Australia Travel Ban - New Exemptions Announced
We have noted in our earlier article that the Department of Home Affairs (Department) would likely be required to outline some limited exemptions to the travel ban for temporary visa holders, which was introduced from 9:00pm on Friday 20 March 2020.
Summary of Ban
By way of recap, at present the following groups can travel to Australia (but are required to self-isolate for a period of 14 days):
· Australian citizens;
· Australian permanent residents;
· New Zealand citizens usually resident in Australia.
Current exemptions
The following groups can also apply for an exemption to the travel ban (please note that such an application must be accompanied by evidence):
· Immediate family members of an Australian citizen or permanent resident, or of a New Zealand citizen usually resident in Australia; and
· Those who are transiting.
New Exemptions
While the Department have not outlined any other formal concessions to the travel ban for temporary visa holders (such as a broad exemption for 482/457 holders), they have now established an informal method by which certain temporary visa holders can seek an exemption to the travel ban – however, it is at the complete discretion of the Commissioner of the Australian Border Force (ABF).
The Commissioner of the ABF may consider an additional exemption in relation to the travel ban for persons who fall within the following categories:
Foreign nationals travelling at the invitation of the Australian Commonwealth Government for the purpose of assisting in the COVID-19 response or whose entry would be in the national interest
Critical medical services, including air ambulance and delivery of supplies, that regularly arrive into Australia from international ports
Persons with critical skills (for example, medical specialists, engineers, marine pilots and crews)
Diplomats accredited to Australia and currently resident in Australia and their immediate family
Case-by-case exceptions may also be granted for humanitarian or compassionate reasons.
Exemptions must be granted prior to these travelers undertaking travel to Australia.
For a number of employers, it may be the case that a temporary visa holder employee/visitor is outside of Australia and is subject to the ban. It may be possible for those employers to apply for an exemption for these persons, most likely on the basis of categories (3) and/or (5) stated above.
The Department have not provided clear guidelines as to circumstances that will be taken to into account in meeting these guidelines, nor have they provided timeframes for a response. However, in our view the following may be considered relevant by the Commissioner of the ABF, on a case-by-case basis:
· A temporary visa holder (such as a 482 holder) is employed in a highly skilled position in Australia, and so their presence in Australia is of great benefit and importance not only to the employing business, but to Australia’s trade and business interests.
· If a temporary visa holder has family in Australia, their physical separation from their family over an extended period will cause great distress to the family unit.
· If a person was living in Australia, and had established a residence in Australia, and was simply caught out by the immediacy of the travel ban, this may also be considered compelling and compassionate grounds for an exemption.
Please note that we can make no guarantees that the waiver will be exercised in each case, but in our view such a request may be worth pursuing given that the visa holder would be no worse off even if the waiver request is refused – that is, they will still be required to remain outside of Australia for the length of the ban.
If you are aware of a temporary visa holder who is outside of Australia and who is subject to the travel ban, please contact us and we will be happy to discuss whether we believe there are prospects of obtaining an exemption, and the nature of our possible assistance with the request.
