Travel exemptions for spouses and immediate family members of Australian citizens and permanent residents have been hard to get compared to some of the other travel exemption categories, and even more so in recent months as the Government cracks down on border restrictions.
While The Migration Agency (TMA) has been successful in securing travel exemptions to reunite families and spouses of Australian citizens and permanent residents separated by the pandemic, not all are being approved.
In this blog, we’ll discuss what individuals need to know about securing a travel exemption for their spouse and immediate family members, along with information about travel exemptions in the current climate.
Travel exemptions for partners and families: What you need to know
The Department of Home Affairs website states that family members of Australian citizens and permanent residents are automatically exempt from the travel restrictions and can enter Australia (without obtaining an individual exemption) if they hold a permanent visa, or a subclass 309 or 820 temporary partner visa.
- An Australian citizen
- A permanent resident of Australia
- An immediate family member of an Australian citizen or permanent resident*
- A New Zealand citizen usually resident in Australia and their immediate family members
- A person who has been in New Zealand or Australia for 14 days or more immediately prior to arrival by air in Australia
- A diplomat accredited to Australia, including their immediate family members (each member of the family unit must hold a valid subclass 995 visa)
- A person transiting Australia for 72 hours or less
- Airline crew, maritime crew including marine pilots
- A person recruited under the Government approved Seasonal Worker Program or Pacific Labour Scheme
- A person who holds a Business Innovation and Investment (subclass 188) visa.
* If you hold a temporary visa or do not yet hold a valid visa for Australia, you must provide proof of your relationship (such as your marriage certificate, evidence of your de-facto relationship such as shared finances or property, your birth certificate or birth certificate for your children) to the Department before you travel to Australia. You must not travel until the Department has advised that you can. You can find out more about how to provide this information at Immediate family of Australian citizens or permanent residents or New Zealand citizens usually resident in Australia.
Immediate family members include the spouse, de facto partner, dependent child or legal guardian of an Australian citizen or permanent resident.
The Department requires a much more detailed application for travel exemptions for family members who fall under the following categories:
- Do not hold a visa
- Hold a temporary visa, other than a temporary Partner (subclass 820 or 309) visa or a temporary Child (subclass 445) visa
- Hold a Prospective Marriage (subclass 300) visa
What you need to know about travel exemptions for your spouse or family members
In a recent case, our client fell under the section of “An immediate family member of an Australian citizen or permanent resident” and she did not yet hold a valid visa so was not automatically exempt. She needed to apply for a travel exemption to prove her relationship, in order to then have her visitor visa granted and travel to Australia.
At TMA, we know relationships are not always a clear-cut case. Some exemptions are granted and, unfortunately, some are unsuccessful. In this case, the couple had known each other for a long period of time, but due to the pandemic had not been able to live together as a couple since they committed to each other.
In our experience, we have found that where a family exemption case is unsuccessful, usually the couple has not been able to show that they have lived together or been in a committed relationship for a substantial period of time.
The Department states that in addition to a certificate of marriage or registration of the de facto relationship, the family travel exemption applicant must provide the following additional evidence and supporting documents to show the nature of the relationship outlined on its website.
Documentary evidence that you are in a spouse relationship with an Australian citizen, Australian permanent resident, or New Zealand citizen who is usually a resident in Australia, may include:
- Evidence that you have a genuine and continuing relationship, including documents that verify the length of your relationship.
- Evidence you have a mutual commitment with your spouse to the exclusion of all others, such as combined personal matters.
- Evidence you live together, or don’t live apart permanently.
- Evidence of shared finances.
- Evidence of the nature of your shared household, such as documents that prove your living arrangements or household bills in both names.
- Evidence that others know about your relationship, such as proof you have friends in common and/or proof you have told government, public or commercial bodies about your relationship.
The travel exemption guidelines state that individuals who are unable to provide a marriage certificate to evidence their relationship are expected to provide other documents that show a genuine and continuing relationship over a significant period of time.
We recommend that our clients to provide evidence that covers a substantial period of time.
Industry body steps in regarding travel exemptions
The current situation is proving so difficult for immigration practitioners trying to help reunite families and couples who have been apart as a result of the pandemic that the Migration Institute of Australia (MIA) has stepped in.
The MIA is now lobbying the Department of Home Affairs (DOHA) regarding the lack of transparency, consistency and accountability in decision making of travel exemptions, particularly with the assessment of immediate family members of Australians.
Many practitioners have reported similar cases where a relationship meets the definition of a married or de facto relationship for a Partner Visa, but have received a travel exemption refusal on the basis of their relationship.
In a statement, MIA addressed the following concerns in the current assessment of travel exemption applications:
- There are no legislative or policy guidelines regarding the implementation and administration of the travel exemption applications. Currently, applicants and migration law professionals are only relying on the Home Affairs website for limited information on the criteria to be satisfied for the grant of travel exemption request.
- There is no statement of reasons on their refusal decisions, which is contrary to the principles of procedural fairness in administrative decision making in Australia. Based on experience, decision makers are only providing standard responses on why the applicant is not exempt and do not highlight the main reasons and evidence relied upon to come up with their decision.
- There is no merits review process and the only possible solution available for an applicant who has been refused is to re-lodge an application.
The statement also includes many examples of travel exemption applications of immediate family members of Australians who have been refused despite sufficient evidence being provided.
MIA recommended that the decision making and assessment of travel exemption applications must be consistent with the Migration Act 1958, Migration Regulations relevant policy instructions and case law.
MUST READ: Read more about travel exemptions here.
Do you need a travel exemption?
Whether you’re looking for a business or personal travel exemption, talk to the team at TMA about your options. We can also offer second opinions to businesses and individuals who have not been able to secure a travel exemption or those who have been advised that their situation would not qualify for an exemption. Simply get in touch here.