1608802 (Refugee) - [2017] AATA 825

1608802 (Refugee) [2017] AATA 825 (20 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608802
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Bruce Henry
DATE:20 April 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 20 April 2017 at 10:28am
CATCHWORDS
Refugee – Protection visa – Vietnam – Federal Circuit Court remittal – Protection (Class XA) visa – Invalid visa – First tribunal affirmed decision for invalid visa subclass – Application is taken to be Temporary Protection (Class XD) visa – Decision set aside – Application for Protection (Class XA) visa invalid and cannot be considered
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 25
Migration Act 1958, ss 29, 30, 31, 35, 36, 45, 46, 47, 65, 411, 415, Part 7
Migration and Maritime Powers Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
Migration Regulations 1994, Schedule 1, r 2.08F, 2.01a

CASES
AOU16 v MIBP [2016] FCC
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
MIMA v Kundu (2000) 103 FCR 486
SZANA v MIMIA [2004] FCA 203
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 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.
A differently constituted Tribunal had affirmed the decision of the Department on 16 February 2016. The matter is before the Tribunal because that decision was remitted by consent orders made by Vasta J in the Federal Circuit Court at Brisbane on 2 June 2016 in AOU16 v MIBP. 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

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 1608802 (Refugee)

Details

AGLC: 1608802 (Refugee) [2017] AATA 825
Case: [2017] AATA 825
Decision Date: 20 April 2017

CaseChat Overview and Summary

This matter concerned an application for a Protection (Class XA) visa by a citizen of Vietnam. The primary decision-maker had made a decision on the merits of an invalid visa application. The Administrative Appeals Tribunal (AAT) affirmed this decision, which was then set aside by the Federal Circuit Court. The applicant's subsequent application was taken to be a Temporary Protection (Class XD) visa.

The central legal issue before the court was the extent of the Tribunal's powers on review, specifically whether it could consider an application that was invalid from its inception. The court was required to determine if the Tribunal, in reviewing a Part 7-reviewable decision, possessed powers exceeding those of the original decision-maker, and if it could substitute a decision of invalidity for a decision made on the merits of an invalid application.

The court reasoned that the Tribunal's powers on review are circumscribed by section 415 of the *Migration Act 1958* (Cth), which grants the Tribunal the same powers as the original decision-maker. Therefore, if the original decision-maker lacked the authority to consider an invalid application, the Tribunal also lacked such authority. The court noted that a decision to refuse a protection visa is a prescribed matter for the purposes of section 415(2)(c), allowing for remittal. However, the court found that the Tribunal had erred by affirming the decision on the merits of an invalid application. Instead, the Tribunal should have set aside the decision under section 415(2)(d) and substituted a decision that the application was invalid and therefore could not be considered.

The court ordered that the decision of the Tribunal be set aside and substituted with a decision that the application for a Protection (Class XA) visa was invalid and could not be 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. 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 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 [25]-[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, 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.