Improving Australian migration policy in the COVID-19 crisis

There are simple fixes available to the Australian government to improve its migration program as it adapts to COVID-19 restrictions, Marianne Dickie writes.

Migration to Australia has been critical to the country’s growth and continued economic development. Successive Australian governments have consistently recognised the benefits of migration and encouraged migrants to come to Australia, particularly those seeking temporary visas, such as holidaymakers, student, and skilled visas.

But it is no surprise that the travel bans put in place to contain the spread of COVID-19 have had a substantive impact on people who had successfully applied to come to Australia.

Many people had been granted a visa but had not yet finalised their travel to Australia when the borders where shut. As the travel bans came into effect, these visa holders were required to navigate a range of complex process.

Overall, the Department of Home Affairs acted quickly to address each new scenario, but following the first travel ban placed on China in February, a small number of Chinese nationals who held student and guardian visas found their visas cancelled when they tried to re-enter Australia on the day the ban was introduced.

They were not prevented entry but were granted a temporary border visa. Their status was not resolved until about three weeks later, when delegated legislation was introduced, allowing them to reapply for their visa at no cost.

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Prospective migrants granted a visa that required entry by a specific date were told to contact the department to ask for an extension of time on their visa grant.

Refugees holding Safe Haven Enterprise Visas and Temporary Protection visas with travel conditions who found they were stuck offshore because of the ban were asked to contact the department by email to try to resolve their situation.

By 1 March, travel restrictions had extended to Iran, and then quickly to Korea on 5 March and Italy on 11 March. People entering New Zealand from the Pacific were required to self-isolate and contact a dedicated health line when they travelled to Australia.

Australian citizens, permanent residents, and their immediate families who held similar visas were able to return from these countries but were required to self-isolate for 14 days. The need to self-isolate was then extended to all travellers on the 15 March, and cruise ships were banned from entering Australia for 30 days. Family members, such as partners who did not hold a permanent visa, were asked to apply to the department for a case by case assessment.

Visa holders in Australia who could not meet their visa conditions were told that the department was trying to be as flexible as possible. This included the waivers on their No Further Stay conditions and timeframes needed to meet health, character, and English language requirements. By 15 March, the department had announced extra resources that were diverted to the waiver section to deal with the demand.

However, there are two areas where the department has failed to adequately address the issues confronting those affected by the ban.

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The first is temporary migrants in the process of applying for permanent residency. When temporary migrants apply for a visa onshore, they are granted a bridging visa. In most circumstances this would be a Bridging Visa A.

These circumstances cover applicants who had applied for partner visas, parent visas, and permanent visas, such as skilled visas. Most visas take months to be approved. In some cases, such as partner visas, applicants have waited years for a decision to be made.

However, if they want to travel offshore, they need to apply for a Bridging Visa B (BVB), which allows them to leave and re-enter. This visa will be granted with an end date that ensures the holder returns to Australia in time. People who had their applications refused and have applied for a review of the decision will also be on a bridging visa and need a BVB to travel offshore.

Those who were offshore at the time of the travel ban found they could not come back to Australia and could not extend their BVB.

The department confirmed in March that they would not assist. Instead, they asked people to apply for a short-term visa so they could return to Australia, from where they could then reapply for their original visa.

For applicants in this category who had waited months and even years for their applications to be processed, this was a crushing blow.

For people waiting to access the migration division of the Administrative Appeals Tribunal, the consequences are dire. They cannot continue with their appeal if they are offshore.

The government could rectify this quickly through an by amending legislation to allow extensions to be granted to BVB’s when offshore; during a specific event such as this, and facilitate a lawful return to Australia at a later date. This would ensure that those awaiting appeals don’t lose their only opportunity to address a potentially wrongful decision by the department, and applicants could return to continue waiting for their visa decision.

The second cohort of visa holders who have been dealt with poorly are those who had planned to visit Australia. They may now hold a visa but cannot enter Australia. In many cases, the impact on them is not significant, although some are unable to visit family and friends.

However, for those needing to visit Australia for compassionate reasons, the situation is more complicated. In these cases, the department ceded responsibility to the Australian Border Force (ABF) Commissioner. The ABF Commissioner can then exercise his personal discretion to allow non-citizens the right to travel to Australia. However, the criteria being used to allow a person entry on compassionate grounds has not been made public.

Travel bans are in place to ensure that COVID-19 is not brought into Australia. However, applying for entry against invisible criteria is almost impossible. Migration experts assumed that public interest grounds, or compassionate reasons such as attending a funeral or visiting a dying relative, would suffice.

It was also assumed that this meant applications would be assessed and approved in a timely manner. This was not the case. Criteria like this requires proof, and accessing proof of a critical need, such as illness or death, takes time. People found weeks went by and their applications were rejected, or they were made to submit multiple requests while gathering documentation to prove their compelling need to travel.

Transparency would help both the applicant and decision-maker ensure that precious time is not wasted on applications that do not meet invisible criteria. In light of the decision in May to grant exemptions to 36 members of the New Zealand Warriors rugby league team, the need for transparency is even greater.

COVID-19 has exposed the complexity, and arguably unnecessary variety, of visas in Australia’s migration stream. Addressing all issues facing people affected the COVID-19 travel bans has proven impossible, but clear problems, like those faced by people on a BVB, and those seeking to travel for compassionate reasons, could be addressed with a simple change to delegated legislation and more transparent guidelines. The government should take this opportunity to make those changes and reap the long-term benefits of a more functional migration system.