1619754 (Refugee)

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.