Critical Work and Compassionate Travel – Migration in the COVID-19 Era

In the Covid environment it seems travel to Australia over the next 12 months will continue to be restricted to people with a valid Travel Exemption. Interstaff set out what employers and visa applicants/holders need to know.

Written by Sheila Woods of Interstaff 20 October, 2020

 

When is it possible to apply for an international Travel Exemption? 

At this time, Travel Exemptions are available under limited circumstances – such as for Critical Work or Compassionate / Compelling reasons.

As you can see above, Travel Exemptions have added a separate stage of approval to the visa process for overseas travellers.

Individuals in the below categories can apply for an exemption:

  • A non-citizen invited by the Government to assist in the COVID-19 response;
  • A non-citizen providing critical or specialist medical services, including air ambulance, medical evacuations and delivering critical medical supplies;
  • A non-citizen with critical skills or for work in a critical sector – Find out more.
    • Critical Sectors include:
      • Large scale manufacturing
      • Financial technology
      • Film, media and television production
      • Emerging technologies
    • Critical Skills include:
      • Medical technology
      • Critical infrastructure
      • Telecommunications
      • Engineering and mining
      • Supply chain logistics
      • Aged care
      • Primary industry
      • Agriculture
      • Food production
      • Maritime industry
  • A non-citizen providing critical skills in religious or theology fields
  • A non-citizen sponsored by an employer to work in Australia in an occupation on the Priority Migration Skilled Occupation List (PMSOL) Read more here.
    • Occupations currently on the PMSOL include:
      • Chief Executive or Managing Director
      • Construction Project Manager
      • Mechanical Engineer
      • General Practitioner
      • Resident Medical Officer
      • Psychiatrist
      • Medical Practitioner nec
      • Midwife
      • Registered Nurse (Aged Care)
      • Registered Nurse (Critical Care and Emergency)
      • Registered Nurse (Medical)
      • Registered Nurse (Mental Health)
      • Registered Nurse (Perioperative)
      • Registered Nurses nec
      • Developer Programmer
      • Software Engineer
      • Maintenance Planner
  • A non-citizen whose entry would otherwise be in the national interest, supported by the Government;
  • Military personnel;
  • A student completing year 11 and 12, with relevant Government support;
  • Persons travelling for compassionate and compelling reasons

 

Implications for Employers and Skilled Visa Applicants/Holders

The impact of international travel restrictions means it is not possible for skilled workers to travel to Australia from overseas unless sufficient evidence is provided to demonstrate ‘Critical Work’ requirements.

Employers should seek to understand when an Exemption for Critical Work may be possible by considering the below:

  • Whether the business:
  • Consequences and detriment to the business if the worker cannot travel;
  • Reasons why the worker is required from overseas – eg, the highly specialised nature of the work;
  • Details of the project – eg, why travel is needed immediately;
  • Estimated value of the work to the business;
  • Impact of the worker’s travel to the economy – eg, the creation of local jobs.

 

Travel Exemptions are at the discretion of the Australian Border Force (ABF) Commissioner and refusals can cause delays. Applicants should provide substantial supporting evidence to explain their request.

As you can see above, the ABF Commissioner is starting to approve more Travel Exemptions for Critical Skills at an increased rate since July 2020, however this is not in direct proportion to the number of applications received.

It is worth noting that:

  • Applications for Critical Skills also increased since June.
  • Around 10,000 of the 15,000 received applications had no recorded decision at the end of August.
  • It appears the Department is now receiving just over 5,000 exemption requests a month.

 

Implications for Family Visa Applicants/Holders

The impact of the international travel restrictions for families is that people may still be separated from their loved ones at this time.

As seen above, while the number of approvals for Compassionate reasons increased in July, the number of refusals and received applications also increased.

 

As a guide, Travel Exemptions have previously been granted for Compassionate reasons for the below types of cases:

  • Urgent or critical medical treatment in Australia;
  • Cases involving separation of minors from their family unit;
  • Cases demonstrating strong, compassionate circumstances with the potential for serious, ongoing and irreversible harm and continuing hardship to a person lawfully in Australia including:
    • Attending funerals of close family members;
    • Visiting a close family member who is seriously or critically ill, with little support in Australia;

Travel for the partner of a person who is in Australia (including Temporary Visa Holders) and in the final trimester of pregnancy or due to give birth.

Circumstances outside of the above may be considered. Travel Exemptions are assessed by the ABF Commissioner on a case-by-case basis and substantial evidence should be provided.

 

Applying for a Travel Exemption

The ABF Commissioner has stated that it generally expects a person to have been granted a visa before applying for a Travel Exemption.

However, a person that meets the Critical Skills criteria can apply for an exemption beforehand. In our experience, visas have generally been granted to applicants that can obtain a Travel Exemption to enter Australia for Critical Work.

An exemption application should include sufficient supporting evidence and be lodged at least two weeks, but not more than three months before the planned travel.

 

Who does not need to apply for a Travel Exemption? 

Persons in the below categories are automatically exempt from Australia’s international travel restrictions and do not have to apply for a Travel Exemption to come to Australia:

  • Australian Citizens;
  • Permanent Residents of Australia;
  • Immediate family members of an Australian Citizen or Permanent Resident;
  • New Zealand Citizens usually resident in Australia and their immediate family members;
  • Diplomats accredited to Australia (holding a Subclass 995 visa);
  • Travellers transiting Australia for 72 hours or less;
  • Airline crew;
  • Maritime crew including marine pilots;
  • Persons recruited under the Government-approved Seasonal Worker Program or Pacific Labour Scheme;
  • Business Innovation and Investment (Subclass 188) Visa holders.

Travellers should carry evidence that they meet one of the above categories.

Immediate family members who do not hold a Partner or Child Visa must provide evidence of their relationship to the Department of Home Affairs to travel.

Prospective Marriage (Subclass 300) Visa holders will need to request an exemption.

 

Critical Work & Compassionate Travel | Migration in the COVID-19 Era

Currently, the available categories for an exemption are restricted to travel that boosts the economy, supports the provision of essential services and facilitates family reunion.

In the future, it is possible that the categories for Travel Exemptions may broaden as Australia responds to new and emerging economic and social needs.

In the meantime, employers and visa applicants/holders may wish to:

  • Seek to understand whether a Travel Exemption is possible for their circumstances and how they can provide sufficient evidence;
  • Plan for delays associated with obtaining Travel Exemptions (at international, state and regional borders as applicable), as well as limited flight availability and quarantine requirements.

 

What if an international Travel Exemption cannot be obtained?

There is no limit to the number of times you can apply for a Travel Exemption, however more detailed evidence should be provided in subsequent applications – you may wish to seek advice before re-applying.

Businesses with labour needs that do not meet Critical Work requirements may wish to consider options to engage visa holders that do not need a Travel Exemption – eg, visa holders already in Australia.

 

Interstaff assist people all over the world with the legal and professional process to travel or migrate to Australia for temporary work or permanent residence. Established in 1988, Interstaff has been trusted by migrating individuals and businesses for over 30 years and are the strongest group of experts for visa work in Australia. MARN: 0533879.