1724014 (Refugee)

This matter concerned a protection visa application made by a child, a citizen of Sri Lanka, born in Australia to Sri Lankan parents. The applicant's father had his protection visa application refused, and he subsequently departed Australia. The applicant's mother and sister were granted protection visas. The applicant's own protection visa application was refused, primarily because her father did not hold a protection visa, and she was subject to a section 48A bar preventing her from making further visa applications. The case was heard by Sheridan Lee.

The primary legal issues before the court were whether the applicant had validly applied for a protection visa at birth, the basis for her independent protection claims, and whether she could avail herself of a right to enter and reside in a third country. The court also considered the implications of the father's departure from Australia and the applicant's stated desire to proceed with her own protection claims, which were not detailed in the initial application.

The court found that, by virtue of descent, the applicant was a citizen of Sri Lanka and her claims should be assessed against that country. It accepted that the applicant was taken to have applied for a protection visa at birth, pursuant to regulation 2.08, as she was born while her parents' applications were pending. However, the court noted that no unique claims were put forward on her behalf at that time, and her application proceeded independently as the Department was unaware of her birth when assessing her father's application. The court also found that the applicant could not avail herself of a right to enter and reside in a third country. The decision was remitted for further consideration of the applicant's independent protection claims.