2102201 (Refugee)

The Administrative Appeals Tribunal reviewed a decision concerning a Safe Haven Enterprise Visa (SHEV) application made by a citizen of Iran. The applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands in May 2013. Initially, the Department of Home Affairs treated the applicant as an 'unauthorised maritime arrival' and believed a statutory bar under section 46A of the Migration Act 1958 (Cth) prevented valid onshore visa applications. Subsequently, a Temporary Safe Haven (Subclass 449) visa was purportedly granted, which the Department believed triggered a bar under section 91K, preventing further valid visa applications. The applicant later applied for a Temporary Protection Visa (TPV) in 2017 after the Minister lifted the section 46A bar, but this application was deemed invalid due to the section 91K bar. The Minister then lifted the section 91K bar, allowing the applicant to lodge a SHEV application, which was initially refused on protection grounds.

The Tribunal was required to determine whether the applicant's SHEV application was valid, particularly in light of recent Full Federal Court decisions that clarified the status of individuals arriving by sea at Ashmore Reef. Specifically, the court had determined that persons arriving at Western Lagoon of Ashmore Reef were not 'unauthorised maritime arrivals' and that the grant of a Temporary Safe Haven visa in such circumstances was invalid, thus not triggering the section 91K bar.

Applying these legal principles, the Tribunal accepted that the applicant was not an 'unauthorised maritime arrival' and that the purported grant of the Temporary Safe Haven visa was invalid. Consequently, the section 91K bar was not triggered, meaning the applicant was not prevented from making a valid TPV application in 2017. However, the Tribunal found that the applicant did not satisfy the requirements for making a valid SHEV application as set out in item 1404 of Schedule 1 to the Regulations.

The Tribunal set aside the delegate's decision refusing to grant the SHEV and substituted it with a decision that the SHEV application is not valid and cannot be considered.