2112996 (Refugee)

The Administrative Appeals Tribunal considered a protection visa application made by a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. The applicant was not considered an 'unauthorised maritime arrival' or a 'fast track applicant'. The Minister had previously purported to lift statutory bars under s 91K and s 48A of the Migration Act 1958 in relation to a prior application for a Safe Haven Enterprise visa, which had been refused. The current application was a second application for a Safe Haven Enterprise visa, and the applicant sought review of the refusal of this second application.

The primary legal issue before the Tribunal was whether the second application for a Safe Haven Enterprise visa was valid, given the applicant's prior arrival by sea and the Minister's previous actions regarding statutory bars. Specifically, the Tribunal had to determine if the second application was barred under s 48A of the Migration Act 1958, which generally prevents applications for certain visas if the applicant has had a visa refused or cancelled.

The Tribunal reasoned that the first visa application was not invalid, and therefore the Minister's purported lifting of the s 91K bar was irrelevant to the validity of the second application. The Tribunal concluded that the second visa application was, and always had been, barred under s 48A of the Migration Act 1958. Consequently, the Tribunal found that the second visa application was not valid.

Accordingly, the Tribunal set aside the decision made on 30 August 2021 to refuse the applicant a Safe Haven Enterprise visa and substituted it with a decision that the visa application was not valid.