The AAT set aside the decision of a delegate of the Minister for Immigration and Border Protection (the Department) refusing to grant the applicant a protection visa, and substituted it with a decision that the applicant’s protection visa application is not valid and cannot be considered.
The Department had refused to grant the applicant a protection visa after finding Australia did not owe him protection, he was not who he claimed to be and was not stateless.
Australia is obliged to protect people who satisfy one of two criteria. The first is called the ‘refugee criterion’ and broadly requires the applicant to have a ‘well-founded fear of persecution’.[1] The second is called ‘complementary protection’ grounds and broadly requires that there is ‘a real risk of significant harm’ to the applicant.[2]
The applicant arrived in Australia by boat in the vicinity of Ashmore Reef (an external Australian territory in the Indian Ocean). Approximately two months later he was granted a temporary safe haven visa, which expired after seven days. Approximately two years later he was invited to apply for a protection visa in the form of either a temporary protection visa or a safe haven enterprise visa after the Minister lifted the bar stopping unauthorised maritime arrivals from making visa applications. The applicant applied for a safe haven enterprise visa.
The issue before the AAT was whether it had the power to review the merits of the application, which depended on whether the applicant had made a valid visa application.[3]
A federal court decision[4] and the court order made in the applicant’s case declared he was not an unauthorised maritime arrival. The Department’s records showed he had already held a temporary safe haven visa which had ceased in 2013 and he had not left Australia since that visa ceased. The Minister had not lifted the bar preventing him from applying for a visa other than a temporary safe haven visa. This meant he was unable to make a valid application for a visa, other than a temporary safe haven visa.
As the AAT stands in the shoes of the original decision maker and must apply the same laws, it did not have the power to review the substantive merits of an invalid visa application.
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[3] Migration Act, s 91K. Section 91K is one of a number of statutory ‘bars’ that prevent a non-citizen from making a valid protection visa application.
[4] DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178. Following this judgment a person is not an ‘unauthorised maritime arrival’ through the act of entering Australia by sea at the Territory of Ashmore and Cartier Islands.