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

1. 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

2. 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.

3. 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.

4. 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 a Bridging E (Subclass 050) visa[2].

   [2] The Department has provided copies of the Ministerial submission and statement to Parliament under s.91L(3) and s.46A(4) in respect of these decisions.

5. The applicant was subsequently granted a bridging visa; however, he no longer holds a bridging visa and is currently being held in detention.

6. On 18 April 2016 the Minister, believing that the applicant was an UMA, purported to exercise his discretion under s.46A(2) to lift the application bar under s.46A(1) of the Act to allow the applicant to lodge either a Temporary Protection (Class XD) (Subclass 785) visa or a Safe Haven Enterprise (Class XE)(subclass 790) visa (SHEV)[3].

   [3] The Department has provided copies of the Ministerial submission and statement to Parliament under s.46A(2) in respect of these decisions.

7. The visa applicant applied for a SHEV visa on 29 June 2016. On 23 August 2016 the delegate of the Minister for Immigration and Border Protection refused to grant the applicant a Safe Haven Enterprise Visa (Class XE) Subclass 790 visa under s.65 of the Migration Act 1958 (the Act).

8. Following the judgment in DBB16 v Minister for Border Protection [2018] FCAFC 178 (DBB16) a person is not an UMA through the act of entering Australia by sea at the Territory of Ashmore Reef and Cartier Islands. As a result the Tribunal considers the applicant is not a UMA or a “fast track” applicant.

9. Prior to the decision in DBB16, the Department had dealt with the applicant on the basis that he was a fast track applicant and subject to the review process under Part 7AA of the Act. On 25 August 2016 the application was referred to the Immigration Assessment Authority (IAA) and on 26 November 2016 the refusal was affirmed by the IAA.

10. [In] May 2017 the applicant sought judicial review and [in] November 2018, following DBB16, 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. The court quashed the decision of the IAA.

11. The Department re-notified the applicant of the delegate’s decision on 5 April 2019.

12. The applicant applied to the Tribunal for review of the delegate’s decision on 11 April 2019. The Tribunal has received the Department’s electronic file. The decision disclosure checklist on that file notes that there are no documents on the file subject to a non-disclosure certificate pursuant to s.438 of the Act.

13. On 27 August 2019 the Tribunal wrote to the applicant and invited him to make submissions on its preliminary view that his application may be an invalid application and that while his application is reviewable by the Tribunal it appears that the only alternative is for the Tribunal to set aside the decision to refuse to grant the visa and substitute a decision that the visa application was an invalid application in accordance with s.415(2)(d) of the Act.

14. On 15 October 2019 the Tribunal invited the Secretary of the Department of Home Affairs to make submissions on a number of matters, including the application of s.91K of the Act, the validity of the Humanitarian Stay (Temporary) (Subclass 449) visa to the applicant given he is now never considered to have been a UMA, the Tribunal’s power to consider the validity of the grant of the Humanitarian Stay (Temporary) (Subclass 449) visa to the applicant, and the validity of the Minister’s exercise of his power on 22 April 2016 to permit the applicant to make a valid application for a Temporary Protection Visa or a Safe Haven Enterprise visa given the applicant is now considered never to have been a UMA.

15. The Secretary was also invited to provide copies of statements, Ministerial minutes or submissions relevant to decisions to grant a Subclass 449 visa, to lift the statutory bar to enable the applicant to make a SHEV application and any public interest reasons for exercising power under s.195A and s.46A(2).

16. On 1 November 2019 an officer of the Department of Home Affairs responded to the invitation with submissions and copies of the relevant documents.

17. On 7 November 2019 the Tribunal invited the applicant to attend a hearing on 2 December 2019 to give evidence and present arguments. Prior to the hearing the Tribunal provided the applicant with copies of the Department’s submissions and the related documents. On 1 December 2019 the applicant’s representative provided written submissions on the matters raised in the Tribunal’s correspondence with the applicant and his representative. The Tribunal indicated to the representative that the purpose of the hearing, was in the first instance, to hear the applicant’s submissions on the validity of the application for a protection visa.

18. The applicant gave evidence by video conference from the Tribunal’s hearing rooms in [City 1] on 2 December 2020 with his representative and the interpreter present in Sydney.

19. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

20. 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

21. 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.

22. 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

23. 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.

24. 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.

25. 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

26. 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.

27. 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.

28. 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.

29. For these reasons, the Department submits that the application for a SHEV is invalid.

30. 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.

31. 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?

32. The Department submits that the decision to grant the applicant a Temporary Safe Haven visa is not the subject of the application for review by the Tribunal and the Tribunal cannot make any decision that has the effect of affirming, varying or setting aside the grant of the TSH visa to the applicant.

33. Given that the grant of the TSH visa invokes the operation of s.91K and renders any subsequent application for a SHEV invalid unless the Minister had exercised the discretion in s.91L, it would be open to the Tribunal to consider whether the grant of the TSH visa was valid for the limited purpose of assessing the validity of his SHEV application.

34. The Department submits that the application for a SHEV is not valid because of the operation of ss.91K and 46(1)(e)(v) of the Act. The delegate’s decision is a valid decision and reviewable pursuant to the operation of s.69 of the Act, despite the delegate considering an invalid application contrary to s.47(3) of the Act.

35. If the Tribunal agrees that the application for a SHEV is invalid, the only appropriate decision for the Tribunal to make in relation to this review is to set aside the delegate’s decision. This is because the Tribunal cannot purport to make a decision that is not authorised by the Act or Regulations. See s.415(4) and SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91 at [29].

36. The power purportedly exercised to allow the applicant to make an application for a SHEV was made pursuant to the discretion under s.46A(2) of the Act. As the applicant was not in fact a UMA, the Minister’s purported exercise of his discretion in s.46A (2) of the Act was not valid.

    Applicant’s response

37. On 1 December 2019 the applicant’s representative responded to the Tribunal’s preliminary views as set out in its letter of 27 August 2019 and also to Departmental submissions as set out above.

38. The applicant’s representative noted that the applicant was residing in detention in [City 1]. He arrived in Australia [in] May 2013 by sea at the Territory of Ashmore Reef and Cartier Islands. Up until 6 August 2018 the applicant was considered as a UMA. On 6 August 2018 following the decision in DBB16 the applicant was not considered a UMA because he arrived by sea at the Territory of Ashmore and Cartier Islands.

39. The applicant’s representative repeated the matters set out in the Department’s submissions without disagreement on any factual issues.

40. The applicant’s representative noted that the Tribunal’s preliminary view could be correct however he raised the issue of whether the grant of the TSH visa on 25 July 2013 was a valid grant.

41. He submitted that the requirement of s.91K operates only if the applicant was validly granted a TSH visa. While he accepted that the grant of the visa was not limited to UMAs, the fact is, the TSH application was offered to the applicant and granted on the basis that the applicant was a UMA.

42. He submitted that Item 1223B of Schedule 1 of the Migration Regulations indicated that the r.2.07AC of the Migration Regulation indicate how an application for a TSH visa is taken to have been validly made. Regulation 2.07AC states that an application for a TSH visa (or Class UO visa) is taken to have been validly made by a person (the interviewee), if the interviewee indicates to an authorised officer that he or she accepts the Australian Government's offer of a temporary stay in Australia.

43. 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?

44. 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.

45. The Tribunal accepts that the decision of the delegate made on 23 August 2016 is a Part 7 reviewable decision under the Act.

46. 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);

47. 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.

48. 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.

49. [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.

50. 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

51. This means that the prescribed time period to apply for review did not start to run at the time the delegate notified the applicant of the primary decision.

52. The Department re-notified the delegate’s decision on 5 April 2019. The applicant’s application to the Tribunal for review of the primary decision was made on 11 April 2019. The Tribunal considers that the applicant has made a valid application for review.

    Does the Tribunal have the power to review the merits of the case?

53. The issue for the Tribunal is whether it has the power to consider the merits of the case or whether it only has 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.

54. The starting point for consideration of this issue is the evidence before the Tribunal, which it accepts, that the Federal Circuit Court declared [in] November 2018 that the applicant is not a UMA. The Tribunal is bound by this decision and considers that this means that the applicant is not, and was never, a “fast track” applicant.

55. Evidence taken from Departmental records indicates that the applicant was granted a TSH visa on 25 July 2013 and that TSH visa ceased on 1 August 2013. The applicant has acknowledged that he was granted a TSH visa in his submissions but claims that at the time he was granted that visa he believed he was a UMA.

56. The grant of the TSH visa is relevant to the issue of the validity of the application for protection due to the operation of s.91K of the Act. Section 91K of the Act is a statutory “bar” that prevents a non-citizen from making a valid application for any visa, other than a TSH visa, where that applicant is the holder of a TSH, or has not left Australia since ceasing to hold such a visa. If s.91K applies to a non-citizen at a particular time and the non-citizen applies for a visa (other than a TSH visa) then the application is not a valid application.

1. An application for a visa is only valid if it is made in the way required by the Migration Act and Regulations: ss.45 to 48A of the Act. An invalid visa cannot be considered by the Minister or delegate of the Minister. Section 47 of the Act provides

   (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.

2. Section 46(1)(e)(v) provides that

   (1)  Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

   ….

   (e)  it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:

   (i)  section 46AA (visa applications, and the grant of visas, for some Act‑based visas);

   (ii)  section 46A (visa applications by unauthorised maritime arrivals);

   (iii)  section 46B (visa applications by transitory persons);

   (iv)  section 91E or 91G (CPA and safe third countries);

   (v)  section 91K (temporary safe haven visas); (Tribunal emphasis)

   (vi)  section 91P (non‑citizens with access to protection from third countries).

3. Section 415 of the Act provides that the Tribunal has no greater power than the original decision maker. The Tribunal cannot exercise powers not authorised by the Act or Regulations. Section 415 provides

   (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.

4. As set out earlier in this decision, if the primary decision maker has made a decision on the merits of the visa application, and the application is not valid, the primary decision maker may be wrong or unauthorised but the decision is nevertheless, a Part 7 reviewable decision.

5. In practical terms, the Tribunal is required to form a view as to whether the application for the visa is valid to properly exercise its statutory powers and functions. However, where there is controversy as to the issue of validity, that issue can only be authoritatively determined by a court; Minister for Immigration and Border Protection v Kim [2014] FCAFC 47. In that case the court found that the validity of a visa application involves an objective question for the court.

6. Taking all of the above into account, the Tribunal considers that the decision is reviewable by the Tribunal. Whether the visa application is valid within the meaning of s.46 of the Act is a matter which the Tribunal must form a view in order to properly exercise its statutory powers and functions. The Tribunal has considered the question objectively and formed the view that the visa application is not valid.

7. The evidence indicates and the Tribunal accepts that the applicant was granted a TSH visa on 25 July 2013 and that TSH visa ceased on 1 August 2013. The applicant has not left Australia since the TSH visa. Section 46(1)(e)(v) provides that a visa application is invalid if s.91K applies to that application. Accordingly, s.91K of the Act prevents the applicant from making an application for a visa other than a TSH visa. 

8. Therefore, the Tribunal finds it must consider the review application but it considers it cannot make a decision on the merits of the visa application. The appropriate decision is to set the delegate’s decision aside and substitute a new decision that the application was not valid and cannot be considered.

   Can the Tribunal consider whether the applicant was validly granted a TSH visa?

9. The applicant’s representative submitted that the requirement of s.91K operates only if the applicant was validly granted a TSH visa. While he acknowledges that the Department’s submission that the grant of the visa was not limited to UMAs is probably correct, he submits that the fact is that the TSH application was offered to the applicant and granted on the basis that the applicant was a UMA.

10. He submitted that Item 1223B of Schedule 1 of the Migration Regulations indicated that r.2.07AC of the Migration Regulations indicates how an application for a TSH visa is taken to have been validly made. Regulation 2.07AC states that an application for a TSH visa (or Class UO visa) is taken to have been validly made by a person (the interviewee), if the interviewee indicates to an authorised officer that he or she accepts the Australian Government's offer of a temporary stay in Australia.

11. Implicit in the submission is that the grant of the TSH visa was invalid due to the mistaken premise that the applicant was a UMA at the time of the grant. Further that the Tribunal has the power to find the prior grant of a Temporary Safe Haven visa (TSH) invalid in the context of the review of the decision to refuse to grant a SHEV to the applicant who is prima facie barred by s.91K from applying for a SHEV because he previously held a TSH.

12. The Tribunal notes its powers in this case are defined in s.415 of the Migration Act 1958; the terms of that provision are set out above.

13. The terms of that provision do not appear to extend to providing any relief to the applicant even if the Tribunal were to theoretically find the grant of the TSH invalid. In this instance, the Part 7-reviewable decision is that of the SHEV refusal. The Tribunal does not consider the TSH grant is ‘the’ Part 7-reviewable decision to which s.415(2) refers. Absent a valid review application with respect to the TSH, it appears beyond the jurisdiction of the Tribunal to disturb that decision.

14. While the Court in MHA v CSH18 [2019] FCAFC 80 at [81] 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 delegate would also 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. as this is a personal power of the Minister which cannot be delegated. Therefore, the Tribunal would not acquire any such power under s.415(1).

15. Even if the Tribunal were to consider whether the exercise of power to grant a TSH was valid, any remedy) would be one in the nature of certiorari to quash the TSH grant decision and potentially mandamus directing the Minister or Tribunal to determine the SHEV application according to law. This type of relief can only be sought from and granted by a court in which the judicial power of the Commonwealth is vested. The Tribunal does not exercise the judicial power of the Commonwealth.

16. Even if the Tribunal were to express its view as to the validity of the grant of the TSH visa, it cannot resolve the issue. In Re Adams and Tax Agents Board (1976) 1 ALD 251, the applicant argued before the Tribunal that the Act conferring the power to make the decision in question was unconstitutional. The Tribunal (constituted by the then President, Brennan J) held that, having regard to its powers on review of a decision as set out in s.43 of the AAT Act (similar to s.415), it could form an opinion about constitutional invalidity although the challenge should be brought before a court.

17. The Tribunal considers that even if it did express a view on the validity of the grant of the TSH visa it could not grant remedies or make a decision which would give effect to its views. It considers that it is beyond the scope of the Tribunal’s jurisdiction, and not appropriate in the circumstances, to make a finding on the validity of the grant of the TSH visa. 

    Other matters

18. While a statutory bar operates in relation to matters where an applicant is the holder of a TSH visa, or has not left Australia since ceasing to hold such a visa, s.91L provides that the Minister can lift the bar in certain circumstances;

    (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.

19. At the hearing the Tribunal noted that it had checked Departmental records and advised the applicant that he had been subject of a determination to lift the bar under s.91L of the Act but the applicant had not been notified of the determination.

20. The Tribunal considers that a determination under s.91L, once notified, could enable the applicant to make a valid application for a temporary protection visa or a SHEV in the future. However lifting the s.91K bar will not have any retrospective operation making the current visa application valid. Rather, the effect would be that the s.91K bar does not (prospectively) apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending 7 working days later.

    Conclusion

21. For reasons set out above the Tribunal is of the view that s.91K prevented the applicant from making a valid application for a SHEV visa on 29 June 2016. The Tribunal considers that the appropriate decision in all the circumstances is to set aside the delegate’s decision and substitute a decision pursuant to s.415(2)(d) of the Act that the application for the visa is not valid and cannot be considered.

    DECISION

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

    Louise Nicholls
    Senior Member