2115428 (Refugee)

The applicant sought review of a decision by the Department of Home Affairs to refuse their application for a Safe Haven Enterprise visa. The applicant arrived in Australia by sea and was located at the Territory of Ashmore and Cartier Islands. The primary dispute concerned the validity of a second visa application lodged by the applicant on 20 September 2020, following an earlier unsuccessful application.

The court was required to determine whether the second visa application lodged on 20 September 2020 was valid. Specifically, the court had to consider whether the section 91K bar, which generally prevents further applications after a refusal, was applicable and, if so, whether it had been lifted. The court also needed to assess whether the section 48A bar, which relates to invalid applications, was engaged and if any circumstances existed that would permit the applicant to make a valid application despite this bar.

The court found that the second visa application lodged on 20 September 2020 was not valid. This conclusion was based on the application of the relevant provisions of the Migration Act 1958, which indicated that the section 48A bar was not lifted and therefore prevented the lodgement of a valid application. As a consequence of the application being invalid, the court had no alternative but to set aside the decision to refuse the application.

The Tribunal set aside the decision made on 8 October 2021 to refuse the applicant a Safe Haven Enterprise visa and substituted it with a decision that the visa application was not valid.