Case study 3: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63 The judgment by the Full Court of the Federal Court in this test case removed administrative barriers faced by more than 1,000 asylum seekers who had arrived in Australia by boat and sought protection as refugees. The case involved one of these asylum seekers, a Vietnamese man referred to as CBW20. Between 2011 and 2013, the Government had a practice of intercepting asylum seeker boats travelling from Indonesia and escorting them to a lagoon at Ashmore reef, before bringing them to the mainland. Ashmore reef is a small coral reef system in the Timor Sea that is part of Australian territory but, at the time, was not part of Australia’s ‘migration zone’. The Government considered that by taking a detour through the lagoon, the asylum seekers would become ‘offshore entry people’ and would not be allowed to apply for a visa without approval from the Minister for Immigration (the Minister). In 2018, the Federal Court disagreed with the Government’s position. It found that asylum seekers taken to Ashmore reef do not need ministerial approval to apply for a visa. However, when some of these people applied for a protection visa, the Department of Home Affairs refused to process their applications for a different legal reason. The case considered whether this refusal was lawful. When the asylum seekers in this group were first brought to Australia, they were placed in closed immigration detention. In most cases, the Minister then granted them a Temporary Safe Haven (TSH) visa valid for one week along with a standard bridging visa valid for 12 months. The Minister did this so that the asylum seekers could be released from closed detention while maintaining the position that they could not apply for a protection visa unless they obtained ministerial approval. Once a person has been granted a TSH visa, they cannot apply for any visa in the future, other than another TSH visa, unless they either obtain ministerial approval or leave Australia. The Federal Court held that the Minister’s decision to grant CBW20 a TSH visa was invalid because it was based on an error of law. The error was the mistaken belief that CBW20 was an ‘offshore entry person’ and that he was already prevented from applying for a visa. The Court’s decision meant that his later application for a protection visa was valid. The broader effect of this case is that more than 1,000 asylum seekers in the same situation no longer need to get ministerial approval each time they want to apply for a visa in Australia. The Minister has applied for special leave to appeal to the High Court. Annual Report 2020–2021 Australian Human Rights Commission 45