2119696 (Refugee)

This matter concerned an applicant claiming to be a citizen of Bangladesh who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on 25 February 2013. The applicant had previously been granted a Temporary Safe Haven visa and subsequently applied for a Safe Haven Enterprise visa on 23 June 2016. This first application was refused. A second application for a Safe Haven Enterprise visa was made on 27 October 2020. The Administrative Appeals Tribunal was required to determine the validity of this second visa application.

The central legal issues before the Tribunal were whether the applicant was subject to the bar imposed by section 48A of the Migration Act 1958 (Cth) against making further visa applications in Australia, and consequently, whether the second visa application was valid. This involved considering the effect of a Ministerial Determination made under section 48B, which purported to lift the section 48A bar under specific circumstances, and whether those circumstances applied to the applicant in relation to their first visa application.

The Tribunal reasoned that the applicant's first visa application was not invalid due to the operation of section 91K of the Act, as previously determined by the Full Federal Court. Therefore, the conditions specified in the Ministerial Determination for lifting the section 48A bar were not met. Consequently, the section 48A bar remained applicable to the applicant. As the second visa application was made while the section 48A bar was in effect, it was deemed invalid from its inception. The Tribunal set aside the delegate's decision to refuse the second visa application and substituted a decision that the application was invalid and could not be considered.