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

1. 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

2. The applicant is a citizen of Iran.

3. He first arrived in Australia [in] 2013 by boat, without a visa.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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).

9. 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

10. 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.

11. 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.

12. 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.

13. 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.

14. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63 (CBW20), s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

15. On 15 May 2017, the applicant made the application for a Temporary Protection (Class XD) (Subclass 785) visa (the first visa application). A delegate of the Minister decided to refuse to grant this visa on 11 January 2018.

16. The then Minister of Immigration on 29 May 2020 purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia. Following this, the applicant purported to make a second visa application for a Safe Haven Enterprise visa on 3 June 2020 (the second visa application). This is the decision currently under review.

17. In DBB16 v MIBP (2018) 260 FCR 447 (DBB16), the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AAA of the Act). Accordingly, the applicant was not a ‘fast track applicant’, as defined in s 5(1). Therefore, a decision to refuse to grant him a Temporary Protection visa or Safe Haven Enterprise visa is a Part 7 reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

18. However, the first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted because he was not within the class of persons specified in the then Minister’s s 48B determination. The first visa application was refused by the delegate of the Department on 11 January 2018. The second visa application was refused by a delegate of the Department on 23 July 2020. The fact that the first visa application was valid when it was made impacts on the validity of the second visa application, the application currently before the Tribunal. The second visa application is and always was barred under s 48A of the Act as the first visa application was valid and had not been refused.

19. These matters were put to the applicant for comment and response in a letter prior to the hearing, and again at the Tribunal hearing. The applicant’s representative said that he had no comment on the matter.

20. Accordingly, for the reasons set out above, the Tribunal is satisfied that this second visa application is invalid, and the Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.

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

    DECISION

22. 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 Marquard
    Member