Is there a section 48A bar arising from the following facts:
- The Applicant applied for a protection visa in 2013;
- The application was refused in 2014;
- In September 2017, the AAT affirmed the delegate’s decision;
- On 12 September 2017 (the day following the AAT decision) the Assistance Minister used the power in s417(1) to grant a three month visitor visa with a no further stay condition on it; and
- On 12 October 2017 the Applicant applied for a second protection visa.
That second application was found to be invalid on the basis that there was a section 48A bar which had not been waived. An application for judicial review was made in the Federal Circuit and Family Court of Australia where Judge Laing found that there was a s48A bar. The matter then went to the Full Federal Court (see Fel17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 153).
It was a 2:1 majority decision in the Full Court:
- In seven succinct paragraphs Justice Snaden found that: “There is nothing about the subject matter, scope or purpose of the Act that should require or suggest that the exercise of power under s 417(1) operates so as to revive the by-then-extinguished legal effect of the decision whose affirmation the Minister has seen fit to replace with something more favourable.”; and
- Unfortunately, Justices Halley and Abraham found that: “In short, s 48A of the Migration Act prohibits the making of a further protection visa application where one has already been made and refused. That is subject only to s 48B, where the Minister can personally exercise his power to consider another application if it is considered in the public interest to do so. That power was not exercised. The Assistant Minister substituting the Tribunal’s Decision and granting a different visa, a three month visitor visa, pursuant to s 417(1) of the Migration Act, does not mean that the appellant has no longer been refused a protection visa for the purposes of s 48A.”
Creative commons acknowledgement for the photograph.
