From Unauthorised Maritime Arrival (UMA) Arrival & Section 48A Bar to Humanitarian Stay and Permanent Residency (PR)
Background Story of
M., a Sri‑Lankan national born in 1989, arrived in Australia on 31 May 2013 as an unauthorised maritime arrival (UMA) with his father and younger brother. All three were held in immigration detention for about 18 months until 1 December 2014. Despite these difficult beginnings, M. lodged a Safe Haven Enterprise Visa (Subclass 790) application on 20 December 2016, attended an interview with a delegate on 23 January 2018, and, after the delegate refused the visa on 29 June 2018, the applicant appealed to the Immigration Assessment Authority, which affirmed the refusal on 5 December 2018. His final judicial review in the Federal Circuit and Family Court of Australia was dismissed on 1 July 2024. At that time, the applicant was on a Bridging Visa E (BVE), granted in January 2019 and expiring in July 2024.
Legal Obstacles – Sections 48A and 46A
As a boat arrival with a refused protection visa, M. was trapped by several statutory bars preventing him from making a valid visa application. Section 48A prevents a non‑citizen who has had a protection visa refused from lodging another protection visa application while in Australia. Because the applicant held only a BVE (a temporary bridging visa granted to unlawful non‑citizens), the applicant was not eligible for most other visas. The legislation allows the Minister to lift this bar in the public interest via Section 48B, but ministerial intervention is discretionary and rare. Additionally, Section 46A(1) of the Act deemed any visa application made by an unauthorised maritime arrival invalid unless the Minister personally exercised power under Section 46A(2).
Our Approach and Our Success Story
Bridging Visa E – Unlawful Status and Work Rights
After his court appeal was lodged, M. received a BVE (Subclass 050) on 14 January 2019. This visa allowed him to remain lawfully in Australia while his appeal was processed, but offered no path to a substantive visa. In August 2024, the applicant applied for a new BVE and was granted a further BVE on 6 September 2024. BVEs generally do not confer work rights; the Home Affairs guidance notes that a BVE simply allows an unlawful non‑citizen to remain lawfully in Australia while finalising their immigration matter. As a result, M. faced years without the ability to work, study or access Medicare. Our team lodged separate applications to secure work permission, a complex process that requires detailed evidence of financial hardship and a compelling need.
New Evidence & Exceptional Circumstances
While M.’s appeals were progressing, significant new events occurred. In April 2022, M.’s father returned to Sri Lanka and was soon targeted by the Criminal Investigation Department (CID). The applicant was detained, interrogated about M., tortured and left with permanent head injuries. Sri Lankan authorities linked the family to alleged LTTE activity after a 2014 Australian data‑breach exposed the names of detainees. Subsequent interviews and arrests of the father in 2023–2024 demonstrated ongoing persecution. These incidents constituted new, compelling information that did not exist when M. applied for protection and were, under the ministerial guidelines, the type of exceptional circumstances that can justify a Section 48B intervention. Moreover, due to the lack of a hearing before the Immigration Assessment Authority and the limited scope of judicial review, M. had been unable to present this evidence.
Ministerial Intervention and Waiver of Bars
After assembling extensive evidence of the father’s persecution, the post‑traumatic harm to M.’s family and the human‑rights risks if M. returned, we submitted a ministerial intervention request. The submission argued that refusing M. another protection visa would breach Australia’s non‑refoulement obligations under international law and that the public interest favoured a bar waiver.
On 30 October 2025, the Minister exercised powers under Section 46A(2) to determine that Section 46A(1) did not apply to M. for a Humanitarian Stay (Temporary) visa (Subclass 449). The notice, issued 4 November 2025, gave M. 90 days to accept the offer and lodge an application. The letter also indicated that, once accepted, the applicant would automatically be taken to have applied for both a Humanitarian Stay visa and a Resolution of Status (Subclass 851) visa, paving the way to permanent residency (PR). Importantly, there was no visa application charge (VAC). This ministerial determination effectively waived the Section 48A bar (via s 48B) and Section 46A bar, enabling M. to lodge a valid visa application for the first time since 2013.
Outcome
Following acceptance of the offers, M. secured work rights, lawful status and, ultimately, a permanent visa. The applicant went from a boat arrival barred from applying for any visa, through detention, failed appeals and years on a BVE without work rights, to becoming a permanent resident. This case demonstrates that ministerial intervention is possible but demands exceptional advocacy, a clear legal strategy and compelling evidence.
Client Testimonials
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Navigating the immigration law process may be difficult, and our former clients have agreed to share their experiences through telephone chats, emails, and in-person meetings.
These are their stories…
