1904575 (Refugee)

[2023] AATA 4358

1904575 (Refugee) [2023] AATA 4358 (14 August 2023)

CORRIGENDUM

DIVISION:   Migration & Refugee Division

REPRESENTATIVE:   Rasan Selliah

CASE NUMBER:   1904575

2102325

COUNTRY OF REFERENCE:   Sri Lanka

MEMBER:   Roslyn Smidt

DATE OF DECISION:  14 August 2023

DATE CORRIGENDUM
SIGNED:  20 November 2023

PLACE OF DECISION:  Sydney

Replace the following items on the first page of the decision:

The Tribunal sets aside the decision in matter 1904575 to refuse the applicant a Safe Haven
Enterprise visa made on 28 July 2016, and substitutes it with a decision that the visa
application was not valid.

The Tribunal sets aside the decision in matter 2102325 to refuse the applicant a Safe Haven
Enterprise visa made on 19 February 2021 and substitutes it with a decision that the visa application is not valid.

With

The Tribunal sets aside the decision in matter 2102325 to refuse the applicant a Safe Haven
Enterprise visa made on 5 February 2021 and substitutes it with a decision that the visa application was not valid.

The Tribunal sets aside the decision in matter 1904575 to refuse the applicant a Safe Haven
Enterprise visa made on 11 January 2016, and substitutes it with a decision that the visa
application was not valid.

Replace paragraphs 19 and 20 with

The Tribunal sets aside the decision in matter 2102325 to refuse the applicant a Safe Haven
Enterprise visa made on 5 February 2021 and substitutes it with a decision that the visa application was not valid.

The Tribunal sets aside the decision in matter 1904575 to refuse the applicant a Safe Haven
Enterprise visa made on 11 January 2016, and substitutes it with a decision that the visa
application was not valid.

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Rasan Selliah

CASE NUMBER:  1904575

2102325

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Roslyn Smidt

DATE:14 August 2023

PLACE OF DECISION:  Sydney

DECISION: The Tribunal sets aside the decision in matter 1904575 to refuse the applicant a Safe Haven Enterprise visa made on 28 July 2016, and substitutes it with a decision that the visa application was not valid.

The Tribunal sets aside the decision in matter 2102325 to refuse the applicant a Safe Haven Enterprise visa made on 19 February 2021, and substitutes it with a decision that the visa application was not valid.

Statement made on 14 August 2023 at 1:52 PM

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – suspected involvement with the Liberation Tigers of Tamil Eelam (LTTE) – illegal departure – visa validity – decision under review set aside re visa validity

LEGISLATION

Migration Act 1958, ss 5(1), 5AA, 36, 45AA, 48, 65, 91K, 499
Migration Regulations 1994, Schedule 2; r 2.08

CASES

MICMSMA v CBW20 [2021] FCAFC 63
DBB16 v MIBP (2018) 260 FCR 447

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

1. This is a combined application for review of two decisions made by delegates of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first decision is in respect of a Safe Haven Enterprise visa which the applicant applied for on 22 February 2016. On 11 January 2016, a delegate made a decision to refuse to grant the applicant this visa (case number 1904575). The second decision is in respect of another Safe Haven Enterprise visa which the applicant applied for on 12 November 2020. On 19 February 2021, a delegate made a decision to refuse to grant the applicant this visa (case number 2102325). In both cases, the delegates refused to grant the visas on the basis that the applicant is not a person in respect of whom Australia has protection obligations.

3. The applicant is a [age]-year-old male citizen of Sri Lanka. According to Departmental records, he arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] October 2012. At the time he was considered to be an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)).

4. The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 14 February 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time.

5. On 12 Septmber 2013, the applicant made an application for a permanent Protection visa (Class XA) (the first visa application). This was initially considered to be an invalid visa application due to the operation of s 91K. The applicant was advised that this was the view at the time and invited to apply for a temporary protection visa.

6. On 22 February 2016 The applicant then applied for a Safe Haven Enterprise visa. (the second visa application). This was purportedly refused by a delegate on 11 January 2017. An application for review of that decision was made on 27 February 2019 (case number 1904575).

7. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)).

8. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

9. On 23 October 2020 the Department wrote to the applicant to advise him that the Minister had made a decision to left the section 91K and the 48A bars which at the time were believed to prevent him from lodging another protection application. He applied for a further Safe Haven Enterprise visa on 12 November 2020 (the third visa application), which was purportedly refused by a delegate on 19 February 2021. An application for review of that decision was made on 25 February 2021 (case number 2102325).

10. In 2021 the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

11. As a result of the Full Federal Court’s judgments in DBB16 and CBW20, the applicant’s first visa application was in fact valid at the time it was made. As the Minister (or a delegate) had not made a decision in relation to the first visa application under s 65 of the Act by 16 December 2014, it converted to an application for a Temporary Protection visa on that date (reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations) and s 45AA of the Act).

12. It is a requirement for a valid application for a Safe Haven Enterprise visa that, either: (i) the applicant has not made a valid application for a Temporary Protection visa; (ii) if they have made a valid application, that application has been refused or withdrawn; (iii) a Temporary Protection visa has been granted; or (iv) the application for the Safe Haven Enterprise visa is made at the same time as an application for a Temporary Protection visa (item 1404(3)(f) of Schedule 1 to the Regulations). As the first visa application converted to a valid application for a Temporary Protection visa on 16 December 2014, and that application was not refused or withdrawn when the second and third visa applications were made, the alternative application requirements in item 1404(3)(f)(i) and (ii) were not met.

13. The applicant claims that he is at risk of harm in Sri Lanka because he will be viewed as an LTTE supporter because he isTamil from Batticalao which was once an LTTE stronghold, because of his brother who was involved with the LTTE,  because he is believed to have raised funds of the LTTE because he paid bribes to leave the country and because of his status as a failed asylum seekers; and because he left Sri Lanka legally after paying bribes and entered Australia illegally.

14. There is no evidence before the Tribunal that the applicant met the other alternative requirements in item 1404(3)(f)(iii) or (iv). This means that the applicant did not satisfy the requirements in item 1404 of Schedule 1 to the Regulations for making a valid visa application in respect of the second and third visa applications. Accordingly, the Tribunal must set aside the delegate’s decisions in both cases refusing to grant the applicant a visa and substitute each of those decisions with a decision that the visa application in question is invalid.

15. For completeness, the Tribunal notes that the applicant appeared before the Tribunal on 2 March 2023 to give evidence and present arguments in relation to both of his applications for review in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

16. After the combined hearings were held, the Tribunal was made aware of the visa validity issues set out above as a result of information received from the Department. Having considered that information, the Tribunal agrees with the Department’s assessment that the applicant’s first visa application was a valid application and that the subsequent applications were not.

17. In light of this development, the Tribunal invited the applicant to attend a hearing on 14 August 2023 so that the Tribunal could explain the visa validity issue to him and give him the opportunity to comment and respond. The hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages and the representative attended the hearing. Neither the applicant nor his representatives had any particular questions or submissions to make.

    CONCLUSION

18. For the reasons explained above, the Tribunal finds that the applicant’s second and third visa applications for Safe Haven Enterprise visas were not valid.

    DECISIONS

19. The Tribunal sets aside the decision in matter 1909590 to refuse the applicant a Safe Haven Enterprise visa made on 28 July 2016, and substitutes it with a decision that the visa application was not valid.

20. The Tribunal sets aside the decision in matter 2102772 to refuse the applicant a Safe Haven Enterprise visa made on 19 February 2021, and substitutes it with a decision that the visa application was not valid.

    Roslyn Smidt
    Member