1619754 (Refugee) - [2021] AATA 3919

1619754 (Refugee) [2021] AATA 3919 (2 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619754
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Deputy President J.L Redfern PSM
DATE:2 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal’s decision dated 15 May 2017 that it did not have jurisdiction is revoked and substituted with a decision that the Tribunal has jurisdiction to conduct a review.

Statement made on 2 September 2021 at 10:45 am

CATCHWORDS:
REFUGEE – Application for a Temporary Protection (Class XD) (Subclass 785) visa – Vietnam – reconsideration of an earlier decision made by the Tribunal – earlier decision was a ‘no jurisdiction’ decision – where no decision has been made on the merits of the review – whether the Tribunal has the power to revoke an earlier decision – whether the Tribunal should exercise the power to reconsider its earlier decision– where parties agree that the matter should be reconsidered – earlier decision is set aside or revoked and substituted with a decision that the Tribunal has jurisdiction to conduct a review.
CASES:
BIW17 v Minister for Immigration and Border Protection [2018] HCATrans 3
Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Erasga v Minister for Immigration and Border Protection [2019] FCCA 228
Lokuwithana v Minister for Immigration and Border Protection [2017] FCCA 176
Minister for Immigration and Border Protection v BSD17 & Anor [2017] FCCA 2888
Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
Mora (Migration) [2016] AATA 4198
LEGISLATION:
Migration Act 1958 (Cth) s 65
Migration Regulations 1994 (Cth) r. 2.0F
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 December 2014 to refuse to grant the visa applicant a Temporary Protection (Class XD) Subclass 785 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for a Protection (Class XA) Subclass 866 visa on 25 June 2014. By operation of reg.2.08F of the Migration Regulations 1994 (the Regulations), that visa application converted to an application for a Temporary (Class XD) Subclass 785 visa on 16 December 2014.
On 16 December 2014, the delegate refused to grant the applicant a Protection (Class XA) Subclass 866 visa, even though by the operation of reg 2.08F, such an application must be treated as an application for a Subclass 785 visa.
The applicant applied to the Tribunal for review of the decision of the delegate on 24 December 2014. On 21 October 2015, the Tribunal set aside the decision of the delegate to refuse to grant a Subclass 866 visa and substituted a…

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 1619754 (Refugee)

Details

AGLC: 1619754 (Refugee) [2021] AATA 3919
Case: [2021] AATA 3919
Decision Date: 2 September 2021

CaseChat Overview and Summary

The applicant sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) that it lacked jurisdiction to consider their protection visa application. The core of the dispute concerned whether a delegate's decision, made after the commencement of conversion regulations on 16 December 2014, constituted a refusal to grant a Permanent Protection (Class XA) visa or a decision on a Temporary Protection (Class XD) visa application. The Tribunal had found that no reviewable decision had been made, thus it lacked jurisdiction.

The primary legal issue before the Deputy President was whether the Tribunal had the power to revoke its previous decision dismissing the application for want of jurisdiction, and if so, whether it should exercise that power. This involved determining whether the Tribunal's finding of no jurisdiction was plainly in error, thereby justifying revocation and reopening of the matter. The Deputy President also had to consider the correct characterisation of the delegate's decision in light of the conversion regulations and relevant case law.

The Deputy President reasoned that the Tribunal's decision that it lacked jurisdiction was plainly in error. The Deputy President accepted the submission that the conversion regulations rendered the applicant's application one for a Temporary Protection visa, and that the delegate's decision was therefore a reviewable decision on that visa application. This position was supported by Federal Court and High Court decisions, which had confirmed the Tribunal's jurisdiction to consider applications for Temporary Protection visas even where the delegate had purported to refuse a Permanent Protection visa. Accordingly, the Deputy President was satisfied that the Tribunal had the power to revoke its previous decision and that it was just and appropriate to do so.

The Deputy President revoked the Tribunal's decision of 15 May 2017, which found a lack of jurisdiction, and substituted it with a decision that the Tribunal does have jurisdiction to conduct a review. The matter was to be reconstituted for the purpose of hearing and determining the review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons set out above, I am satisfied that the decision of the second Tribunal dated 15 May 2017 should be revoked and that it would be just and appropriate in all of the circumstances to reopen the matter.DECISION The Tribunal’s purported decision dated 15 May 2017 that it lacked jurisdiction is set aside or revoked and substituted with a decision that the Tribunal has jurisdiction to conduct a review. The Tribunal will be reconstituted for the purpose of hearing and determining the review.J.L Redfern PSMDeputy President

Ratio Decidendi

Legal Principle Established

I have considered the submissions and have determined to revoke the previous decision dismissing the application for want of jurisdiction. My reasons follow.CONSIDERATION In this matter the issues that need to be determined are whether I have the power to revoke the decision of the second Tribunal, and thereby reopen the case for consideration, and if so, whether I should do so.Whether the Tribunal has the power to revoke and reopen the matter The decision record of the second Tribunal reveals that the presiding member had regard to a decision made by another Tribunal member in a review that involved similar circumstances. While the member did not consider he was bound by that decision, similar reasoning was applied and relevantly, the Tribunal found:13. Given that the operation of conversion regulation r.2.08F on 16 December 2014 converted the applicant’s Permanent Protection (Class XA) visa application to a Temporary Protection (Class XD) visa application, the delegate had no jurisdiction to make a decision on a Permanent Protection (Class XA) visa with respect to the applicant. However, as discussed above, the Tribunal notes that the delegate’s record of decision is not capable of a construction otherwise than having been a decision to “refuse to grant [the applicant] a Protection (Class XA) visa”. That is to say the delegate has not made a decision on the applicant’s Temporary Protection (Class XD) visa application.14. Accordingly the Tribunal must find that no reviewable decision has been made at the time of the review application.15. As no reviewable decision had been made at the time the review application was lodged, it follows that the application was not properly considered, and the Tribunal does not have jurisdiction in this matter. It is submitted by the Secretary that the Tribunal has power to revoke the decision of the second Tribunal to reopen the decision because the second decision was plainly in error. The submission is as follows:The Conversion Regulation rendered the applicant’s application an application for a Temporary Protection visa and, accordingly, the delegate’s decision a decision on that Temporary Protection visa application. The delegate's decision was a reviewable decision for the Tribunal and, indeed, the first Tribunal, while identifying the change brought about by the Conversion Regulation, did not consider there to be any impediment to considering the application on that basis. The Court has confirmed this position in cases such as BAP17 v Minister for Immigration and Border Protection [2018] FCA 1265 at [18]; BIW17 v Minister for Immigration and Border Protection [2017] FCA 1606; and BIW17 v Minister for Immigration & Border Protection [2018] HCA Trans 3. In the latter, Gageler J rejected the argument that the Tribunal lacked jurisdiction to determine whether the applicant satisfied criteria for the grant of a Temporary Protection visa in circumstances where the delegate, also on 16 December 2014, had purported to refuse to grant the applicant a Protection visa.