1909307 (Refugee)

The Administrative Appeals Tribunal reviewed a decision concerning a protection visa application. The applicant, who identified as Rohingya and Muslim, sought review of a delegate's decision to refuse a Safe Haven Enterprise Visa (SHEV). The Tribunal was required to determine the validity of the applicant's second SHEV application and, if valid, whether the applicant met the criteria for a protection visa.

The primary legal issue before the Tribunal was whether the applicant's second SHEV application, lodged on 16 November 2020, was valid. The Tribunal noted that this application was made on the basis that the applicant's first SHEV application, lodged on 9 May 2016, was invalid. However, it had subsequently been determined that the first SHEV application was, in fact, valid. This raised the question of whether the applicant was legally entitled to lodge a second SHEV application under Australian migration law.

The Tribunal reasoned that because the applicant's first SHEV application was valid, he was not permitted to make a second SHEV application under the relevant provisions of the Migration Act 1958 (Cth). Consequently, the second SHEV application was deemed invalid, and the Tribunal lacked jurisdiction to review the delegate's refusal of that application. However, the Tribunal proceeded to consider the review of the applicant's first SHEV application (case number 1909307). The Tribunal was satisfied that the applicant met the criteria under s 36(2)(a) of the Act, finding that Australia had protection obligations towards him as a refugee.

The Tribunal remitted the matter bearing case number 1909307 for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act. The Tribunal also set aside the delegate’s decision dated 15 February 2022 to refuse the second SHEV application (case number 2202283) and substituted it with a decision that the associated SHEV application was not valid.