2012568 (Refugee)

The Administrative Appeals Tribunal (the Tribunal) reviewed a decision by a delegate of the Minister for Home Affairs to refuse the applicant, a citizen of Iran, a protection visa. The applicant arrived in Australia by boat in 2013 as an unauthorised maritime arrival and was subsequently granted a Humanitarian Stay (Temporary) visa. He had made two applications for protection visas, the first of which was remitted to the Department for reconsideration in a separate decision. The current review concerned his second protection visa application, lodged on 3 June 2020, where he claimed protection based on his political opinion and religion.

The central legal issue before the Tribunal was whether the applicant's second protection visa application was valid and therefore capable of being considered. This question arose because the applicant was an unauthorised maritime arrival at the time of his entry into Australia, which, according to Departmental records, subjected him to a bar against applying for visas under section 46A of the *Migration Act 1958* (Cth). While the Department had purported to refuse the visa application, the Tribunal was required to determine if a valid application existed for review.

The Tribunal reasoned that the applicant's status as an unauthorised maritime arrival at the time of his entry meant he was subject to the bar under section 46A of the Act. Although he was later granted a Humanitarian Stay (Temporary) visa, the Tribunal found that this did not remove the initial bar. Consequently, the Tribunal concluded that the protection visa application lodged on 3 June 2020 was invalid and could not be considered.

The Tribunal set aside the decision refusing to grant the protection visa and substituted a decision that the protection visa application was not valid and could not be considered.