1921152 (Refugee) [2020] AATA 427 (12 February 2020)
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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
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…
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- 1921152 (Refugee) [2020] AATA 427
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- [2020] AATA 427
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CaseChat Overview and Summary
The primary legal issues before the Tribunal were the applicant's true point of arrival in Australia and, consequently, his eligibility to apply for a SHEV. Specifically, the Tribunal had to determine whether the applicant was correctly classified as a UMA, whether section 46A of the Migration Act 1958 (Cth) (the Act) applied to him, and whether section 91K of the Act, which imposes a bar on certain visa applications, was applicable and had been validly lifted. The Tribunal also considered its own powers to review the validity of the initial visa application made to the Department.
The Tribunal accepted evidence indicating the applicant arrived in the vicinity of Ashmore Reef and was subsequently transferred to Darwin, meaning he did not arrive at an excised offshore place and was therefore not a UMA. This finding meant that section 46A, which applies only to UMAs, did not bar his application, and the Minister's lifting of that bar was irrelevant. However, the Tribunal found that section 91K of the Act did apply to the applicant's SHEV application, as he held a Temporary Safe Haven visa and had not left Australia since ceasing to hold one. The Tribunal determined that there was no valid Ministerial determination under section 91L of the Act to lift this s.91K bar within the required timeframe. As an application made in contravention of section 91K is invalid under section 46 of the Act, the Tribunal concluded that the applicant's SHEV application was invalid and could not be considered.
The Tribunal set aside the decision under review. It found that the initial application for the SHEV made by the applicant was invalid due to the operation of section 91K of the Act, and that no valid Ministerial determination had been made to lift that bar. Consequently, the Tribunal had no power to consider the merits of the application, as only valid applications can be reviewed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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 protectionOn 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 FINDINGSThe applicant’s point of arrival in Australia and his initial status as an unauthorised maritime arrivalThe 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 2017As 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.’