Australia, like many countries around the world, still struggles with the COVID-19 pandemic and its variants and have taken a step back to reopening its international borders by halving the number of overseas arrivals, all who must undertake hotel quarantine immediately after arriving.

At the beginning of the month, the Prime Minister outlined a four-stage plan to take Australia out of rolling lockdowns and into COVID-normal, primarily involving a vaccinated public. No timelines have been set but it is likely the achievement of milestones, such as the percentage of the public being vaccinated or at least offered vaccinations, will see restrictions lifting.

For subclass 457 – Temporary Work (Skilled) visa and subclass 482 – Temporary Skill Shortage visa holders stuck outside Australia wanting to enter to commence or recommence work, the announcement of rollbacks to inbound travel was not welcomed.

Still, many have tried to obtain travel exemptions to enter Australia. A Freedom of Information request gives a snapshot of just how many are succeeding.

Of 14,837 inbound travel exemption requests finalised from 1 August 2020 to 4 February 2021 by existing 457 and 482 visa holders, 6,173 were approved, 6,214 were refused, and 2,450 were otherwise finalised, meaning they were either withdrawn, duplicates, met an existing exemption category or did not include enough information. Discounting those otherwise finalised (not approved or refused) leaves over half of the inbound travel exemptions for 457 and 482 visa holders refused.

The breakdown of approvals show how overwhelming critical skills is as a category:

• Critical Skills – 86.6 per cent

• Critical medical services – 6.8 per cent

• Compassionate and compelling – 6.3 per cent

• Other – 0.3 per cent

The rate of refusal is not surprising when comparing the number of occupations that can be approved for these visas and who can be exempt under the Commissioner’s Guidelines, now at version 4 since the borders were shut in March 2020.

The most likely reason for such a high refusal rate lies with the total discretion of the decision-maker and the lack of clarity of what will generally satisfy an individual exemption.

Firstly, the terminology used in the guidelines makes clear of a large discretion to grant exemptions, referring to the term “may” grant an exemption instead of “must” grant an exemption, regardless of whether the applicant meets one of the circumstances that are “generally” considered to satisfy the requirements. This non-definitive language peppered throughout the document shows how flexible a decision can be, and how difficult, if not impossible, a legal challenge to a refused exemption application would be.

While frustrating for applicants, particularly those later approved with the same or a similar application, there is an important reason for this. The guidelines must have some leeway because of the chaotic nature of the pandemic and the wavering fortunes of countries suppressing COVID-19. There is no clearer example of this when inbounds flights from India were temporarily paused, preventing even Australian citizens from entering their own country.

Secondly, there is confusion as to who can be considered to have critical skills “required to maintain the supply of essential goods and services”. Setting aside the expanded Priority Migration Skilled Occupation List (PMSOL), which should see all applicants approved a visa nominated in one of the 41 occupations, it is more difficult for the remaining 457 and 482 visa holders not nominated in these occupations to justify their critical skills.

Certain sectors are listed as examples: medical technology, critical infrastructure, telecommunications, engineering and mining, supply chain logistics, aged care, agriculture, primary industry, food production, and the maritime industry. While even shearers receive a mention, there is no guarantee that simply being employed in such a sector will be considered favourably. For instance, a marketing specialist working for a telecommunications company might not receive an exemption as their position might not be judged to be required to maintain the supply of telecommunication services, whereas a telecommunications technician might. It would be preferrable, however, if the PMSOL was expanded to cover occupations prevalent in these sectors as surprisingly the ANZSCO occupation of 361211 Shearer, is not on the PMSOL.

It is unfortunate that until Australia reaches Stage B: Post Vaccination Phase or even Stage C: Consolidation Phase under the government’s roadmap, 457 and 482 visa holders, along with other foreign nationals who cannot be exempt and want to enter Australia, may have to sit tight.