1921003 (Refugee)

The applicant, an unauthorised maritime arrival holding a temporary protection visa (TPV), sought a protection visa. The dispute concerned the validity of the applicant's visa application, which was lodged after the applicant was barred from making a further application under section 46A(1) of the *Migration Act 1958* (Cth), but before the Minister exercised a power under section 46A(2) to lift that bar. The matter came before the Tribunal for review of a decision refusing to grant a protection visa.

The primary legal issue before the Tribunal was whether the Minister's subsequent decision to lift the section 46A bar had the effect of validating an application that was statutorily invalid at the time it was made. The Tribunal was required to interpret the operation of sections 46A(1) and 46A(2) of the Act in light of the timing of the Minister's notice and the lodging of the visa application.

The Tribunal reasoned that section 46A(1) unequivocally states that an application is not valid if the applicant is an unauthorised maritime arrival holding a TPV. The applicant met both these criteria at the time of lodging the application. Section 46A(2) permits the Minister to determine that subsection (1) does not apply to an application for a specified class of visa, by written notice. The Minister's notice to the applicant stated that the applicant was allowed "to make a valid application" for a further TPV or a SHEV, which the Tribunal interpreted as referring to future applications. The Tribunal found no scope to read the Minister's determination as retrospectively validating an application that was invalid when made. The language of the notice, in the context of anticipating the expiry of the applicant's current visa, further supported this interpretation.

Consequently, the Tribunal concluded that section 46A(1) applied to the application, rendering it invalid. The Tribunal set aside the decision refusing to grant a protection visa and substituted a decision that the protection visa application was not valid and could not be considered.