1828059 (Refugee)

The applicant, who arrived in Australia by sea in October 2012, sought review of a decision to refuse to grant him a Safe Haven Enterprise visa (SHEV). The applicant had previously lodged a Protection visa application in November 2013, which was initially deemed invalid due to a perceived statutory bar under s 91K of the *Migration Act 1958* (Cth). However, subsequent Full Federal Court decisions clarified that individuals arriving by sea at the Territory of Ashmore and Cartier Islands are not considered 'unauthorised maritime arrivals' for the purposes of this bar. Consequently, the applicant's initial Protection visa application was valid from its lodgement and, by operation of regulation 2.08F of the *Migration Regulations 1994* (Cth) and s 45AA of the Act, converted to a Temporary Protection visa application in December 2014.

The primary legal issue before the Tribunal was the validity of the applicant's SHEV application, lodged in February 2016. The Tribunal was required to determine whether the applicant met the requirements for a valid SHEV application as set out in item 1404 of Schedule 1 to the Regulations. Specifically, the Tribunal considered the condition that an applicant must not have made a valid application for a temporary protection visa, or if they had, that such application must have been refused, granted, or withdrawn.

The Tribunal reasoned that at the time the applicant lodged his SHEV application in February 2016, his application for a Temporary Protection visa had not yet been refused, granted, or withdrawn. Therefore, the applicant did not satisfy the prerequisite in item 1404(3)(f) of Schedule 1 to the Regulations, rendering his SHEV application invalid. The Tribunal noted that the delegate's decision to refuse the SHEV visa was based on an incorrect premise regarding the applicant's status as an unauthorised maritime arrival.

Accordingly, the Tribunal set aside the delegate's decision refusing to grant the SHEV visa and substituted it with a decision that the SHEV application was invalid and could not be considered.