1825788 (Refugee) - [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

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).
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 enterprise (subclass 790) visa (SHEV) after the Minister made a decision to lift the bar in s.46A of the Act.
On 21 June 2016 the applicant applied for a SHEV. On 27 September 2016 a delegate of the Minister purported to make a decision to refuse to grant the visa under s.91W(2) of the Act. The delegate also found the applicant’s identity was not as he claimed, the applicant was not stateless, and that the applicant was not owed protection obligations by Australia.
Following the judgment in DBB16 v MIBP [2018] FCAFC 178 (DBB16), a person is not an ‘unauthorised maritime arrival’ (UMA) through the act of entering Australia by sea at the Territory of Ashmore and Cartier Islands. As a result, the applicant is not a UMA, or a ‘fast track applicant’. However, until the decision in DBB16 the Minister proceeded on the assumption that the applicant was a ‘fast track applicant’ and therefore subject to the truncated review process established under Part 7AA of the Act.
On 13 September 2018 the applicant was granted an extension of time to file an application for review of the decision of the Immigration Assessment Authority (IAA) to affirm the delegate’s decision to refuse to grant him a visa. On the same date the Federal Circuit Court declared:
3. The purported appointment of a port as a proclaimed port, in respect of an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth of Australia Gazette no. GN 3 on 23 January 2002, is invalid.
4. The applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (Cth)
5. The applicant has not been notified pursuant to s.66 of the Migration Act 1958 (Cth) of the decision of a delegate of the First Respondent dated 27 September 2016.
The Court also ordered that a writ of certiorari issue to quash the decision of the IAA dated 1 December 2016.
The applicant lodged an application for review of the delegate’s decision to refuse to grant him a visa with the Tribunal on 4 September 2018. This case was constituted to a Tribunal member in August 2019.
Issue on review
The consequence of the decision in DBB16 and the court order made in his case in September 2018 is that the applicant was not a fast track applicant and therefore was not properly notified, as required by s.66 of the Act, of his right to have the decision reviewed under Part 7 of the Act before the Administrative Appeals Tribunal.
What is at stake in this review application is whether the Tribunal has the power to review the merits of the application or whether the application for the visa was prevented by the operation of s.91K of the Act. This issue arises in this case because the applicant is not a UMA and departmental records indicate that he was granted a TSH visa on 30 July 2013 and that this visa ceased on 6 August 2013 and the applicant has not departed Australia since that date.
Section 91K of the Act operates to prevent non-citizens (other than UMAs or transitory persons) who hold, or have not left Australia since ceasing to hold, a TSH visa from making a valid application for a visa (other than a TSH visa). This means that if a person is subject to s.91K they are unable to make a valid application for a visa, other than a TSH visa.
For the reasons that follow, the Tribunal has concluded that the application for the visa is prevented by s.91K. The consequence of this conclusion is that 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.
Proceedings before the Tribunal
On 28 August 2019, the Tribunal wrote to the applicant seeking comment on its preliminary view that because he was granted a TSH visa on 30 July 2013 the application for a SHEV was invalid because of s.91K, and invited the applicant to make submissions about whether s.91K applies to him.
On 24 September 2019, the applicant’s representative submitted that s.91K did not apply in this matter. It was submitted that when the Minister of Immigration exercised his power under s.195A(2) of the Act to grant the applicant a TSH visa he was acting in the erroneous belief that the applicant was a UMA. This raised a question as to ‘whether the Minister had the legal authority to grant the applicant a [TSH] visa in July 2013’.[1] In short, it was argued that because the Minister incorrectly treated the applicant as a UMA the grant of the TSH visa to the applicant was invalid. Therefore, the Tribunal should conclude that s.91K did not prevent the applicant from applying for a SHEV.
[1] Tribunal file, f.46.
On 15 October 2019, the Tribunal wrote to the Secretary of the Department of Home Affairs and, pursuant to s.423(2) of the Act, invited the Secretary to make submissions on the following issues:
1. The application of section 91K of the Act in this matter.
2.     The validity of the grant of the Humanitarian Stay (Temporary) (Subclass 449) visa to the applicant given the applicant is now considered never to have been a UMA.
3.     The Tribunal’s power to consider the validity of the grant of the Humanitarian Stay (Temporary) (Subclass 449) visa to the applicant.
4.     The validity of the Minister’s exercise of his power on 29 September 2015 to permit the Applicant to make a valid application for a TPV or SHEV given the applicant is now considered never to have been a UMA.
The Tribunal also requested that the Secretary of the Department provide the Tribunal with the following information: any statement published pursuant to s.195A(6) with respect to the decision to grant the applicant a TSH visa; any statement published pursuant to s.46A(4) with respect to the decision to lift the bar in s.46A(2) of the Act to enable the applicant to apply for a SHEV; and any relevant Ministerial minutes or submissions addressing the public interest reasons for the Minister’s exercise of his power under s.195A and s.46A(2).
The Tribunal held a directions hearing on 21 October 2019. The Tribunal explained that the hearing scheduled in November 2019 would be confined to consideration of the preliminary issue of whether the visa application was prevented by s.91K of the Act and that, if the Tribunal found the application for the visa was valid, it would be necessary to have a further hearing to discuss the substantive merits of the application.
The Tribunal observed that the question raised by the applicant’s submissions –– whether the grant of the TSH visa was valid –– assumed that the Tribunal had the power to answer this question. The Tribunal observed it was not a court and that its powers are confined to those set out in s.415 of the Act. The Tribunal invited the applicant’s representative to address the issue of whether the Tribunal had the power to consider questions about the validity of the TSH visa in pre-hearing submissions.
The Tribunal noted that in August 2019 a delegate of the Minister found the applicant’s application for a bridging visa to be invalid because the applicant was prevented from applying for the visa by s.91K of the Act. The Tribunal noted that it was not aware of any legal proceedings in relation to the validity of the TSH visa that was granted to the applicant in July 2013. The Tribunal asked the applicant’s representative to bring to its attention any judicial challenge to the validity of the TSH visa.
On 1 November 2019 the Tribunal received submissions from the Secretary of the Department to the effect that s.91K applies in this matter and that the grant of the TSH visa was valid. A copy of these submissions was then provided to the applicant.
In submissions dated 18 November 2019, the applicant’s representative raised a new argument, namely that the Tribunal lacks jurisdiction to determine whether s.91K of the Act applies. It was submitted that so much must be concluded, given: the binding nature of the declarations made by the Federal Circuit Court in September 2018 and the circumstances in which those declarations were made; and the kinds of decisions which the Tribunal is, by the Act, authorised to make.
At the hearing on 21 November 2019, the Tribunal discussed with the applicant and his representative whether the applicant had made a valid application for the SHEV. The arguments advanced on behalf of the applicant by his representative are considered below. The applicant also made the point, which the Tribunal accepts, that he had never asked to be granted the TSH visa. However, as discussed at the hearing, the evidence before the Tribunal shows that the Minister exercised his power under s.195A(2) of the Act to grant the applicant a TSH visa on 30 July 2013 and this visa ceased on 6 August 2013.
Post hearing submissions on 29 November 2019 advanced three alternative arguments:
a.First, it was submitted the Tribunal did not have the jurisdiction to consider whether the applicant’s application for the SHEV was valid as the fact that the applicant had made a valid application was implicit in the judicial determination and declaration of 13 September 2018.
b.Second, the Tribunal should defer making a decision until the applicant had been given written notice in relation to the s.91L as it was possible that this determination would operate retrospectively to cure the invalidity of the application made on 21 June 2016.
c.Third, and contrary to the first argument advanced by the applicant, the Tribunal should conclude that the grant of the TSH visa was invalid and therefore s.91K did not prevent the applicant from making a valid visa application.
On 23 December 2019, the Tribunal received submissions stating that the applicant had been informed by the Department that the applicant was the subject of a decision made to the lift the bar under s.91L of the Act but that the applicant had not yet been notified of this determination. The submission requested that the Tribunal provide the applicant with any communication or documents relating to the bar lift in its possession and also that the Tribunal seek certain information relating to s.91L from the Department.
On 14 January 2020 the Tribunal responded to the applicant’s request that the Tribunal seek further information from the Department in relation to the consideration of s.91L of the Act in this matter. The Tribunal noted that on 9 January 2020 information had been released to the applicant in response to a freedom of information request. The Tribunal declined to seek further information from the Department in relation to the lifting of the s.91K bar as it did not consider that doing so was necessary to resolve the issues that arise for determination in this review.
REASONS AND FINDINGS
Evidence before the Tribunal
The Tribunal has before it the Department’s electronic file and the Tribunal’s file and it has carefully considered the submissions made on the applicant’s behalf as well as the submissions made by the Secretary of the Department.
Section 438 applies to decisions under Part 7 of the Act and provides that where the Minister has certified in writing that disclosure of a document or information would be contrary to the public interest, the Tribunal may have regard to that document or information and may disclose any matter in the document or information to the applicant if it considers it appropriate to do so. However the operation of s.438 is dependent upon the existence of a valid certificate by the Minister or his delegate.
In this case the electronic Departmental file includes documents subject to a non-disclosure certificate pursuant to s.438(1)(a) of the Act dated 22 November 2018. The information covered by the non-disclosure certificate is certain information contained in an Identity Assessment conducted by the Department. The certificate states the disclosure of this information would be contrary to the public interest because it would place the Department at risk of legal action for breach of confidence and demonstrate the Department’s internal workings in relation to establishing the applicant’s identity.
The Tribunal considers that, while the wording of the s.438 certificate could be clearer, the certificate does identify why disclosing the material would be contrary to the public interest and the damage that would be done by disclosure. In any event, the Tribunal has not provided with the applicant with an opportunity to comment on the material covered by the s.438 certificate because, while the Tribunal would have been required to put this information to the applicant pursuant to s.424A of the Act if it had the power to consider the merits of this case, information is irrelevant to the question of whether the application for the visa is prevented by the operation of s.91K and s.46(1)(e)(v).
Was the application for review by the Tribunal a valid application?
The application for review asks the Tribunal to review the decision of the delegate to refuse the applicant’s application for a SHEV. The Tribunal satisfied that the decision of the delegate is a Part 7 Reviewable decision under the Act (s.411(1)(c)). Where the primary decision maker has made a decision on the merits of the visa application (i.e. has refused to grant the visa) where the visa application is not valid, the primary decision may be wrong or unauthorised but may nonetheless be a Part 7-reviewable decision for the purposes of s.411(1)(c).[2]
[2] Section 69. See Yilmazv MIMA (2000) 100 FCR 495; SZGME v MIAC (2008) 168 FCR 487, MIMIA v WAIK (2003) 79 ALD 152 at [29] – [31]; and SZMWT v MIAC [2009] FMCA 254 at [32].
The applicant has lodged two separate applications for review with the Tribunal. The first applicant was lodged on 4 September 2018 (1825788) subsequent to the Full Federal Court's declaration of 6 August 2018 that the proclamation of Ashmore Reef as an excised offshore place was invalid and prior to orders made by the Federal Circuit Court on 13 September 2018 and the applicant being notified on 20 February 2019 by the Department of his right to seek review at this Tribunal.
Prior to the decision in DBB16, the applicant was mistakenly treated as a UMA and subjected to the fast track process of review. The effect of DBB16 and the court orders of 13 September 2018 is that the applicant is not an UMA within the meaning of s.5AA of the Act. Because the applicant is not and never was a UMA he was not a fast track applicant and the decision of the IAA on 1 December 2016 is a nullity.
Further, the first notification of the refusal decision by the delegate was defective for the purposes of s.66(2)(d) of the Act, such that the prescribed time period in which to apply for the review did not start to run. The re-notification of the delegate’s decision on 20 February 2019 did not create the applicant's right to seek review of the original decision; it merely triggered the provisions of s.412 which stipulate that a request for review must be lodged ‘within 28 days’ of the applicant being notified of the decision.
The Tribunal therefore finds that first application (1825788) for review of the decision made to this Tribunal on 4 September 2018 is a valid application for review, and will make a decision on that review. In relation to the second review application (1904448) lodged on 26 February 2019, it is well established that the Tribunal has no jurisdiction to review a delegate’s decision twice.[3] Therefore when the Tribunal has made a decision in this matter, it will make a separate decision in relation to 1904448 confirming that the Tribunal does not have jurisdiction in that review because the Tribunal has completed its review function.
[3] SZEYK v MIAC [2008] FCA 1940 at [21]; Jayasinghe v MIEA (1997) 76 FCR 301; SZIIV v MIMA [2006] FMCA 322.
The Tribunal has determined that the applicant has made a valid application for review. The question that now arises is whether the Tribunal has the power to review the merits of the case or whether, in the circumstances of this case, the Tribunal only has the power to set aside the delegate’s decision and substitute a decision that the application for the visa is not valid and cannot be considered.
Was the application for the visa barred by s.91K of the Migration Act 1958?
Although the delegate purported to refuse to grant the visa, the first issue the Tribunal must consider in this case is whether there is even a valid visa application that may be considered.
This question of whether there is a valid visa application arises because a court has made a binding declaration that that the applicant is not an UMA and Departmental records indicate that the applicant held a TSH visa between 30 July 2013 and 6 August 2013.
The Act and the Migration Regulations 1994 (the Regulations) prescribe certain requirements for the making of a valid application for a visa: ss.45 to 48A of the Act and r.2.07 of the Regulations. Schedule 1 to the Regulations also sets out certain matters relating to the making of a valid protection visa application. An application for a visa is a valid application if, and only if, it is made in the way required by the Act and the Regulations: ss.45 to 48A of the Act.

An invalid visa application cannot be considered by the Minister or his delegate.[4] Section 47 of the Act provides:
[4] Section 47(3).
(1) The Minister is to consider a valid application for a visa.
(2) The requirement to consider an application for a visa continues until:
(a)the application is withdrawn; or
(b)the Minister grants or refuses to grant the visa; or
(c)the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3)To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4)To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
Under s.415 of the Act the Tribunal has no greater powers than the original decision-maker.[5] The Tribunal must not exercise powers that are not authorised by the Act or the Regulations.[6] Relevantly, s. 415 of the Act sets out the Tribunal powers on review of Part 7 reviewable decisions as follows:
[5] SZANA v MIMIA [2004] FCA 203 per Hely J at [26].
[6] Section 415(4).
(1) The Tribunal may, for the purposes of the review of a Part 7-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter — remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision; or
(e) if the applicant fails to appear — exercise a power under section 426A in relation to the dismissal or reinstatement of an application.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
Where the primary decision maker has made a decision on the merits of the visa application and the visa application is not valid, the primary decision may be wrong or unauthorised but may nonetheless be a Part 7-reviewable decision for the purposes of s.411(1)(c).[7]
[7] Section 69. See Yilmazv MIMA (2000) 100 FCR 495; SZGME v MIAC (2008) 168 FCR 487, MIMIA v WAIK (2003) 79 ALD 152 at [29] – [31]; and SZMWT v MIAC [2009] FMCA 254 at [32]. Note that in MIMIA v WAIK (2003) 79 ALD 152 the Full Court gave an ex tempore judgment holding that the effect of s.69 of the Migration Act was to cure the invalidity of a primary decision made in breach of s.47(3) such that the Tribunal was entitled to review the decision on the merits. Note, however, the comments of Black CJ and Allsop J in SZGME v MIAC (2008) 168 FCR 487 at [31] that given the peculiar circumstances in WAIK this judgment provides no basis from departing from MIMA v Li (2000) 103 FCR 486 at [81] and [82].
If there is a reviewable decision but the visa application is not valid, the Tribunal can consider the review application, but cannot make a decision on the merits of the visa application: MIMA v Li (2000) 103 FCR 486; SZGME v MIAC (2008) 168 FCR 487 per Black CJ and Allsop J at [30]. In such cases the appropriate decision is to set the delegate’s decision aside and substitute a new decision pursuant to s.415(2)(d) of the Migration Act that the application was not valid and cannot be considered.[8]
[8] SZANA v MIMIA [2004] FCA 203 at [26] agreeing with Allsop J in SZANA v MIMIA [2003] FCA 1407.
Section 91K is one of a number of statutory ‘bars’ that prevent a non-citizen from making a valid protection visa application.[9] The practical effect of the current regime of statutory bars is that the s.46A bar operates to prevent UMAs from applying for a visa and the s.91K bar operates to prevent non-UMAs who hold a TSH, or have not left Australia since ceasing to such a visa, from applying for any visa (other than another TSH). [10]
[9] See section 46(1)(d) and 46(1)(e), as amended and inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No.135 of 2014). The other statutory bars include s.46A (unauthorised maritime arrival) and s.46B (transitory person), s.48A (non-citizen has been refused a protection visa while in the migration zone), s.91E (Comprehensive Plan of Action and safe third countries), and s.91P (non-citizens with access to protection from third countries).
[10] Section 46A and s.91K bars were amended in April 2015, after the applicant entered Australia but before the applicant applied for the SHEV on 21 June 2016. Prior to April 2015, the s.91K bar applied to UMAs (but now it does not) and the Department granted a TSH visa to enliven the s.91K bar prior to granting a bridging visa for UMAs because otherwise the grant of the bridging visa would nullify the effect of the s.46A bar and an applicant would be able to apply for a permanent protection visa: see Migration Amendment (Protection and Other Measures) Act 2015. The Explanatory Memorandum to the Migration Amendment (Protection and Other Measures) Bill 2014 indicates that the changes were made to ‘streamline’ the operation of statutory bars.
The combined effect of s.91H, 91J and 91K is that s.91K prevents non-citizens in Australia (but not UMAs) who hold a TSH visa or had not left Australia since ceasing to hold such a visa from making a valid application for a visa (other than a TSH visa).
Relevantly, s.91H states:
91H Reason for this Subdivision
This Subdivision is enacted because the Parliament considers that a non‑citizen (other than an unauthorised maritime arrival or a transitory person) who holds a temporary safe haven visa, or who has not left Australia since ceasing to hold such a visa, should not be allowed to apply for a visa other than another temporary safe haven visa. Any such non‑citizen who ceases to hold a visa will be subject to removal under Division 8.
…
Section 91J states as follows:
91J Non‑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 section46A and transitory persons are covered by section 46B.
Section 91K states:
91K Non‑citizens to whom this Subdivision applies are unable to make valid applications for certain visas
Despite 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.
If s.91K 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 TSH visa), then that application is not a valid application.
Section 46(1)(e)(v) of the Act relevantly provides that a visa application is not valid if it is prevented by s.91K of the Act.
Section 91L enables the Minister to give written notice that the prohibition in s.91K does not apply to a non-citizen, if the Minister thinks it is in the public interest to do so. The power can only be exercised by the Minister personally, and there is no duty to consider exercising the power, even if specifically requested to do so: s.91L(2) and (6). If the Minister issues such a written notice, it must be tabled, with written reasons, before Parliament: s.91L(3)-(5).
Does the Tribunal have the power to consider whether s.91K applies in this matter?
The applicant submits that the Tribunal has no jurisdiction to determine whether s.91K of the Act applies because of (a) the binding nature of the declarations made by the court on 13 September 2018 and (b) the kinds of the decision the Tribunal is, by the Act, authorised to make. The applicant submits that the Tribunal should proceed to review the merits of the application.
The Tribunal is bound by the court order of 13 September 2018. The effect of this order is that the Tribunal must consider this matter on the basis that the applicant is not and never was a UMA. However, while it is not in dispute that the applicant had made a valid application for review of the delegate’s decision, the court order does not address the question of whether the visa application was invalid because it was prevented by s.91K of the Act. There is no court order declaring the TSH visa invalid or quashing the grant of the TSH visa.
Whether the application for the visa is valid, within the meaning of s.46, is a question of jurisdictional fact about which the Tribunal must, in practice, form a view in order to properly exercise its statutory powers and functions but which can only be authoritatively determined by a court. The fact that the Tribunal has no power to consider an invalid application for a visa was recognised in SZGME v MIAC [2008] FCAFC 91; (2008) 168 FCR 487, where Black CJ and Allsop J said at [30]:
The Tribunal has no authority other than under the Migration Act to grant or to refuse a visa. It accedes to the powers and discretions of the delegate, which include ss 47 and 65 of the Migration Act. Section 69 does not validate what the Tribunal does without statutory authority: see the terms of s 69 and also Phanouvong 60 ALD at 443-444 [24]. The ratio decidendi of Li 103 FCR at [81]-[82] is that a valid application is not merely a requirement affecting the delegate’s power, it also affects the authority of the Tribunal. This view is one that is not plainly wrong. It recognises, through s 415 and ss 47 and 65, that only a valid application must be considered by the Tribunal. No equivalent of s 69 saves the Tribunal’s decision from the effect of considering an application that is not valid.[11]
[11] SZGME v MIAC [2008] FCAFC 91; (2008) 168 FCR 487 at [30] per Black CJ and Allsop J.
While the Tribunal must form a view about the validity of a visa application, determining if a visa application is a valid application is a jurisdictional fact to be determined by the court in the event it is in dispute: Minister for Immigration & Border Protection v Kim[2014] FCAFC 47; (2014) 221 FCR 523 at [27] per Yates, Robertson and Wigney JJ. According to their Honours, question of the validity of a visa application, within the meaning of s.46 of the Act, is an objective question:
…The factors or criteria by reference to which an application for a visa is valid in s 46 are stated objectively and do not rest in the Minister’s or an officer’s discretion or opinion. Further, s 47 imposes obligations on the Minister, as opposed to conferring a discretion on him or her. These considerations point in favour of validity being an objective question for the Court and we so find.
The consequence is that the validity of the visa application is a question which the Court should decide. It is of course competent for an officer, including the Minister, to form a view about the validity of a visa application for himself or herself but ultimately it is for the Court to resolve any controversy as to that question. We accept the appellant Minister's submission that an application for a visa is valid or not regardless of the Minister’s view, or any officer’s view, about the matter. We also accept the appellant Minister’s submission that a person who has made a valid visa application complying with the statutory requirements is at least prima facie entitled to mandamus to require the Minister to consider it.[12] (emphasis added)
[12] MIBP v Kim[2014] FCAFC 47; (2014) 221 FCR 523 at [27] per Yates, Robertson and Wigney JJ.
The Tribunal therefore concludes whether or not the application for the visa is valid, within the meaning of s.46, is a matter about which the Tribunal must form a view in order to properly exercise its statutory powers and functions. In forming a view about the validity of the visa application, the Tribunal must consider the question objectively. Accordingly, neither the views of the delegate about the validity of visa application or the fact that the department made no mention of s. 91K when the applicant was re-notified of the delegate’s decision on 20 February 2019 are relevant to an objective assessment of whether the visa application was valid.
Does section 91K of the Act apply in this matter?
On the evidence before it, the Tribunal makes the following findings. First, the applicant was not an UMA when he applied for the visa on 21 June 2016 or at any other time. Second, the applicant held a TSH visa from 30 July 2013 to 6 August 2013 when the TSH visa ceased. Third, the applicant has not left Australia since ceasing to hold the TSH visa. Fourth, at the time the applicant applied for the SHEV on 21 June 2016 the Minister had not made a determination that s.91K did not apply to the applicant.
The consequence of these findings is that at the time the applicant applied for the visa he was prevented from making a valid application for the visa by the combined effect of s.91K and s.91J of the Act. It is clear that at the time the delegate made a decision on the merits of the application the delegate was acting on the mistaken assumption that the applicant was a UMA. However, as a consequence of the decision in DBB16 and court orders made on 13 September 2018, at the time the visa application was made, the applicant was not a UMA or a transitory person.
In reaching the view that s.91K prevented the applicant from making a valid application for the visa, the Tribunal has considered the submission that s.91K does not apply in this matter because the decision to grant the applicant a TSH visa was invalid. The Tribunal is of the view that the legal question that it was invited to consider – whether the Minister’s decision to grant the applicant a TSH visa on 30 July 2013 was lawful – is not one that is within the power of the Tribunal to determine.
Section 415 of the Act provides the Tribunal may, for the purpose of the review of a Part-7 reviewable decision, exercise all the powers and discretions conferred on the delegate who made the decision to refuse to grant the applicant the SHEV.[13] In this instance, the Part 7-reviewable decision to which s.415(2) refers is the decision of the delegate to refuse to grant the applicant a SHEV on 27 September 2016. The Tribunal does not have before it an application to review the decision of the Minister, made personally under s.195A(2), to grant the applicant a TSH visa on 30 July 2013. The delegate would not have had the power to find that the earlier decision of the Minister, made personally to grant a TSH under s.195A(2), was invalid. Therefore, the Tribunal would not acquire any such power under s.415(1).
[13] In MHA v CSH18 [2019] FCAFC 80 at [81] the Court found that the powers in s.415(1) and (2) are distinct, and s.415(1) provides the Tribunal with all the powers and discretions conferred on the delegate.
The Tribunal has no statutory power to look beyond the evidence that shows that the applicant was granted a TSH visa on 30 July 2013 and consider whether the decision to grant the applicant a TSH visa was wrong in law. The Tribunal acknowledges that the TSH visa was granted to the applicant on the mistaken assumption that he was a UMA. While an intended effect of this grant was to prevent the applicant from applying for a permanent protection visa, as the applicant was never a UMA, the practical consequence of the grant of the TSH visa was to trigger the operation of s.91K and prevent him from applying for a SHEV or temporary protection visa or for any other visa (other than a TSH visa). In these circumstances there may be a question about whether a decision made in the mistaken belief that the applicant was a UMA was wrong at law and whether the TSH visa was granted for an improper process or for an improper or non-existent purpose, and therefore was not validly granted.
However, the Tribunal has no authority to address questions about the validity of the grant of the TSH visa. The Tribunal is a creature of statute with no power to consider the validity of the grant of the TSH visa or to make a decision on the basis that the grant of the TSH visa is invalid. The applicant has not, at this time, sought a court order or declaration that the decision to grant him a TSH visa was invalid. While the validity of the grant of TSH visas in different circumstances was considered by the High Court in Plaintiff M79/2012 v MIAC (2013) 252 CLR 336 and Plaintiff S4/2014 v MIBP (2014) 253 CLR 219, the factual scenarios in both cases are different from the present case. The Tribunal is not aware of any judicial challenge to the validity of the grant of a TSH visa to an asylum seeker affected by the decision in DBB16.[14] In contrast to the General Division of the AAT, the Tribunal has no power to refer questions of law to the Federal Court. The Tribunal notes that the applicant was given the opportunity to inform the Tribunal of any legal proceedings challenging the validity of the grant of the TSH visa to the applicant. None were identified.
[14] The Tribunal notes that in Raihan v Minister for Home Affairs [2019] FCCA 2721 no question was raised about the validity of the grant of a TSH visa to an applicant who arrived by boat in the vicinity of Ashmore reef.
In the Tribunal’s opinion the question of whether the grant of the TSH visa involved the unlawful exercise of power is a matter that can only be determined by a court vested with the judicial power of the Commonwealth. The Tribunal considers it would disregard the nature and limits of the Tribunal’s powers and functions to make a ‘finding’ that the decision to grant the applicant a TSH visa was invalid, treat it as no decision at all in law, and go on to consider the substantive merits of the application. The Tribunal therefore declines to consider the question that has been raised about the validity of the TSH visa on the grounds that any challenge to lawfulness of the decision to grant the applicant a TSH visa can only be addressed by a court which, unlike the Tribunal, has the power to answer this question.
Departmental records show that the applicant held a TSH visa between 30 July 2013 and 6 August 2013 and that he has not departed Australia since that visa ceased. In circumstances where the decision to grant the applicant a TSH visa has not been quashed by a court, the only finding open to the Tribunal is that the applicant was the holder of a TSH visa and has not left Australia since that visa ceased. The Tribunal rejects applicant’s submission that this approach is, in substance at least, an affirming of the grant of the TSH visa. The Tribunal also rejects the Secretary of the Department’s submission that the Tribunal can consider the validity of the TSH grant for the limited purpose of undertaking this review. As noted above, the Tribunal is not reviewing the validity the grant of the TSH visa under s.195A(2) of the Act and has no power to do so.
On the evidence before it, the Tribunal finds that the applicant was the holder of a TSH visa and that he has not left Australia since this visa ceased. As the applicant was never a UMA, he was prevented by s.91K from making a valid application for a SHEV. In the event of controversy, it will be for the courts to adjudicate as to the validity of the visa application, including whether the precondition for the operation of s.91K in this matter, that the applicant held a TSH visa, is a fact that did, objectively, exist at the relevant time.

On the evidence before it, the Tribunal is satisfied that the delegate made a decision on the merits of an invalid visa application, and that while that decision is unauthorised it is nonetheless a Part 7-reviewable decision for the purposes of s.411(1)(c). In these circumstances, the appropriate decision is to set the delegate’s decision aside and substitute a new decision pursuant to s.415(2)(d) of the Act that the application is not valid and cannot be considered.[15]
[15] SZANA v MIMIA [2004] FCA 203 at [26] agreeing with Allsop J in SZANA v MIMIA [2003] FCA 1407.
Could the invalidity of this application be cured by a determination pursuant to s.91L of the Act?
The applicant submitted the Tribunal should not make a decision in this matter until the applicant has been given written notice pursuant to s.91L of the Act that s.91K does not apply to an application for a visa made by the applicant. The applicant argued this approach should be adopted by the Tribunal as it is possible for the Minister to the lift the bar retrospectively, nunc pro tunc, and that if this occurred the basis upon which the visa application was said to be invalid would be cured and the Tribunal would be required to consider the merits of the review application.
It is clear that a determination made under s.91L could enable the applicant to make a valid application for a temporary protection visa or SHEV in the future. Section 91L(1), which is exercisable by the Minister personally, provides:
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.
A determination made under s.91L could not, in the Tribunal’s opinion, operate retrospectively to cure the invalidity of the application made by the applicant on 21 June 2016. So much is apparent from the text of s.91L which imposes a temporal requirement that the visa application must be made within seven working days after the day the applicant receives written notice of the Minister’s decision to lift the s.91K bar.
In relation to whether consideration has been given to determining that s.91K does not apply to a visa application made by the applicant, in late December 2019 the Department wrote to the Tribunal about DBB16 affected applicants. This correspondence including the following statement about the applicant.
This individual is barred under section 91K and does meet the conditions of the Minister’s s 91L determination. This individual has not yet been given written notice under s 91L of the Act as the Department is currently in the process of resolving practical complexities associated with lodging a valid application within the seven working day timeframe that the bar lift is in effect. It is expected that written notice will be issued in early 2020.
This information was provided to the applicant in response to a freedom of information request.
Before finalising this decision, the Tribunal checked the Department’s Integrated Client Services Environment (ISCE) records. An entry recorded on 5 February 2020 regarding a ‘s.91L notice’ indicates that the applicant has seven working days after the day on which they were given the s.91L notice to lodge a valid visa application.
Other matters
For completeness the Tribunal does not accept the submission, raised in oral argument but not in written submissions, that when the Minister invited the applicant to make an application for a SHEV, he purportedly relied on s.46A(2) on the misunderstanding that the applicant was a UMA, but that the true source of his power was s.91L(2). It was submitted this mistake as to the source of power is of no consequence; as long as the Minister had the power to enable the applicant to make a visa application, the misidentification of that power is irrelevant.
The Tribunal considers the argument that when the Minister lifted the bar under s.46A of the Act he should be taken to have lifted the bar under s.91L is misconceived. The differences in the content and consequences of the statutory powers in s.91L and s.46A are material and significant: for instance, s.46A(1) provides a broad prohibition on all visa applications upon certain UMAs, whereas s.91K limits future applications by previous TSH visa holders (and not UMAs) to that same type of visa. Section 46A allows a person to apply for a specified class of visa for a period of time at the Minister’s discretion, while the effect of s.91L is limited to a period of seven days. In the present case the applicant applied for the SHEV on 21 June 2016, more than seven months after the s.46A bar was lifted, whereas s.91L requires the applicant to make a visa application within seven working days of written notification of the Minister’s determination.
At the hearing the applicant’s representative expressed concern about the legality of the applicant’s ongoing immigration detention in circumstances where: (a) the Department’s position is that the applicant has been prevented from s.91K from making a valid application for any visa, including a bridging visa; (b) the Minister had not made a determination pursuant to s.91L that would enable the applicant to apply for a visa, including a bridging visa; and (c) before the decision in DBB16, the applicant was incorrectly characterised as a UMA and treated as a fast-track applicant. The applicant’s prolonged and ongoing immigration detention and the impact of this detention on his mental health is a matter of grave consequence and concern. However, the questions that have been raised about the legality of his detention, as with the questions about the validity of the grant of the TSH visa, are not questions that this Tribunal has the power to resolve.
Conclusion
Having reached that view that s.91K prevented the applicant from making a valid application for a SHEV on 21 June 2016, the Tribunal has no power to consider whether the grant of the visa is prevented by s. 91W(2) or whether the applicant is owed protection obligations by Australia. Therefore, the Tribunal has no alternative but to set the delegate’s decision aside and substitute a new decision pursuant to s.415(2)(d) of the Act that the application for the visa is not valid and cannot be considered.
The Tribunal regrets that the applicant may consider the outcome of this application and the protracted legal process that has preceded it to be bewildering and unfair. However, the consequence of the legal regime in which the applicant has become entangled is that the Tribunal does not have the power to consider the merits of the applicant’s case.
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. Simmons
Member

ATTACHMENT - Extract from Migration Act 1958
91JNon‑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 visas
Despite 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.