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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 1920491 (Refugee)

Details

AGLC: 1920491 (Refugee) [2020] AATA 5080
Case: [2020] AATA 5080
Decision Date: 18 November 2020

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual who arrived in Australia by boat in May 2013. The applicant, who claimed to be from Iran, had previously been granted a Temporary Safe Haven (TSH) visa. The dispute before the Tribunal centred on the validity of the applicant's protection visa application, specifically whether it was barred by section 91K of the Migration Act 1958 (Cth) and whether the Minister had lifted this bar under section 91L.

The primary legal issue before the Tribunal was to determine whether the applicant's protection visa application was invalid due to the operation of section 91K of the Act. This section prevents an applicant from making a valid protection visa application unless the Minister lifts the statutory bar under section 91L. The Tribunal also had to consider the applicant's entry into Australia, specifically whether he was an unauthorised maritime arrival and a fast-tracked applicant, in light of departmental submissions that he entered Australia at Darwin rather than an excised offshore place.

The Tribunal reasoned that the applicant's TSH visa was granted on 23 July 2013 and ceased on 30 July 2013, and he had remained in Australia since then. Crucially, the Tribunal found that the applicant entered Australia at Darwin, not an excised offshore place, prior to 1 June 2013. This meant he was not an unauthorised maritime arrival under section 5AA of the Act and therefore not a fast-tracked applicant. The Tribunal concluded that the protection visa application was invalid because it was caught by section 91K, and there was no evidence that the Minister had lifted this bar.

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

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the decision refusing to grant the applicant a protection visa should be set aside, and it substitutes a decision that the protection visa application is not valid and cannot be considered.CONSIDERATION The issue in the present case is whether the application for the protection visa is invalid for the reason that the applicant was granted a 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.