Can You be Trapped in Australia? Travel Ban Exemptions for Australian Citizens and Residents Wishing to Leave

In a previous article, I wrote about how the travel ban in place during the COVID-19 pandemic affects travellers wishing to enter Australia.  However, there is also a corresponding ban in place for Australian citizens and Australian permanent residents who are currently in Australia which prevents them from leaving Australia without the Australian Border Force Commissioner’s permission.

The travel ban is imposed by the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with the Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth).

Section 5 of the Determination provides that an Australian citizen or permanent resident must not leave Australian territory as a passenger on an outgoing aircraft or vessel unless an exemption applies to that person or an exemption specifically granted by the Australian Border Force.

Section 6 of the Determination provides that a person is exempt if, amongst other things, they are “a person ordinarily resident in a country other than Australia”.

Complications arise where a person, for example, holds an Australian Resident Return Visa but may actually be ordinarily resident in another country.

Whether a person is “ordinarily resident” outside of Australia, however, is a question of fact which may itself need to be determined before it is clear that a person is exempt from the travel ban.

The matter was brought before the Federal Court in the recent case of Baker v Commissioner of Border Force [2020] FCA 836 where the Court held at paragraph 11:

By section 6 there are exemptions which take effect by operation of the terms of the Determination itself.  Australian citizens and permanent residents who fall within the terms of section 6 need no written permission, and need not apply for any permissions.  Such individuals may present themselves at the border and must be permitted to leave Australia.  Of course, if there is some question whether an individual falls within the terms of section 6, a decision may have to be made by an officer.  If a decision is made that a person does not fall within section 6, then at a practical level, the individual will be considered to be subject to the prohibition in section 5, and may need to apply for written permission under section 7 in order to leave Australia.

The Department’s website states:

You are considered ordinarily resident in a country other than Australia if international movement records show that you have spent more time outside Australia than inside for the last 12 to 24 months.  You do not need to carry a paper record of your movements with you.  If required, Australian Border Force officers at airports can check your movement records and departmental systems.

Anecdotal evidence suggests, however, that where a person is ordinarily resident overseas but holding a permanent visa in Australia, Border Force may still require the person to have written permission to leave, contrary to the Department’s website.

It would seem that a significant amount of independent proof may be required to satisfy the Department.

We therefore suggest that Australian permanent residents or citizens who wish to travel abroad based on their being ordinarily resident overseas should seek an exemption and provide evidence that they are ordinarily resident overseas.

If the authorisation to leave is granted, then this would give them confidence in crossing the border.  However, the current online portal gives very little visibility into how quickly the Department will process requests and often decisions are being made on requests only very shortly before the proposed travel date.

This of course means that those wishing to travel will face significant stress in the uncertainty of waiting.

If you need assistance with a travel ban exemption, please do not hesitate to contact Lester Ong.