The Border Force Commissioner has released guidelines (Operation Directives), which further detail the criteria used to determine travel exemption applications. This is an important step to demystifying what has, to date, been a government decision-making process with little transparency.
Since the travel exemption requirement was introduced in March 2020, applicants have experienced significant frustration with the travel exemption system. In some cases, we have seen the Border Force Commissioner:
- Send refusals saying a Delegate of the Commissioner never viewed the application. This is contrary to the basic principles of Administrative Law; and
- Ask for a higher standard of proof for inbound travel exemptions for immediate family than would been needed to have a Partner Visa granted.
The new guidelines show the Border Force Commissioner has put in place a more robust system to review, categorize and decide travel exemption applications. We hope these process improvements will in turn, lead to more consistent outcomes.
The Border Force Commissioner has released an Operation Directive and Commission's Guidelines to clarify the circumstances in which an inward travel request may be approved. These re-provide much of the information already available on the Department of Home Affair's website about travel exemptions. However, what is notable about the documents is that when read together, they build a picture about the circumstances in which an inbound travel exemption will be granted. This helps to provide those considering applying for a travel exemption with some degree of certainly about whether they are eligible for a travel exemption.
Requests for an inbound travel exemption will generally be approved (by a low-level decision maker) in the below circumstances:
- For urgent or critical medical treatment in Australia, including medical evacuations. These requests can include an accompanying family member where:
- the person receiving treatment is a minor
- a medical condition is life threatening; or
- medical advice supports the requirement for the family member to travel
- To attend a funeral of a close family member. A close family member is defined as a parent, sibling, partner, child or grandparent.
- To visit a close family member who is seriously ill where there is little support in Australia.
- The partner of a person who is in Australia and in the final trimester of their pregnancy or otherwise due to give birth. This instruction also applies to temporary visa holders in Australia and their partners.
- The immediate family member of a visa holder with critical skills in Australia, where the family member in Australia holds a temporary or provisional visa.
- Elite sporting teams who are able to demonstrate how their entry and stay is critical to Australia.
- A non-crew member who is considered critical to the operation of a vessel and/or where a State or Territory authority or tourism body provides support.
Requests for inbound travel exemptions will generally not be approved in the below circumstances:
- If there is a threat to the health of the Australian community.
- Non-critical illness of family members where immediate family support is already available in Australia.
- Requests for temporary visa holders' family members to join them in Australia.
- Requests for multiple travellers seeking to travel on compassionate grounds outside those articulated above.
- Attending significant family events, such as weddings or major birthdays.
- Any request that includes demonstrably false or misleading documentation or other demonstrably false or misleading evidence or statements of claim or history with the ABF or the Department.
- Adverse alerts including PACE (Passenger Analysis Clearing and Evaluation System) alerts.
The Border Force Commissioner has also given staff directions that he will make a personal decision on some inbound travel exemptions. There is a very defined list of situations in which the Border Force Commissioner's personal power will be used. They can be found in the Commissioner's Inward Decision Making document located here.
The outbound travel exemption criteria has also been clarified an Operation Directive. The Operation Directive provides further information on situations where a travel exemption will be approved. Approval generally seems to be granted for urgent unavoidable business overseas and includes the following specific examples of approvals:
- Attending the funeral of an immediate family member (parent, child, sibling, spouse).
- Travelling due to critical or serious illness of an immediate family member (parent, child, sibling, spouse).
- Travelling for necessary medical treatment not available in Australia.
- Picking up a minor child (adoption, surrogacy, court order etc.) and return to Australia with that child.
- Commence or continue education overseas, where the education period is at least three months.
- Completing an existing work contract - for example fly-in-fly-out (FIFO) workers and individuals with a work contract.
- Travelling to an Australian territory which is outside the migration zone (e.g. Christmas Island).
- Compelling reason to travel and will remain overseas for at least three months.
With the release of the new guidelines last month we hope to see greater consistency of decision making across all categories of travel exemption. If you are unsure whether your situation meets a travel exemption category or wish to discuss how best to re-apply after a refusal of your travel exemption request please book a Travel Restriction consultation. These are being offered at a substantially reduced fee in recognition of the unusual times we live in.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.