1921003 (Refugee)

[2022] AATA 4197

1921003 (Refugee) [2022] AATA 4197 (19 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Mary Anne Kenny (MARN: 9793699)

CASE NUMBER:  1921003

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Jessica Henderson

DATE:19 September 2022

PLACE OF DECISION:  Perth

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

Statement made on 19 September 2022 at 3:05pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – unauthorised maritime arrival – holder of a temporary protection visa (TPV) – validity of visa application – Ministerial determination – timing of the section 46A bar being lifted – decision under review substituted

LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 46A
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIMA v Li; MIMA v Kundu (2000) 103 FCR 486
Plaintiff B9/2014 v Minister for Immigration [2014] FCAFC 178

SZGME v MIAC (2008) 168 FCR 487

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

Background

1. The applicant was born in Australia in [year] to parents who entered Australia as unauthorised maritime arrivals. Consequently, he is himself deemed an unauthorised maritime arrival pursuant to s 5AA(1A) of the Migration Act 1958 (Cth) (the Act): Plaintiff B9/2014 v Minister for Immigration [2014] FCAFC 178 at [49].

2. The applicant and his father were granted temporary protection visas (TPVs) in April 2016.  His mother did not lodge an application for a TPV until 2017 and was therefore ineligible on the basis of membership of the same family unit criteria.  The applicant’s mother included the applicant as a second applicant on her 2017 TPV application, notwithstanding that the applicant already held a TPV valid until April 2019.

3. At the time of the applicant’s mother’s TPV application the applicant was in fact unable to make a valid application for any visa pursuant to s 46A(1)(ii) of the Act because he was an unauthorised maritime arrival who was the holder of a TPV. There does not appear to have been any consideration of the validity of the inclusion of the applicant on his mother’s application at any stage by the Department.

4. In July 2018 a delegate of the Minister for Home Affairs refused to grant the applicant’s mother a protection visa under s 65 of the Act.  The delegate also purported to make a decision to refuse to grant the applicant a visa. The delegate did not record his reflections, if any, with respect to the applicant’s existing TPV or his membership of the same family unit as his father, both of which were noted anecdotally in the reasons for the decision. 

   Issues

5. The issue in this case is whether there is a valid visa application that may be considered. If there is a reviewable decision but the visa application is not valid, the Tribunal can consider the review application, but cannot make a decision on the merits of the visa application: MIMA v Li; MIMA v Kundu (2000) 103 FCR 486; see also SZGME v MIAC (2008) 168 FCR 487 per Black CJ and Allsop J at [30].

   The Statutory bar

6. The Act and the Migration Regulations 1994 (Cth) (the Regulations) prescribe certain requirements for the making of a valid application for a visa: ss 45 to 48A of the Act and reg 2.07 of the Regulations. Schedule 1 to the Regulations also sets out certain matters relating to the making of a valid protection visa application. An application for a visa is a valid application if, and only if, it is made in the way required by the Act and the Regulations: ss 45 to 48A of the Act.

7. Section 46A(1)(b) of the Act provides that an application for a visa is not a valid application if it is made by an unauthorised maritime arrival who is the holder of a temporary protection visa. That section of the Act was in force at the time that the applicant’s application was made in 2017 and remains in force at the date of this decision.

8. Section 46A also provides that:

   (2) 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.

9. In April 2018 the Minister gave notice to the applicant in the following terms:

   Notice under section 46A of the Migration Act 1958 – section 46A bar lifted

   As you are an unauthorised maritime arrival as defined in the Migration Act 1958 (the Act) and you hold a TPV, you were prevented by subsection 46A(1) of the Act from lodging a further valid application for any visa while in Australia. On 06/04/2018 the Minister for Immigration and Border Protection made a decision to exercise his power under subsection 46A(2) of the Act to allow you to make a valid application for a further TPV or a SHEV. You must apply before your current visa ceases.

10. The timing of the bar being lifted is important.  It occurred after the mother lodged the application under review, but before the decision was made.  The question is therefore whether the lifting of the bar had the effect of making valid an application that was statutorily invalid at the date at which it was made.

11. The question before the Tribunal is one of statutory interpretation.

12. Section 46A(1) states unequivocally that “an application is not a valid application” (emphasis added) if the applicant is “an unauthorised maritime arrival” and “holds a…temporary protection visa…”.  That wording is important.  The application was certainly not valid at the time at which it was made; it is not in any doubt that the applicant is an unauthorised maritime arrival nor that at the time of the decision he held a TPV.

13. Section 46A(2) gives the Minister power to determine “that subsection (1) does not apply to an application…for a visa of a class specified in the determination”.  The Minister’s determination is made “by written notice”. 

14. The language of the notice given by the Minister to the applicant is that section 46A(1) is restricted to allow the applicant “to make a valid application for a further TPV or a SHEV”. The phrase “to make a valid application” is clearly future tense. There is no scope for reading into it an implied lifting of the bar with respect to an invalid application made before the bar was lifted. If there were any ambiguity in the Minister’s determination (which there is not) it would be resolved by the context of the letter, which anticipated the approaching expiry of the applicant’s existing TPV visa and advised the need to make a further TPV or SHEV application, without reference to any application then on foot.

15. The Tribunal finds that s 46A(1) does apply to the application giving rise to the decision on foot, and that the application is rendered invalid by it.

16. The applicant's protection visa application is not valid and the Tribunal has no power to consider it.

    decision

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

    Jessica Henderson
    Member