1512386 (Refugee) - [2016] AATA 4818

1512386 (Refugee) [2016] AATA 4818 (7 December 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512386
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Glen Cranwell
DATE:7 December 2016
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 07 December 2016 at 1:28pm
CATCHWORDS
Refugee – Protection visa – Bangladesh – Conversion regulation – Temporary protection visa – Reviewable decisions – Tribunal jurisdiction – Invalid primary decision

LEGISLATION
Migration Act 1958, ss 29, 30, 35, 36, 45, 46, 47, 65, 411, 415
Migration Regulations 1994 2.01, 2.08, 2.10, Items 1401 & 1403

CASES
SZLUC v MIAC [2008] FCA 1319
MIMA v Kundu (2000) 103 FCR 486
SZGME v MIAC (2008) 168 FCR 487
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 [in] January 2015 to refuse to grant the applicant a Protection (Class XA) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa [in] June 2013. 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.
On 21 October 2016 the Tribunal wrote to the applicant pursuant to s.424(2) of the Act, inviting the review applicant to provide a translation of the birth certificate he had previously provided to the Department. It is implicit from SZLUC v MIAC [2008] FCA 1319 that an English language translation constitutes information. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 4 November 2016, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.424C applies and the Tribunal may proceed to make a decision on the review. Given that the Tribunal is not making an unfavourable decision, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.
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.
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 provides as follows:
(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 2014, being the date on which the Migration and Maritime Powers Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) received the Royal Assent.
ANALYSIS
Although the delegate purported to refuse to grant the applicant a Protection (Class XA) visa, the issue in this case is whether there is even a valid visa application that may be considered.
In the present case, the applicant lodged an application for a Protection (Class XA) visa [in] June 2013.
By operation of s.45AA of the Act and r.2.08F of the 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.
On [a date in] January 2015, 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. It follows, that in purporting to refuse to grant the application for a Protection (Class XA) visa, the delegate failed to comply with s.47(3) of the Act, which prohibits the Minister from considering an invalid application.
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. The Full Court of the Federal Court in MIMA v Li; MIMA v Kundu (2000) 103 FCR 486 at [81]-[82] made the following observations in circumstances where the delegate refused an invalid application for a visa:
Similarly, it is difficult to see how s 415(1) of the Migration Act, can support a decision by the RRT on the merits, in circumstances where no valid application has ever been lodged. Section 415(1) empowers the RRT, for the purposes of the review of a RRT-reviewable decision, to exercise all the powers and discretions that are conferred by the person who made the decision. Yilmaz held that s 415(1) permitted the RRT to review, on the merits, a decision of the Minister's delegate where a valid application for a visa had been lodged, albeit after the date of the delegate's decision. Yilmaz did not consider whether the RRT had jurisdiction to review on the merits a decision of the Minister's delegate where no valid application for a protection visa had ever been lodged. Nor did Yilmaz consider whether reg 2.10(1)(b) would be satisfied if the information required to complete a Form 866 were supplied to the RRT, rather than to an office of Immigration.
It strains language to say that the powers which are conferred on the RRT for the purposes of the review of a RRT-reviewable decision include the power to receive essential components of the prescribed application form. Regulation 2.10(1)(b) requires an application to be made at an office of Immigration in Australia. That includes all essential components of the prescribed application form. Section 415(4) of the Migration Act makes it clear that the RRT cannot make a decision not authorised by the Migration Act or the regulations. A decision to refuse a visa where no valid application for a visa has been made is a decision not authorised by the Migration Act or the regulations. The fact that the Migration Act preserves an unauthorised decision by a delegate, so as to make it subject to review by the RRT, does not confer on the RRT greater powers than a delegate could ever have properly exercised in relation to an invalid application.
[emphasis in original]
See also SZGME v MIAC (2008) 168 FCR 487 per Black CJ and Allsop J 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.
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.
For completeness, and 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 at the time the review application was lodged.
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. In the Tribunal’s view, its powers in reviewing a decision to refuse an invalid visa application do not extend to 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. In the present case, it follows that the Tribunal, standing in the shoes of the delegate, only has the power to consider any or all of the criteria for the grant of a Protection (Class XA) visa. As noted above, the Tribunal is prohibited from considering the application pursuant to s.47(3) as the visa application is not valid.
It properly falls to the Minister to make a primary decision on the application for a Protection (Class XD) visa in accordance with his or her obligations under s.47(2)(b) of the Act, and the applicant will have review rights to the Tribunal in respect of that decision in the event that the visa application is refused.
CONCLUSION
For the reasons given above the Tribunal finds that the applicant’s Protection (Class XA) visa application is not valid and that the Tribunal has no power to consider it.
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.
Glen Cranwell
Member