1906210 (Refugee)

[2019] AATA 2123

1906210 (Refugee) [2019] AATA 2123 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1906210

MEMBER:Michael Hawkins

DATE:3 June 2019

PLACE OF DECISION:  Brisbane

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 03 June 2019 at 1:23pm

CATCHWORDS

REFUGEE – protection visa – Congo – application for visa invalid – no decision on merits of visa – not a reviewable decision – not a valid application – no jurisdiction to recommend ministerial intervention – decision under review set aside – decision under review substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29
Migration Act 1958 (Cth), ss 45-48A, 338, 347, 411, 412
Migration Regulations 1994 (Cth), Schedule 1 item 1401(3)(d)(vi), r 4.02

CASES

MIMA v Li (2000) 103 FCR

SZGME v MIAC (2008) 168 FCR 487

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. An application was made to the Tribunal on 15 March 2019 for review of a decision to refuse to grant a Safe Haven Enterprise Visa (Class XE) visa. Although the delegate purported to refuse to grant the visa, the issue in this case is whether there is even a valid visa application that may be considered. For the following reasons, the Tribunal has found that there was not a valid visa application.

2. The Tribunal has to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse or cancel visas, but a decision is not reviewable if it is a decision to refuse or to cancel a temporary safe haven visa: s.338(1)(c).

3. 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; see also SZGME v MIAC (2008) 168 FCR 487 per Black CJ and Allsop J at [30].

   Hearing:

4. The applicant attended before the Tribunal on 29 May 2019. He was represented. The hearing was assisted by an interpreter in the French and English languages. 

5. The Tribunal thanked the applicant for the submission of his Statutory Declarations to the Tribunal prior to the hearing.

6. The Tribunal thanked the Representative for his excellent submissions to the Tribunal prior to the hearing.

7. The Tribunal invited the Representative to take instruction from the applicant as to whether he was happy for the Tribunal to have a conversation with the Representative about the jurisdiction of the Tribunal in relation to this review or whether the applicant would prefer to have the conversation interpreted simultaneously for his benefit.

8. The Representative confirmed that the Tribunal could discuss the issue with the Representative in English and that he would then advise the applicant afterwards.

9. The Tribunal proposed to the Representative, that subject to hearing from him, that the Tribunal was of the view that it may not have jurisdiction in this matter.

10. The Tribunal noted that the Representative had submitted to it that the Tribunal should exercise its discretion to regard the review as a review of an 866 Protection Visa Application. The Representative submitted that the applicant had lodged with the Department a 866 Application Form, but the Department replied to the applicant noting the acceptance of a 790 Safe Haven Enterprise Visa Application and that the Delegate had in turn made his decision upon the basis of a 790 Application.

11. The Tribunal expressed its opinion, (whilst it did not know for certain), that the Department has received the 866 and considered it, and then determined that it was invalid for reasons that the Tribunal will discuss shortly. The Tribunal has assumed that the Department has then determined that it will consider the Application not as an 866, but as a 790. And on that basis, the Delegate has made his decision on the basis of a Form 790 Application.

12. The Representative agreed with that summation.

13. The Tribunal then expressed a view that it didn’t believe it could be a valid 790 Application either because as it is an Enterprise Visa there is not included within, or attached to, the application form, an indication in writing that the applicant intended to work or study while accessing minimum Social Security benefits in a regional area. On this basis, the Tribunal does not believe it is a valid 790 Application either.

14. Turning to the issues relating to the validity of the application as a 866 Visa Application, the Tribunal is of the view that from the moment the applicant arrived in the country, he has not known what was being said to him at immigration because of language barriers; and then, as claimed, he has passed out, from which time he doesn’t actually know what has been said or has happened to him until he awoke in hospital. The Tribunal advised the Representative that from the Movement Record of the applicant, his entry was refused. The Tribunal stated that from that moment onwards, the applicant has been in immigration detention.

15. The Tribunal noted the Representative’s detailed submission that he did not believe the applicant was in detention, and was not at any time restrained, even when he was in hospital. The submission argued that the applicant was in a ward with other people, who were just ordinary patients. The submission acknowledged that there was [a] guard stationed outside his ward and that the guard would do irregular “walk-throughs” of the ward and attend when doctors or nurses visited the applicant. The Tribunal suggested the proposition that the applicant was not being restrained whilst it was acknowledged that he was not allowed to leave the room was somewhat far-fetched. The Tribunal put the proposition that if the Representative was in that scenario, it was quite certain that he would maintain that he had an action for false imprisonment if he woke up and found that a guard was at his door and when he tried to leave he found he couldn’t.

16. Accordingly, the Tribunal is of the view that the applicant was in immigration detention from the moment his entry was refused. Item 1401(3)(d)(vi) of Schedule 1 to the Migration Regulations requires for a valid application for a subclass 866 to be made the applicant be immigration cleared on their last entry into Australia. As the applicant’s entry was refused and he has since then been in immigration detention, the Tribunal finds that his application for a subclass 866 was invalid.

17. The Tribunal is of the view that the applicant has not made an application for either a subclass 866 or 790 visa in accordance with the requirements of the Migration Act and the Migration Regulations. 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. 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; see also SZGME v MIAC (2008) 168 FCR 487 per Black CJ and Allsop J at [30].

18. For the reasons given above the applicant’s protection visa application is not valid and the Tribunal has no power to consider it.   

19. The Tribunal noted the weight the Representative had put in his submission seeking from the Tribunal a recommendation for Ministerial Intervention. The Tribunal is of the view that as it has not made a substantive decision on the merits of the review, it doesn’t have the jurisdiction to recommend Ministerial Intervention as a consequence of that review.

    DECISION

20. 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.

    Michael Hawkins
    Member