1908883 (Refugee) - [2020] AATA 1922

1908883 (Refugee) [2020] AATA 1922 (6 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1908883
COUNTRY OF REFERENCE:                   Iran
MEMBER:Louise Nicholls
DATE:6 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision refusing to grant the applicant a protection visa and substitutes a decision that the application for the protection visa is not valid and cannot be considered.

Statement made on 06 March 2020 at 1:00pm
CATCHWORDS
REFUGEE – protection visa – Iran – Federal Circuit Court remittal – arrival at Ashmore Reef – unauthorised maritime arrival (UMA) status – granted a Temporary Safe Haven (Subclass 449) visa on the basis of UMA status – remained onshore after visa ceased – operation of s.91K statutory bar – validity of subsequent SHEV visa application – scope of the Tribunal’s jurisdiction – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5AA, 37A, 46, 46A, 47, 65, 66, 69, 91J, 91K, 91L, 195A, 411, 415
Migration Regulations 1994, r 2.07AC; Schedule 1, Item 1223B

CASES

DBB16 v Minister for Border Protection [2018] FCAFC 178
MHA v CSH18 [2019] FCAFC 80
Minister for Immigration and Border Protection v Kim [2014] FCAFC 47
Re Adams and Tax Agents Board (1976) 1 ALD 251
SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91
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

The applicant claims to be a citizen of Iran and he is [age] years old. He arrived in Australia in the vicinity of Ashmore Reef by boat [in] May 2013. At the time of his arrival he admitted to disposing of his passport on the instructions of the people smuggler who took his passport in Indonesia.
Procedural History
On 25 July 2013 the applicant was granted a Temporary Safe Haven (Subclass 449) visa (TSH)[1]. The applicant was granted a bridging visa on 25 July 2013. This appears to be a concurrent grant to take effect when the TSH visa ceased.
[1] The Department has provided a copy of the s.195A Ministerial submission and statement to Parliament under s.195A(6) in respect of the decision to grant the applicant a subclass 449 visa.
On 9 February 2015 the Minister exercised his discretion under s.91L of the Migration Act 1958 (the Act) to lift the s.91K statutory bar to allow the applicant to make an application for a further visa.
On 9 February 2015 the Minister, believing the applicant to be an unauthorised maritime arrival (UMA) as defined in s.5AA of the Act by reason of his entry into Australia by sea in the Territory of Ashmore Reef and Cartier Islands, purported to exercise his discretion under s.46A(2) of the Act to lift the application bar under s.46A(1) to make an application for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1908883 (Refugee)

Details

AGLC: 1908883 (Refugee) [2020] AATA 1922
Case: [2020] AATA 1922
Decision Date: 6 March 2020

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an Iranian national. The applicant had previously been granted a Temporary Safe Haven (Subclass 449) visa upon arrival in Australia, having been initially considered an unauthorised maritime arrival (UMA). After this visa ceased, the applicant remained in Australia and subsequently applied for a Safe Haven Enterprise Visa (SHEV). The Department of Home Affairs submitted that the applicant's SHEV application was invalid due to the operation of section 91K of the Migration Act 1958 (Cth), which imposes a statutory bar on making further visa applications in certain circumstances, unless the Minister lifts the bar under section 91L. The Tribunal was required to determine whether the applicant's SHEV application was valid, considering the effect of section 91K and the applicant's status following a Federal Circuit Court declaration that he was not a UMA.

The central legal issue before the Tribunal was the validity of the applicant's SHEV application. This involved determining whether the applicant was subject to the statutory bar imposed by section 91K of the Act, given that he had remained in Australia after his Temporary Safe Haven visa ceased and had been declared not to be an unauthorised maritime arrival. The Tribunal also had to consider the scope of its jurisdiction to review the delegate's decision, particularly in light of the Federal Circuit Court's finding regarding the applicant's UMA status and the potential invalidity of earlier decisions made under the fast-track review system.

The Tribunal reasoned that the applicant's SHEV application was indeed invalid. It found that the applicant had remained in Australia after his Temporary Safe Haven visa ceased and was not a UMA, thus falling within the operation of section 91K. The Tribunal noted that section 91K renders subsequent visa applications invalid unless the Minister exercises the discretion under section 91L to lift the bar. Crucially, the Tribunal held that the discretion under section 91L could not be exercised retrospectively to validate the SHEV application made in 2016, as its operation was prospective from the date of written notice. Furthermore, the Tribunal accepted that the Federal Circuit Court's declaration that the applicant was not a UMA meant that earlier decisions made under the fast-track review system were a nullity.

Consequently, the Tribunal concluded that the application for a protection visa was not valid and could not be considered. The decision of the delegate refusing to grant the applicant a protection visa was set aside, and the Tribunal substituted a decision that the application was invalid.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal must consider whether the application is caught by s.91Kof the Act which operates to prevent the applicant from making a valid protection visa application unless the Minister lifts that statutory bar pursuant to s.91L of the Act.Background The applicant claims he was born on [date] in Iran. Despite disposing of his Iranian passport before he arrived in Australia, he later provided copies of his Iranian birth certificate, Iranian identity card and military service card all of which supported his claim that he was born in Iran and is an Iranian national. The applicant claimed he was from a Kurdish Shia family in Iran. He claimed that his brother in Iran passed away 6 months before the applicant left Iran. He had some problems in Australia and was convicted of some drug offences and spent four months in prison. After his release he was taken into immigration detention and is currently held in detention as he is not the holder of a bridging visa. He stated that he became very sick with a drug addiction problem but is now drug free. He also claimed his grandfather, uncle, niece and nephew have passed away in Iran while he had been in Australia. He would like to start a new life in Australia. His parents are worried about him and want him to have a happy life. He feels he has learnt his lesson. Departmental submissions The Department submitted that s.91K of the Act applied to the applicant because the applicant had not left Australia since ceasing to hold his Temporary Safe Haven visa (TSH visa) and he is not a UMA or a transitory person; s.91J of the Act. It is submitted that s. 91K operates to render any application by the applicant for a further visa (other than a TSH visa) invalid. This section applies despite any other provision of the Act and is subject only to s.91L, which allows the Minister to determine that s.91K does not apply. At the time of the applicant’s SHEV application there was no bar lift in place under s.91L of the Act. The discretion in s.91L cannot now be exercised retrospectively to validate the applicant’s SHEV application made on 29 June 2016. This is because s.91L(1) clearly specifies that a positive exercise of the discretion in s. 91L is only operative from when written notice is given under s.91L until the seventh working day after the day on which a notice is given. For these reasons, the Department submits that the application for a SHEV is invalid. The Department submits that the grant of the TSH visa to the applicant was based on the mistaken belief that the applicant was a UMA however the validity of that visa grant is unaffected by the applicant not, in fact, being a UMA. The submission is that there is nothing in s.37A of the Act which limits the grant of a TSH visa to a person who is a UMA. Nor is there anything in the criteria for the grant of a TSH visa that requires a person to be a UMA to be eligible for the grant of the visa. One of the questions the Tribunal invited the Department to make submissions on was “Does the Tribunal have power to consider the validity of the grant of the Humanitarian Stay (Temporary) (Subclass 449) visa to the review applicant?

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant’s submission is that the offer was provided to the applicant on the belief that he was a UMA and the applicant accepted the offer, because he was told that he is a UMA. As the applicant was not a UMA he could have applied for a subclass 866 (Protection)(XA) visa if he was not told that he was a UMA at the relevant time. DECISION Is the application for review a valid application? The application before the Tribunal is an application of review of the delegate’s refusal of the applicant’s application for a SHEV made on 29 June 2016. The Tribunal accepts that the decision of the delegate made on 23 August 2016 is a Part 7 reviewable decision under the Act. Section 411 defines which decisions which are Part 7 reviewable decisions. It provides that decisions to refuse or grant a protection visa is a Part 7 reviewable decision.(1) Subject to subsection (2), the following decisions are Part 7-reviewable decisions:…..(c) a decision to refuse to grant a protection visa, other than a decision that was made relying on:(i) subsection 5H(2), or 36(1B) or (1C); or(iii) paragraph 36(2C)(a) or (b); Even if the primary decision maker makes a decision to refuse or grant the visa on the merits, but the application for the visa is not valid, the decision may have been the wrong decision and liable to be set aside but nevertheless it will be a Part 7 reviewable decision for the purposes of s.411(1)(c) of the Act. Section 69 of the Act provides (1) Non-compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.(2) If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it. The Tribunal accepts that the applicant arrived in Australia at the Territory of Ashmore Reef and Cartier Islands [in] July 2013. He was, up until the decision in DBB16, regarded as an UMA and was dealt with the fast track system of review pursuant to the provisions set out in Part 7AA of the Act. [In] November 2018 the Federal Circuit Court of Australia declared that the applicant is not an unauthorised maritime arrival within the meaning of s.5AA of the Act. As he is not a UMA he was not a fast track applicant and the decision made by the IAA on 26 November 2016 is a nullity. The notification of the refusal decision by the delegate was defective because it did not state that the applicant had a Part 7 right of review and did not correctly state where the application for review could be made. Section 66(2)(d) of the Act provides (1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.(2) Notification of a decision to refuse an application for a visa must:….(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 — state:(i) that the decision can be reviewed; and(ii) the time in which the application for review may be made; and(iii) who can apply for the review; and(iv) where the application for review can be made; and

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the decision refusing to grant the applicant a protection visa should be set aside and it substitutes a decision that the protection visa application is not valid and cannot be considered.CONSIDERATION The issue in the present case is whether the application for the protection visa is invalid for the reason that the applicant was granted a Temporary Safe Haven (Subclass 449) visa on 25 July 2013, held that visa until 1 August 2013, and has not left Australia since that visa ceased. The Tribunal must consider whether the application is caught by s.91Kof the Act which operates to prevent the applicant from making a valid protection visa application unless the Minister lifts that statutory bar pursuant to s.91L of the Act.Background The applicant claims he was born on [date] in Iran. Despite disposing of his Iranian passport before he arrived in Australia, he later provided copies of his Iranian birth certificate, Iranian identity card and military service card all of which supported his claim that he was born in Iran and is an Iranian national. The applicant claimed he was from a Kurdish Shia family in Iran. He claimed that his brother in Iran passed away 6 months before the applicant left Iran. He had some problems in Australia and was convicted of some drug offences and spent four months in prison. After his release he was taken into immigration detention and is currently held in detention as he is not the holder of a bridging visa. He stated that he became very sick with a drug addiction problem but is now drug free. He also claimed his grandfather, uncle, niece and nephew have passed away in Iran while he had been in Australia. He would like to start a new life in Australia. His parents are worried about him and want him to have a happy life. He feels he has learnt his lesson. Departmental submissions The Department submitted that s.91K of the Act applied to the applicant because the applicant had not left Australia since ceasing to hold his Temporary Safe Haven visa (TSH visa) and he is not a UMA or a transitory person; s.91J of the Act. It is submitted that s. 91K operates to render any application by the applicant for a further visa (other than a TSH visa) invalid. This section applies despite any other provision of the Act and is subject only to s.91L, which allows the Minister to determine that s.91K does not apply. At the time of the applicant’s SHEV application there was no bar lift in place under s.91L of the Act. The discretion in s.91L cannot now be exercised retrospectively to validate the applicant’s SHEV application made on 29 June 2016. This is because s.91L(1) clearly specifies that a positive exercise of the discretion in s. 91L is only operative from when written notice is given under s.91L until the seventh working day after the day on which a notice is given. For these reasons, the Department submits that the application for a SHEV is invalid. The Department submits that the grant of the TSH visa to the applicant was based on the mistaken belief that the applicant was a UMA however the validity of that visa grant is unaffected by the applicant not, in fact, being a UMA. The submission is that there is nothing in s.37A of the Act which limits the grant of a TSH visa to a person who is a UMA. Nor is there anything in the criteria for the grant of a TSH visa that requires a person to be a UMA to be eligible for the grant of the visa.