1825788 (Refugee)

Case [2020] AATA 428

1825788 (Refugee) [2020] AATA 428 (6 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1825788

COUNTRY OF REFERENCE:                   Stateless

MEMBER:F. Simmons

DATE:6 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision refusing to grant a protection visa and substitutes a decision that the protection visa application is not valid and cannot be considered.

Statement made on 6 February 2020 at 6:30 pm

CATCHWORDS

REFUGEE – protection visa – Stateless – arrival at Ashmore Reef – unauthorised maritime arrival and Temporary Safe Haven visa grant – visa ceased – minister lifted bar in s 46A – applicant applied for Safe Haven Enterprise Visa – application refused by department on identity, nationality and protection obligations grounds – refusal affirmed by Immigration Assessment Authority – Ashmore and Cartier Islands proclaimed as excised offshore places – Federal Court judgment in another case – Ashmore and Cartier Islands arrival not unauthorised maritime arrival or fast-track applicant – IAA decision quashed – tribunal’s power to review – applicability of ss 46A and 91K if original TSH visa invalidly granted – no statutory power to consider whether grant of original TSH visa was wrong in law – application invalid and cannot be considered – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 5AA, 46(1)(e)(v), 46A(2), 47(3), 65, 66(2)(d), 91H, 91J, 91K, 91L, 91W(2), 195A(2), 411(1)(c), 412, 415(2)(d), (4), 423(2)

Migration Regulations 1994 (Cth), r 2.07

CASES
DBB16 v MIBP (2018) 260 FCR 447

Jayasinghe v MIEA (1997) 76 FCR 301

MIBP v Kim (2014) 221 FCR 523

MIMA v Li (2000) 103 FCR 486

MIMIA v WAIK (2003) 79 ALD 152

Plaintiff M79/2012 v MIAC (2013) 252 CLR 336

Plaintiff S4/2014 v MIBP (2014) 253 CLR 219

Raihan v Minister for Home Affairs [2019] FCCA 2721

SZANA v MIMIA [2003] FCA 1407

SZANA v MIMIA [2004] FCA 203

SZEYK v MIAC [2008] FCA 1940

SZGME v MIAC (2008) 168 FCR 487

SZIIV v MIMA [2006] FMCA 322

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. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

  2. The applicant entered the vicinity of Ashmore Reef [in] May 2013 by boat, and was later taken to [location]. Departmental records show that on 30 July 2013 the applicant was granted a temporary safe haven (subclass 449) visa (the TSH visa) and this visa expired seven days later on 6 August 2013. On 29 September 2015, the applicant was invited to apply for a temporary protection (subclass 785) visa or a safe haven…

Continue reading 1825788 (Refugee)

Sign in free to access the full text

Details
AGLC
1825788 (Refugee) [2020] AATA 428
Case
[2020] AATA 428
Decision Date

CaseChat Overview and Summary

The applicant, a stateless non-citizen, arrived at Ashmore Reef and was granted a Temporary Safe Haven visa. Following the cessation of this visa, the applicant applied for a Safe Haven Enterprise Visa. The department refused this application on grounds of identity, nationality, and protection obligations, a decision affirmed by the Immigration Assessment Authority (IAA). However, a subsequent Federal Court judgment determined that arrivals at Ashmore and Cartier Islands were not to be considered unauthorised maritime arrivals or fast-track applicants. This led to the quashing of the IAA's decision.

The primary legal issue before the Tribunal was whether it possessed the power to review the validity of the original Temporary Safe Haven visa grant, particularly in light of the Federal Court's determination that the applicant was not an unauthorised maritime arrival. The Tribunal was required to consider the applicability of sections 46A and 91K of the Migration Act 1958, and whether the applicant's subsequent application for a Safe Haven Enterprise Visa was valid given the circumstances of their arrival and initial visa grant.

The Tribunal reasoned that it had no statutory power to consider whether the original grant of the Temporary Safe Haven visa was legally flawed. Instead, it was bound by the provisions of sections 91K and 91L, which stipulate that if a non-citizen holds or has held a temporary safe haven visa and has not left Australia, they are unable to make a valid application for certain other visas, unless the Minister exercises their power under section 91L to determine that section 91K does not apply. As no such determination had been made by the Minister, the Tribunal concluded that the applicant's application for the Safe Haven Enterprise Visa was invalid and could not be considered.

Consequently, the Tribunal set aside the delegate's decision refusing to grant a protection visa and substituted a decision that the protection visa application was not valid and could not be considered.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the reasons given above, the Tribunal has no alternative but to set aside the delegate’s decision and substitute a decision that the application for the visa is invalid and cannot be considered. DECISION The Tribunal sets aside the decision refusing to grant a protection visa and substitutes a decision that the protection visa application is not valid and cannot be considered.F. SimmonsMemberATTACHMENT - Extract from Migration Act 195891JNon‑citizens to whom this Subdivision applies(1)This Subdivision applies to a non‑citizen in Australia at a particular time if, at that time, the non‑citizen:(a)holds a temporary safe haven visa; or(b)has not left Australia since ceasing to hold a temporary safe haven visa.(2)This Subdivision does not apply to an unauthorised maritime arrival or a transitory person.Note:Unauthorised maritime arrivals are covered by section 46A and transitory persons are covered by section 46B.91KNon‑citizens to whom this Subdivision applies are unable to make valid applications for certain visasDespite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non‑citizen at a particular time and, at that time, the non‑citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application.91LMinister may determine that section 91K does not apply to a non‑citizen(1)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 91K does not apply to an application for a visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given.(2)The power under subsection (1) may only be exercised by the Minister personally.(3)If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:(a)sets out the determination; and (b)sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.(4)A statement under subsection (3) is not to include:(a)the name of the non‑citizen; or(b)any information that may identify the non‑citizen; or(c)if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.(5)A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days of that House after:(a)if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or(b)if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.(6)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.