FEL17 v Minister for Immigration and Multicultural Affairs

The High Court of Australia heard an appeal from the Full Court of the Federal Court of Australia concerning the validity of a second protection visa application. The appellant, who had previously had a protection visa application refused and that refusal affirmed by the Administrative Appeals Tribunal, subsequently had a more favourable decision substituted by the Assistant Minister under s 417(1) of the *Migration Act 1958* (Cth), resulting in the grant of a three-month visitor visa. The appellant then made a second application for a protection visa, which was deemed invalid by a delegate on the basis that it was barred by s 48A of the Act.

The central legal issue before the High Court was whether the Assistant Minister's exercise of the substitution power under s 417(1) had the effect of setting aside the original refusal decision for the purposes of s 48A, thereby rendering the second protection visa application valid. This required the Court to consider whether the "refusal" referred to in s 48A was a reference to a historical fact of refusal or a refusal that retained continuing legal operation.

The High Court, by majority, dismissed the appeal. The Court reasoned that the exercise of the s 417(1) power to substitute a more favourable decision did not alter the historical fact that the appellant's initial protection visa application had been refused. Applying the principles from *Plaintiff M174/2016 v Minister for Immigration and Border Protection*, the Court held that while the original refusal decision ceased to have independent continuing legal operation upon affirmation by the Tribunal, it retained continuing legal effect and had not been "set aside". Therefore, the fact of the prior refusal remained for the purposes of s 48A, and the second application was correctly found to be invalid. The appeal was dismissed with costs.