2012568 (Refugee) - [2024] AATA 2395

2012568 (Refugee) [2024] AATA 2395 (20 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ryan Lasaki (MARN: 1575928)
CASE NUMBER:  2012568
COUNTRY OF REFERENCE:                   Iran
MEMBER:Jane Marquard
DATE:20 March 2024
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 20 March 2024 at 10:14am
CATCHWORDS
REFUGEE – protection Visa – Iran – political opinion – religion – unauthorised maritime arrival – barred under s 48A – valid and not refused – 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 decision – decision set aside
LEGISLATION
Migration Act 1958, ss 5AAA, 5(1), 36, 46, 48, 65, 91
CASES
DBB16 v MIBP (2018) 260 FCR 447 (DBB16)
MICMSMA v CBW20 [2021] FCAFC 63
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 has sought review of a decision made by a delegate of the Minister for Home Affairs on 23 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicant is a citizen of Iran.
He first arrived in Australia [in] 2013 by boat, without a visa.
He attended an arrival interview with the Department of Home Affairs (the Department) on [in] May 2013 (Entry Interview). The applicant was granted a Humanitarian Stay (Temporary) (UJ 449) visa [in] June 2013.
The applicant has made two applications for protection visas, both of which were refused by the Department, and both of which are before this Tribunal for review.
The applicant applied for a Temporary Protection (Class XD) (Subclass 785) visa under s 65 of the Act on 15 May 2017 (the first visa application). That application was refused by the Department on 11 January 2018. The applicant applied for a review of that decision with this Tribunal. The Tribunal has reviewed that decision alongside this review and in a separate decision record has made a decision to remit that decision to the Department for reconsideration.
The applicant applied for the visa which is the subject of this review on 3 June 2020 (the second visa application). He claimed protection for reasons of his political opinion and religion. The delegate of the Department of Home Affairs (the Department) was not satisfied that he met the criteria for a protection visa. The Department refused that application on 23 July 2020.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).[1]
[1] Section 25, Administrative Appeals…

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.

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Details

AGLC: 2012568 (Refugee) [2024] AATA 2395
Case: [2024] AATA 2395
Decision Date: 20 March 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (the Tribunal) reviewed a decision by a delegate of the Minister for Home Affairs to refuse the applicant, a citizen of Iran, a protection visa. The applicant arrived in Australia by boat in 2013 as an unauthorised maritime arrival and was subsequently granted a Humanitarian Stay (Temporary) visa. He had made two applications for protection visas, the first of which was remitted to the Department for reconsideration in a separate decision. The current review concerned his second protection visa application, lodged on 3 June 2020, where he claimed protection based on his political opinion and religion.

The central legal issue before the Tribunal was whether the applicant's second protection visa application was valid and therefore capable of being considered. This question arose because the applicant was an unauthorised maritime arrival at the time of his entry into Australia, which, according to Departmental records, subjected him to a bar against applying for visas under section 46A of the *Migration Act 1958* (Cth). While the Department had purported to refuse the visa application, the Tribunal was required to determine if a valid application existed for review.

The Tribunal reasoned that the applicant's status as an unauthorised maritime arrival at the time of his entry meant he was subject to the bar under section 46A of the Act. Although he was later granted a Humanitarian Stay (Temporary) visa, the Tribunal found that this did not remove the initial bar. Consequently, the Tribunal concluded that the protection visa application lodged on 3 June 2020 was invalid and could not be considered.

The Tribunal set aside the decision refusing to grant the protection visa and substituted a decision that the protection visa application was not valid and could not be considered.

Orders

Orders of the court

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Background

Background to the litigation

The applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 23 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND TO THE REVIEW The applicant is a citizen of Iran. He first arrived in Australia [in] 2013 by boat, without a visa. He attended an arrival interview with the Department of Home Affairs (the Department) on [in] May 2013 (Entry Interview). The applicant was granted a Humanitarian Stay (Temporary) (UJ 449) visa [in] June 2013. The applicant has made two applications for protection visas, both of which were refused by the Department, and both of which are before this Tribunal for review. The applicant applied for a Temporary Protection (Class XD) (Subclass 785) visa under s 65 of the Act on 15 May 2017 (the first visa application). That application was refused by the Department on 11 January 2018. The applicant applied for a review of that decision with this Tribunal. The Tribunal has reviewed that decision alongside this review and in a separate decision record has made a decision to remit that decision to the Department for reconsideration. The applicant applied for the visa which is the subject of this review on 3 June 2020 (the second visa application). He claimed protection for reasons of his political opinion and religion. The delegate of the Department of Home Affairs (the Department) was not satisfied that he met the criteria for a protection visa. The Department refused that application on 23 July 2020. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).[1][1] Section 25, Administrative Appeals Tribunal Act 1975, (Cth). The Tribunal has jurisdiction pursuant to Division 2 of Part 7 of the Migration Act 1958 (Cth). A hearing was held for this matter and the first visa application jointly on 19 February 2023. The applicant was represented in relation to the review by Mr Ryan Lasaki. The representative attended the Tribunal hearing. At the hearing, the substantive visa claims were considered, along with the validity of this visa application.FINDINGS AND REASONS – VALIDITY OF THE VISA APPLICATION As referred to above, the applicant applied for the protection visa on 3 June 2020. Although the delegate of the Department purported to refuse to grant the visa on 23 July 2020, the issue in this case is whether there is a valid visa application that may be considered in this review by the Tribunal. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] May 2013. He was at that time classified by the Department as an unauthorised maritime arrival pursuant to s 5AAA of the Act as he arrived without a visa. As the applicant was at that time considered to be an unauthorised maritime arrival, he was considered to be subject to a bar against applying for visas under s 46A of the Act. The applicant was granted a Humanitarian Stay (Temporary) (UJ 449) visa on 13 June 2013. At that time, it was thought by the Department that this process removed the s 46A bar and triggered a statutory bar in s 91K of the Act which prevents certain visa applications from being made in Australia by an applicant who was an unauthorised maritime arrival at that time.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons given above, the applicant’s protection visa application is invalid, and the Tribunal has no power to consider it.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.Jane MarquardMember

Ratio Decidendi

Legal Principle Established

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