2103650 (Refugee)

The applicant, an unauthorised maritime arrival who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands in April 2013, sought review of a delegate's decision to refuse to grant a protection visa. The central dispute concerned the validity of the applicant's second protection visa application, made on 28 October 2020, and whether it was barred by section 48A of the *Migration Act 1958* (Cth). The Administrative Appeals Tribunal (AAT) was required to determine if a valid visa application had been made, notwithstanding the delegate's purported refusal.

The primary legal issue before the Tribunal was whether section 48A of the Act imposed a bar on the applicant making a further application for a protection visa. This section prevents a non-citizen in the migration zone from making a further protection visa application if a previous application has been refused. The Tribunal also considered the prerequisite for section 48A to apply, namely that the initial protection visa application must have been valid. The Tribunal noted that while a delegate may purport to refuse a visa, the fundamental question is whether a valid application exists for the Tribunal to consider.

The Tribunal reasoned that for section 48A to apply, the applicant's initial protection visa application must have been valid. Citing *MIMA v Li; MIMA v Kundu* and *SZGME v MIAC*, the Tribunal held that an application is valid only if it meets the requirements prescribed by the Act and Regulations, and is not prevented by section 48A. The Tribunal found that the applicant's arrival in April 2013, and subsequent grant of a temporary safe haven visa, meant that any subsequent protection visa application would be subject to section 48A if a prior application had been validly made and refused. As the applicant had made a previous application for a protection visa, and this application was not validly lifted by any exception or ministerial discretion under section 48B, the section 48A bar was engaged. Consequently, the applicant's second protection visa application was not valid.

The Tribunal set aside the delegate's decision refusing to grant a protection visa and substituted a decision that the protection visa application was not valid and therefore could not be considered on its merits.