Article:

Travel exemptions – COVID-19 border measures: Australian Border Force

22 June 2020

Maria Jockel , Legal Principal and National Leader, Migration Services |

In this turbulent, ever-changing and interconnected world, Australia’s borders remain closed and reports suggest they will remain closed into at least early 2021.

To make sure you know the impact that border closures have on your business:

  • Have you got employees or perspective employees stranded offshore?
  • Do you require employees to travel overseas within the next 6 months?
  • Do you have any temporary visa holders whose visas will expire in the next 3 months?
  • Do you have employees subject to 6 month work limitations?
  • Are you aware if any of your employed foreign workers have a no further stay condition on their visa?
  • Do you know what COVID-19 concessions might be available for your foreign workers?
  • Have you considered employer and employee income tax and payroll implications associated with employees who are not currently working in their ‘usual’ location as a consequence of travel restrictions?

Compared with the same period in 2019, total arrivals by air or sea have decreased by approximately 97 per cent in terms of actual people coming to Australia.

The Commissioner of the Australian Border Force, who has the same standing as the Chief of the Australian Defence Forces and the Commissioner of the Australian Federal Police, must exercise his personal discretion to grant a travel exemption.

Only persons granted an Inbound or Outbound travel exemption by the Commissioner of the Australian Border Force may enter or depart Australia while the borders remain closed.

There are some two million temporary visa holders currently in Australia, all of whom must ensure that they are lawfully in Australia or make arrangements for their departure.

All international visitors are encouraged to depart Australia if it is possible to do so.

There are some fixed categories and some discretionary categories on the basis of which the Commissioner may approve travel exemptions.

An Australian citizen or permanent resident must not travel outside Australia unless an exemption is granted to them.

The Commissioner of the Australian Border Force has the ability to delegate the decision-making for Outbound Australians who are wanting to depart Australia.

The Commissioner must balance the advice from the Australian Health Protection Principal Committee that the vast majority of COVID 19 have been imported from people coming from overseas and the need to protect Australia and the community from COVID 19; and on the other hand, grant travel exemptions, for example, on compassionate or humanitarian grounds.

Australian citizens/permanent residents are not required to apply for a waiver where they are:

  • A person ordinarily resident in a country other than Australia
  • A person whose travel is associated with essential work at offshore facilities
  • A person engaged in the day to day conduct of outbound and inbound freight
  • A person travelling on official Government business (including members of the Australian Defence Force (ADF))
  • Airline and maritime crew and associated safety workers.

Grounds for Outward Commissioner Discretions -Australian citizens/permanent residents:

  • People whose travel is as part of the response to the COVID-19 outbreak, including the provision of aid
  • People whose travel is essential for the conduct of critical industries and business (including export and import industries)
  • People who are travelling to receive urgent medical treatment that is not available in Australia.
  • People who are travelling on urgent and unavoidable personal business.
  • On compassionate or humanitarian grounds
  • Where the travel is in the national interest.

Grounds for Inwards Commissioner Discretions-non-Australian citizens/permanent residents

  • People with a critical skill which requires travel to Australia now (for example, medical specialists, engineers, marine pilots and crews)
  • Business Leaders
  • New Zealand citizens usually resident in Australia
  • Immediate family members (spouse, de facto partners, dependent child or legal guardian) of an Australian Citizen or Permanent resident
  • People with a compelling and compassionate reason to travel to Australia
  • People transiting through Australia
  • People travelling to Australia for urgent medical treatment/evacuation.

Applications are assessed on a case-by-case basis.

Of the 4002 Outwards Commissioner Discretions lodged from 25 March 2022 to 6 May 2020, 3937 travel exemptions were approved. Of these, almost three quarters were for travel on humanitarian grounds or for compassionate reasons. 

Business travellers representing critical industries and those whose itinerary relates to the coronavirus made up less than 7% of all approvals, with just 189 people cleared to fly for these reasons in the first six weeks of the closure of Australia’s borders, and 92 were declined in these groups.

Key issues/concerns arising from the exemptions:

  • What is the human and business cost of these exemptions? The closure of Australia’s borders is unprecedented and may have far-reaching consequences for Australian citizens and permanent residents (many of whom are dual or multi-nationals), who want to travel for personal or business reasons.
  • Businesses with a critical need for a travel exemption to be approved must carefully consider the grounds and provide sufficient supporting evidence and information so the travel exemption can be considered, as the consequences of a refusal can have a significant impact.
  • Impact to the economy. This is significant and varies on an industry by industry basis, given the potential economic implications of the need to travel, exemptions for economic purposes need to be carefully evidenced to avoid a refusal of the application
  • The exemption process is complex. The online application is triaged by the Department of Home Affairs and managed by the Commissioner Discretions team. Although the planned date of travel must be provided, as applications are considered on a case-by-case basis, key information and supporting evidence must be provided to support all claims. Previously, for refused outward discretions, applicants were encouraged to reapply and submit the necessary information so that the exemption could be considered again. Currently, given the significant number of applications that continue to be lodged, applicants are not encouraged to reapply where the exemption has been refused.

BDO Migration Services is a dedicated incorporated immigration law firm led by Maria Jockel, offering pre-eminent expertise in all aspects of immigration and nationality law, with particular emphasis on skilled temporary and permanent residency and business skills visa.

We provide a seamless and holistic service and are committed to achieving successful outcomes for our clients. We work closely with BDO’s expatriate tax, global mobility and employment practices, offering seamless local and global services.

We assist in all aspects of Inward and Outward Commissioner Discretions, noting that as a significant number of applications continue to be lodged, there must be sufficient grounds and evidence provided so that the travel exemption may be approved.

To help your organisation navigate the travel exemptions and determine if your employees can enter or depart Australia, download and refer to our Travel Exemptions flowchart and checklist. If you determine that your employee/s are eligible for exemptions to travel, contact Maria Jockel for further assistance in progressing your application with the Commissioner of the Australian Border Force.

DOWNLOAD TRAVEL EXEMPTIONS FLOWCHART

Note: For more information on travel restrictions within Australia, i.e. interstate travel, you can also visit this website for the latest updates: https://www.healthdirect.gov.au/covid19-restriction-checker/activity.

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