RESEARCH PAPER SERIES, 2019–20   15 May 2020

Temporary visa holders and social security: a quick guide

Michael Klapdor

Social Policy Section

This Quick Guide provides information on residency requirements for social security payments in Australia, particularly how they apply to temporary visa holders. It sets out the basic residency qualification requirements; exemptions from these requirements; eligibility for Special Benefit; and residency and waiting period criteria that apply to certain payments. The residency requirements and waiting periods that apply specifically to New Zealand citizens who hold a Special Category Visa (SCV) are set out in the separate publication, New Zealanders in Australia: a quick guide.

The impacts of the COVID-19 pandemic—particularly in terms of travel restrictions, lost income and employment—have led to community sector groups raising concerns over the limited eligibility people on temporary visas have to social security. The Australian Government’s temporary wage subsidy scheme, the JobKeeper Payment, also has residency requirements and, with an exception for some SCV holders, makes use of the definition of ‘Australian resident’ used in the Social Security Act 1991.

As at 31 March 2020, there were 2.17 million temporary visa holders in Australia. Of these, around 672,000 were New Zealand citizens on SCVs. The other major categories of temporary visas include Visitor (206,025), Student (567,924), Temporary Skilled (139,331), Temporary Graduate (96,819) and Working Holiday Maker (119,266). There were 17,223 holders of Temporary Protection visas, and 281,179 Bridging visa holders. The remainder is made up of other visas for specific employment or other purposes. This does not include provisional visas, which form part of the Family or Skill streams of the Migration Program.

1 Summary

Generally, only Australian citizens, permanent visa holders and some New Zealand citizens are eligible for social security payments such as pensions and allowances. Special Benefit is an exception and provides eligibility for some temporary visa holders in certain circumstances.

Residency period or waiting period requirements apply to most payments. Refugees and former refugees are exempt from these residency period and waiting period requirements. Exemptions can be granted to other individuals in certain circumstances but this varies by payment-type.

2 Eligibility for social security payments

There are a range of criteria that an individual must meet before they can be paid a social security payment—these include residency requirements, means tests and payment-specific criteria such as age or disability requirements. Eligibility requirements can be placed into two categories: qualification requirements and ‘payability’ requirements. Qualification requirements are the criteria a person must meet before payability can be considered. Residency requirements are a type of qualification requirement. Payability requirements are the criteria that must be met before a person can receive a payment. Payability requirements include waiting periods, means tests or the requirement that a person not receive more than one income support payment at the same time. A person can be qualified for a payment but it may not be payable. For example, an individual meets all the qualification requirements for a pension but their payment rate calculated under an income test is zero—this means the payment is not payable.

1 Residency requirements for social security payments

It is a basic qualification or claim requirement for almost all pensions, allowances and benefits that the individual must be an Australian resident. Under subsection 7(2) of the Social Security Act 1991, to be considered an Australian resident, a person must reside in Australia and be:

• an Australian citizen

• the holder of a permanent visa, or

• an SCV holder who is considered a ‘protected’ SCV holder.

A Bill before the Parliament seeks to include holders of two provisional skilled regional visas as Australian residents for social security purposes.

The SCV is a visa subclass issued specifically to New Zealand citizens. It is issued on arrival and there is no need to apply prior to entering Australia. It allows New Zealand citizens to stay in Australia indefinitely but is classed as a temporary visa. For information on who is considered a ‘protected SCV holder’ and social security entitlements for New Zealand citizens in Australia see: New Zealanders in Australia: a quick guide.

Qualifying residency exemption

Qualifying residency exemptions apply to specific groups but the exemptions apply differently for different payments. A qualifying residency exemption means that the person does not have to meet the Australian resident requirement and also means they are exempt from any waiting period or residency period requirements applicable to that payment (see below).

Refugees

Refugees and former refugees have a qualifying residency exemption for the following payments: Age Pension, Disability Support Pension and Parenting Payment. Family members of refugees have a qualifying residency exemption for Widow Allowance.

Refugees/former refugees are defined as those who hold or previously held a permanent protection visa or a visa specified by the Minister for Families and Social Services in a legislative instrument—currently:

      Refugee and Humanitarian (Class XB)

                     (a)  Subclass 200 (Refugee);

                     (b)  Subclass 201 (In-country Special Humanitarian);

                     (c)  Subclass 202 (Global Special Humanitarian);

                     (d)  Subclass 203 (Emergency Rescue); and

                     (e)  Subclass 204 (Woman at Risk);

      Resolution of Status (Class CD)

                      (f)  Subclass 851 (Resolution of Status).

These visa categories are permanent visas so current holders would meet the residency qualification requirement. The qualifying residency exemption does, however, provide exemptions from residency and waiting period requirements for all payments (see ‘Waiting and residency periods’ section below).

Other visas with qualifying residency exemptions

Under paragraph 7(6AA)(f) of the Social Security Act 1991, the Minister for Families and Social Services can determine other visas eligible for a qualifying residence exemption for allowances (excluding Special Benefit), Parenting Payment Single, Carer Payment, Carer Allowance, Mobility Allowance and certain concession cards. The only visa determined for this exemption is the Subclass 852 (Referred Stay (Permanent)). This visa may be granted to ‘eligible victims or witnesses of trafficking who have contributed to an investigation or prosecution of a human trafficking related offence, and as a result would be in danger if they returned to their home country’.

Special Benefit

Special Benefit is an income support payment for certain groups who are unable to receive another social security pension or benefit. It is paid at the same rate as JobSeeker Payment, Austudy or Youth Allowance (depending on the person’s age and circumstances).

To be eligible for Special Benefit, an individual must be an Australian resident (as above) or the holder of a visa specified in a determination by the Minister for Families and Social Services:

• subclass 820-Partner

• subclass 309-Partner (Provisional)

• subclass 785-Temporary Protection

• subclass 786-Temporary (Humanitarian Concern)

• subclass 790-Safe Haven Enterprise

• subclass 449-Humanitarian Stay (Temporary)

• Criminal Justice Stay Visa (ZB 951)—issued specifically for the purpose of assisting in the administration of criminal justice in relation to an offence of trafficking in persons, slavery or slavery like practices

• subclass 060-Bridging F, and

• subclass 070-Bridging (Removal Pending).

The temporary visas specified here are currently the only non-permanent visas eligible for income support other than the SCV. However, as noted above, a Bill before Parliament seeks to include holders of two provisional skilled regional visas as Australian residents for social security purposes.

Permanent visa holders and subclass 309 or 820 visa holders claiming Special Benefit are subject to a newly arrived resident’s waiting period of four years (see ‘Waiting and residency periods’ section below). There are exemptions from this waiting period, including for those who have experienced a substantial change in circumstances. Holders of other eligible visa subclasses are not subject to the Special Benefit newly arrived resident’s waiting period.

Special Benefit for the children of non-permanent residents

In limited circumstances, Special Benefit may be paid to a child under 16 years who is an Australian citizen or permanent visa holder and whose parent/guardian is not a permanent resident of Australia (and is therefore ineligible for income support). Special Benefit can only be granted where the family is in genuine hardship and it has been established by a social worker that the parent/guardian has no means of adequately supporting the child.

Possible extension of Special Benefit eligibility in response to COVID-19

Concerns regarding temporary visa holders’ ineligibility for social security were raised during the debate on a Bill which provided additional support to social security recipients in response to COVID-19. On 23 March 2020, during debate on the Bill, Minister for Finance Mathias Cormann indicated the Minister for Families and Social Services would extend Special Benefit eligibility to some additional temporary visa categories: temporary resident (other employment) and temporary resident (skilled employment). At the time of writing, no determination had been made to expand eligibility to Special Benefit for these temporary visa categories.

Residency requirements for family assistance payments

Family assistance payments, including Family Tax Benefit Part A and Part B, and Child Care Subsidy, have similar residency requirements to social security payments. To meet the requirements, an individual must reside in Australia and be an Australian citizen, holder of a permanent visa or an SCV holder.

Those who hold one of the temporary visas eligible for Special Benefit (listed above) are eligible for family assistance payments under an exception to the residency criteria.

Further, Child Care Subsidy allows for exemptions from the residency criteria for:

• individuals undertaking a course of study in Australia for which they receive direct financial assistance from the Australian Government and

• individuals who are taken to be Australian residents in cases of hardship or due to special circumstances (this is a discretionary decision).

2 Waiting and residency periods

Newly arrived resident’s waiting period

Note: in response to COVID-19 the newly arrived resident’s waiting period has been suspended from 25 March to 24 September 2020 for the following payments: JobSeeker Payment, Youth Allowance, Austudy, Parenting Payment, Farm Household Allowance, and Special Benefit.

The newly arrived resident’s waiting period (NARWP) is an additional criterion those qualified for a payment must meet before it becomes payable.

The NARWP commences from the date the person arrives in Australia, or the date the person is granted permanent residence—whichever is later. Generally, the NARWP ends when a person has been an Australian resident and in Australia for the relevant duration.

Table 1 sets out the relevant NARWPs for each payment.

Table 1: Newly arrived resident’s waiting period duration

Payment

Newly arrived resident’s waiting period

JobSeeker Payment (formerly Newstart Allowance)

4 years

Youth Allowance

4 years

Austudy

4 years

Farm Household Allowance

4 years

Parenting Payment

4 years

Special Benefit*

4 years

Carer Payment

2 years

Parental Leave Pay/Dad and Partner Pay

2 years

Carer Allowance

1 year

Family Tax Benefit Part A

1 year

Family Tax Benefit Part B

No NARWP

Child Care Subsidy

No NARWP

* Applies to permanent and temporary partner visa (subclass 309 or 820) holders.

Source: Services Australia (SA), ‘Newly arrived resident’s waiting period’, SA website, last updated 24 April 2020.

Waiting periods for many payments were recently extended as a result of amendments in the Social Services and Other Legislation Amendment (Promoting Sustainable Welfare) Act 2018, with effect from 1 January 2019. Some visa holders were grandfathered under the previous arrangements if their visa was granted prior to 1 January 2019.

Exemptions

A range of exemptions from the NARWP are available including for those who are Australian citizens at the time they make their claim for a payment and for refugees, former refugees, and family members of refugees. There are also payment-specific exemptions. For example, those who become single principal carers of dependent children after becoming a permanent resident are exempt from the NARWP for Parenting Payment, JobSeeker Payment and Youth Allowance.

Residency period requirements

Note: in response to COVID-19, the residency period requirement for Parenting Payment has been temporarily suspended from 25 March to 24 September 2020.

Residency period requirements are qualification criteria that apply to certain payments.

To qualify for the Age Pension and Disability Support Pension, individuals must have been Australian residents for ten years or more (including at least five of those years in one continuous period). The Disability Support Pension can be accessed immediately if the impairment causing inability to work (one of the payment’s other qualification criteria) occurred while a person was an Australian resident. Exemptions from these residency period requirements apply to refugees, former refugees and family members of refugees.

Parenting Payment has a two-year residency period requirement (as well as the four-year NARWP). The residency period requirement and the NARWP can be served concurrently. Those eligible for a qualifying residency exemption are exempt from both the residency requirement and the NARWP. Those who become a single principal carer of dependent children after becoming a permanent resident are also exempt from both the residency period requirement and the NARWP.

International social security agreements

Australia currently has 31 bilateral international social security agreements. These agreements affect how residency period requirements apply to those from an agreement country.

International social security agreements are intended to close gaps in social security coverage for people who migrate either to Australia or to another country from Australia by overcoming barriers to receiving pension payments under the relevant country’s domestic legislation. Barriers can include requirements for citizenship, contributions (most countries require contributions to pension funds or social insurance schemes to be made during a person’s working life), past residence record and current residency.

The Department of Social Services website offers a brief explanation of how these agreements generally work:

Under these agreements, Australia equates social insurance periods/residence in those countries with periods of Australian residence in order to meet the minimum qualifying periods for Australian pensions. The other countries generally count periods of Australian working life residence as periods of social insurance in order to meet their minimum qualifying periods for payment. Usually, each country will pay a part pension to a person who has lived in both countries.

Agreements are negotiated bilaterally and differ in many ways due to the significant differences in social security systems. The Social Security (International Agreements) Act 1999 sets out how to calculate residency under an International Agreement. The Act contains the substance of various Agreements which Australia has entered into. In addition, newer agreements or variations of existing agreements are given force by regulation.

Generally, the Australian payments covered by the agreements are the Age Pension and Disability Support Pension. In some cases, Carer Payment is included.

3 Financial assistance for those ineligible for social security

Temporary visa holders who are ineligible for income support may be able to receive assistance through community service organisations or state and territory government programs. This can include assistance with living costs and housing. Some community service organisations receive funding from the Australian Government through programs other than mainstream social security payments—particularly the Department of Social Services’ emergency relief program.

Temporary visa holders may be able to access their superannuation early and new early release conditions have been implemented in response to COVID-19.

Some bridging visa holders may be eligible for assistance through Status Resolution Support Services (SRSS). SRSS payment rates vary by category with some groups receiving payments set as a percentage of JobSeeker Payment or Youth Allowance (pp. 52–55).

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