1610889 (Refugee)

The applicant sought review of a decision by the Minister to refuse a Class XA visa. The applicant had initially applied for this visa in November 2012, which was refused in February 2014. This refusal was set aside by the High Court in October 2015, remitting the matter to the Minister for decision according to law. Subsequently, in June 2016, the Minister notified the applicant of a decision to grant a temporary protection (subclass 785) visa. The Tribunal was asked to determine whether it had jurisdiction to review the delegate's decision.

The central legal issue before the Tribunal was whether the delegate's decision was reviewable under Parts 5 or 7 of the *Migration Act 1958* (Cth). This question hinged on the operation of Regulation 2.08F of the *Migration Regulations 1994* (Cth), which converted certain undetermined Class XA permanent protection visa applications made before 16 December 2014 into applications for Class XD temporary protection visas. The applicant was considered a "prescribed applicant" for the purposes of this regulation due to entering Australia by sea at an excised offshore place.

The Tribunal reasoned that Regulation 2.08F, as amended, operated to convert the applicant's pre-conversion application for a Class XA visa into an application for a Class XD visa. This conversion occurred because the delegate's initial decision was set aside by the High Court and the matter was remitted to the Minister. As the applicant's application was converted to a Class XD visa, the Tribunal concluded that the delegate's decision was not a decision that could be reviewed under Parts 5 or 7 of the Act. Consequently, the application for review was not properly made, and the Tribunal lacked jurisdiction.