2100168 (Refugee)

The Administrative Appeals Tribunal considered an application for a Safe Haven Enterprise Visa (SHEV) by a citizen of Iran. The applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands in May 2013. He was initially considered an unauthorised maritime arrival and a fast-track applicant. However, subsequent Full Federal Court decisions clarified that arrivals at Ashmore and Cartier Islands are not considered unauthorised maritime arrivals. This led to the applicant's 2017 application for a Protection (Subclass 866) visa being deemed valid, despite an earlier grant of a Temporary Safe Haven (Subclass 449) visa, which had been thought to trigger a statutory bar under s 91K of the *Migration Act 1958* (Cth). The current review concerned a SHEV application lodged on 20 August 2020.

The primary legal issue before the Tribunal was whether the applicant's SHEV application, lodged on 20 August 2020, was valid. This question arose because the applicant had a valid application for a Protection (Subclass 866) visa lodged on 28 June 2017, which was still awaiting determination by the Department at the time the SHEV application was made. The Tribunal was required to determine if the SHEV application was invalid due to the existence of this prior, undetermined application, as per item 1404 of Schedule 1 to the *Migration Regulations 1994* (Cth).

The Tribunal reasoned that the SHEV application was invalid because the applicant did not satisfy the requirements of item 1404 of Schedule 1 to the Regulations at the time of its lodgement. Specifically, the Tribunal found that the existence of a prior, undetermined visa application meant that the conditions for making a valid SHEV application were not met. The Tribunal noted that even a retrospective withdrawal of the earlier application would not cure the invalidity of the SHEV application, as the circumstances prescribed for its valid making did not exist at the time it was lodged.

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