2100168 (Refugee)
[2024] AATA 1174
•12 January 2024
2100168 (Refugee) [2024] AATA 1174 (12 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Hassan Izadnia (MARN: 1571846)
CASE NUMBER: 2100168
COUNTRY OF REFERENCE: Iran
MEMBER:Alison Murphy
DATE:12 January 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision refusing to grant a Safe Haven Enterprise Visa and substitutes a decision that the visa application is not valid and cannot be considered.
Statement made on 12 January 2024 at 3:42pm
CATCHWORDS
REFUGEE – protection visa – Iran – main issue – whether there is valid visa application to consider – initial arrival at Territory of Ashmore and Cartier Islands – Full Federal Court decision that not fast track applicant – granted Temporary Safe Haven – thought to trigger statutory bar in s 91K – applied for TPV on 28 June 2017 – erroneously referred to as an application for Safe Haven Enterprise visa – TPV application deemed invalid due to statutory bar triggered by grant of subclass 449 visa – statutory bar lifted – applicant lodged further application for SHEV on 20 August 2020 – refused by delegate on 5 January 2021 – Full Court of the Federal Court judgement that arrivals at Territory of Ashmore and Cartier Islands not irregular maritime arrivals – therefore 2017 TPV application was valid – Tribunal identified that SHEV application which is subject of review application appeared to be invalid – first visa application had not been refused or withdrawn at time second visa application was made – invalidity cannot now be cured by withdrawing the protection visa application lodged in 2017 – valid application for a TPV awaiting determination by Department that was lodged prior to application for SHEV – applicant does not satisfy requirements in item 1404 of Schedule 1 to the Regulations – visa application invalid and cannot be considered – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 46, 47, 48, 65, 91K
Migration Regulations 1994 (Cth), Schedule 1, item 1404(3)(f)CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
SZANA v MIMIA [2004] FCA 203SZANA v Minister for Immigration and Multicultural Affairs [2003] FCA 1407
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 5 January 2021 to refuse to grant the applicant a Safe Haven Enterprise Visa (the SHEV) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the SHEV on 22 September 2020. This followed an earlier application for a Temporary Protection Visa made on 28 June 2017 (the TPV) which was initially deemed by the Department to be invalid.
The applicant appeared before the Tribunal on 9 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages.
The applicant was represented in relation to the review.
ISSUES IN THE REVIEW
Although the delegate purported to refuse to grant the visa on the basis that the applicant was not owed protection by Australia, the issue before the Tribunal is whether there is even a valid visa application that may be considered. This issue arises because the applicant first arrived in Australia at Ashmore Reef and his visa application is affected by the circumstances set out in MICMSMA v CBW20 [2021] FCAFC 63 (CBW20). 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.[1]
[1]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]
A related issue arose during the course of the review, being whether any invalidity in the SHEV application can now be ‘cured’ by the withdrawal of the applicant’s earlier application for the TPV.
For the following reasons the Tribunal has determined that the SHEV application is not valid and cannot be considered.
BACKGROUND
The material before the Tribunal indicates that the applicant is a citizen of Iran.
According to Departmental records, he arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] May 2013. He was initially assessed by the Department to be an ‘unauthorised maritime arrival’ and consequently a ‘fast track applicant’ (as those terms were defined in s 5(1) and s 5AA of the Migration Act 1958 (Cth) (the Act)).
In DBB16 v MIBP[2], 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 Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them the protection visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
[2](2018) 260 FCR 447
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 9 July 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time.
The applicant applied for the TPV on 28 June 2017. The TPV application is erroneously referred to as an application for a Safe Haven Enterprise visa at page 2 of the delegate’s decision. A case note dated 18 August 2020 records that the TPV application was deemed to be invalid because of the statutory bar triggered by the grant of the subclass 449 visa. That case note further indicates that the Minister had decided to lift the statutory bar to allow the applicant to make a valid visa application and the applicant would be invited to lodge an application online for a further TPV or a SHEV.
On 20 August 2020, the applicant made an application for the SHEV which was purportedly refused by a delegate on 5 January 2021. It is that visa application, and its purported refusal, that is the subject of the current review.
The Full Court of the Federal Court of Australia delivered its judgment in CBW20 on 4 May 2021. It determined that s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. The Court concluded that the Minister had erred in granting the applicant in that case a temporary safe haven visa because he was never an unauthorised maritime arrival, and therefore his visa application was valid. As the circumstances of the applicant’s arrival at Ashmore Reef are the same as those of CBW20, the Department has accepted that he too was never an unauthorised maritime arrival and his 2017 TPV application was also valid.
THE CURRENT REVIEW
Prior to the hearing the Tribunal identified that the SHEV application that is the subject of the current review application appeared to be invalid because of the operation of item 1404(3)(f) of Schedule 1 to the Regulations.
On 16 October 2023 the Tribunal wrote to the applicant advising that it appeared that the SHEV application was invalid because it is a requirement for a valid application for a SHEV that the applicant has not made a valid application for a temporary protection visa; or alternatively that it has been refused or withdrawn. The Tribunal noted that as the first visa application had not been refused or withdrawn at the time the second visa application was made, it appeared that the requirements in item 1404(3)(f) were not met and the SHEV application is not valid. The Tribunal’s correspondence set out that if that were the case, it would appear the Tribunal must set aside the delegate’s decision refusing to grant the applicant the SHEV and substitute it with a decision that the visa application is invalid.
On 26 October 2023 the Tribunal received submissions from the applicant to the effect that the Tribunal should allow him to ‘cure’ the invalidity of the SHEV application by withdrawing the earlier TPV application. It was submitted that the applicant was prepared to withdraw the TPV application if the Tribunal indicated it accepted this would ‘cure’ the invalidity of the SHEV application and the Tribunal could then go on to assess his substantive claims for protection.
At hearing on 9 November 2023 the Tribunal discussed with the visa applicant that its preliminary view was that the SHEV application is invalid, and that invalidity cannot now be cured by withdrawing the protection visa application lodged in 2017. The Tribunal reasoned that item 1404 prescribed the circumstances that must exist for an application for a SHEV to be valid and those circumstances included that any earlier application for a TPV had been granted, refused or withdrawn at the time the SHEV application was lodged.
In response the applicant’s representative acknowledged that the principle in SZANA was different to that in this case, but that it was similar because the Court had held that an invalid visa application could be cured, even after the primary decision had been made by the departmental delegate. He submitted that many people had been adversely affected by the court’s decision in CWB20, which operated to retrospectively invalidate their visa applications. He believed the consequences were unfair and unjust because while some people were granted visas on the basis of applications that were now clearly invalid, others such as his client were refused and now had to go back to square one even though they have been here without a visa outcome for many years. He said a fair solution was for the Tribunal to find that withdrawing the TPV application would retrospectively cure the SHEV application, otherwise the department needed to reassess the earlier visa applications quickly given the length of time people had already waited.
Validity of the SHEV application
Departmental records indicate the applicant has a valid application for a TPV awaiting determination by the Department that was lodged prior to the application for the SHEV.
Item 1404 of the regulations (as it appeared at the date of application) sets out the requirements for a valid SHEV application. Relevantly, item 1404(3)(f) prescribes the circumstances that must exist as follows:
(f) Either:
(i) the applicant has not made a valid application for a Temporary Protection (Class XD) visa (a TPV); or
(ii) the applicant has made a valid application for a TPV, and the TPV application has been refused (whether or not it has been finally determined) or withdrawn; or
(iii) a TPV has been granted to the applicant; or
(iv) the application for the Safe Haven Enterprise (Class XE) visa is made at the same time as an application for a TPV.
Note 1: A person to whom subparagraph (ii) applies, whose TPV application has been refused, is prevented by section 48A of the Act from making the Safe Haven Enterprise visa application unless the Minister has made a determination in relation to the person under section 48B of the Act.
Note 2: If subparagraph (iv) applies, the TPV application will be invalid: see paragraph 1403(3)(f).
As the applicant had a TPV application that had not been refused, granted or withdrawn when the SHEV application was made, the application requirements in 1404(3)(f)(i), (ii), (iii) and (iv) were not met.
This means that the applicant did not satisfy the requirements in item 1404 of Schedule 1 to the Regulations at the time he made the SHEV application and that visa application was invalid at the time it was made. It follows that unless that invalidity can be retrospectively cured, 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.
Withdrawal of the TPV application
It is not now in dispute that item 1404(3)(f) prevents an applicant from making a valid application for a SHEV if they have on foot a valid application for a TPV which has not been granted, refused or withdrawn. Nor is it in dispute that the applicant’s 2017 TPV application is a valid application as a result of the court’s decision in CBW20 and that at the time of the Tribunal’s decision it is still awaiting assessment by the Department.
In written submissions and at hearing, the Tribunal was advised that the applicant was prepared to withdraw the earlier TPV application that is currently awaiting assessment by the Department if the Tribunal were to accept this would ‘cure’ the apparent invalidity of the SHEV and allow the Tribunal to determine the applicant’s claims for protection on a substantive basis.
Section 46 sets out the requirements for a valid visa application, including that it must satisfy all criteria and requirements set out in that section. Section 46(3) provides that the regulations may prescribe criteria that must be satisfied for a visa application of a specified class to be a valid application. Section 46(4) expands on this by providing that the regulations may, among other things, prescribe the circumstances that must exist for a visa application to be valid. Section 47(3) provides that the Minister, and the Tribunal on review, ‘is not to consider an application that is not a valid application’.
In submissions dated 26 October 2023 and again at hearing, the applicant’s representative argued that withdrawing the earlier TPV now would enable the Tribunal to treat the SHEV as a valid visa application and determine the review on its merits. The Tribunal was referred to the Federal Court’s decision in SZANA v MIMIA [2004] FCA 203 as authority for the proposition that an invalid protection visa application can be cured even after the primary decision is made and the Tribunal on review is obliged to consider the merits of the cured application.
The Tribunal has considered the judgment of SZANA, but does not consider the circumstances in that case to be analogous to those that arise in this review. In that case it was a prescribed criteria for the grant of the visa that the applicant must make ‘specific claims under the Refugees Convention’ and the applicant did not do so before the delegate determined to refuse his visa application. The Federal Court held that the delegate was obliged not to consider the applicant’s application before receiving his specific claims, but that when those claims were later received the ‘incomplete or inchoate application’ was made valid and the Tribunal was authorised to deal with them on review.[3] On appeal the Full Court of Australia upheld the Federal Court’s decision and also confirmed that where the Tribunal is reviewing a decision relating to an invalid visa application, it is required to set aside the delegate’s decision and find that the visa application was not valid.[4]
[3] SZANA v Minister for Immigration and Multicultural Affairs [2003] FCA 1407
[4] SZANA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 203
As discussed with the applicant at hearing, the Tribunal does not consider that the withdrawal of the 2017 TPV application now, more than three years after the SHEV application was lodged on 20 August 2020, has the effect that the SHEV application will meet the requirements for a valid application that are set out in item 1404(3)(f). Rather the Tribunal considers that item 1404(3)(f) prescribes the circumstances that must exist for a visa application to be valid at the time that visa application is made. The use of the past tense in items 1403(3)(e)(i), (ii) and (iii) (‘has not made a valid application’, ‘has been refused’ and ‘has been granted’) lends support to this view.
For these reasons the Tribunal considers that the retrospective withdrawal of the TPV application will not change the fact that the circumstances prescribed for the making of a valid SHEV application did not exist at the time the application was made. Rather the Tribunal finds that the applicant did not satisfy the requirements in item 1404 of Schedule 1 to the Regulations for making a valid visa application at the time he made the SHEV application and that visa application is invalid. In these circumstances the Tribunal has no power to substantively consider the applicant’s claims for protection set out in the SHEV application, rather it must set aside the decision refusing to grant the applicant the SHEV and substitute a decision that the visa application is not valid and cannot be considered.
DECISION
The Tribunal sets aside the decision refusing to grant a Safe Haven Enterprise Visa and substitutes a decision that the visa application is not valid and cannot be considered.
Alison Murphy
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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