As part of Australia’s hard-lined stance on so-called “unlawful maritime arrivals,” colloquially referred to as “boat people,” such applicants are subject to significant limitations on their ability to pursue an Australia visa. More specifically, under Section 46A(1) of the Migration Act 1958 (Cth), unlawful maritime arrivals who hold a temporary protection visa, or continue to remain in Australia unlawfully, cannot make a valid visa application in most circumstances.
Rightly or wrongly, many of these purported refugees are incentivised to reside in specified regional areas, in exchange for the opportunity to apply for permanent residency.
Unlawful maritime arrival
An “unlawful maritime arrival” is defined under Section 5AA of the Migration Act 1958 (Cth). In simple terms, this definition covers most persons who enter Australia, or its external territories, by sea and become unlawful non-citizens as a result of this entry.
Exemptions to section 46A
Two major exceptions exist in relation to the above prohibition. The first relates to a waiver issued personally by the Minister to an individual unlawful maritime arrival. The second relates to a set of standing exemption criteria, generally known as the “SHEV pathway.” Due to the difficulty in securing a personalised exemption for Section 46A, the SHEV pathway is generally the only viable option for most applicants, and the one we shall address hereunder.
Overview – Safe Haven Enterprise Visa (SHEV)
Despite the hardship wrought upon these vulnerable applicants by section 46A, the Australian Government has set a series of criteria for exemption from this general prohibition. Such an exemption can only be obtained by persons who are granted a Safe Haven Enterprise visa or have secured a temporary visa through some other means.
This moderately recent addition to the Migration Act gives SHEV holders a clear pathway to permanent residency that can be worked towards. This offers much needed clarity to such applicants.
In short, SHEV holders must undertake 42 months of regional employment, regional study or a combination of such employment or study.
It is important to note that this exemption merely permits persons to submit a valid application for a proscribed subclass of visa and is not a visa pathway in itself. This means that after meeting the exemption criteria, the applicant must also meet all requirements of the visa he or she applies for.
Safe Haven Enterprise Visa
The Subclass 790 Safe Haven Enterprise Visa, or “SHEV,” is a temporary protection visa issued for a period of 5 years. In the context of unlawful maritime arrivals, the SHEV visa represents one of the only immediate visa options, as such applicants are unable to qualify for the more common Subclass 866 Protection visa.
As this visa is intended to incentivise refugee settlement into regional areas, Subclass 790 applications must be accompanied by some indication, in writing, of the applicant’s intention to work or study in a regional area whilst accessing minimum social security benefits. Despite this, it is not a condition of the visa that migrants study or work in regional Australia whilst holding their SHEV.
To remain in Australia after the conclusion of the SHEV period, applicants must have either applied for a subsequent SHEV, or, after securing an exemption from Section 46A, apply for some other visa.
Which regional areas are specified?
The specified regional areas are those contained in Instrument LIN 18/081 for the purposes of subitem 1404(4) of Schedule 1 to the Migration Regulations 1994 (Cth). Postcodes specified in the aforementioned instrument will constitute a “regional area” for the purposes of the SHEV pathway.
Is it 42 consecutive months?
There is no requirement that you undertake regional employment or study for 42 consecutive months. At the time of your subsequent visa application, you are only required to demonstrate that regional work or study was undertaken in 42 separate months over the course of all SHEVs held by you.
What visa subclasses will I be able to apply for?
After meeting the SHEV pathway criteria, you may apply for any of the following visas as prescribed under regulation 2.06AAB:
- Subclass 010 (Bridging A)
- Subclass 030 (Bridging C)
- Subclass 132 (Business Talent)
- Subclass 143 (Contributory Parent)
- Subclass 186 (Employer Nomination Scheme)
- Subclass 187 (Regional Sponsored Migration Scheme)
- Subclass 188 (Business Innovation and Investment (Provisional))
- Subclass 189 (Skilled – Independent)
- Subclass 190 (Skilled – Nominated)
- Subclass 405 (Investor Retirement)
- Subclass 407 (Training)
- Subclass 445 (Dependent Child)
- Subclass 476 (Skilled – Recognised Graduate)
- Subclass 482 (Temporary Skill Shortage)
- Subclass 489 (Skilled – Regional (Provisional))
- Subclass 491 (Skilled Work Regional (Provisional))
- Subclass 494 (Skilled Employer Sponsored Regional (Provisional))
- Subclass 500 (Student)
- Subclass 590 (Student Guardian)
- Subclass 801 (Partner)
- Subclass 802 (Child)
- Subclass 804 (Aged Parent)
- Subclass 820 (Partner)
- Subclass 835 (Remaining Relative)
- Subclass 836 (Carer)
- Subclass 837 (Orphan Relative)
- Subclass 838 (Aged Dependent Relative)
- Subclass 858 (Global Talent)
- Subclass 864 (Contributory Aged Parent)
- Subclass 884 (Contributory Aged Parent (Temporary))
Employment – Safe Haven Enterprise Visa (SHEV)
SHEV holders may be exempt from Section 46A, provided they undertake 42 months of paid employment in a specified regional area.
Generally speaking, months in which regional work is undertaken will not count towards your 42 months if you have received a “special benefit” social security payment in that month.
What kind of work is permitted?
There are no limitations as to the exact kind of work that must be performed by SHEV holders. Pursuant to Instrument 15/071, any work performed for remuneration, undertaken pursuant to an agreement, will meet the definition of “engaged in employment.”
In short, to be “engaged in employment” the work must be:
- Full-time, part-time, temporary, casual or seasonal
It is important to keep in mind that all regional work must be proven by evidence and undertaken pursuant to some form or agreement, meaning informal work arrangements will not suffice.
What duration of work is required?
There is no requirement that you work for any particular duration in order for a month of regional work to count towards your 42 months. Provided you undertook paid work in a specified regional postcode within a particular month, that month will count towards your 42 months. This means full-time, part-time and casual work will all meet the definition of “engaged in employment” for the purposes of the SHEV pathway.
How do I demonstrate regional work?
You will be required to declare your regional employment through what is called a “Form 1465” outlining all regional work and study undertaken whilst holding your SHEV.
Additionally, you will be expected to provide the following to substantiate your claimed employment:
- Letters of employment
- Australian bank statements
An inability to adequately account for and prove your regional employment may result in your subsequent non-SHEV visa application being invalid. It is crucial, therefore, that you retain all potential employment evidence whilst holding your SHEV.
I am self-employed
Self-employed SHEV holders can also meet the requirements for regional employment. This will usually be deemed acceptable in any of the following circumstances:
- as the owner of a retail business that sells goods;
- as the owner of a retail business that sells a service; or
- as a self-employed trades person who provides a service.
Additionally, you will be expected to provide the following to substantiate your claimed employment:
- Pay stubs
- Self-employment ledger documentation
- Bookkeeping records
- Bank statements
- Signed timesheets and receipt of payroll, if you have employees
- Profit and loss statements
- Invoices, credit card and check copies
Living in a regional area
In relation to regional work, the SHEV pathway does not require an applicant to live in a regional area. In practice, most SHEV holders will live in the regions they work in, however it is technically permissible to live in a metropolitan area and commute to your job in a specified regional area.
What if I’ve held multiple SHEVs?
The 42 months do not reset if you are granted a subsequent SHEV. Any month of regional work performed whilst the holder of a SHEV will count towards your 42 months.
Study – Safe Haven Enterprise Visa (SHEV)
In addition to work, SHEV holders may elect to study in a specified regional area as well. It is important to note, however, that SHEV holders undertaking tertiary studies will generally be required to pay international student fees for their courses, making this an expensive option for most.
Each month you spend enrolled in full-time study in a regional area will count towards your 42 month requirement. There is no qualification to this on the basis of receipt of social security.
The meaning of “enrolled in full-time study” is contained in instrument IMMI 15/070. This can constitute either:
- Primary or secondary schooling, requiring the physical attendance of the student; or
- A course of study leading to an award of an AQF qualification.
Primary or secondary schooling
Study at a primary or secondary school in a regional area must be of at least 161 weeks in duration. Any secondary school attended by a SHEV holder must be authorised to issue a Senior Secondary Certificate of Education in its State or Territory.
This study must require the physical attendance of the student at a place located in a specified regional area. Online study is permissible, provided you are physically located in a regional area.
Tertiary education – AQF qualifications
Any course resulting in an Australian Qualifications Framework award of AQF 1 or higher may satisfy the study requirement, provided said course meets the following requirements:
- The institution is authorised to issue an AQF qualification
- The course requires physical attendance at place located in a specified regional area for the full duration of the study
- The study is not wholly undertaken online, by distance or correspondence, or otherwise on an external study basis
- The study is either:
- Determined to be “full-time” by the institution; or
- Comprises at least 20 contact hours per week.
Minimal periods of online study may be permissible in some instances, such as when required due to pandemic-related restrictions, but study cannot wholly be conducted online.
Applicants may claim regional study for up to one AQF Level 1 qualification and any number of qualifications at AQF Level 2 or above. If you are enrolled in more than 1 simultaneous course leading up to nationally recognised AQF qualification, only one course may be considered as full-time study.
Do I need to live in a regional area?
In practice, most SHEV holders will live in the regions they study in. For primary and secondary school students, it is more or less a requirement that they live in the region they undertake studies in, as this study must require the applicant’s physical attendance for the entire period of study.
How do I evidence my study?
You will be required to declare your regional study through what is called a “Form 1465” outlining all regional work and study undertaken whilst holding your SHEV.
Additionally, you will be expected to provide the following to substantiate your claimed study:
- Electronic Confirmation of Enrolment (eCOE), which details the type of course, the course provider, the duration of the course and the type of qualification offered.
- Proof of meeting course requirements, including attendance certificates or records.
- Evidence of satisfactory course completion (certificates, diploma attained or degrees awarded) or any other requirements for that course, including apprenticeship and work placement.
- Academic transcripts.
COVID Concessions for Safe Haven Enterprise Visa (SHEV) Holders
In response to challenges imposed by the COVID-19 pandemic, the Australian Government has introduced limited concessions on the above requirements of the SHEV pathway. From 1 February 2020, until a date not yet specified, the following will count towards the 42 month SHEV pathway requirement:
- employment or study in a SHEV regional area, regardless of whether Special Benefit payments are received;
- employment outside a SHEV regional area in an “essential service,” regardless of whether Special Benefit payments are received;
- periods of unemployment (i.e. periods when the SHEV holder is not engaged in employment); and
- periods during which the SHEV holder receives Special Benefit payments.
The above means that months of work undertaken outside a specified regional area in an unessential service will not count towards the requirement, even during the concession period.
What is work in an “essential service?”
The Minister may designate “essential service” by legislative instrument, pursuant to regulation 2.06AAB(5). No such instrument exists as at the time of writing, meaning it is generally not advisable to depend on this exemption for the purposes of the SHEV pathway.
Other Options for Safe Haven Enterprise Visa (SHEV) Holders
If you are nearing the end of your SHEV, and do not qualify for the SHEV pathway, you will likely have very few options beyond applying for a temporary protection visa or a new SHEV. If you are in need of an alternative pathway or wish to confirm your eligibility under the SHEV pathway, it is extremely important to obtain professional advice from an Australian migration lawyer as soon as possible.
Our team at Visa Plan understands the challenges faced by SHEV holders and will provide the best guidance to help you achieve your Australian dream.