1920491 (Refugee) - [2020] AATA 5080

1920491 (Refugee) [2020] AATA 5080 (18 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1920491

COUNTRY OF REFERENCE: Iran
MEMBER:Louise Nicholls
DATE:18 November 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 a protection visa is not valid and cannot be considered.

Statement made on 18 November 2020 at 11:25am
CATCHWORDS
REFUGEE – protection visa – Iran – entering Australia at Ashmore Reef and Cartier Islands – validity of protection visa application – validity of applicant’s Temporary Safe Haven (TSH) visa grant – Tribunal’s jurisdiction to review TSH grant – Minister’s power to lift the bar in ss.46A and 91K – Tribunal’s power to review the merits of the case – decision under review set aside and substituted
LEGISLATION
Migration Act 1958, ss 5AA, 5H, 36, 37, 46, 46A, 47, 48B, 65, 66, 69, 91K, 91L, 195A, 411, 415
Migration Regulations 1994, Schedule 1, Item 1305 (3)(g)
CASES
DBB16 v Minister for Border Protection [2018] FCAFC 178
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
Mercantile Mutual Life Insurance Co Limited v Australian Securities Commission (1993) 40 FCR 409
MHA v CSH18 [2019] FCAFC 80
Minister for Immigration and Border Protection v Kim [2014] FCAFC 47
Phoenix Institute of Australia Pty Ltd v Commonwealth of Australia [2016] FCA 190
Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34
Re Adams and Tax Agents Board (1976) 1 ALD 251
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 and arrived in Darwin [later in] May 2013.
The applicant stated that at the time of his arrival in Australia he did not enter using a travel document[1]. At his protection visa interview, he stated that he gave his passport to a people smuggler when getting on a boat to travel from Indonesia to Australia. He subsequently provided a copy of his Iranian Shenesnameh (official birth and personal history details), a copy of his Iranian driver’s licence and his military exemption card.
[1] Application for a Safe Haven Enterprise visa dated 12 September 2016 Q 52.
Procedural History
On 22 July 2013 the Minister for Immigration 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 Temporary Safe Haven Subclass 449 (TSH) visa [2] and for a Subclass 050 bridging visa.
[2] 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 23 July 2013 the applicant was granted a TSH visa. The applicant was also granted a bridging visa on 23 July 2013. This appears to be a concurrent grant to take effect when the TSH visa ceased. The applicant was subsequently released from detention.
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.
The visa applicant applied for a SHEV visa on 12 May 2016.
On 18 April 2016 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[4].
[4] 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.
The applicant was subsequently granted a number of bridging visas; however, he no longer holds a bridging visa and is currently being held in detention.
On 19 June 2017 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). The application was referred for review to the Immigration Assessment Authority which affirmed the decision on 18 August 2017.
The applicant applied for judicial review of the refusal decision on 19 September 2017 and the Federal Circuit Court dismissed the application in October 2017.
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.
Prior to the decision in DBB16, the Department had dealt with the applicant on the basis that the applicant was a fast track applicant and subject to the review process under Part 7AA of the Act.
Following the decision in DBB16, the Department re-notified the applicant of the delegate’s decision on 25 July 2019.
The applicant applied to the Tribunal for review of the delegate’s decision on 26 July 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.
On 7 July 2020 the Tribunal invited the Secretary of the Department of Home Affairs to make submissions on several matters, including
· Whether the applicant is affected by the decision in DBB16 and if so, the information on which this assessment is based.
· Whether the Department is aware of any court order or declaration made in respect of whether the applicant is DBB16 affected.
· Whether the s.91L bar has been lifted and, if so, when the Department will notify the applicant of the bar lift.
On 5 August 2020 an officer of the Department responded to the invitation with submissions and copies of relevant documents.
On 3 August 2020 the applicant was invited to a hearing at the Tribunal on 27 August 2020. On 17 August 2020 the applicant appointed the Refugee Advice and Casework Service as his representative and a Freedom of Information (FOI) request was made by his representative. The Tribunal provided the applicant’s representative with relevant documents, including the 5 August 2020 response from the Department.
The hearing initially listed for 27 August 2020 was postponed due to difficulties experienced in organising a hearing by video conference at the detention centre during the COVID19 pandemic.
The hearing was re-scheduled to take place on 25 September 2020. The Tribunal advised the applicant’s representative that on that date it would deal with the threshold issue of the validity of the application for protection in the first instance.
The applicant’s representative has provided two sets of submissions to the Tribunal; one dealing with issues relating to the validity of the protection visa application and the Tribunal’s jurisdiction and the other to the substantive claims made by the applicant and evidentiary support for those claims.
The applicant appeared before the Tribunal on 25 September 2020 to give evidence and present arguments. The applicant appeared by video from the [Immigration] Detention Centre with his representative appearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages who attended by video.
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 THS visa on 23 July 2013, held that visa until 30 July 2013, and has not left Australia since that visa ceased.
The Tribunal must consider whether the application for the protection visa is caught by s.91K of 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 in Tehran, Iran and is now [age] years of age. His parents and [siblings] live in Iran.
He arrived in Australia in May 2013 by boat from Indonesia and he did not have his passport with him when he arrived in Australia. He subsequently provided other identity documents.
The applicant initially claimed that he left Iran due to his disillusionment with Islam and his desire to find another religion he could relate to and where he could worship God freely. When he arrived in Australia he started searching for information about Christianity in Melbourne and Sydney and eventually started attending [Church 1]. He was baptised by [Pastor A] and continued attending that church. He claimed that his family members in Iran had been questioned by local mosque members about whether he was attending a mosque in Australia.
In 2017 the applicant made claims that he was a homosexual and had not mentioned this claim earlier due to embarrassment. He claimed he had homosexual relationships in Iran and Australia. He also stated he had also had relationships with women.
The applicant was detained on 10 January 2017 and later released on 9 November 2018. The applicant was detained again on 10 July 2019 and remains in detention.
Departmental submissions
As noted above, on 7 July 2020 the Tribunal invited the Secretary of the Department to make submissions on a number of matters, including;
· Whether the applicant is affected by the decision in DBB16 and if so, the information on which this assessment is based.
· Whether the Department is aware of any court order or declaration made in respect of whether the applicant is DBB16 affected.
· Whether the s.91L bar has been lifted and, if so, when the Department will notify the applicant of the bar lift.
An officer of the Department responded on 5 August 2020. The officer advised that the applicant travelled to Australia on board [a vessel] which was intercepted in the vicinity of the territory of Ashmore Islands [in] May 2013. The applicant was taken to the area of the purported proclaimed port and then subsequently taken to Darwin, Northern Territory.
The applicant entered Australia at Darwin and was detained under s.189(1) of the Act [in] May 2013. As the applicant entered Australia at a place other than an excised offshore place prior to 1 June 2013 the Department submitted that this means the applicant is not an unauthorised maritime arrival under s.5AA of the Act and thus is not a fast-tracked applicant under s.5(1) of the Act.
Prior to the decision in DBB16 the applicant was considered to be an unauthorised maritime arrival and a fast track applicant, on the basis that it was then believed he had entered Australia at the purported proclaimed port in the vicinity of the territory of the Ashmore and Cartier Islands. That the applicant was previously considered to be an unauthorised maritime arrival and fast track applicant can be seen from the first page of the delegate’s decision record dated 19 June 2017.
The Department based its assessment on information contained in the detention notice dated [in] May 2013 which demonstrates that the applicant was detained in Darwin under s.189(1) of the Act and an information report into the arrival of [his vessel] which indicates the applicant was on board a vessel that was intercepted in the vicinity of Ashmore Islands and then taken to Darwin. The assessment is also based on a nominal roll which indicates that the applicant was a passenger on board [that vessel].
The Department advised it was not aware of any court order to the effect that this applicant is affected by the decision in DBB16.
On 8 November 2019 the Minister decided to exercise his personal public interest powers under s.91L of the Act to determine that s.91K does not apply to an application for a visa made by the applicant in the period starting when the notice is given and ending at the end of the seventh working day after the day the notice is given. The Minister also decided to exercise his personal public interest powers under s.48B of the Act to allow the applicant to make a valid application for a protection visa. The Minister’s statements to Parliament were included with the response.
With respect to the applicant’s current situation, the Department advised that on 23 March 2020 the Department sent the applicant notices under s.91L and s.48B of the Act informing him of the Minister’s determinations and allowing him to make a valid application for a visa.
Following the receipt of those notices the Department advised the applicant made a valid application for a SHEV on 1 April 2020. At the date of the Department’s response it advised that application was being progressed by the Department.
The Departmental officer advised that the application for the SHEV was also taken to be an application for a bridging visa however the application for an associated bridging visa E was found to be invalid on 6 April 2020 because it did not meet item 1305 (3)(g) of Schedule 1 to the Migration Regulations 1994 (the Regulations).[5]
[5] Item 1305(3)(g) The applicant has not previously held a visa that has been cancelled on a ground specified in r. 2.43(1)(p) or (q).
The officer of the Department included copies of; the detention notice, an information report relating to the arrival of [the vessel], a nominal roll indicating that the applicant was a passenger on [the vessel], the Minister’s statements to Parliament under sections 91L and 48B and, a notice under sections 91L(1) and 48B(1) allowing the applicant to make a valid application for a visa.
Applicant’s submissions
Following the provision of documents pursuant to an FOI request, the applicant’s representative made submissions on the issue of the validity of the applicant’s visa application.
Essentially it was submitted that the Applicant was never validly granted a TSH visa; and in the alternative, when the Minister of Immigration and Border Protection invited the Applicant to make a valid application for a SHEV in 2016, he lifted the bar in s 91K of the Act.
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 9 November 2016.
The Tribunal accepts that the decision of the delegate made on 19 June 2017 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] May 2013 and in Darwin on [later in] May 2013. He was, up until the decision in DBB16, regarded as an “unauthorised maritime arrival” and was dealt with through the fast track system of review pursuant to the provisions set out in Part 7AA of the Act.
As a result of the decision in DBB16, the Tribunal accepts that the applicant is not an unauthorised maritime arrival and he was not a fast track applicant. Therefore, the decision made by the IAA on 19 June 2017 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 relevantly 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….
This means that the prescribed time period to apply for review did not start to run at the time the delegate first notified the applicant of the primary decision.
The Department re-notified the delegate’s decision on 25 July 2019. The applicant did not seek review with the Tribunal prior to the re-notification.
The applicant’s application to the Tribunal for review of the primary decision was made on 26 July 2019. The Tribunal considers that the applicant has made a valid application for review.
Can the Tribunal consider whether the applicant was validly granted a TSH visa?
Turning to the first matter raised by the applicant’s representative in her submissions, the Tribunal notes that on 23 July 2013 the applicant was granted a TSH visa and a bridging visa. He was then released from detention.
The applicant’s representative submitted that that the decision to grant a TSH visa to the applicant was invalid as it was made on the basis that the applicant was an “unauthorised maritime arrival”.
It was submitted the Tribunal has the power to consider whether the grant of the TSH visa to the applicant was valid for the limited purpose of assessing the validity of his SHEV application because it is the grant of a TSH visa that invokes the operation of s. 91K and renders any subsequent application for a SHEV invalid unless the Minister exercised the discretion in s. 91L.
For reasons set out below the Tribunal does not accept this submission.
The submission notes that provision for the existence of the TSH visa is made in s.37A of the Act. As the applicant was detained under s 189 of the Act, the Minister had power to grant the Applicant a visa under s 195A(2) of the Act. At the time the Minister granted the TSH visa, the Minister understood the applicant to be an “unauthorised maritime arrival” as defined in s 5AA of the Act.
The representative noted the breadth of the Minister’s power under s 195A(2) of the Act. However, it was submitted that the Minister’s decision to grant the applicant a TSH visa was invalid because it was infected by an error of law, being that the basis of that decision was in fact an incorrect assumption that the applicant was an “unauthorised maritime arrival” and/or the decision was made before the Minister had decided whether to permit the applicant to make a valid visa application, the purpose for which he was detained at the time.

The submissions were made on the basis that the Minister granted the TSH visa to a class of people who were thought to be ‘unauthorised maritime arrivals’, or similar, one of which was the applicant.
The representative submitted that, considering the decision in DBB16, granting the applicant a TSH visa on 23 July 2013 was an error of law. She submitted that the decision to grant the TSH treated the purported appointment of a port as a proclaimed port, within the Territory of Ashmore and Cartier Island as valid and accordingly that the applicant was an “unauthorised maritime arrival”. Because of this legal error it was submitted the applicant never held a TSH visa and s.91K does not operate to bar the applicant making a valid application for a protection visa.
The representative refers to the grant of the TSH visa and to the contemporaneous bridging visa which resulted in the applicant’s release from detention in 2013 pursuant to the provisions of s.195A of the Act. The submission also discusses the operation and requirements of s.195A of the Act and refers to High Court authority on the scope of the public interest purpose of s.195A of the Act.
The representative submits that underlying the Minister’s determination to exercise the power under s.195A was that the applicant was an “unauthorised maritime arrival” and that the legislation does not contemplate the exercise of this discretionary power being based on incorrect facts. As the exercise of the discretion under s.195A was not based on a factual matter, the exercise of the Minister’s power under s.195A was invalid because it was based on mistaken facts.
The representative submits that the contemporaneous grant of a Bridging Visa E granted to the applicant in 2013, appeared to fulfil the purpose of releasing the applicant from detention, a public interest purpose, which it submitted was consistent with the scope of s.195A.
However, the representative submits that the purpose for issuing an additional seven-day TSH visa appears to have been to limit the applicant’s rights to apply for a further visa. On its face this purpose appears outside the scope expressed by the relevant Explanatory Memorandum.
The applicant’s representative stated she had not yet been able to obtain documents related to the exercise of the Minister’s powers to grant the TSH visa. She requested that the Tribunal provide the applicant with any information before the Tribunal about the Minister’s reasons for granting the applicant a TSH visa or to request them from the Department if they are not currently in the Tribunal’s file.
The Tribunal does not have any information relating to the grant of the TSH visa to the applicant. It has not requested any information from the Department about the Department’s reasons for granting a TSH because, for reasons which follow, it does not consider it has the power to make a finding on the validity of the TSH visa, even if it formed a view as to the validity issue.
The representative additionally submitted that the TSH visa was invalid because it was granted to the applicant while he was in detention and before he was given the opportunity to make a valid protection visa application. The representative referred to the decision in Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34 and submitted that the applicant’s circumstances were similar to the applicant in that case.
The Tribunal notes its powers in this case are defined in s.415 of the Act.
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. In the absence of a valid review application with respect to the TSH, it appears beyond the jurisdiction of the Tribunal to disturb that decision.
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).
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.
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.
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.
The applicant’s representative submitted that the Tribunal could consider the validity of the grant of the TSH for the limited purpose of assessing the validity of the applicant’s SHEV application. However, in the absence of clear authority on the issue of validity of the TSH and the consequent effect on the statutory bars, the Tribunal considers this is a matter which can only be determined by a court in which the judicial power of the Commonwealth is vested.
When the Minister invited the applicant to make a valid application for a SHEV did he lift the bar in s 91K of the Migration Act?
The alternative submission made by the applicant’s representative that the Tribunal has the power to consider the merits postulates that when the Minister invited the applicant to make a valid application for a SHEV in 2016, he lifted the bar in s 91K of the Migration Act.
It is submitted that;
·At the time the Minister made his invitation, the Minister understood the applicant to be an “unauthorised maritime arrival”. As an “unauthorised maritime arrival” who was in Australia and who was an unlawful non-citizen, the applicant could not make a valid application for a protection visa by operation of s 46A(1) of the Act. Relevantly, s.46A(2) of the Act gives the Minister power to lift the bar in s 46A(1) if he “thinks that it is in the public interest to do so”, by written notice to the “unauthorised maritime arrival” (s.46A(2)).
·The Minister purported to rely upon the power in s.46(2) of the Act when he invited the applicant to make a valid application for a protection visa. The Minister’s power in s.46A(2) to invite a person to make a valid application for a visa is relevantly the same as the Minister’s power in s 91L of the Act. That is because the effect of s.46A(1) and s.91K is the same, namely to bar a non-citizen from making a valid application for a visa.
·The Minister has power to lift the bar in s.46A(1), and lift the bar in s 91K. In both instances, the Minister can lift the bar if he or she determines that it is in the “public interest” to do so (see ss.46A(2) and 91L(1)).
·In both instances, the Minister must make the decision to lift the bar personally (see s 46A(3) and s 91L(2)). In both instances, the Minister must give written notice to the non-citizen of his or her decision (see s 46A(2) and s 91L(1)).
The representative submits that, although the Minister purported to rely upon the power in s.46A(2) when he invited the applicant to make a valid application for a visa, the source of his power to make a valid application for a visa was, in fact, s.91L(2).
She submitted that it does not matter that the Minister was mistaken as to the source of his power to invite the Applicant to make a valid application for a visa: as long as the Minister had the power, the fact that the Minister misidentified the source of that power is irrelevant. There are several cases[6] in which Courts have recognised that an administrative decision maker’s decision will be valid despite the decision maker mistaking the source of his or her power.
[6] Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; Mercantile Mutual Life Insurance Co Limited v Australian Securities Commission (1993) 40 FCR 409, Phoenix Institute of Australia Pty Ltd v Commonwealth of Australia [2016] FCA 190; Brown v West (1990) 169 CLR 195.
The Tribunal accepts that the authorities do indicate that there is a principle that an act purporting to be done under one power may be supported under another statutory power in some circumstances.
However, in Mercantile Mutual Life Chief Justice Black, noted there must be limits to the general principle and said (at 6):
The suggested other source of power may, for example, be seen to be unavailable because its exercise depends upon the fulfilment of some condition precedent peculiar to it and that event has not yet occurred... There may also be cases in which the matters to which a decision-maker would be bound to have regard in exercising the other source of power differ materially from the matters relevant to the exercise of the assumed source of power with the result that the other source of power cannot be relied upon to support the decision. Similarly, matters may be taken into account in the purported exercise of a power that would invalidate the attempted exercise of a power derived from another source because, in the context of the other source, they were irrelevant matters. Moreover, for reasons of this nature, where the effect of the exercise of the power upon third parties may differ according to the source of the power, the exercise of the power may not be supportable as a valid exercise of power derived from another source.
The powers in ss.46A(2) and 91L(1)) have been in the same form since April 2015.
The power relied on was s 46A(2) of the Act, which is exercisable by the Minister personally and provides:
If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.
Section 46A(1) provides that an application for a visa is not valid if made by an unauthorised maritime arrival who is in Australia and is either an unlawful non-citizen or holds certain types of visas. Section 46A(2A) provides that a determination under s.46A(2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period, and under subsection (2B), the period may be different for different classes of unauthorised maritime arrivals.
The power sought to be relied upon by the applicant is s.91L(1), which is exercisable by the Minister personally and provides:
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.
The Tribunal considers there are material differences between the two powers. Each power is lifting an entirely different bar upon making a valid application. Each of those bars are intended to operate with distinct consequences upon non-citizens with a different status, with s. 46A(1) providing a broad prohibition on all visa applications upon certain unauthorised maritime arrivals, and s. 91K limiting future applications by previous TSH visa holders (and not unauthorised maritime arrivals) to that same type of visa.
Section 46A allows a person to apply for a specified class of visa for a period of time at the Minister’s discretion, while the effect of s.91L is limited to a period of seven days. Further, these differences may impact upon the consideration of the public interest.
Both powers have a public interest test and the Minister has a broad discretion to determine what this means for both powers. This adds another layer of distinction between the powers.
Each of ss. 46A(2) and 91L also contemplate the determinations as having a particular character and form, given they must be tabled in parliament (ss. 46A(4) and 91L(3)).
The Tribunal considers that the authorities relied on by the applicant and set out in the submissions are distinguishable. In Brown, the power in question was to determine an allowance. There was no difference in the content, nor consequences, between the heads of power considered in that case. In Mercantile, there was only ever one type of authorisation in question, and close overlap between the exercise of a function and the power attached to that function. Phoenix concerned a mistake as to the source of delegation, and Eastman did not concern reliance on any alternate head of power, but rather a misguided or inadequate understanding by the decision-maker as to why they were able to exercise a particular power.
The Tribunal has considered the applicant’s representative submissions but does not consider that when the Minister lifted the bar in s.46A(2) for the applicant to make his SHEV application in 2016 that he was lifting the bar in s.91K. The Tribunal does not accept that the s.46A(2) bar lift in 2016 provides the basis for the Tribunal to accept the validity of the application for protection and to determine the merits.
Does the Tribunal have the power to review the merits of the case?
The next 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.
For reasons set out above the Tribunal considers that the applicant is not, and was never, a “fast track” applicant.
The evidence before the Tribunal indicates that on 23 July 2013 the applicant was granted a TSH visa and evidence taken from Departmental records indicates that the TSH visa ceased on 30 July 2013.
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.
An application for a visa is only valid if it is made in the way required by the 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.
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).
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.
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.
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.

100. Taking all of the above into account, the Tribunal considers that the decision is reviewable by the Tribunal.
101. 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.
102. The evidence indicates and the Tribunal accepts that the applicant was granted a TSH visa on 23 July 2013 and that TSH visa ceased on 30 July 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.

103. As set out above the Tribunal does not consider it has the power to make a finding on that the grant of the TSH visa was invalid. It also is of the view that when the applicant was invited to make a valid application for a SHEV in 2016, the bar in s.91K was not lifted as submitted by the applicant’s representative.
104. Therefore, the Tribunal finds that while it must consider the review application, 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.
Other matters
105. 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.

106. The Tribunal notes the advice from the Department that on 8 November 2019, the Minister decided to exercise his personal public interest powers under s.91L of the Act to determine that s.91K does not apply to an application for a visa made by the applicant in the period starting when notice is given and ending at the end of the seventh working day after the day that notice is given. The Minster also decided to exercise his personal public interest powers under s.48B of the Act to allow the applicant to make a valid application for a protection visa. The Minister provided statements to Parliament under ss. 91L and 48B.
107. On 23 March 2020, the Department sent the applicant a Notice under ss. 91L(1) and 48B(1) of the Act, informing him of the Minister’s determinations under ss 48B and 91L allowing him to make a valid application for a visa. The applicant then made a valid application for a SHEV on 1 April 2020. At the date of the Department’s advice the application was being progressed by the Department.
108. The Tribunal considers the effect of the notice is that the s.91K bar does not apply to an application for a visa made by the person in the period starting when the visa is given and ending seven working days later. Thus, the application for a visa made by the applicant on 1 April 2020 is not barred by s.91K of the Act.
109. The application for the SHEV was also taken to be an application for a bridging visa, however the application for an associated Bridging Visa E was found to be invalid on 06 April 2020 because it did not meet Item 1305(3)(g) of Schedule 1 of the Regulations.
110. The Tribunal also notes that the applicant has been in detention for a lengthy period. It notes that he was acquitted of criminal charges but remains in detention due to the provisions of item 1305(3)(g)) of Schedule 1 of the Regulations.
111. The consequences of the decision in DBB16 have resulted in further delays to the finalisation of the applicant’s substantive application. It appears from material provided to the Tribunal that the applicant has suffered significant mental health issues which would not be assisted by lengthy periods of detention or uncertainty.
Conclusion
112. 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 9 November 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
113. 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