2017272 (Refugee)

[2023] AATA 3220

2017272 (Refugee) [2023] AATA 3220 (27 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Joshua Le Vay

CASE NUMBER:  2017272

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Louise Nicholls

DATE:27 July 2023

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 27 July 2023 at 2:07pm

CATCHWORDS

REFUGEE – Protection Visa – Pakistan – unauthorised maritime arrival – a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ – protection visa application is not valid and cannot be considered – decision under review sets aside

LEGISLATION

Migration Act 1958, ss 45 to 48A, 65, 91K, 425

Migration Regulations 1994, r 2.07, Schedule 1

CASES

MICMSMA v CBW20 [2021] FCAFC 63
Minister for Immigration and Multicultural Affairs v Li; MIMA v Kundu (2000) 103 FCR 486
SZGME v MIAC (2008) 168 FCR 487
DBB16 v MIBP (2018) 260 FCR 447

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 2 November 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 (ClassXE)(Subclass 790) visa (SHEV) on 25 June 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. The clearest 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 combined hearing in relation to both his review applications before the Tribunal on 25 July 2023. The Tribunal combined the hearings as the issues relating to validity were similar in respect of each application. The applicant’s current representative also attended the combined Tribunal hearing.

11. At the hearing the applicant told the Tribunal he is [age] years old and was born in Karachi, Pakistan. His parents have passed away and his five siblings live in Pakistan. He is married and has one son, and his wife and son are living in Karachi. He arrived in Australia in August 2012. He is currently working in Sydney at a [company] which manufactures [products].

12. The Tribunal told the applicant that it had invited him to a Tribunal hearing to discuss the validity of both his applications for review and not to take evidence regarding the substance of his protection claims.

13. The Tribunal outlined the history of the applicant’s protection visa applications made after he arrived in August 2012. It invited him to comment on the accuracy of the dates and circumstances of those applications. He stated that in the last 10 years he has had at least six representatives and it was difficult to recall the exact details of what applications he had made and when he had made them. He stated that as far as he was aware he had only made one application for a SHEV visa and was not aware that there were two applications before the Tribunal for review. However, he was prepared to accept the accuracy of the procedural history as described by the Tribunal.

    Background to the application.

14. The following background details are taken from a statement made by the applicant on 7 October 2015 and referred to in his application for the SHEV[1].

    [1] Application for SHEV dated 25 June 2020 p. 14.

15. The applicant claims to be a citizen of Pakistan. He is [age] years old and arrived in Australia on [date] August 2012 by boat. He did not hold an Australian visa at the time of his arrival.

16. The applicant claims to be of Hazara ethnicity. He is married and has one son.

17. The applicant left Pakistan in October 2010. He claims he went to [Country 1] and stayed there until 2012. After he overstayed his visa in [Country 1], he engaged the services of a migration agent to obtain a visa for him. He claims the agent ran away with his money and passport. The applicant subsequentially travelled to [Country 2] by boat without any travel documents. From [Country 2] he took a boat to Australia.

18. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] August 2012. He was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 6 December 2012.

19. On the 30 August 2013 the applicant made an application for a Protection (Class XA) (subclass 866) visa. On 26 August 2015 the applicant was advised that this was an invalid application.

20. On 25 June 2020 the applicant made an application for a Safe Haven Enterprise (Class)(Subclass 790) visa (SHEV) (the third visa application). The visa application was considered and refused by the delegate on 2 November 2020.

21. The Tribunal also notes that the applicant made an earlier application for a SHEV visa on 13 November 2015 (the second visa application). That application was refused, and the applicant made an application for review of that decision on 11 March 2019. That application is the subject of a separate decision.

    CONSIDERATION

22. 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.

23. The evidence indicates that the applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 6 December 2012. 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.

24. However, the evidence indicates that on 30 August 2013, the applicant made an application for a permanent Protection visa (Class XA) (the first visa application). This was initially considered to be an invalid visa application due to the operation of s 91K of the Act.

25. 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).

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

27. 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.  

28. As the applicant had been previously advised the first visa application was invalid, he applied for a Safe Haven Enterprise visa on 20 October 2015 (the second visa application), which was purportedly refused by a delegate on 15 September 2016. The applicant then made a further application for a SHEV on 25 June 2020 (the third visa application) which was also purportedly refused by a delegate.

29. 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. As the Minister (or a delegate) had not made a decision in relation to the first visa application under s 65 of the Act by 16 December 2014, it converted to an application for a Temporary Protection visa on that date (reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations) and s 45AA of the Act).

30. 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).

31. As the first visa application converted to a valid application for a Temporary Protection visa on 16 December 2014, and that application was not refused or withdrawn when the second or third visa applications were made, the alternative application requirements in item 1404(3)(f)(i) and (ii) were not met.

32. 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. 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

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

    DECISION

34. 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