa – HK Stream

Subclass 191 visa has been restructured to create two streams for primary applicants;

  • The Regional Provision stream and
  • The Hong Kong (Regional) stream

Requirements for the new Subclass 191 Hong Kong stream are as follows:

  • Primary applicant must hold a HKSAR or BNO passport
  • Application must be made by the primary holder of SC457, 482 or 485 visa covered by Hong Kong concessions.
  • Applicant must have lived, worked or studied exclusively in a designated regional area for three years immediately prior to application.
  • Unless transitional SC457 conditions apply, applicant must have held said visa, while meeting regional requirements, for three years.
  • Must have been usually resident in Australia, continious for three years immediately prior to application.
  • There is no requirement for meeting income threshold during these three years.
  • Both primary and secondary applicants must meet PIC 4007.
  • Even after turning 23 years of age, providing they continue to live in the primary visa holder’s family, for purposes of the SC191 application, children will continue to be considered members of the family unit and included in the SC457,482 or 485 visa grants.

TRANSITIONAL ARRANGEMENTS – Subclass 457 visa holders

Clause 10101 (2): Paragraph 1139 (3A) (c) effectively disregards the date of grants for qualifying visas covered by HK concessions.

COMMENCEMENT

  • Schedule 1 of this Instrument to commence retrospectively from July 9th 2020.
  • Schedules 2 and 3 to commence March 5th 2022.

PLEASE CONTACT US FOR FURTHER INFORMATION

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For more information on this or on any relating issues, contact the friendly migration experts at Sellanes Clark – specialising in all immigration law matters.

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