1921152 (Refugee)
[2020] AATA 427
•12 February 2020
1921152 (Refugee) [2020] AATA 427 (12 February 2020)
.
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1921152
COUNTRY OF REFERENCE: Iran
MEMBER:Christine Cody
DATE:12 February 2020
PLACE OF DECISION: Sydney
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 12 February 2020 at 7:52pm
CATCHWORDS
REFUGEE – protection visa – Iran – applicant on vessel intercepted near Ashmore and Cartier Islands, then taken to Darwin – conflicting evidence as to place of arrival, affecting applicant’s processing and visa eligibility – initially determined as unauthorised maritime arrival and fast track applicant – granted Temporary Safe Haven visa – visa ceased – minister lifted bar in s 46A – applicant’s application for Safe Haven Enterprise Visa refused by department and refusal affirmed by Immigration Assessment Authority – Federal Court judgment in another case, that Ashmore reef is not an excised offshore place, and a person arriving there is not an unauthorised maritime arrival or fast-track applicant, applies to applicant – IAA decision quashed – application to tribunal for review of department’s decision – point of arrival in Australia – applicant’s eligibility to apply for SHEV – applicability of ss 46A and 91K – applicant not a UMA, so s 46A did not apply – conflicting evidence as to lifting of s 91K bar – s 91L does not operate retrospectively – application invalid and cannot be considered – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5(5), 5AA, 46(1)(e)(v), 46A, 47, 65, 66, 91K, 91L, 189(1), 195A(2), 411(1)(c), 415(2)(d), 423(2), 471, 473DB(1)
Migration Amendment (Excision from Migration Zone) Act 2001 (Cth), para 88
CASES
DBB16 v MIBP [2017] FCCA 375MHA v CSH18 [2019] FCAFC 80
Minister for Immigration & Border Protection v Kim [2014] FCAFC 47
Plaintiff M79/2012 v MIAC (2013) 252 CLR 336
Plaintiff S4/2014 v MIBP (2014) 253 CLR 219
SZANA v MIMIA [2003] FCA 1407
SZANA v MIMIA [2004] FCA 203
SZGME v MIAC [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 REASONSAPPLICATION FOR REVIEW – SUMMARY
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 February 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant claims to be a citizen of Iran and he had applied for the visa on 27 September 2017. Relevant law is set out at Annexure A.
The applicant had arrived by boat to Australia and has not been able to date to have a final resolution of his application for protection. He remains in detention. Essentially his application was initially determined by the Department to belong in the ‘fast track system’; this has subsequently been assessed by the Department as incorrect and he has now been considered as having the right to an application for review to the Administrative Appeals Tribunal (the current review). In addition to the development of caselaw, a number of decisions and visa grants have been made in relation to this applicant which appear to have the cumulative effect that the applicant did not actually have the right to make the visa application that he was invited to make, and did make, on 27 September 2017, because the appropriate bar to making that application had not been lifted by the Minister (s.91K of the Act).
As noted below, there may be some issues of validity relating to some of the decisions and visa grants, but the Tribunal considers that it does not have the power to make determinations as to the validity of these earlier visa grants and decisions. In the circumstances the Tribunal finds that it has no alternative but to set aside the delegate’s decision and substitute a decision that the application for the visa is invalid and cannot be considered.
Movements and proceedings in Australia
According to the documents before the Tribunal, the circumstances leading to the current state of affairs are summarised below.
The applicant’s arrival in Australia
A DIAC note dated 30 July 2019 states that the applicant arrived on a vessel that was intercepted in the vicinity of the Ashmore and Cartier Islands between [January] 2002 and [June] 2013, and that he subsequently entered Australia at a place other than an excised offshore place before 1 June 2013. Other Departmental information is more precise as to the applicant’s movements and arrival in Australia:
· Information released by DIAC under FOI states that the applicant was a passenger on the boat SIEV [number] which ‘arrived’ on [Date 1] May 2013.[1]
· Departmental movement records state that the applicant’s ‘ULA’ date is [Date 2] May 2013.
· The Detention Notice states that the boat ‘arrived’ on [Date 2] May 2013 in Darwin on which date the applicant was detained as an unlawful non-citizen in the migration zone (other than in an excised offshore place) (s.189(1)).
[1] Information released by the Department under FOI shows when Petworth ‘arrived’ in Australia (no.138 on list). The meaning of the word ‘arrived’ is not defined in the document: >
Inconsistent with the above information was the applicant’s protection visa application form, which stated that he was in [Country 1] until [a date in] June 2013, and that from [a date range in] June 2013 he was held at Christmas Island.[2] The applicant told the Tribunal at its directions hearing and at the hearing that he believes that he did arrive in Australia on [Date 2] May 2013, he does not know the name of the boat nor if he arrived in the vicinity of Ashmore Reef. He said that he had not been on Christmas Island.
[2] His address at Christmas Island is also recorded on Departmental ICSE notes: the source appears however to be the applicant’s application form.
The Tribunal’s concerns with the initial conflicting evidence as to the applicant’s arrival led it to seek precise information from the Department as to the applicant’s point of “arrival”. This is important because it affects how the applicant’s application for protection should have been treated by the Department.
The state of the legislation at that time, as well as steps taken by the Department towards processing the applicant’s claim for protection, indicate that the applicant was initially considered by the Department to be an ‘unauthorised maritime arrival’ (UMA), and subject to the ‘fast-track system’ of processing because of:
· His date of arrival: in May 2013.
· His mode of arrival: he entered Australia by sea at an ‘excised offshore place at any time after the excision time for that place’: s.5AA(1).
· His location of arrival: at the Territory of Ashmore and Cartier Islands, defined in s.5 of the Act as an ‘excised offshore place’.
Under s.5AA(2) a person ‘entered Australia by sea’ if they entered the ‘migration zone’ except by aircraft. Under s.5, the ‘migration zone’ includes sea within the limits of both a Territory and a port and ‘port’ is defined to be a ‘proclaimed port’. Under s.5(5) the Minister may, by notice published in the Gazette, appoint a port as a ‘proclaimed port’. By Gazette Notice of 23 January 2002 the then Minister had declared an area within the Territory of Ashmore and Cartier Islands to be a ‘proclaimed port’.
The applicant’s lodgement of an application seeking protection
On 18 April 2016 the Minister, believing that the applicant was a UMA, purported to exercise his discretion under s.46A(2) of the Act to lift the application bar under s.46A(1) of the Act to allow the applicant to lodge an application for a Temporary Protection (Class XD) (Subclass 785) visa or Safe Haven Enterprise (Class XE Subclass 790) visa.[3] On 2 June 2016 a letter was sent to the applicant inviting him to apply. On 21 May 2017 the Minister announced that the applicant (and others for whom the bar was lifted) must lodge their applications by 1 October 2017.[4]
[3] Department of Home Affairs Response to Tribunal’s invitation to provide written arguments and information (s.432(2) of the Act, and attachments E and F).
[4] See letter to applicant dated 14 July 2017.
On 27 September 2017 the applicant made an application for a Safe Haven Enterprise (Class XE Subclass 790) visa (SHEV). This application was refused by the delegate on 26 February 2018. As he was considered to be a UMA, the applicant’s right of review against that decision of the delegate was to the Immigration Assessment Authority (IAA): s.473DB(1) of the Act.[5]
[5] Section 473DB(1) of the Act provides that the IAA must review ‘fast track reviewable decisions’ referred to it, which includes a ‘fast track decision in relation to a fast track applicant’ under s.473BB.
On 1 June 2018 the IAA affirmed the delegate’s decision to refuse the application and this was notified to the applicant by way of letter dated 4 June 2018. It does not appear that the applicant lodged an application for review of the decision of the IAA to the Federal Circuit Court.[6]
The effect of DBB16 v Minister for Immigration [2017] FCCA 375
[6] The Tribunal is unsure as to the reasons however it notes that on 11 July 2018 the Federal Circuit Court had made a decision that the fast track system did not apply to persons who had ‘arrived’ at Ashmore Reef: DBD16 v MIBP [2018] FCCA 1801; DBC16 v MIBP [2018] FCCA 1802. Later, on 6 August 2018 the Full Federal Court made its decision in DBB16 v Minister for Immigration [2017] FCCA 375 (discussed more fully in this decision).
The Full Federal Court in DBB16 v Minister for Immigration [2017] FCCA 375 (DBB16) considered the case of an applicant who had arrived in the Territory of Ashmore and Cartier Islands and who was dealt with under the ‘fast track process’. The issue before the Court was whether the Western Lagoon of Ashmore Reef was a ‘port’, which could have been validly declared as a ‘proclaimed port’. The Court found that the Minister had no power to appoint the Western Lagoon to be a port and the instrument doing so is invalid. As the Western Lagoon of Ashmore Reef was not and is not a port as the term is used in s.5(5) of the Act, the Court declared that the appellant was not an ‘unauthorised maritime arrival’ and consequently, the IAA had no jurisdiction to review the delegate’s decision. The IAA decision was quashed. It was also declared that the appellant had not been properly notified of the delegate’s decision to refuse his visa application noting that he had not been notified, as required by s.66 of the Act, of his right to have the decision reviewed under Part 7 of the Act before the Administrative Appeals Tribunal.
The effect of DBB16 was that the presumption that persons arriving in the vicinity of Ashmore Reef and Cartier Islands who had been considered as unauthorised maritime arrivals and thus subject to their application being dealt with in the fast track system, was wrong in law.
Re-notification and lodgement of an application for review of the delegate’s decision to the Tribunal
After the decision was made in DBB16, it was the Department’s assessment that the applicant in the current proceedings was DBB16-affected; that the ‘fast track/IAA’ scheme (s.473DB(1) of the Act) did not apply to him; that he should be re-notified of the refusal of his protection visa application and provided with an opportunity to lodge an application for review to the current Tribunal (the current proceedings). This is recorded in Departmental notes and in the letter from the Department to the applicant dated 29 July 2019.[7]
[7] Provided to the Tribunal by the applicant.
Although the applicant was re-notified, a Departmental note accessed by the Tribunal from the Department’s ICSE system from around the same time indicates that it was the view of the Department that the applicant:
is not an unauthorised maritime arrival (UMA). The s.91K bar APPLIED to this application because at the time of the application, the client was not a UMA or transitory person, and held a Humanitarian Stay (temporary) subclass 449 visa, or had not left Australia since ceasing to hold a subclass 449 visa.[8]
[8] ICSE note dated 30 July 2019.
The effect and applicability of s.91K is discussed below in the ‘Consideration and Findings’ section.
The applicant lodged his application for review to the current Tribunal on 1 August 2019. The matter was subsequently constituted to the member, and correspondence and contact ensued with the applicant and the Department, including an invitation by the Tribunal addressed to the Secretary of the Department of Home Affairs to provide written arguments and information pursuant to s.423(2) of the Act.
The Tribunal wrote a number of letters to the applicant providing him with information about his case, asking for his instructions and submissions, however the Tribunal did not receive any substantive response. The Tribunal held a directions hearing with the applicant at which it explained that there were a number of significant and complicated legal issues and suggested that he could seek legal representation which could help him. The applicant said at one stage that he didn’t want to engage the services of a lawyer as he was not in trouble; the Tribunal explained that the legal representation could be provided to him to help him to understand the issues in his case and to respond to the Tribunal’s correspondence, acknowledging the complexity of some of the matters raised. The Tribunal put to the applicant that it appeared that s.91K of the Act may have been a ‘bar’ to the applicant having made his initial application (discussed further below), although the Tribunal had not made up its mind. The Tribunal understood at one stage that the applicant may have sought to engage Legal Aid, and for that reason the Tribunal had a number of contacts with Legal Aid; despite an acknowledgement that they had some contact with the applicant, no further information was forthcoming, and the Tribunal did not receive any notification that the applicant had engaged migration/legal assistance.
The Tribunal then listed the matter for hearing, and held a hearing with the applicant in person at the Tribunal premises on 8 January 2020. At the hearing the Tribunal noted that there had been no response to the concern raised that his application for a SHEV made in 2017 may have been invalid as a result of s.91K of the Act, which may have the consequence that the Tribunal would be unable to deal with his application on review, and it would not be appropriate for the Tribunal to hear the merits of his claims. The applicant indicated that he understood the issue; he did not argue that his application was valid nor that the Tribunal could go on to determine the merits of his case. The Tribunal offered the applicant a further chance, after the hearing, to make any submissions he sought in relation to his application, by 22 January 2020. The applicant said he understood that he had been provided with this further time. The applicant has not however provided anything further to the Tribunal, nor has he sought further time to do so. In the circumstances, the Tribunal considered that it was appropriate to proceed to making a decision.
CONSIDERATION AND FINDINGS
The applicant’s point of arrival in Australia and his initial status as an unauthorised maritime arrival
The Tribunal is prepared to accept that parts of the applicant’s visa application form were in error, that the applicant did not arrive at or spend time on Christmas Island; and that he was not still in [Country 1] until June 2013. The Tribunal asked the Department for the detailed information as to the applicant’s point of arrival, similar to that available to the Court in DBB16, and also for information as to whether there had been any court declaration for any other person who had arrived on the boat SIEV [number].[9] The Assistant Secretary’s s.423(2) Response stated that:
The Department is aware of two court cases involving applicants who arrived on SIEV [number] (CBC17 v Minister for Immigration and Border Protection and Anor [2018] FCCA 3383 (CBC17) and BVM18 v Minister for Home Affairs and Anor (BVM18). The judgment in CBC17 did not examine the point of entry of the applicant in detail but found the applicant not to be a UMA by virtue of DBB16. In BVM18, the Minister withdrew from the proceeding on the basis that the applicant was not a UMA by virtue of DBB16.
[9] Section 423(2) Request for written arguments and information made by the Tribunal to the Secretary of the Department of Home Affairs dated 28 October 2019.
The Tribunal would have preferred to have access to more detailed records of the applicant’s movements and arrival (especially noting that one ICSE note only states that he arrived somewhere between 23 January 2002 and 1 June 2013). For the purposes only of this decision, the Tribunal is prepared to accept that the applicant was on board SIEV [number], that he arrived in the vicinity of Ashmore Reef on [Date 1] May 2013 and that he was then transferred by boat to Darwin on [Date 2] May 2013. As noted in DBB16 in relation to that applicant:
In summary, the Appellant was a ‘fast track applicant’; subject to Part 7AA review only if he entered the migration zone at Ashmore Reef as an excised offshore place, but would not be a ‘fast track applicant’ if he instead entered Australia at Darwin.[10]
[10] Paragraph 23.
The Tribunal is prepared to accept that the fact scenario in this case is the same as that in DBB16, and that as Ashmore Reef has been found not to be an excised offshore place, this applicant is not a UMA or a fast track applicant, and he entered Australia at Darwin.
The ability of the applicant to lodge his application for a SHEV on 27 September 2017
As noted above, at the time the applicant was invited by the Department to lodge his application for a SHEV, he was considered to be a UMA and thus barred from lodging such an application unless the Minister firstly lifted the s.46A bar to lodging such an application.[11]
[11] As summarised in paragraph 88 of DBB16, the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) came into effect on 27 September 2001, inserting a new s.46A which prevented persons who had arrived at an excised offshore entry place from applying for a visa unless the Minister decided that such an application could be made.
The Tribunal has accepted, however, for the purposes of this decision, that the applicant was not a UMA. Section 46A was clearly expressed to apply only to UMAs. Thus, as the applicant was not a UMA, the lifting of the bar pursuant to s.46A could not permit the applicant to lodge his visa application. Further, the applicant was not barred by s.46A from making the application.
It is then appropriate to consider whether the application for a Safe Haven Enterprise (Class XE Subclass 790) lodged by the applicant with the Department was subject to any other bar. In this regard, s.91K of the Act[12] operated to prevent non-citizens who hold, or have not left Australia since ceasing to hold, a Temporary Safe Haven visa (Class UJ Subclass 449), from making a valid application for a visa (other than a Temporary Safe Haven visa). A non-citizen is defined in s.5 of the Act as a person who is not an Australian citizen. Section 91L provided that it was the Minister only who could decide to lift the s.91K bar and allow a non-citizen to lodge such an application. This means that if the applicant is subject to s.91K, he was unable to make a valid application for a SHEV, unless the Minister had determined that s.91K did not apply to him.
Is the applicant a person who holds, or has not left Australia since ceasing to hold, a Temporary Safe Haven visa (Class UJ Subclass 449)?
[12] As at 27 September 2017, s.91K ‘Non-citizens to whom this subdivision applies are unable to make applications for certain visas’ stated ‘Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application.’
As noted above, s.91K applies to persons who hold or have held a Temporary Safe Haven visa. Departmental movement records show that the applicant was granted a UJ-449 Temporary Safe Haven (TSH) visa on 25 July 2013 valid until 1 August 2013, and that he has not left Australia since that date.
The s.423(2) Response from the Assistant Secretary provided to the Tribunal (and by the Tribunal to the applicant) has provided supporting documentation, namely the Ministerial submission and decision dated 22 July 2013 relating to the grant of the TSH visa and the Ministerial Statement to Parliament confirming that the Minister had exercised his power under s.195A(2) of the Act to grant both a Subclass 449 visa as well as a Subclass bridging (general) visa to the applicant who it was said was in detention.
The applicant has not disagreed that he was granted a UJ-449 TSH visa and a Subclass 050 bridging visa on 25 July 2013.
Accordingly, on the evidence before the Tribunal, the applicant is a person who held a TSH visa for a 7-day period between 25 July 2013 and 1 August 2013 and has not subsequently left Australia. This would mean that, unless the Minister had determined pursuant to s.91L that s.91K did not apply to him, then the applicant’s application for a SHEV on 27 September 2017 was not validly made.
Had the Minister determined pursuant to s.91L that s.91K did not apply to the applicant at the time he lodged his application for a SHEV on 27 September 2017?
At the time the applicant made his application for a SHEV, s.91L of the Act provided relevantly as follows:
(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.
…
(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.
The Tribunal noted that, according to ICSE records dated 17 December 2014, that on 1 December 2014 the Minister had exercised the discretion in s.91L of the Act to lift the bar under s.91K, and that this was notified to the applicant on 17 December 2014. The applicant thus had 7 working days from 17 December 2014 until 30 December 2014 to lodge a visa application. The Tribunal asked the Secretary the purpose of this exercise of discretion[13] and in response the Assistant Secretary stated that under s.91L(1) the Minister may determine that s.91K does not apply to an application for a visa made within 7 days and that the determination cannot specify the visa class that can be applied for. It was stated that in 2014 the applicant did not make an application for any visa during the 7 working days following notification of the Minister’s determination (by 30 December 2014). It was noted that the applicant had been granted a bridging visa without application on 30 December 2014. The Tribunal was provided with a copy of the Ministerial submission and decision from this period.[14]
[13] Section 423(2) Request for written arguments and information made by the Tribunal to the Secretary of the Department of Home Affairs dated 28 October 2019.
[14] Attachment C to the Assistant Secretary’s Response.
The Tribunal has considered whether the Ministerial exercise of discretion on 1 December 2014 notified and commencing effect from 17 December 2014 could be construed as operating to allow the applicant to lodge his SHEV application made almost three years later on 27 September 2017. However, the wording of s.91L of the Act is clear; it provides that the permission to lodge a visa application operates for 7 working days from the date of the notification. The evidence is that the notification occurred on 17 December 2014; in the circumstances the Tribunal considers that the lifting of the bar from 17 December 2014 did not operate to permit the applicant to lodge his SHEV application on 27 September 2017. The applicant himself did not make any such suggestion to the Tribunal.
The Tribunal also noted in its Request to the Secretary that, according to ICSE notes dated 23 October 2019, there was a consideration of a (bulk) submission to lift the s.91K bar, including in relation to this applicant. In her 18 November 2019 Response, the Assistant Secretary stated that on 8 November 2019 the Minister made a further determination under s.91L of the Act in relation to the s.91K application bar and that the applicant would be notified of the outcome of the determination in due course. The Tribunal provided this information to the applicant and asked that he inform the Tribunal if he receives any relevant letter from the Department. The applicant has not told the Tribunal of any such notification to date. The Tribunal has subsequently accessed ICSE records (dated 27 November 2019 and 12 December 2019) which appear contradictory as to whether or not the bar has been lifted or whether or not the applicant is the subject of a determination; the Tribunal has also received correspondence from the Department indicating that these matters remain unclear.
While it is clear that a determination made under s.91L of the Act could enable the applicant to make a valid application for a temporary protection visa or SHEV in the future (within 7 working days of being notified of such determination), the wording of s.91L of the Act does not purport to operate retrospectively.
Thus, in considering whether to wait for the Department to notify a determination (or decide to make a determination), the Tribunal has considered the uncertain information received to date, the fact that the applicant remains in detention, and the Tribunal’s view that a determination pursuant to s.91L cannot operate retrospectively (to make an earlier invalid visa application made without the s.91K bar having been lifted, retrospectively valid). In the circumstances the Tribunal has decided to proceed to its decision.
There is no evidence before the Tribunal that the applicant was notified (within 7 working days prior to 27 September 2017 when he lodged his application for a SHEV) that the Minister had determined pursuant to s.91L that s.91K did not apply to him.
Finding as to the operation of s.91K on the application for a SHEV made by the applicant on 27 September 2017
The Tribunal has found that the conditions for the operation of s.91K of the Act applied to the application for a SHEV made on 27 September 2017 and that there was no Ministerial determination pursuant to s.91L which took effect within 7 working days beforehand lifting the s.91K bar allowing the applicant to lodge this application. The Tribunal has considered below whether it has the power to consider the validity of the initial visa application refused by the delegate which decision is the subject of the current review, and the consequence of such consideration.
Can the Tribunal determine that an initial visa application made to the Department is invalid, and if so, can it review a decision of the delegate to refuse the (invalid) visa application?
The Tribunal has the power to review a range of decisions about protection visas. A decision of a delegate to refuse to grant a SHEV is a Part 7 reviewable decision under the Act (s.411(1)(c)).
Section 47 of the Act states that an invalid visa application cannot be considered by the Minister or his or her delegate; only a valid application for a visa can be considered (s.47(1), (3) of the Act); and only a valid application can be granted or refused (s.65 of the Act). Section 46(1)(e)(v) of the Act specifically states that an application is not valid if it does not comply with s.91K of the Act.
Section 415 of the Act provides the Tribunal may, for the purpose of the review of a Part 7 reviewable decision, exercise all the powers and discretions conferred on the delegate who made the decision to refuse to grant the SHEV visa application. However, under s.415 of the Act, the Tribunal has no greater powers than the original decision-maker.[15] The Tribunal has the power to affirm, vary, remit the matter for reconsideration, set the decision aside and substitute a new decision, or exercise a power to dismiss/reinstate the matter if an applicant fails to appear. The Tribunal must not exercise powers that are not authorised by the Act or the Regulations: s.415(4) of the Act.
[15] SZANA v MIMIA [2004] FCA 203 per Hely J at [26].
Where the defect in the primary decision arose from misconception of the substantive power, the Tribunal remains bound to apply the laws defining the power of the primary decision-maker, and it may only substitute a decision which could have been made within the confines of the decision-maker’s power. The Tribunal considers in this case that the decision to refuse the visa by the delegate involved making a decision in relation to an invalid application, contrary to ss.46, 47 and 65 of the Act. In Minister for Immigration & Border Protection v Kim[2014] FCAFC 47, His Honours Mr Justices Yates, Robertson and Wigney considered, and found, that the validity of an application is an objective question:
The factors or criteria by reference to which an application for a visa is valid in s 46 are stated objectively and do not rest in the Minister’s or an officer’s discretion or opinion. Further, s 47 imposes obligations on the Minister, as opposed to conferring a discretion on him or her. These considerations point in favour of validity being an objective question for the Court and we so find.
The consequence is that the validity of the visa application is a question which the Court should decide. It is of course competent for an officer, including the Minister, to form a view about the validity of a visa application for himself or herself but ultimately it is for the Court to resolve any controversy as to that question. We accept the appellant Minister's submission that an application for a visa is valid or not regardless of the Minister’s view, or any officer’s view, about the matter. We also accept the appellant Minister’s submission that a person who has made a valid visa application complying with the statutory requirements is at least prima facie entitled to mandamus to require the Minister to consider it.[16]
[16] MIBP v Kim[2014] FCAFC 47; (2014) 221 FCR 523 at [27] per Yates, Robertson and Wigney JJ.
The Tribunal considers that it must, objectively, form a view on the validity of the visa application before it, within the meaning of s.46 of the Act, in order to properly exercise its statutory powers and functions. Given the finding above that s.91K of the Act applied to the application for a SHEV made on 27 September 2017 and that there was no Ministerial determination pursuant to s.91L which took effect within 7 working days beforehand lifting the s.91K bar allowing the applicant to lodge this application, the Tribunal forms the view that the visa application lodged on 27 September 2017 was not valid.
According to the Full Federal Court in SZGME v MIAC [2008] FCAFC 91, per Black CJ and Allsop J, the Tribunal has no power to consider an invalid application for a visa:
The Tribunal has no authority other than under the Migration Act to grant or to refuse a visa. It accedes to the powers and discretions of the delegate, which include ss 47 and 65 of the Migration Act. Section 69 does not validate what the Tribunal does without statutory authority: see the terms of s 69 and also Phanouvong 60 ALD at 443-444 [24]. The ratio decidendi of Li 103 FCR at [81]-[82] is that a valid application is not merely a requirement affecting the delegate’s power, it also affects the authority of the Tribunal. This view is one that is not plainly wrong. It recognises, through s 415 and ss 47 and 65, that only a valid application must be considered by the Tribunal. No equivalent of s 69 saves the Tribunal’s decision from the effect of considering an application that is not valid.[17]
[17] SZGME v MIAC [2008] FCAFC 91 at [30] per Black CJ and Allsop J.
In this regard, as the Tribunal has found that the applicant’s visa application was invalid, it finds that the delegate made a decision on the merits of an invalid visa application, and that while that decision was made without power by the delegate, it is still a Part 7 reviewable decision for the purposes of s.411(1)(c). In such a case the appropriate decision for the Tribunal to make is to set the delegate’s decision aside and substitute a new decision pursuant to s.415(2)(d) of the Act that the application was not valid and cannot be considered.[18] It is for this reason that the Tribunal has found that it must set aside the delegate’s decision and substitute a decision that the application for the visa is invalid and cannot be considered.
[18] SZANA v MIMIA [2004] FCA 203 at [26] agreeing with Allsop J in SZANA v MIMIA [2003] FCA 1407.
Other matters
Issues as to the validity of the grant of the UJ-449 (TSH) visa
As noted above, the Tribunal has found that the applicant was unable to make a valid visa application because s.91K of the Act applied because the applicant had been granted a Class UJ Subclass 449 (TSH) visa valid for 7 days.
Purpose of and conditions underlying that grant: The reasoning on the key issues applicable at that time is set out in the s.195A Ministerial submission (attachment A to the Assistant Secretary’s Response), and it proceeds on the basis that the applicant was a UMA (which is now considered to be incorrect). In the circumstances there may be a question about whether a decision made in the mistaken belief that the applicant was a UMA was wrong at law and whether the TSH visa was granted for an improper process or for an improper or non-existent purpose, and therefore was not validly granted. The Tribunal notes that the validity of the grant of TSH visas in different circumstances was considered by the High Court in Plaintiff M79/2012 v MIAC (2013) 252 CLR 336 and Plaintiff S4/2014 v MIBP (2014) 253 CLR 219, however the Tribunal is not aware of any decision which has quashed the grant of the TSH visa to the applicant who is before the Tribunal.
As noted above, s.415 of the Act provides the Tribunal may, for the purpose of the review of a Part 7 reviewable decision, exercise all the powers and discretions conferred on the delegate who made the decision to refuse to grant the applicant the SHEV.[19] In the current application for review, the Part 7 reviewable decision to which s.415(2) refers is the decision of the delegate to refuse to grant the applicant a SHEV on 26 February 2018; it does not seek the review of the decision of the Minister, made personally under s.195A(2), to grant the applicant a TSH visa on 25 July 2013. The Tribunal considers that the delegate would not have had the power to find that the decision of the Minister, made personally to grant a TSH under s.195A(2), was invalid, and thus the Tribunal does not acquire any such power under s.415(1). The Tribunal considers that it does not have the power to make findings as to the validity of the decision of the Minister, made personally, to grant a TSH under s.195A(2) of the Act.
[19] In MHA v CSH18 [2019] FCAFC 80 at [81] the Court 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 applicant’s status as a detainee: The Tribunal had concerns that the applicant may not have been a person in detention at the time the UJ-449 visa was granted. The Tribunal raised these concerns with the Department and the applicant. It appears from the Assistant Secretary’s Response to the Tribunal’s request for written arguments and information that the applicant had remained at Wickham Point Detention Centre until such time as the UJ-449 visa was granted. When asked, the applicant was unable to assist the Tribunal with recalling dates. If the applicant was not in detention at the time of the visa grant, then this too would be a relevant matter when considering the validity of the grant of the UJ-449 visa; however as noted above the Tribunal does not consider that it has the power to consider the validity of such a visa grant, and it has not made any findings in regard to the applicant’s status as a detainee or otherwise at the time of the grant of the UJ-449 visa.
The applicant’s criminal charges and situations that have arisen in detention
The applicant’s bridging visa was cancelled and he was placed into immigration detention on 13 July 2017, after being charged with a number of offences in 2016. Departmental notes refer to [deleted]. He has remained in detention ever since 13 July 2017. Some of these concerns, if accepted, may be relevant to the applicant’s claims to be a refugee or entitled to complementary protection. The Tribunal has not however actively sought evidence as to these matters as it considers them to be properly relevant to the merits of his claims, which the Tribunal is unable to consider due to the initial invalid visa application, and because in the circumstances it considers that it is not appropriate to conduct a merits review in relation to the current application for review. The Tribunal, aware of the High Court authority in CNY17 v Minister for Immigration and Border Protection & Anor [2019] HCA 50, considers that the matters of criminal charges and situations that have arisen in detention are not relevant to the Tribunal’s determination of the validity of the initial visa application, and the scope of its statutory functions and powers, set out in this decision.
Conclusion
As the Tribunal has found that, by operation of s.91K of the Act, the applicant did not make a valid application for a SHEV on 27 September 2017, the Tribunal has no power to consider whether the applicant is owed protection obligations by Australia. Therefore, the Tribunal has no alternative but to set the delegate’s decision aside and substitute a new decision pursuant to s.415(2)(d) of the Act that the application for the visa is not valid and cannot be considered.
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.
Christine Cody
MemberAnnexure A
Sections 411 and 415 as at the time of the review application
Section 411 Definition of Part 7-reviewable decision
(1) Subject to subsection (2), the following decisions are Part 7-reviewable decisions:
(a) a decision, made before 1 September 1994, that a non-citizen is not a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made after a review by the Minister of an earlier decision that the person was not such a refugee);
(b) a decision, made before 1 September 1994, to refuse to grant, or to cancel, a visa, or entry permit (within the meaning of this Act as in force immediately before that date), a criterion for which is that the applicant for it is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made under the Migration (Review) (1993) Regulations or under the repealed Part 2A of the Migration (Review) Regulations);
(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);
(d) a decision to cancel a protection visa, other than a decision that was made because of:
(i) subsection 5H(2) or 36(1C); or
(ii) an assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
(iii) paragraph 36(2C)(a) or (b).
(2) The following decisions are not Part 7-reviewable decisions:
(aa) any decision to cancel a protection visa that is made personally by the Minister;
(a) decisions made in relation to a non-citizen who is not physically present in the migration zone when the decision is made;
(b) decisions in relation to which the Minister has issued a conclusive certificate under subsection (3);
(c) fast track decisions.
(3) The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that:
(a) it would be contrary to the national interest to change the decision; or
(b) it would be contrary to the national interest for the decision to be reviewed.
Section 5 defines a protection visa to include a safe haven enterprise visa
Section 415 Tribunal powers on review of Part 7-reviewable decisions
(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.
Sections 46, 47, 91J- L at time of visa application
Section 46 Valid visa application
Validity — general
(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
(a) it is for a visa of a class specified in the application; and
(b) it satisfies the criteria and requirements prescribed under this section; and
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c) any fees payable in respect of it under the regulations have been paid; and
(d) it is not prevented by any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
(i) section 48 (visa refused or cancelled earlier);
(ii) section 48A (protection visa refused or cancelled earlier);
(iii) section 161 (criminal justice visa holders);
(iv) section 164D (enforcement visa holders);
(v) section 195 (detainee applying out of time);
(vi) section 501E (earlier refusal or cancellation on character grounds); and
(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);
(vi) section 91P (non‑citizens with access to protection from third countries).
(1A) Subject to subsection (2), an application for a visa is invalid if:
(a) the applicant is in the migration zone; and
(b) since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and
(c) the Minister has not waived that condition under subsection 41(2A); and
(d) the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.
(2) Subject to subsection (2A), an application for a visa is valid if:
(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b) under the regulations, the application is taken to have been validly made.
Provision of personal identifiers
(2A) An application for a visa is invalid if:
(aa) the Minister has not waived the operation of this subsection in relation to the application for the visa; and
(ab) the applicant has been required to provide one or more personal identifiers under section 257A for the purposes of this subsection; and
(b) the applicant has not complied with the requirement.
Note: An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).
Prescribed criteria for validity
(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4) Without limiting subsection (3), the regulations may also prescribe:
(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b) how an application for a visa of a specified class must be made; and
(c) where an application for a visa of a specified class must be made; and
(d) where an applicant must be when an application for a visa of a specified class is made.
(5) To avoid doubt, subsections (3) and (4) do not require criteria to be prescribed in relation to the validity of visa applications, including, without limitation, applications for visas of the following classes:
(a) special category visas (see section 32);
(b) permanent protection visas (see subsection 35A(2));
(c) temporary protection visas (see subsection 35A(3));
(ca) safe haven enterprise visas (see subsection 35A(3A));
(d) bridging visas (see section 37);
(e) temporary safe haven visas (see section 37A);
(f) maritime crew visas (see section 38B).
Section 47 Consideration of valid visa application
(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 91J Non-citizens to whom this Subdivision applies
(1) This Subdivision applies to a non-citizen in Australia at a particular time if, at that time, the non-citizen:
(a) holds a temporary safe haven visa; or
(b) has not left Australia since ceasing to hold a temporary safe haven visa.
(2) This Subdivision does not apply to an unauthorised maritime arrival or a transitory person.
Note: Unauthorised maritime arrivals are covered by section 46A and transitory persons are covered by section 46B.
Section 91K Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas
Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application.
Section 91L Minister may determine that section 91K does not apply to a non-citizen
(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.
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