1908883 (Refugee)

This matter concerned an application for a protection visa by an Iranian national. The applicant had previously been granted a Temporary Safe Haven (Subclass 449) visa upon arrival in Australia, having been initially considered an unauthorised maritime arrival (UMA). After this visa ceased, the applicant remained in Australia and subsequently applied for a Safe Haven Enterprise Visa (SHEV). The Department of Home Affairs submitted that the applicant's SHEV application was invalid due to the operation of section 91K of the Migration Act 1958 (Cth), which imposes a statutory bar on making further visa applications in certain circumstances, unless the Minister lifts the bar under section 91L. The Tribunal was required to determine whether the applicant's SHEV application was valid, considering the effect of section 91K and the applicant's status following a Federal Circuit Court declaration that he was not a UMA.

The central legal issue before the Tribunal was the validity of the applicant's SHEV application. This involved determining whether the applicant was subject to the statutory bar imposed by section 91K of the Act, given that he had remained in Australia after his Temporary Safe Haven visa ceased and had been declared not to be an unauthorised maritime arrival. The Tribunal also had to consider the scope of its jurisdiction to review the delegate's decision, particularly in light of the Federal Circuit Court's finding regarding the applicant's UMA status and the potential invalidity of earlier decisions made under the fast-track review system.

The Tribunal reasoned that the applicant's SHEV application was indeed invalid. It found that the applicant had remained in Australia after his Temporary Safe Haven visa ceased and was not a UMA, thus falling within the operation of section 91K. The Tribunal noted that section 91K renders subsequent visa applications invalid unless the Minister exercises the discretion under section 91L to lift the bar. Crucially, the Tribunal held that the discretion under section 91L could not be exercised retrospectively to validate the SHEV application made in 2016, as its operation was prospective from the date of written notice. Furthermore, the Tribunal accepted that the Federal Circuit Court's declaration that the applicant was not a UMA meant that earlier decisions made under the fast-track review system were a nullity.

Consequently, the Tribunal concluded that the application for a protection visa was not valid and could not be considered. The decision of the delegate refusing to grant the applicant a protection visa was set aside, and the Tribunal substituted a decision that the application was invalid.