2016230 (Refugee)

[2024] AATA 4403

2016230 (Refugee) [2024] AATA 4403 (20 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2016230

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Louise Nicholls

DATE:20 September 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 September 2024 at 12:47pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – arrival by sea – temporary protection visa granted – statutory bar held to apply and application for temporary protection visa held to be invalid and not considered – later application for SHEV refused – court decisions mean that applicant not “unauthorised maritime arrival” or “fast track applicant” as defined and statutory bar does not apply – first application valid at the time it was made, therefore second applicant not valid – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 65, 91K, 415(1), 425
Migration Regulations 1994 (Cth), Schedule 1, 1404(3)(f)(i), (ii)

CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
MIMA v Li; MIMA v Kundu (2000) 103 FCR 486

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 October 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (SHEV) on 6 July 2020. The delegate purported to make a decision to refuse to grant the visa on the basis that the applicant did not meet the applicable visa criteria.

3. The issue for the Tribunal is whether the application for the visa is a valid application.

4. 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].

5. 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.

6. 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.

   Invitation to hearing.

7. The Tribunal is of the view that it has jurisdiction to review a purported decision of the delegate, and therefore has the power to invite the applicant to a hearing under s 425 of the Act.

8. It considers that where the delegate has purported to refuse an invalid visa application, the Tribunal has jurisdiction to hear the matter (assuming the other requirements in s 347 and 412 of the Act are satisfied). However, the Tribunal is restricted to setting aside the delegate’s decision and substituting it with a decision that the visa application is invalid, as its powers upon review are no broader than those of the delegate (as per s 415(1) of the Act).

9. Support for this approach comes from the Full Federal Court judgment of Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486. In this case, the respondents had made invalid applications for protection visas that were incorrectly refused by the delegate, and then affirmed upon review by the then-RRT. Relevantly, the Court held at [80] and [82] that:

   “It can be accepted, for present purposes, that a decision of the Minister's delegate to reject an invalid application for a visa is subject to review by the RRT, not withstanding that the delegate contravened s 47(3) of the Migration Act by making the decision. A decision to refuse a visa where no valid application for a visa has been made is a decision not authorised by the Migration Act or the regulations. The fact that the Migration Act preserves an unauthorised decision by a delegate, so as to make it subject to review by the RRT, does not confer on the RRT greater powers than a delegate could ever have properly exercised in relation to an invalid application.”

10. The Tribunal invited the applicant to attend a hearing in relation to his review application before the Tribunal which took place on 19 September 2024. The Tribunal previously advised the applicant in writing that it was holding a hearing to discuss the issue of the validity of his visa application and not to discuss the merits of his claims for protection. The applicant attended the hearing and was self-represented before the Tribunal.

11. The Tribunal outlined the history of the applicant’s protection visa applications made after he arrived in November 2012. It also explained the reasons that the Tribunal had formed a preliminary view that the SHEV visa application may be invalid. The applicant told the Tribunal he had initially seen a lawyer when he was making an application for protection but could not pay a lawyer to continue his representation. He made no other comments on the issue of the validity of the visa application.

    Background to the application.

12. The following background details are taken from an application for a Temporary Protection Visa application made on 11 December 2015 and which were also referred to in his application for the SHEV[1].

    [1] Application for SHEV dated 6 July 2020.

13. The applicant claims to be a citizen of Bangladesh. He is almost [Age] years old and arrived in Australia [in] November 2012 by boat. He did not hold an Australian visa at the time of his arrival.

14. The applicant claims to be of Bengali ethnicity and a Sunni Muslim.

15. The applicant left Bangladesh in April 2007. He claims he went to [Country 1] and stayed there until 2012. After some time in [Country 1], he arranged his travel to Australia by boat in October 2012, first passing through [Country 2] for five to six days. He arrived in November 2012.

16. According to Departmental records, the applicant arrived in Australia by sea on the boat named “[Codename]” at the Territory of Ashmore and Cartier Islands. He was later taken to Darwin. He was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 30 January 2013.

17. On the 11 December 2015 the applicant made an application for a Temporary Protection (Class XD) (subclass 785) visa (TPV). On 12 June 2020 the applicant was advised that this was an invalid application, as it was thought to be at that time. There is no evidence before the Tribunal that the TPV application has been granted, refused or withdrawn.

18. On 6 July 2020 the applicant made an application for a Safe Haven Enterprise (Class)(Subclass 790) visa. The SHEV visa application was considered and refused by the delegate on 16 October 2020.

    CONSIDERATION

19. Although the delegate purported to refuse to grant the visa, the issue in this case is whether there is even a valid visa application that may be considered.

20. The evidence indicates that the applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 30 January 2013. At the time, this was thought to trigger a statutory bar in s 91K of the Act which prevents certain visa applications being made in Australia by an applicant who was an “unauthorised maritime arrival” at that time.

21. However, the evidence indicates that on 11 December 2015, the applicant made an application for a Temporary Protection visa. This was initially considered to be an invalid visa application due to the operation of s 91K of the Act.

22. 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 5AA of the Act).

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

24. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1) of the Act) and a decision refusing to grant him a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.  

25. As the applicant had been previously advised the first visa application was invalid, he applied for a Safe Haven Enterprise visa on 6 July 2020, which was purportedly refused by a delegate on 16 October 2020. 

26. As a result of the Full Federal Court’s judgments in DBB16 and CBW20, the applicant’s first visa application was, in fact, valid at the time it was made.

27. It is a requirement for a valid application for a Safe Haven Enterprise visa that, either: (i) the applicant has not made a valid application for a Temporary Protection visa; (ii) if they have made a valid application, that application has been refused or withdrawn; (iii) a Temporary Protection visa has been granted; or (iv) the application for the Safe Haven Enterprise visa is made at the same time as an application for a Temporary Protection visa (item 1404(3)(f) of Schedule 1 to the Regulations).[2]

    [2] Item 1404 ….

28. As the first visa application for a TPV visa was not refused or withdrawn when the second SHEV application were made, the requirements in item 1404(3)(f)(i) and (ii) were not met.

29. There is no evidence before the Tribunal that the applicant met the other alternative requirements in item 1404(3)(f)(iii) or (iv). This means that the applicant did not satisfy the requirements in item 1404 of Schedule 1 to the Regulations for making a valid visa application for a SHEV. Accordingly, the Tribunal must set aside the delegate’s decision refusing to grant the applicant a visa and substitute it with a decision that the visa application is invalid. 

    Conclusion

30. For the reasons given above the applicant's protection visa application is not valid and the Tribunal has no power to consider it.

    DECISION

31. 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.

    Louise Nicholls
    Senior Member

    
    
    

(f)  Either:

(i)  the applicant has not made a valid application  for a Temporary Protection (Class XD) visa (a TPV); or(ii)  the applicant has made a valid application for a TPV, and the TPV application has been refused (whether or not it has been finally determined) or withdrawn; or(iii)  a TPV has been granted to the applicant; or(iv)  the application for the Safe Haven Enterprise (Class XE) visa is made at the same time as an application for a TPV.