1607914 (Refugee) - [2017] AATA 683

1607914 (Refugee) [2017] AATA 683 (16 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1607914
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Bruce Henry
DATE:16 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 16 March 2017 at 5:21pm
CATCHWORDS
Refugee – Protection visa – Vietnam – Federal Court remittal – Invalid application for Class XA visa – No jurisdiction in relation to Class XD application – No reviewable decision
LEGISLATION
Migration Act 1958, ss 29, 30, 31, 35A, 36, 45, 45AA, 46, 47, 65, 411(1)(c), 415
Migration Regulations 1994, r 2.01(a), r 2.08F, r 4.33(1), Schedule 1
Migration and Maritime Powers Amendment (Resolving the Asylum Legacy Caseload) Bill 2014

CASES
MIMA v Li; 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
BVC15 v MIBP [2017] FCCA 306
TCXG and Director-General of Security and Anor [2013] AATA 377
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.
A differently constituted Tribunal had affirmed the decision of the Department on 12 February 2016. The matter is before the Tribunal because that decision was remitted by consent orders made by [Judge A] in ANM16 v MIBP in the Federal Circuit Court at Brisbane [in] May 2016. In remitting the matter the Court ordered:
1. It is declared that the applicant’s application for a Protection (Class…

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 1607914 (Refugee)

Details

AGLC: 1607914 (Refugee) [2017] AATA 683
Case: [2017] AATA 683
Decision Date: 16 March 2017

CaseChat Overview and Summary

The applicant sought review of a decision concerning a protection visa application. The dispute centred on the validity of the application and the jurisdiction of the Tribunal to review the decision made in relation to it. The matter was before the Federal Court.

The court was required to determine whether the Tribunal had jurisdiction to review a decision that was made in relation to an invalid visa application. Specifically, the court considered whether a decision to refuse an invalid application was a reviewable decision, and what powers the Tribunal possessed in such circumstances.

The court reasoned that under section 47 of the Migration Act 1958 (Cth), neither the Minister nor a delegate can consider an application that is not valid. The Tribunal, in reviewing decisions, has no greater powers than the original decision-maker. Therefore, if the original decision-maker ought to have declined to consider an invalid application, the Tribunal should have set aside the decision and substituted a decision that the application was not valid and therefore not to be considered. The court noted that a decision to refuse a protection visa is a prescribed matter for the purposes of section 415(2)(c) of the Act, but that the Tribunal erred in affirming the decision rather than setting it aside on the basis of the application's invalidity.

The court ordered that the decision of the Tribunal be set aside and substituted with a decision that the protection visa application was not valid and should not have been considered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant was represented in relation to the review by a registered migration agent and by a Counsel who is also a registered migration agent. CONSIDERATION OF CLAIMS AND EVIDENCE 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. Section 415 then sets out the Tribunal’s powers on review of such decisions. 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.

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

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