1718935 (Refugee)

[2023] AATA 1448

1718935 (Refugee) [2023] AATA 1448 (27 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718935

COUNTRY OF REFERENCE:            China

MEMBER:Senior Member G.A.F. Connolly

DATE:27 April 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision of the Department to refuse the grant of a protection visa and remits the matter with the direction that the applicants’ claims be reconsidered de novo.

Statement made on 27 April 2023 at 10:17am

CATCHWORDS

REFUGEE – protection visa – China – decision date prior to interview date – decision under review set aside

LEGISLATION

Migration Act 1958, s 65

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a Delegate of the Minister for Home Affairs (Delegate) made on 07 July 2017 to refuse to grant protection visas to the applicants under s.65 of the Migration Act 1958 (the Act).  The applicants are citizens of China. The male applicant is [age] years old. The female applicant is [age].

2. The Protection Visa Decision Record states that the male applicant attended a protection visa interview on 02 August 2017 at the Department’s Sydney office.[1]

   [1] Protection Visa Decision Record, [of Applicant 1] ([DOB]) and [Applicant 2] ([DOB]), dated 07 July 2017, at p3.

3. The decision by the Delegate to refuse the grant of a protection visa to the applicants is, however, dated 07 July 2017 - almost a month before the Delegate interviewed the applicant.[2]

   [2] Protection Visa Decision Record, [of Applicant 1] ([DOB]) and [Applicant 2] ([DOB]), dated 07 July 2017, at p3.

4. Delegates, like we other mere mortals, are bound by the laws of physics and cannot travel back in time to, as here, pre-emptively refuse a claim before it has been first made and the applicants properly interviewed and their claims for protection heard and considered. To ensure the completeness of these reasons, it is true, also, that this Tribunal, similarly – if, admittedly, tragically - has no Tardis or DeLorean time machine that allows for its members to engage in review via time travel, either.

5. The ancient and always relevant Roman Law maxim of  'Audi Alteram Partem’[3] must be upheld and the Delegate’s decision must be set aside.

   [3] Translated variously as ‘hear the other side’ or ‘no man should be condemned unheard’.

   DECISION

6. The Tribunal sets aside the decision of the Department to refuse the grant of a protection visa and remits the matter with the direction that the applicants’ claims be reconsidered de novo.

   Graham Alfred Frederick Connolly

   Senior Member

   Administrative Appeals Tribunal