Australian Border Closure During COVID-19 and Unauthorized Maritime Arrivals (UMA)

Our understanding is that there isn’t a strict border closure when it comes to maritime. Rather, restrictions and guidelines apply. They stem from procedures adopted by the Maritime Environment Protection Committee of the International Maritime Organization (IMO). 

 

Australian Border Closure & Unauthorized Maritime Arrivals (UMA)

  1. To our understanding, there hasn’t been any successful arrivals (UMA) for a very long time, possibly since 2016. The Nauru island lawsuit and all the other bad publicity led to the successful Operation Sovereign Borders which is a military-led border security operation. The last story we heard was an article published by 7news on “Boat people turned back to Indonesia by Australian border patrol”

  2.  In short, they get intercepted and sent back. Because of COVID-19, they are even sending them back on grounds of health risks to the Australians.

  3. The Minister has not exercised his powers to lift the s.46A(2) bar for years.

 

Unauthorized maritime arrivals cannot apply for a visa 

Section 46A(1) of the Migration Act prohibits an unauthorized maritime arrival from making a valid application for a visa if they are in Australia and are an unlawful non-citizen or hold a bridging visa, temporary protection visa or a temporary visa prescribed for section 46A (see regulation 2.11A), unless the Minister determines under section 46A(2) of the Migration Act that, in the public interest, section 46A(1) of the Migration Act does not apply. Unauthorized maritime arrivals are also subject to regional processing arrangements under section 198AD of the Migration Act.

 

Removal of an unlawful non-citizen who has arrived at a seaport in Australia may be by air or by sea vessel. Crew members who arrive without a visa may be removed on the vessel on which they traveled to and entered Australia. Stowaways are subject to careful consideration of their safety and welfare and are usually removed from the vessel on which they arrived.

 

Unauthorized maritime arrivals must be refused immigration clearance

An unauthorized maritime arrival as described in paragraph Unauthorised maritime arrivals cannot apply for a visa and must be refused immigration clearance. Under section 172(3) of the Migration Act, a person is refused immigration clearance if the person is with a clearance officer for the purposes of section 166 of the Migration Act and refuses, or is unable, to show a clearance officer the evidence required under section 166(1)(a) of the Migration Act (namely, evidence of identity and of a visa). An UMA is, by definition, a person who became an unlawful non-citizen on entry to Australia. Such persons will be unable to meet the requirements of section 166(1)(a) and, therefore, section 172(3)(b) of the Migration Act. Because the person cannot show evidence of a visa, officers must refuse them immigration clearance under section 172(3) of the Migration Act. UMAs must be detained under section 189 of the Migration Act, and they may also be prevented under section 249 of the Migration Act from leaving a vessel on which they arrived in Australia

 

Detaining non-citizens at a seaport

A non-citizen who does not comply with section 166 of the Migration Act and is refused immigration clearance is an unlawful non-citizen. They must be detained under section 189 of the Migration Act. If an unlawful non-citizen is detected at a seaport, clearance authorities must inform a Regional Seaports Officer (RSO) as soon as possible. For Official Use Only Page 60 of 79 Arrival, immigration clearance and entry - Immigration clearance at airports and seaports. In many cases, it will not be practical for ABF officers to authorize the removal of the unlawful non-citizen to an immigration detention centre pending removal from Australia. In this circumstance, officers may, under section 249 of the Migration Act, prevent the unlawful non-citizen from leaving the vessel on which they arrived. When that happens, the person is in immigration detention on the vessel (see (b)(iv) in the definition of immigration detention in section 5(1) of the Migration Act.

 

Unauthorized maritime arrivals must be refused immigration clearance

An unauthorized maritime arrival as described in paragraph Unauthorised maritime arrivals cannot apply for a visa and must be refused immigration clearance. Under section 172(3) of the Migration Act, a person is refused immigration clearance if the person is with a clearance officer for the purposes of section 166 of the Migration Act and refuses, or is unable, to show a clearance officer the evidence required under section 166(1)(a) of the Migration Act (namely, evidence of identity and of a visa). An UMA is, by definition, a person who became an unlawful non-citizen on entry to Australia. Such persons will be unable to meet the requirements of section 166(1)(a) and, therefore, section 172(3)(b) of the Migration Act. Because the person cannot show evidence of a visa, officers must refuse them immigration clearance under section 172(3) of the Migration Act. UMAs must be detained under section 189 of the Migration Act, and they may also be prevented under section 249 of the Migration Act from leaving a vessel on which they arrived in Australia.

 

Persons involved in international disaster relief 

Persons involved in international disaster relief may travel to Australia with visas, or be subject to special arrangements declared by the Minister. In such cases, if unsure as to the person’s visa status, ABF officers should consult the BOC. If the person is confirmed to be a visa holder, their entry is to be expedited. ABF officers would normally have prior warning of the arrival of persons involved in international disaster relief and the department would normally have organized pre-clearance and visas to facilitate the persons’ entry to Australia. Occasionally such persons may receive uplift approval from the BOC and require a secondary clearance officer to grant the person a Border visa on arrival in Australia.

Determinations Under the Biosecurity Act

  1. Determinations are made under various parts of the Act.

  2. They are legislative instruments which requires consultation with but not subject to disallowance. They are required to be registered but certain biosecurity measures need to be specified in the determination unless the Health Minister wants it to be.

  3. For certain determinations, consultations are required.

  4. Directions on the other hand, are delegated powers and hence may not be registered.

 

Aircraft/Vessel

  1. Part 4 of the Act talks about this:

  • Division 2 is for aircraft

  • Division 3 is for vessels

 

How Many Extra Hurdles Are There For Sea Vessels Arriving

  1. A lot…easiest to refer to Maritime Arrival Reports (MARS). For yachts and the type of floating device, see ABF’s website. 

How Can We Help You

Our firm has created a Special Coronavirus (COVID-19) Taskforce to help our clients battle through and find solutions during this Pandemic. Our team is equipped and trained to advise you on across a wide range of issues you may be encountering. 

We speak fluent English, Korean, Burmese, Mandarin, Cantonese, Indonesian and Malay. If these aren’t your language, we can also help you arrange an interpreter.

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