2017933 (Refugee)

[2023] AATA 2727

2017933 (Refugee) [2023] AATA 2727 (6 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Khanh Hoang (MARN: 2015332)

CASE NUMBER:  2017933

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Jessica Henderson

DATE:6 July 2023

PLACE OF DECISION:  Perth

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 06 July 2023 at 4:10pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – s 48A bar purportedly lifted – second Safe Haven Enterprise visa application is invalid – decision under review set aside and substituted

LEGISLATION

Migration Act 1958, ss 5H, 36, 45-48B, 65, 91
Migration Regulations 1994, r 2.07

CASES

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 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 23 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a citizen of Vietnam.

3. The applicant applied for a Safe Haven Enterprise visa on 8 June 2017 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further Protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 2 July 2020 (the second visa application). However, the applicant’s first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister’s s 48B determination.

4. The second visa application was refused by a delegate on 9 December 2020. An application for review of that decision was made on 15 December 2020. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.

5. 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].

6. 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.

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

   DECISION

8. 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.

   Jessica Henderson
   Member