FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 153

The substitution of an affirmed refusal of a protection visa by the grant of a different visa under s 417 does not extinguish the 'refusal' of a protection visa for the purpose of s 48A. Therefore, the operation of s 48A continues to bar subsequent protection visa applications unless s 48B is invoked, which was not the case here.

Jurisdiction: Australia
Judgment Date: 12 September 2023
Procedural Posture: Appeal / Judgment on Appeal From the Decision of the Federal Circuit and Family Court of Australia
Outcome: Appeal dismissed
Legal Topics: ['protection Visa' 'section 48 a Bar' 'ministerial Intervention Under S 417' 'judicial Review' 'tribunal Powers of Affirmation/substitution']

['migration Law' 'administrative Law'] ['protection Visa' 'section 48 a Bar' 'ministerial Intervention Under S 417' 'judicial Review' 'tribunal Powers of Affirmation/substitution']

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Procedural Posture

Appeal / Judgment on Appeal From the Decision of the Federal Circuit and Family Court of Australia

Legal Issues

1 ["Whether the appellant had been 'refused' a protection visa within the meaning of s 48A of the Migration Act 1958, where the Administrative Appeals Tribunal's affirmation of that refusal had been substituted by a different visa granted by the Assistant Minister under s 417"]

Ratio Decidendi

Court Disposition

Appeal dismissed

Orders

['The appeal be dismissed.' 'The appellant pay the costs of the respondent to be agreed or assessed.']