1909590 (Refugee)

[2023] AATA 3433

1909590 (Refugee) [2023] AATA 3433 (18 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr MD FEROZ MAHMUD (MARN: 0006593)

CASE NUMBER:  1909590 and 2102772

HOME AFFAIRS REFERENCE(S):          CLF201548698 and BCC2020/2325331

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Rachel Da Costa

DATE:18 July 2023

PLACE OF DECISION:  Sydney

DECISION: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.

DECISION: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.

Statement made on 18 July 2023 at 11:44am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – arrival in Australia by sea – Territory of Ashmore and Cartier Islands – Part 7- reviewable decision – section 91K bar not applicable – validity of second visa application – section 48A bar not lifted – invalid visa application – decision under review substituted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AA, 45AA, 48A, 48B, 65, 91K
Migration Regulations 1994 (Cth), Schedule 1, item 1404(3)(f)(i), (ii), r 2.08F

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

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

APPLICATION FOR REVIEW

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 2 December 2015. On 28 July 2016, a delegate made a decision to refuse to grant the applicant this visa (case number 1909590). The second decision is in respect of another Safe Haven Enterprise visa which the applicant applied for on 19 September 2020. On 19 February 2021, a delegate made a decision to refuse to grant the applicant this visa (case number 2102772). 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 who claims to be a citizen of Sri Lanka.

4. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] October 2012. 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)). 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.

5. The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 15 January 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. However, as determined by 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.

6. On 6 September 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 then applied for a Safe Haven Enterprise visa on 2 December 2015 (the second visa application), which was purportedly refused by a delegate on 28 July 2016. An application for review of that decision was made on 17 April 2019 (case number 1909590).

7. On 4 September 2020, the Department wrote to the applicant and advised him that in light of the decision in DBB16, his second visa application was invalid. On 18 September 2020, the applicant was invited to apply for another Temporary Protection visa or Safe Haven Enterprise visa. The applicant then applied for a further Safe Haven Enterprise visa on 19 September 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 4 March 2021 (case number 2102772).

8. 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).

9. 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.

10. 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.

11. For completeness, the Tribunal notes that the applicant appeared before the Tribunal on 17 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.

12. 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 about the consequences of the judgment in CBW20. 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.

13. In light of this development, the Tribunal invited the applicant to attend a hearing on 18 July 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 by telephone with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages and the representative attended the hearing. Following the Tribunal’s explanation, the applicant expressed his confusion and disappointment with the situation, which is understandable. The applicant’s representative indicated that he did not have any particular questions or submissions to make. 

    Conclusion

14. 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

15. 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.

16. 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.

    Rachel Da Costa
    Member
    -  Extract from Migration Act 1958

    
    
    ATTACHMENT 

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …