On 28 October 2021, the Governor-General of Australia signed off the Migration Legislation Amendment (Hong Kong) Regulations 2021. This amending regulation complement and formalise the Australian Government’s announcement made on 9 July 2020 of offering students from Hong Kong 5 years temporary visa with pathway to permanent residency.
Key features of the Migration Legislation Amendment (Hong Kong) Regulations 2021 are:
- The previous temporary visa extension of up to 5 years for Hong Kong residents (Migration Amendment (Hong Kong Passport Holders) Regulations 2020)that applies to holders of Hong Kong SAR passport is now also offered to Hong Kong resident with British National (Overseas) passport.
- British National (Overseas) passport holders who held or hold a Subclass 457 visa, Subclass 482 visa, or a Subclass 485 visa will the validity period of their visa:
- extended to 8 July 2025 if they held the visa on 9 July 2020, or
- extended to the of 5 years from the date of visa grant if the visa they hold was granted after 9 July 2020 and before 3 November 2021.
- Introduction of new visa stream specific to Hong Kong residents in Australia in both the subclass 189 Skilled-Independent and Subclass 191 Skilled Regional (Permeant) visas. Similar to the current New Zealand stream under the subclass 189 visa but even better as there is no taxable income threshold requirement.
- Dependent (secondary) visa holders of Subclasses 457, 482 and 485 visa can continue to be included as secondary visa applicant when applying for subclass 189 or 191 visas under the Hong Kong stream. This means, for example, there is 23 years upper age limit or financial dependency requirement for adult children when it comes applying for the permanent residence visa.
- This special permanent residency pathway is available to all current and prospective Hong Kong international students in Australia if they hold a Subclass 485 or 482 visa in the future (subject to any future legislative changes).
Hong Kong stream visa requirements
Subclass 189 visa
The key requirements specifically relevant to the Hong Kong stream under the Subclass 189 (Skilled Independent) visa that must be satisfied are:
- At the time of application, must hold a subclass 457, 482 or 485 visa as a primary applicant and held it for at least 4 years.
- Must have been usually resident in Australia for a continuous period for at least 4 years immediately before the date of application.
- Complied substantially with conditions of the visa held at the time of application and any subsequent Bridging visa.
Subclass 191 visa
The key requirements specifically relevant to the Hong Kong (Regional) stream under the Subclass 191 Skilled Regional (Permeant) visa that must be satisfied are:
- At the time of application, must hold a subclass 457, 482 or 485 visa as a primary applicant and held it for at least 3 years.
- Must have been usually resident in Australia for a continuous period for at least 3 years immediately before the date of application.
- Must have always lived, worked and/or studied in a designated regional area of Australia during the 3 years period immediately before the time of application.
- Complied substantially with conditions of the visa held at the time of application and any subsequent Bridging visa.
When can I apply for the visa?
The new streams will be open to applications from 5 March 2022.
‘Usually resident’ and ‘continuous period’
The requirement of need to have been usually resident of Australia for a continuous period for at least 4 years (Subclass 189 visa) or 3 years (Subclass 191 visa) immediately before the date of application may be a straightforward requirement for some people but complicated for some others.
Generally, if you have always been physically in Australia during the relevant period then you should not have any difficulty in meeting the requirement. However, it may be complicated if you have any substantial absence from Australia during the relevant period. For example, if you held any one of the subclass 457, 482, or 485 visa but was not able to return to Australia during the COVID pandemic due to border closure, this will complicate the situation. We strongly recommend you seek professional advice before applying if you have any substantial absence from Australia during the relevant period.
How can ProActive Legal help?
While we believe it is always best to engage an experienced professional migration or legal practitioners to assist with visa application, we recognise some of you may have the confidence in Do-It-Yourself (DIY). If that sounds like you but you want to double check your eligibility, we offer a paper-based eligibility assessment at a special rate for $220 (incl. GST).
Please contact us if you require assistance, we are always ready to assist.
[Updated on 30 October 2021]
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[Below is our original post on 10 July 2020]
On 9 July 2020, Prime Minister Scott Morrison announced that Australia will offer a five-year extension for a range of temporary visa holders from Hong Kong.
The Acting Immigration Minister, Alan Tudge said that “Current students will be eligible for a five-year temporary graduate visa on the successful conclusion of their studies with a pathway to permanent residency. Temporary skilled visa holders will be eligible for an additional five years in Australia, also with a pathway to permanent residency. Future applicants for temporary skilled visas will also be eligible for a five-year visa, provided they meet existing criteria.”
Morrison told reporters in Canberra that Australia would offer express pathways to permanent residency after three years for those applicants who study and work in regional areas. Further, it has been announced that priority processing will be given to applicants from Hong Kong applying for Global talent visas and visas in the Business innovation and Investment program.
In summary, what has been announced are:
- For current and future international students from Hong Kong, there will be a 5 years temporary graduate visa after completion of study (as oppose to 2 years for others), and there will be a pathway to permanent residence at the end.
- For current subclass 485 temporary graduate visa holders from Hong Kong (that is, former international student), there will be an additional 5 years temporary visa from now and there will be a pathway to permanent residence at the end.
- For international student from Hong Kong studying at a regional campus, they will be eligible to apply for permanent residence after 3 years.
- For temporary skilled visa holders (such as subclass 457, 482 visas) from Hong Kong who is current in Australia, there will be an additional 5 years temporary visa and a pathway to permanent residence at the end.
- Future temporary skilled visa applicants from Hong Kong that satisfy the normal visa requirements will also be given a 5 years temporary visa with a pathway to permanent residence at the end.
Whilst further details on the eligibility requirements are yet to be announced, David Gu, Solicitor Director and Accredited Specialist in Immigration Law, stated it is not possible to predict the exact requirement but said “what is certain is the measures announced today will benefit many skilled Hong Kongers by providing them a significant advantage and greater opportunities of securing permanent residency in Australia in comparison to citizens of another country.”
However, David Gu said “what has been announced today is not the kind of Safe Haven visa that has been talked about in the media recently.” He said “this is really a response and recognition by the Australian Government of the recent increasing desire of many young, skilled and talented Hong Kongers’ wishing to migrate overseas.” It simply provides Australia a perfect opportunity to attract the skilled and talented while similarly responding to a contentious global political issue. David said “one of the key considerations that would have been in the forefront of the Government’s mind is the announced measure should not in the long-term place burden on the Australian welfare system. It is really targeted at the young and the brightest.”
