2102201 (Refugee)

[2024] AATA 2745

2102201 (Refugee) [2024] AATA 2745 (14 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ahmad Vahedian Ghaffari (MARN: 1462882)

CASE NUMBER:  2102201

COUNTRY OF REFERENCE:                   Iran

MEMBER:Alison Murphy

DATE:14 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision refusing to grant a Safe Haven Enterprise Visaand substitutes a decision that the Safe Haven Enterprise Visaapplication is not valid and cannot be considered.

Statement made on 14 May 2024 at 4:53pm

CATCHWORDS

REFUGEE – Safe Haven Enterprise Visa – Iran – whether there is a valid visa application that may be considered – applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands – applicant is not an ‘unauthorised maritime arrival’ – SHEV application that is the subject of the current review application appeared to be invalid – decision under review set aside – substitutes a decision that the Safe Haven Enterprise Visa application is not valid and cannot be considered

LEGISLATION

Migration Act 1958, ss 5, 46A, 91K

Migration Regulations 1994, Schedule 1

CASES

DBB16 v MIBP (2018) 260 FCR 447

MICMSMA v CBW20 [2021] FCAFC 63

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 dependant.

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 24 February 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).

2. The applicant applied for the SHEV on 31 August 2020. After considering the applicant’s substantive protection claims, the delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.

   ISSUES IN THE REVIEW

3. 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

4. For the following reasons the Tribunal has determined that the SHEV application is not valid and cannot be considered.

   BACKGROUND TO THE REVIEW

5. The applicant is a citizen of Iran. He arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] May 2013. He was initially assessed by the Department to be an ‘unauthorised maritime arrival’ and consequently a ‘fast track applicant’ (as those terms are defined in s 5(1) and s 5AA of the Act. As such he was believed to be subject to a statutory bar in s 46A which prevents a person who is an ‘unauthorised maritime arrival’ from making valid visa applications onshore except in specified circumstances.

6. The applicant was purportedly granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa (the TSHV) on 13 June 2013, ceasing on 20 June 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 is an ‘unauthorised maritime arrival’.

7. The applicant applied for a Temporary Protection visa on 6 March 2017 (the TPV application) after the Minister lifted the s 46A bar and invited him to do so. The TPV application was assessed by the Department as an invalid visa application due to the operation of s 91K and the applicant was informed of this on 7 August 2020. The Minister then lifted the s 91K bar and invited the applicant to lodge an application for a SHEV and the applicant did so on 31 August 2020. The SHEV application was purportedly refused by a delegate on 24 February 2021 on the basis that the applicant was not owed protection by Australia. An application for review of that decision was made to this Tribunal on the same date.

8. Two judgments of the Full Federal Court of Australia handed down in 2018 and 2021 clarified the legal position in respect of persons such as the applicant who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

9. In DDB16, the Court determined that Western Lagoon of Ashmore Reef was not a ‘port’. It followed that it was not part of the migration zone and that persons taken to that location did not come within the definition of ‘unauthorised maritime arrival’ in s 5AA (as that definition stood prior to 1 June 2013).[2]

   [2]DBB16 v MIBP (2018) 260 FCR 447

10. In CBW20, the Court determined that the grant of a TSHV to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands at the relevant time was invalid because it was based on the legally erroneous assumption that such a person was an unauthorised maritime arrival. As such the purported grant of the TSHV did not trigger the statutory bar set out in s 91K.[3] The Department’s appeal of the Full Federal Court’s decision in CBW20 was dismissed by the High Court of Australia on 10 December 2021.

    [3]MICMSMA v CBW20 [2021] FCAFC 63

11. As the circumstances of the applicant’s arrival at Ashmore Reef are the same as those considered by the Court in DDB16 and CBW20, the Department now accepts that the applicant is not an ‘unauthorised maritime arrival’ and the TSHV purportedly granted to him on 13 June 2013 was invalid. It follows that the purported grant of the TSHV did not trigger the s 91K bar and the applicant was not barred from making a valid TPV application in 2017 as the Department assumed post DDB16.

12. The Department’s records indicate that on 22 March 2023 the Department reassessed the applicant’s 2017 TPV application as valid and notified the applicant on the same date. The applicant and his representative advised the Tribunal at hearing that the Department was still processing the 2017 TPV application.

13. The applicant appeared before the Tribunal on 2 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages.

14. The applicant was represented in relation to the review.

    THE CURRENT REVIEW

15. 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 1403(3)(e) of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations).

16. The Tribunal wrote to the applicant inviting comments on this issue on 2 April 2024, noting that if the visa application was invalid it would appear that 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.

17. At hearing the applicant and his representative acknowledged the effect of the court’s decision in CBW20 and agreed that the Tribunal has no power to substantively review the applicant’s claims. They advised that the Department was still processing the 2017 TPV application and they were hopeful it would be further progressed after the Tribunal had made the decision in the current review.

    Validity of the SHEV application

18. Item 1404 of the Regulations 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).

19. In this case the applicant made a valid application for a TPV on 6 March 2017. There is no dispute that it had not been granted, refused or withdrawn at the time the SHEV application was made on 31 August 2020. As such the circumstances prescribed in item 1404(3)(f)(ii),(iii) and (iv) for the making of a valid SHEV application are not met.

20. This means that the applicant did not satisfy the requirements in item 1404 of Schedule 1 to the Regulations for making a valid SHEV application. Accordingly, the Tribunal must set aside the delegate’s decision refusing to grant the applicant a SHEV and substitute it with a decision that the SHEV application is invalid.

    DECISION

21. 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
    Member