1500698 (Refugee) - [2017] AATA 520

1500698 (Refugee) [2017] AATA 520 (10 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1500698
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Bruce Henry
DATE:10 March 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision refusing to grant a Protection (Class XA) visa and substitutes a decision that the application for a Protection (Class XA) visa is not valid and cannot be considered.

Statement made on 10 March 2017 at 10:27am
CATCHWORDS
Refugee – Protection visa – Vietnam – Application for a Protection (Class XA) visa – s 45AA – Valid application for a Temporary Protection (Class XD) visa – Jurisdiction – Minister yet to discharge obligations – Tribunal making effectively a primary decision on different class – No power to decide (Class XD) visa – Substituting a new decision that the application cannot be considered

LEGISLATION
Migration Act 1958, ss 29, 31, 35A, 36, 45AA, 47(2)(b), 65, 411 (1)(c), 415, Part 2 Division 3
Migration Regulations 1994 Schedule 1, Schedule 2, r 2.01(a), r 2.08F, r 4.33(1)
Administrative Appeals Tribunal Act, s 25

CASES
MIMA v Kundu (2000) 103 FCR 486
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
MIMA v Bhardwaj [2002] HCA 11; 187 ALR 117; 76 ALJR 598
SZGME v MIAC (2008) 168 FCR 487
SZANA v MIMIA [2004] FCA 203
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa [in] June 2014 and the delegate refused to grant the visa [in] December 2014.
The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.
However, the delegate purported to make a decision to refuse to grant the visa on the basis that the applicant did not meet the criteria for a Protection (Class XA) visa.
The applicant appeared before the Tribunal on 10 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by his registered migration agent.
LEGISLATIVE SCHEME
Section 29 of the Act provides…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1500698 (Refugee)

Details

AGLC: 1500698 (Refugee) [2017] AATA 520
Case: [2017] AATA 520
Decision Date: 10 March 2017

CaseChat Overview and Summary

This matter concerned an application for a Protection (Class XA) visa by a Vietnamese national. The applicant had previously made a valid application for a Temporary Protection (Class XD) visa. The Administrative Appeals Tribunal (AAT) reviewed a decision made by the primary decision-maker concerning the applicant's Protection (Class XA) visa application.

The central legal issue before the court was whether the Tribunal had the power to substitute a new decision that the applicant's Protection (Class XA) visa application could not be considered, given that the primary decision-maker had effectively made a decision on the merits of an invalid application. The court also considered the scope of the Tribunal's powers on review under section 415 of the Migration Act 1958 (Cth) and whether these powers extended beyond those of the original decision-maker.

The court reasoned that the Tribunal's powers on review are circumscribed by section 415 of the Act, which limits the Tribunal to exercising the powers and discretions conferred on the original decision-maker. It was established that the Protection (Class XA) visa application was not valid, and neither the Minister nor their delegate could consider an invalid application under sections 47 and 48A of the Act. Consequently, the Tribunal, having no greater powers than the original decision-maker, erred in affirming the decision.

The court ordered that the Tribunal should have set aside the primary decision under section 415(2)(d) of the Act and substituted a new decision that the Protection (Class XA) visa application was not valid and therefore should not have been considered.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal’s powers on review are set out in s.415 of the Act:Section 415 Tribunal powers on review of Part 7-reviewable decisions(1) The Tribunal may, for the purposes of the review of a Part 7-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.(2) The Tribunal may:(a) affirm the decision; or(b) vary the decision; or(c) if the decision relates to a prescribed matter — remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or(d) set the decision aside and substitute a new decision; or(e) if the applicant fails to appear — exercise a power under section 426A in relation to the dismissal or reinstatement of an application.(3) If the Tribunal:(a) varies the decision; or(b) sets aside the decision and substitutes a new decision;the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations. A decision to refuse a protection visa is a prescribed matter for the purposes of s.415(2)(c): r.4.33(1) of the Regulations. As set out above, the Tribunal is satisfied that the primary decision maker has made a decision on the merits of an invalid visa application, and that while that decision is unauthorised it is nonetheless be a Part 7-reviewable decision for the purposes of s.411(1)(c). In SZANA v MIMIA [2004] FCA 203 (12 March 2004) Hely J said, at [26]:25 An issue also arises in the present proceedings as to whether the further protection visa application accepted by DIMA on 31 July 2003 was a valid application. Again, that issue was determined and necessarily determined by the final judgment given by Allsop J on 30 January 2004 in proceedings between the same parties. Accordingly, it is not open to the applicant to re-agitate the same issue in the present proceedings. Again, even if, for some reason, an issue estoppel does not arise, I would agree with the conclusion of Allsop J that the application accepted by DIMA on 31 July 2003 was not a valid application. Section 46(1)(d) of the Act provides, relevantly, that an application for a visa is valid if, and only if, it is not prevented by s 48A. Under s 47(1) and (3) neither the Minister nor his delegate is able to consider an application that is not a valid application. Under s 415 of the Act the RRT has no greater powers than the original decision-maker.26 Thus the Minister’s delegate ought to have declined to deal with the protection visa application which was accepted on 31 July 2003. The RRT was probably obliged to review the decision (s 414(1)) but I accept the Minister’s submission that the RRT erred in affirming the decision, as the Minister’s delegate should have declined to entertain the application for a protection visa, rather than refusing to grant the application. The RRT should have set the decision aside under s 415(2)(d) of the Act and substituted a decision that the protection visa application was not valid and should for that reason not have been considered.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.