Australia has seen many unauthorised maritime arrivals (UMA) since the year 2000. Unauthorised Maritime Arrivals are commonly referred to as “boat people” as they usually arrive by sea without proper documentation or authorisation.  Since most unauthorised maritime arrivals do not have proper documentation, they are subject to strict immigration policies and are usually not allowed to apply for visas onshore.

If you arrive in Australia as an unauthorised maritime arrival, you will be barred from applying for a visa under section 46A (1) of the Migration Act 1958 (Cth). However, under exceptional circumstances you may be likely to seek ministerial intervention in accordance with section 46A (2), which could potentially lift this restriction and allow you to submit a visa application.

Section 46A (2) Migration Act 1958 (Cth) is the provision which deals with the processing and assessment of claims for protection by unauthorised maritime arrivals, who are also often referred to as asylum seeker boat arrivals. This provision provides a guideline for making protection claims and the procedures for determining the validity of those claims under Australian Immigration Law.

For an unauthorised maritime arrival to be allowed to make a visa application they must apply for Ministerial Intervention seeking that the section 46 bar be lifted.  A Ministerial Intervention application requesting a section 46 bar to be lifted would require the Minister to invoke his powers. The Minister’s powers are discretionary, and the Minister is not obligated to utilise these powers.

The Minister will only intervene if it is in the public interest to do so. The Minister will contemplate exercising their authority in matters which are referred by the Department and these matters must adhere to the guidelines for ministerial intervention, solely when it relates to the Minister’s powers and public interest. In the instance of a situation not aligning with the ministerial guidelines but the unauthorised maritime arrival has exceptional circumstances, their application will be referred to the Minister for section 46A (2) consideration. Exceptional circumstances may include family ties with Australian family unit or children.

A section 46A (2) Ministerial Intervention request will only be successful if the Minister is satisfied that he must allow an unauthorised maritime arrival to make a visa application onshore under public interest. The concept of public interest ensures that an unauthorised maritime arrival who has made or intends to make claims that could involve Australia’s protection obligations, is permitted to have those claims assessed under section 36 (2) Migration Act 1958 (Cth). It is important to note that deciding what aligns with public interest or does not fall under its purview is within the Minister’s discretion. Only the Minister personally has the authority to use the power outlined in section 46A (2).

The act of exercising the powers under section 46A (2) involves firstly a decision whether to utilise the authority to lift the application bar and secondly determining if the bar should be lifted. If the section 46A (1) application bar is lifted, an unauthorised maritime arrival may only apply for one visa. In order to make any subsequent or further visa applications in the future, another Ministerial Intervention application will be required to be made.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*