1610889 (Refugee)

[2016] AATA 4565

1610889 (Refugee) [2016] AATA 4565 (31 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610889

MEMBER:Bruce Henry

DATE:31 October 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 31 October 2016 at 2:26pm

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

1. An application was made to the Tribunal [in] July 2016 for review of a decision to refuse Class XD visa by the Department of Immigration and Border Protection under s.65 of the Migration Act 1958 (the Act). The decision was said to have been made [in] June 2016.

2. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

   Background

3. It appears from documents provided to the Tribunal by the applicant with the application for review that the applicant applied for a Class XA visa [in] November 2012. That application was refused by a delegate of the Minister [in] February 2014. The decision to refuse the Class XA visa was set aside by the High Court by consent order made [in] October 2015, and the matter was remitted to the Minister to be decided in accordance with law.

4. [In] June 2016 the Minister notified the applicant of a decision to grant a temporary protection (subclass 785) visa. Subclass 785 is the only subclass of Temporary Protection (Class XD).

5. Regulation 2.08F of the Regulations operates to convert undetermined Class XA permanent protection visa applications made before 16 December 2014 (pre-conversion applications) by prescribed applicants into applications for Class XD temporary protection visas.[1] The prescribed applicants include those did not hold a visa on last entry into Australia, are unauthorised maritime arrivals, or were not immigration cleared on last entry into Australia.[2]

   [1] Regulation 2.08F is made under s.45AA of the Act, which permits the making of ‘conversion regulations’ which deem an application for one type of visa to be an application for a different type of visa in certain circumstances. Regulation 2.08F and s.45AA were inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No.135 of 2014).

   [2] Regulation 2.08F(2).

6. Information on the departmental file confirms that the applicant is a prescribed applicant for r.2.08F because he entered Australia by sea at an excised offshore place.

7. Pre-conversion applications were converted on 16 December 2014 if the Minister had not made a decision on the application under s.65 of the Act before that day. Where a decision was made before that date, including a decision affected by a jurisdictional error, conversion occurs if the matter is remitted to the Minister by a Tribunal, a court orders the Minister to reconsider the application, a court declares or concludes that a decision in relation to the pre-conversion application is invalid, void or of no effect, or a court quashes a decision of the Minister.[3]

   [3] Regulation 2.08F, inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No.135 of 2014) and amended by Migration Amendment (Conversion of Protection Visa Applications) Regulation 2015 (SLI 2015, No.164). The amendment appears to overcome the effect of the High Court decision in Plaintiff S297/2013 v MIBP (2015) 316 ALR 161. In that judgment the Court held that r.2.08F(3)(a) (which converts an application upon which the Minister had not made a decision as at 16 December 2014) did not apply where a decision was in fact made by 16 December 2014, regardless of whether it was infected by jurisdictional error.

8. On 25 July 2016 a Tribunal officer wrote to the applicant stating:

   I am of the view that your application is not a valid application as there is no record of a decision to refuse you a TPV and consequently there is no decision to review (instead, you have received a decision to grant a TPV, involving the conversion under law of your original application for a Permanent Protection Visa into a TPV application, which is also not a decision to refuse a visa, and cannot be reviewed by the Tribunal).  However, this is a matter which must be determined by a Member of the Tribunal.

   If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 8 August 2016.  Your application, with any comments you make, will then be referred to a Member to make a decision on your application.  If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

   The applicant’s contentions

9. The applicant’s representative has argued in submissions in response to the Tribunal’s letter that:

   4.While it is true that there is no record of a decision to refuse the client a Protection Visa, there is a decision to grant a Temporary Protection Visa, which, we say is, constructively, a decision to refuse a Protection Visa, refusal being tainted with jurisdictional error.

   5.We seek the Tribunal's determination as to whether the department has acted in accordance with the consent orders into which it entered with the client in 2015.

   The Tribunal’s jurisdiction

10. The Tribunal’s review powers under Part 7 of the Migration Act are triggered when a valid application is made for review of a Part 7-reviewable decision. Section 411 of the Migration Act defines which decisions are ‘Part 7-reviewable decisions’. The Part 7-reviewable decisions are, subject to exceptions not relevant to the present case:

    ·    a decision to refuse to grant a protection visa;

    ·    a decision to cancel a protection visa;

    ·    a decision made prior to 1 September 1994, that a non-citizen is not a refugee under Refugees Convention as amended by the Refugees Protocol; and

    ·    a decision, made prior to 1 September 1994, to refuse to grant or to cancel a visa or an entry permit, a criterion for which is that the person has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol.

11. The Tribunal has no power or authority to deal with questions of jurisdictional error by the Department, or whether the Department has acted in accordance with consent orders of the Court.

12. The Tribunal is satisfied that the application for review does not relate to a decision as defined in s.411 of the Act. A decision to grant a subclass 785 visa to the applicant is not a decision to cancel or refuse a visa.

13. For the sake of completeness, the Tribunal rejects the representative’s submission that the making this decision constitutes a constructive refusal of an application for a Protection (Class XA) visa. Pursuant to r.2.08F(1)(a), the application made by the applicant in 2012 is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Pursuant to r.2.08F(1)(b), the application is taken to be, and always to have been, a valid application for a Temporary Protection (Class XD) visa, made by the applicant.

14. For the reasons set out above, the Tribunal is satisfied that the delegate’s decision is not reviewable under Parts 5 or 7 of the Act it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

15. The Tribunal does not have jurisdiction in this matter.

    Bruce Henry
    Member