2016230 (Refugee)

This matter concerned an application for a Safe Haven Enterprise visa by a citizen of Bangladesh who arrived in Australia by sea in November 2012. The applicant had previously been granted a Temporary Safe Haven (Subclass 449) visa in January 2013. In December 2015, he lodged an application for a Temporary Protection visa (TPV), which was later advised to be invalid. Subsequently, in July 2020, he applied for a Safe Haven Enterprise visa (SHEV), which was refused by a delegate. The Administrative Appeals Tribunal was required to determine the validity of the SHEV application.

The central legal issue was whether the applicant's earlier TPV application was valid at the time it was made, which in turn affected the validity of his subsequent SHEV application. This depended on the interpretation of the statutory bar provisions, specifically section 91K of the Migration Act 1958 (Cth), and the definition of "unauthorised maritime arrival" and "fast track applicant" as established in relevant Full Federal Court decisions. The Tribunal also had to consider the requirements for making a valid SHEV application under item 1404 of Schedule 1 to the Migration Regulations 1994 (Cth).

The Tribunal reasoned that, in light of the Full Federal Court's decisions in *DBB16 v MIBP* and *MICMSMA v CBW20*, the applicant was not an "unauthorised maritime arrival" because he arrived by sea at the Territory of Ashmore and Cartier Islands. Consequently, section 91K did not apply to him, and his TPV application made in December 2015 was valid at the time it was lodged. As the TPV application had not been refused or withdrawn when the SHEV application was made in July 2020, the applicant did not meet the requirements for a valid SHEV application under item 1404(3)(f) of Schedule 1 to the Regulations.

Accordingly, the Tribunal set aside the delegate's decision refusing to grant the SHEV and substituted a decision that the SHEV application was invalid and could not be considered.