1838172 (Refugee)

This matter concerned an applicant seeking a Protection Visa, who had made two previous applications that were refused by the Department of Home Affairs. The applicant arrived in Australia in May 2013 and was initially granted a Temporary Safe Haven visa. His first application for a Safe Haven Enterprise Visa (SHEV) was refused on 18 July 2017, and his second SHEV application was refused on 3 September 2020. The Administrative Appeals Tribunal (AAT) was required to review these decisions.

The primary legal issues before the Tribunal were whether the applicant's second visa application was valid, and if not, what the consequences were for the review of that decision. Additionally, the Tribunal was required to consider the merits of the applicant's first visa application, which had been refused on grounds including the genuineness of his conversion to Christianity and the credibility of his claims of persecution by the Basij militia due to tattoos and alleged Satanism. The Tribunal also had to consider the impact of the applicant's criminal convictions in Australia on his claims.

The Tribunal found that the applicant's second visa application was invalid because it was barred under section 48A of the Migration Act 1958 (Cth), and this bar had not been lifted by any Minister's determination under section 48B. Consequently, the Tribunal had no jurisdiction to consider the merits of the second application and was compelled to set aside the Department's refusal and substitute it with a decision that the application was invalid. Regarding the first application, the Tribunal noted that the Department's delegate had not been satisfied that the applicant had genuinely converted to Christianity or would be perceived as a Christian if returned to Iran, nor that he had a profile with Iranian authorities due to his tattoos or alleged Satanism. The Tribunal also noted that criminal charges and convictions were not considered by the Tribunal for credibility or protection criteria, but rather for background information.

The Tribunal set aside the Department's refusal of the second visa application and substituted it with a decision that the second application was invalid. The Tribunal's decision did not make final orders regarding the first application, but rather outlined the findings of the Department's delegate in relation to that application.