1500698 (Refugee)
[2017] AATA 520
•10 March 2017
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 203Any 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 that the Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia. Section 30 of the Act provides for two distinct ‘kinds’ of visa. The first is a permanent visa allowing a person to remain in Australia indefinitely. The second is a temporary visa which allows a person to remain during a specified period, until a specified event happens or while the holder has a specified status.
Section 31 provides for ‘classes’ of visas. Sub-section 31(3) permits regulations to prescribe criteria for a visa or visas of a specified class. Regulation 2.01(a) of the Migration Regulations 1994 (the Regulations) provides that, for the purposes of s.31 of the Act, the prescribed classes of visas are such classes (other than those prescribed in the Act) as are set out in the respective items in Schedule 1 of the Regulations.
In subdivision AA of division 3 of Part 2, the Act deals with applications for visas. In particular, s.45(1) provides that a non-citizen who wants a visa must apply for a visa of a particular class. Section 46 sets out the requirements for a valid visa application. To be valid, an application must be ‘for a visa of a class specified in the application’.
Section 47 requires the Minister to consider a valid application. The requirement to consider a valid application continues until (relevantly) the Minister grants or refuses to grant the visa: s.47(2)(b). The Minister is not to consider an application that is not a valid application: s.47(3).
Upon considering a valid application for a visa the Minister, if satisfied that the various criteria have been satisfied, is to grant the visa: s.65(1)(a) and, if not so satisfied, is to refuse to grant the visa: s.65(1)(b). A decision to refuse to grant a protection visa is an ‘RRT-reviewable decision’: s.411(1)(c) of the Act. It is apparent that the ‘decision’ referred to in s.415(1)(c) is a decision of the kind provided for in s.65.
The relevant classes of visa are provided for in s.35A of the Act. Sub-section 35A(1) provides that a protection visa is a visa of a class provided for by this section. The class of permanent protection visas is established by s36(2), and these visas were classed as Protection (Class XA) visas by the Regulations in Item 1401 of Schedule 1. The class of temporary protection visas is established by s36(3), and these visas were classed as Protection (Class XD) visas by the Regulations in Item 1403 of Schedule 1.
Section 45AA of the Act authorises, in specified circumstances, the making of a ‘conversion regulation’. A conversion regulation may require that certain applications for visas (including protection visas) are ‘taken not to be, and never to have been’ valid applications for those visas, and be ‘taken to be, and always to have been’ valid applications for visas of a different class specified by the conversion regulation.
Regulation 2.08F of the Regulations states:
(1) For section 45AA of the Act, despite anything else in the Act, a valid application (a pre-conversion application) for a Protection (Class XA) visa made before the commencement of this regulation by an applicant prescribed by subregulation (2) is, immediately after this regulation starts to apply in relation to the application under subregulation (3):
(a) taken not to be, and never to have been, a valid application for a Protection (Class XA) visa; and
(b) taken to be, and always to have been, a valid application for a Temporary Protection (Class XD) visa, made by the prescribed applicant.
This regulation commenced on 16 December 2016, being the date on which the Migration and Maritime Powers Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) received the Royal Assent.
What is the Application under Review?
In the present case, the applicant lodged an application for a protection (class XA) visa [in] June 2014, and that application was not determined prior to 16 December 2014.
Accordingly, pursuant to s.45AA of the Act and r.2.08F of the Regulations, from 16 December 2014 the application lodged by the applicant 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.
On [a date in] December 2014, the delegate purported to refuse to grant the applicant a protection (class XA) visa. However, as at that date, there was no valid protection (class XA) visa application to be determined. The application before the Minister on [that date] December 2014 was an application for a temporary protection (class XD) visa, however for the reasons set out below, the Tribunal is of the view that it has no jurisdiction in relation to the application for a protection (class XD) visa as no Part 7-reviewable decision had been made on that application at the time the review application was lodged.
If there is a Part 7-reviewable decision but the visa application is not valid, the Tribunal can consider the review application, but cannot make a decision on the merits of the visa application: MIMA v Li; MIMA v Kundu (2000) 103 FCR 486. This approach is consistent with the approach set out by Bowen CJ in the Full Federal Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, in discussing the jurisdiction of the Tribunal pursuant to s.25 of the Administrative Appeals Tribunal Act:
As I have said, in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.
The Tribunal is satisfied, therefore, that the application in respect of which it has jurisdiction is the delegate’s purported decision to refuse to grant the applicant a Protection (Class XA) visa.
Can the Tribunal review the refusal of a temporary protection (Class XD) visa?
As set out above, s.411 of the Act sets out the range of decisions that are reviewable by the Tribunal under Part 7 of the Act, which relevantly includes ‘a decision to refuse to grant a protection visa’ in paragraph (1)(c). A ‘protection visa’ is defined to be one of the classes of visa provided for by s.35A of the Act, including permanent protection visas and temporary protection visas. The purported decision before the Tribunal relates only to an (invalid) application for a class of permanent protection visa. The Minister has yet to discharge his or her obligations under s.47(2)(b) in relation to the valid application for a class of temporary protection visa, to either grant or refuse the visa under s.65.
Section 415(1) of the Act makes it clear that for the purposes of the review, the Tribunal is vested with all the powers and discretions that the delegate had for the purposes of the Part 7-reviewable decision under review. It could be argued that as the delegate had the power to make a decision on the application for a temporary protection (class XD) visa, the Tribunal similarly has the power to make such a decision.
In the Tribunal’s view, to do so would result in the Tribunal making what would in effect be a primary decision on an application for a visa of a different class than that considered by the Minister. The Tribunal considers this would be inconsistent with the legislative scheme outlined above.
This approach is clearly consistent, in the Tribunal’s respectful view, with the decision of the High Court in MIMA v Bhardwaj [2002] HCA 11; 187 ALR 117; 76 ALJR 598. In Bhardwaj, Gaudron and Gummow JJ said at [53]:
As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.
In SZGME v MIAC (2008) 168 FCR 487, Black CJ and Allsop J said at [30]:
This approach is not contrary to Brian Lawlor [1979 FCA 21; 41 FLR 338. The Tribunal has no authority other than under the Migration Act to grant or to refuse a visa. It accedes to the powers and discretions of the delegate, which include ss 47 and 65 of the Migration Act. Section 69 does not validate what the Tribunal does without statutory authority: see the terms of s 69 and also Phanouvong 60 ALD at 443-444 [24]. The ratio decidendi of Li 103 FCR at [81]-[82] is that a valid application is not merely a requirement affecting the delegate’s power, it also affects the authority of the Tribunal. This view is one that is not plainly wrong. It recognises, through s 415 and ss 47 and 65, that only a valid application must be considered by the Tribunal. No equivalent of s 69 saves the Tribunal’s decision from the effect of considering an application that is not valid.
For these reasons, the Tribunal does not consider that it has the power to make a decision on the application for a temporary protection (Class XD) visa.
The hearing
At the hearing of this matter the Tribunal put these matters to the applicant’s representative, and advised that it appeared on the basis of these authorities that the appropriate decision for the Tribunal to make was to set aside the decision under review on the basis that there was no valid application for a class XA visa before the Minister, and to substitute a new decision that the application for a protection (Class XA) visa was not valid and cannot be considered.
The Tribunal also indicated to the applicant that should it take this view of the matter it would be unable to make a decision on the merits of the application for a temporary protection (Class XD) visa, as that application had not been considered by the Minister.
The representative asked for time to consider and respond, which the Tribunal allowed. On 8 December 2016 the representative wrote to the Tribunal saying:
Thank you for the invitation to make submissions to the Tribunal on the matter you raised about whether or not to proceed with a merits review for [the applicant]. Considering that the decision is wrong because it failed to convert the application from that for a class XA permanent protection visa to a temporary protection visa class XD, as per operation of regulation 2.08F of the Migration Regulations 1994, I submit that:
1. The Tribunal should remit the matter to the Minister for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
2. In the alternative, if the Tribunal considers that it cannot remit the matter with this direction without conducting a merits review, the Tribunal should conduct a merits review before remitting to the Minister.
For the reasons set out above, the Tribunal is unable to accede to the representative’s request. The Tribunal has also determined that as it is making a decision that is favourable to the applicant, it is unnecessary to invite the applicant to a further hearing.
The appropriate direction
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.
In the Tribunal’s view, the situation is the same here. While the Tribunal can consider the review application in relation to the protection (class XA) visa, it cannot make a decision on the merits of the visa application. The appropriate decision is to set the delegate’s decision aside and substitute a new decision pursuant to s.415(2)(d) of the Act that the application was not valid and cannot be considered.
The Tribunal has considered whether it is able to make a direction that the Minister make a decision on the application for a temporary protection (class XD) visa in accordance with his or her obligations under s.47(2)(b) of the Act. Given the view that the Tribunal has taken that the Minister has not made a decision on that application, there is no decision on the application for the purposes of s.415(2)(c), and the Tribunal has no power to remit that application to the Minister for reconsideration.
Nonetheless, in accordance with the principles set out in Bhardwaj and the other cases discussed above, the Tribunal considers that it properly falls to the Minister to make a decision on that application visa in accordance with his obligations under s.47(2)(b) of the Act. The applicant will have review rights to the Tribunal in respect of that decision in the event that the visa application is refused.
CONCLUSION
In these circumstances, the Tribunal considers that the appropriate decision is to set aside the delegate’s decision and substitute a new decision that the application for a protection (class XA) visa was not valid and cannot be considered.
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.
Bruce Henry
Member
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