2112232 (Refugee)

The applicant, a citizen of Bangladesh, arrived in Australia by sea at the Territory of Ashmore and Cartier Islands in November 2012. Following a grant of a Temporary Safe Haven visa, the applicant made a first application for a Safe Haven Enterprise visa on 6 April 2016, which was refused. The applicant subsequently applied for a Protection visa on 14 October 2020. The Administrative Appeals Tribunal (the Tribunal) was required to determine the validity of this second visa application.

The central legal issue before the Tribunal was whether the applicant's second Protection visa application, lodged on 14 October 2020, was valid. This involved considering whether the statutory bar under section 48A of the Migration Act 1958 (Cth) applied, and if so, whether it had been effectively lifted by a Ministerial Determination under section 48B. The Tribunal also had to consider the impact of previous decisions, including the Full Federal Court's determination that section 91K of the Act did not apply to persons arriving by sea at the Territory of Ashmore and Cartier Islands.

The Tribunal reasoned that while section 91K did not apply to the applicant, the section 48A bar remained operative. The Ministerial Determination purportedly lifting the section 48A bar was found to be inoperative because the applicant's first visa application, lodged on 6 April 2016, was not a valid application due to the operation of section 91K at that time. Consequently, the conditions for the section 48B determination to apply were not met. Therefore, the applicant's second Protection visa application was deemed invalid.

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.