2016748 (Refugee)

[2023] AATA 3617

2016748 (Refugee) [2023] AATA 3617 (16 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Kamran Ghanbari (MARN: 0848517)

CASE NUMBER:  2016748

COUNTRY OF REFERENCE:                   Iran

MEMBER:Mark O'Loughlin

DATE:16 August 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision refusing to grant the applicants protection visas and substitutes a decision that the protection visa applications are not valid and cannot be considered.

Statement made on 16 August 2023 at 4:52pm

CATCHWORDS
REFUGEE – protection visa – Iran – arrival in Australia by sea – Territory of Ashmore and Cartier Islands – Part 7-reviewable decision – section 91K bar not applicable – validity of second visa application – section 48A bar not lifted – invalid visa application – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 46, 48A, 48B, 65, 91K
Migration Regulations 1994 (Cth), r 2.07

CASES
MICMSMA v CBW20 [2021] FCAFC 63
MIMA v Li; MIMA v Kundu (2000) 103 FCR 486
SZGME v MIAC (2008) 168 FCR 487

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. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 November 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 July 2020. The delegate purported to make a decision to refuse to grant the visas on the basis that the applicants did not meet the applicable visa criteria.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Were the applications barred by s 48A of the Act?

3. Although the delegate purported to refuse to grant the visas, the issue in this case is whether there are even valid visa applications that may be considered. This is because there is evidence that the applicants have made previous applications for protection visas.

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. 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.

6. Section 46(1)(d) of the Act relevantly provides that a visa application is valid only if it is not prevented by s 48A of the Act. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused (whether or not the application has been finally determined). However, there are some circumstances affecting further protection visa applications made before 28 May 2014, not relevant to this case, in which s 48A will not prevent an applicant from making a further application for a visa: SZGIZ v MIAC (2013) 212 FCR 235. There are also some circumstances, not relevant to this case, in which s 48A will not bar a ‘further’ protection visa application made before 25 September 2014 by a person who lacked capacity to make an earlier purported application: SZVBN v MIBP (2017) 254 FCR 393. For s 48A to apply, the initial application must have been a valid application: SZGME v MIAC (2008) 168 FCR 487 per Black CJ and Allsop J at [7], Moore J dissenting. The Minister has a personal discretionary power to lift the bar in s 48A if the Minister thinks it is in the public interest to do so: s 48B.

7. The applicants left Iran and went to [Country 1] in late April or early May 2013.

8. They arrived at Ashmore Reef (The Territory of Ashmore and Carier Islands) by sea [in] May 2013.

9. At that time they were treated as Unauthorised Maritime Arrivals (“UMA”s) and thought to be barred from applying for visas.

10. The applicants were granted Temporary Safe Haven visas, as was the practice.  This was thought to invoke a bar under S 91K on applications for permanent protection visas.

11. On 20 October 2016 the applicants applied for a Safe Haven Enterprise visa (SHEV) and was granted a bridging visa pending the outcome of that application.

12. The first applicant was interviewed on 11 October 2017 and the SHEV application was refused on 9 February 2018.

13. The applicant made an application for review of that refusal but the application was considered to be invalid because of the s 91K bar.

14. The minister purported to lift the s 91K bar on 16 July 2020 and the applicants made further applications for SHEV’s on 22 July 2020.  This decision relates to that application.

15. The Federal Court in MICMSMA v CBW20 [2021] FCAFC 63 found that the Temporary Safe Haven Visa grants in the Ashmore affected cases were invalid, meaning the s 91K bar did not apply meaning the decision in the original SHEV application is subject to review by the Tribunal.

16. This means that the SHEV application of 20 October 2016 was a valid application and was not barred by s 91K.

17. This in turn meant that the applications to the Tribunal for review of the decision of the delegate on 9 February 2018 were valid applications for review.

18. That being the case, the subject applications are barred by S. 48A.

19. On the evidence before it, the Tribunal finds that the current visa applications are prevented by s 48A of the Act.

20. For the reasons given above the applicants' protection visa applications are not valid and the Tribunal has no power to consider them.

    DECISION

21. The Tribunal sets aside the decision refusing to grant the applicants protection visas and substitutes a decision that the protection visa applications are not valid and cannot be considered.

    Mark O'Loughlin
    Member