2017272 (Refugee)

This matter concerned an application for a protection visa by a citizen of Pakistan who arrived in Australia by sea in August 2012. The applicant had made multiple visa applications following his arrival, including an application for a permanent Protection visa in August 2013, and later applications for a Safe Haven Enterprise visa. The primary issue before the Tribunal was whether any of these applications were valid and could be considered.

The legal issue before the Tribunal was whether the applicant was an "unauthorised maritime arrival" for the purposes of section 91K of the *Migration Act 1958* (Cth), which could impose a bar on certain visa applications made in Australia. This determination was crucial to assessing the validity of the applicant's protection visa applications, particularly his initial application for a permanent Protection visa made in August 2013.

The Tribunal considered the Full Federal Court's decisions in *DBB16 v MIBP* and *MICMSMA v CBW20*. These decisions established that a person arriving by sea at the Territory of Ashmore and Cartier Islands is not considered an "unauthorised maritime arrival" as defined in the Act. Consequently, section 91K of the Act did not apply to the applicant. The Tribunal found that the applicant's first protection visa application, made in August 2013, was therefore valid. As no decision had been made on this application by 16 December 2014, it converted to an application for a Temporary Protection visa on that date. The Tribunal noted that a requirement for a valid Safe Haven Enterprise visa application is that the applicant has not made a valid application for a Temporary Protection visa, or if they have, that application has been refused or withdrawn. Given the applicant's valid application for a Temporary Protection visa, his subsequent applications for a Safe Haven Enterprise visa were not valid.

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.