1920491 (Refugee)

This matter concerned an application for a protection visa by an individual who arrived in Australia by boat in May 2013. The applicant, who claimed to be from Iran, had previously been granted a Temporary Safe Haven (TSH) visa. The dispute before the Tribunal centred on the validity of the applicant's protection visa application, specifically whether it was barred by section 91K of the Migration Act 1958 (Cth) and whether the Minister had lifted this bar under section 91L.

The primary legal issue before the Tribunal was to determine whether the applicant's protection visa application was invalid due to the operation of section 91K of the Act. This section prevents an applicant from making a valid protection visa application unless the Minister lifts the statutory bar under section 91L. The Tribunal also had to consider the applicant's entry into Australia, specifically whether he was an unauthorised maritime arrival and a fast-tracked applicant, in light of departmental submissions that he entered Australia at Darwin rather than an excised offshore place.

The Tribunal reasoned that the applicant's TSH visa was granted on 23 July 2013 and ceased on 30 July 2013, and he had remained in Australia since then. Crucially, the Tribunal found that the applicant entered Australia at Darwin, not an excised offshore place, prior to 1 June 2013. This meant he was not an unauthorised maritime arrival under section 5AA of the Act and therefore not a fast-tracked applicant. The Tribunal concluded that the protection visa application was invalid because it was caught by section 91K, and there was no evidence that the Minister had lifted this bar.

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