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 XA) visa is, by operation of regulation 2.08F of the Migration Regulations 1994 (Cth) taken to be, and to always have been, an application for a Temporary Protection (Class XD) visa.
2. A writ of certiorari issue directed to the second respondent quashing its decision dated 12 February 2016 (AAT case number 1500400).
3. A writ of mandamus issue to compel the second respondent to reconsider and re-determine the matter according to law by exercising its powers under section 415(2) of the Migration Act 1958 (Cth) (the Act); namely, either section 415(2)(c), section 415(2)(d), or section 415(2)(e) of the Act.
The applicant appeared before the Tribunal on 16 March 2017 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 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.
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 2014, 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. This is confirmed by the first of the consent orders made by [Judge A] in remitting the matter to the Tribunal.
[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 [in] 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.
In considering these matters, the Tribunal has had regard to the note to the Consent Orders made by [Judge A] in remitting the matter to the Tribunal:
A failure to consider the application against the criteria applicable to a Temporary Protection (Class XD) visa amounted to jurisdictional error. In reconsidering and determining the matter according to law, the second respondent is to exercise the powers under section 415(2) of the Act; namely, either section 415(2)(c), section 415(2)(d), or section 415(2)(e) of the Act.
The Tribunal also notes that in BVC15 v MIBP [2017] FCCA 306, Reithmuller J dealt with an application for judicial review of a decision by the Tribunal to set aside a decision of a delegate of the Minister refusing to grant the applicant a Protection (Class XA) visa and substituting a decision to refuse to grant the applicant a Temporary Protection (Class XD) visa. One of the grounds of review related clearly to the issues in this case:
5. In the alternative to grounds 1-4, the Tribunal had no jurisdiction to make its decision, because the decision which it reviewed was not a lawful decision.
Particulars
a. By section 45AA of the Migration Act 1958 and regulation 2.08F of the Migration Regulations 1994 (the conversion provisions) the Applicant’s application was taken to be for a Protection (Class XD) visa.
b. The conversion provisions required the delegate to make a decision in relation to a Protection (Class XD) visa.
c. The delegate made no such decision.
d. As a consequence, the Tribunal had no lawful decision before it to review.
In relation to this ground, His Honour Judge Reithmuller said at [71]:
This ground was not pursued at the hearing or in written submissions. It was not a ground that could succeed as the decision of the Tribunal was effectively a de novo review of the delegate’s decision. There was a valid application for a visa and regardless of any alleged failings of the delegate, the Tribunal was seized of the matter and therefore had jurisdiction unconstrained by the conduct or decisions of the delegate. Thus, the Tribunal had jurisdiction, which it exercised in making its decision.
The Tribunal has considered both the note to the consent orders of [Judge A] in ANM16 and these comments of Reithmuller J in BVC15. In TCXG and Director-General of Security and Anor [2013] AATA 377 (5 June 2013), the Tribunal said:
The Director-General and the Minister correctly submit that Foster J’s statements in RJCG v Director-General of Security were obiter dicta. However, those remarks were preceded by his Honour’s close analysis of the relevant legislation. What his Honour stated by way of conclusion was blunt and unambiguous. In the ordinary course the Tribunal would be expected to defer to and follow a considered conclusion, even if strictly obiter, reached by a judge of the Federal Court of Australia. We think we must do so unless we are persuaded that Foster J was plainly incorrect.
While the Tribunal respectfully agrees with this statement, it is clear that neither in ANM16 nor in BVC15 did the Court engage in ‘close analysis of the relevant legislation’ before reaching a conclusion. The Tribunal is satisfied that it is not bound by the views expressed by the Federal Circuit Court in either of those cases, and prefers to follow the other authorities discussed above, particularly Li and Kundu.
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 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, 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 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 the application for a protection (class XD) visa, there is no decision on that application for the purposes of s.415(2)(c). The Tribunal has no power therefore to remit that application to the Minister for reconsideration.
As it is clear that the Minister has not made a 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, 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.
The hearing
At the hearing of this matter the Tribunal put these matters to the applicant’s representatives, and advised that it appeared on the basis of the 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 applicant’s representatives responded that they concurred with the approach outlined by the Tribunal view and did not require any time to respond on these issues.
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