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

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).
The applicant is a citizen of Iran.
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
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.
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…

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.

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Details

AGLC: 2017919 (Refugee) [2023] AATA 4747
Case: [2023] AATA 4747
Decision Date: 19 December 2023

CaseChat Overview and Summary

The applicant, a refugee claimant from Iran, sought judicial review of a decision by the Refugee Tribunal. The applicant had previously been granted a temporary safe haven visa upon arrival by sea. Subsequently, an application for a protection visa was deemed invalid, and a further application for a safe haven enterprise visa was refused. The core of the dispute revolved around whether the applicant qualified as an "unauthorised maritime arrival" or a "fast track applicant" under relevant legislation, which would impact the validity of their subsequent visa applications.

The primary legal issue before the court was to determine the correct interpretation of the definitions of "unauthorised maritime arrival" and "fast track applicant" as they applied to the applicant's circumstances, particularly in light of their initial grant of a temporary safe haven visa. This determination was crucial for establishing whether the applicant's first protection visa application was valid, which in turn affected the validity of their subsequent applications and the Tribunal's jurisdiction to consider them.

The court found that the applicant, having arrived by sea and been granted a temporary safe haven visa, did not fall within the definitions of "unauthorised maritime arrival" or "fast track applicant." Consequently, the applicant's initial protection visa application was considered valid. This finding meant that the subsequent application for a safe haven enterprise visa was not valid, and the Tribunal lacked jurisdiction to review the refusal of that application. The Tribunal's decision to refuse the protection visa was set aside, and a substituted decision was made that the protection visa application was not valid and could not be considered.

Orders

Orders of the court

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Background

Background to the litigation

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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.Jane MarquardMember

Ratio Decidendi

Legal Principle Established

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