2017919 (Refugee)

[2023] AATA 4747

2017919 (Refugee) [2023] AATA 4747 (19 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Amin Farazdaghi (MARN: 1463623)

CASE NUMBER:  2017919

COUNTRY OF REFERENCE:                   Iran

MEMBER:Jane Marquard

DATE:19 December 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 19 December 2023 at 10:23am

CATCHWORDS
REFUGEE – protection visa – Iran – arrival by sea – temporary safe haven visa granted and thought to trigger bar against certain further visa applications – application for temporary protection visa considered to be invalid – current application for safe haven enterprise visa refused – Full Federal Court determination that maritime arrivals not ‘unauthorised maritime arrivals’ or ‘fast track applicants’ as defined – first application valid, so second application not valid and no jurisdiction to review – consent to decision without hearing – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5(1), 46A, 65, 91K, 425(1)
Migration Regulation 1994 (Cth), Schedule 1, item 1404

CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW 20 [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 9 December 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Iran.

3. The applicant applied for the visa on 17 July 2020. The delegate of the Department of Home Affairs (the Department) purported to make a decision on 9 December 2020 to refuse to grant the visa on the basis that the applicant did not meet the applicable visa criteria.

   COMMUNICATIONS WITH THE APPLICANT

4. On 11 October 2023 the Tribunal wrote to the applicant, through his representative Amin Farazdaghi or Australian Migration Network Pty Ltd to invite him to a hearing on 28 November 2023. In the hearing invitation letter, the Tribunal notified the applicant that it was the Tribunal’s view that the visa application made to the Department was invalid, and the Tribunal had no choice but to set aside the decision refusing to grant the protection visa and substitute it with a decision that the protection visa application was not valid. The applicant was invited to make submissions.

5. On 18 October 2023 the representative in a letter to the Tribunal said that the applicant consented to the matter being decided on the papers. The representative said that they agreed with the conclusion that the visa application was invalid, and that the decision should be set aside on this basis.

6. As the applicant consented to the matter being decided on the papers pursuant to s 425(1) of the Act, no hearing was held in this matter.

   VALIDITY OF THE VISA APPLICATION

7. As referred to above, the applicant applied for the protection visa on 17 July 2020. Although the delegate of the Department purported to refuse to grant the visa on 9 December 2020, the issue in this case is whether there is a valid visa application that may be considered in this review by the Tribunal.

8. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] May 2013. At the time the applicant was classified as an unauthorised maritime arrival by the Department of Home Affairs (the Department), pursuant to s 5AAA of the Act.

9. As the applicant was considered to be an unauthorised maritime arrival, it was thought that he was subject to a bar against applying for visas under s46A of the Act.

10. The applicant was granted a Temporary Safe Haven Visa (Subclass 449 – Humanitarian Stay (Temporary) visa and Bridging Visa E on 9 July 2013. At that time, it was thought by the Department that this process removed the s46A 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.

11. However as determined by the Full Federal Court in MICMSMA v CBW 20 [2021] FCAFC 63 (CBW20), s91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

12. On 22 September 2017, the applicant made an application for a Temporary Protection (XD/XE) (XD 785) visa (the first visa application). This was initially considered by the Department to be an invalid visa application due to the operation of s91K of the Act. The applicant was notified of this on 19 June 2020.

13. The applicant then applied for a Safe Haven Enterprise visa on 17 July 2020 (the second visa application), the subject of this review, which was purportedly refused by the delegate on 9 December 2020. An application to this Tribunal for review of that decision was made on 15 December 2020 and is this decision, currently under review.

14. In DBB16 v MIBP (2018) 260 FCR 447 (DBB 16) 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).

15. Accordingly, the applicant is not a ‘fast track applicant’, as defined in s5(1) of the Act. Therefore, a decision to refuse to grant the applicant a Temporary Protection Visa or Safe Haven Enterprise Visa is a Part 7 reviewable decision in the Migration and Refugee Division of this Tribunal.

16. As a result of the Full Federal Court judgments in DBB16 and CBW 20, the Department on 22 March 2023 assessed the first visa application as valid at the time it was made. The applicant was notified by the Department that the first visa application is valid and before the Department for decision.

17. The fact that the first visa application, made on 22 September 2017 was in fact valid at the time it was made, impacts on the validity of the second visa application, this application currently before this Tribunal.

18. In relation to the second visa application, the subject of this review, 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).[1]

    [1] Item 1404(3) of Schedule 1 to the Regulations.

19. As the applicant made a valid application for a Temporary Protection visa on 22 September 2017, item 1404(3)(f)(i) is not met. As the first visa application was not refused or withdrawn when the second visa application was made, the alternative application requirements in item 1404(3)(f) (ii) were not met. There is no evidence that the other alternative requirements in item 1403 (3)(f) (iii) or (iv) were met.

20. This means that in relation to the second visa application (the current application under review), the applicant does not satisfy the requirements in item 1404 of Schedule 1 to the Regulations for making a valid visa application.

21. If there is a reviewable decision but the visa application is not valid, the Tribunal 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].

22. Accordingly, the Tribunal must set aside the delegate’s decision dated 9 December 2020 refusing to grant the applicant a visa and substitute it with a decision that the visa application is invalid.

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

    DECISION

24. 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