Tasmanian
Refugee
Legal
Service

TRLS addresses an access-to-justice gap that manifests from the unique circumstances of refugees, asylum seekers & other humanitarian entrants into the Tasmanian community.

Lee*

This is a story of a young Tasmanian family that were facing almost certain separation and now can live together in Tasmania in safety for the rest of their lives.

On 8 November 2019, the Minister made a determination to lift the section 91K bar and section 48A bar for a seven day period because of the finding in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 and once notified these applicants, because they were no longer classed as Illegal Maritime Arrivals, were allowed to reapply for another protection visa, only in the seven period from when notice was received for each client.

Our client was affected by this judgement and we were able to lodge a new protection visa application within seven days, which had been classed as a valid application and resulted in the applicant being able to move back to the primary stage (DHA).

However, even more significantly, we identified that the applicant was married to a Tasmanian resident and had two young children (2 year old and a 4 year old and a third on the way) and had previously been barred from applying for an onshore partner visa because he was classed an illegal maritime arrival and had been refused a protection visa, so therefore was section 48 barred from applying
for a partner visa.

However TRLS was able to assess the situation carefully and put forward a legal submission that the section 91k bar lift cannot be lifted for only one visa type and therefore in that seven day period the applicant had the right to also lodge a valid partner visa onshore.

TRLS then lodged a valid partner visa application for the client within the 7 day period, whilst the bar was lifted. At the time the bar was lifted, many legal people believed that the bar was only lifted to allow the applicant to apply for protection again. However, after multiple further legal submissions, statements and analysis of section 91k of the Migration Act, including submissions on Schedule 3 issues and the applicants genuine and ongoing relationship, the Department has agreed with TRLS legal view and assessed the relationship and has now granted the client permanent residency based on his partner visa application subclass 801.

The client has two young children and a third on the way and when TRLS picked the case up in October he was the Federal Circuit Court stage and facing almost certain deportation and separation from his family. Based on our knowledge this is the first case in Australia to be granted PR through this process (partner visa submission for Ashmore reef client).

This is a story of a young Tasmanian family that were facing almost certain separation and now can live together in Tasmania in safety for the rest of their lives.

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