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

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).
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.
The issue for the Tribunal is whether the application for the visa is a valid application.
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].
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.
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…

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.

Continue reading 2016230 (Refugee)

Details

AGLC: 2016230 (Refugee) [2024] AATA 4403
Case: [2024] AATA 4403
Decision Date: 20 September 2024

CaseChat Overview and Summary

This matter concerned an application for a Safe Haven Enterprise visa by a citizen of Bangladesh who arrived in Australia by sea in November 2012. The applicant had previously been granted a Temporary Safe Haven (Subclass 449) visa in January 2013. In December 2015, he lodged an application for a Temporary Protection visa (TPV), which was later advised to be invalid. Subsequently, in July 2020, he applied for a Safe Haven Enterprise visa (SHEV), which was refused by a delegate. The Administrative Appeals Tribunal was required to determine the validity of the SHEV application.

The central legal issue was whether the applicant's earlier TPV application was valid at the time it was made, which in turn affected the validity of his subsequent SHEV application. This depended on the interpretation of the statutory bar provisions, specifically section 91K of the Migration Act 1958 (Cth), and the definition of "unauthorised maritime arrival" and "fast track applicant" as established in relevant Full Federal Court decisions. The Tribunal also had to consider the requirements for making a valid SHEV application under item 1404 of Schedule 1 to the Migration Regulations 1994 (Cth).

The Tribunal reasoned that, in light of the Full Federal Court's decisions in *DBB16 v MIBP* and *MICMSMA v CBW20*, the applicant was not an "unauthorised maritime arrival" because he arrived by sea at the Territory of Ashmore and Cartier Islands. Consequently, section 91K did not apply to him, and his TPV application made in December 2015 was valid at the time it was lodged. As the TPV application had not been refused or withdrawn when the SHEV application was made in July 2020, the applicant did not meet the requirements for a valid SHEV application under item 1404(3)(f) of Schedule 1 to the Regulations.

Accordingly, the Tribunal set aside the delegate's decision refusing to grant the SHEV and substituted a decision that the SHEV application was invalid and could not be considered.

Orders

Orders of the court

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Background

Background to the litigation

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

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 not valid 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.Louise NichollsSenior Member

Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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). 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. 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. 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. 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. 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 …. 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. 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