2102783 (Refugee)

[2023] AATA 2439

2102783 (Refugee) [2023] AATA 2439 (28 June 2023)

CORRIGENDUM

DIVISION:  Migration & Refugee Division

REPRESENTATIVE:  Mr Abu Siddque (MARN: 0901413)

CASE NUMBER:  2102783

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:  L. Symons

DATE OF DECISION:  28 June 2023

DATE CORRIGENDUM

SIGNED:  30 June 2023

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Reference to Protection visa should be changed to Safe Haven Enterprise visa on the cover page and paragraphs 1, 10 and 11.

Statement made on 30 June 2023 at 11:46am

L. Symons Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

REPRESENTATIVE:  Mr Abu Siddque (MARN: 0901413)

CASE NUMBER:  2102783

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:  L. Symons

DATE:  28 June 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 28 June 2023 at 6:15pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – arrival in Australia by sea – Territory of Ashmore and Cartier Islands – Part 7-reviewable decision – section 91K bar not applicable – validity of second visa application – section 48A bar not lifted – invalid visa application – decision under review substituted

LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 48A, 48B, 65, 91K

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 17 February 2021 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant applied for the visa on 2 October 2020. The delegate purported to make a decision to refuse to grant the visa on the basis that the applicant did not meet the applicable visa criteria. On 5 March 2021, he applied to the Tribunal for a review of that decision.

1. The applicant claims to be a citizen of Bangladesh.

BACKGROUND

1. According to the records of the Department of Home Affairs (the Department) the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on 9 January 2013. In DBB16 v MIBP (2018) 260 FCR 447, 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 Act). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s.5(1) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

1. The applicant was granted a Temporary Safe Haven (Subclass 449 – Humanitarian Stay (Temporary)) visa on 8 May 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. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s.91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

1. The applicant applied for a Safe Haven Enterprise visa on 6 June 2016 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. The then Minister purported to life 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.

1. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 2 October 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.

1. The first application for a Safe Haven Enterprise visa filed on 4 May 2016 was refused by the delegate on 25 November 2016. The delegate refused to grant this visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations. He applied to the Immigration Assessment Authority (IAA) for a review of the delegate’s decision. On 31 August 2017, the IAA affirmed the decision under review. On 25 September 2017, he applied for judicial review. On 23 March 2019, the Minister withdrew from the

proceedings in view of the decision in DBB16 v MIBP (2018) 260 FCR 447. On 3 April 2019, the Department renotified the applicant of the decision made on 25 November 2016. An application for review of that decision was made to the Tribunal on 3 April 2019. On 28 June 2023, the Tribunal affirmed the decision of the delegate.

1. The second visa application, the subject of this review, was refused by a delegate on 17 February 2021 on the basis that the applicant was not a person in respect of whom Australia has protection obligations. An application for review of that decision was made to the Tribunal on 5 March 2021. 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.

CONCLUSION

1. For the reasons given above, the applicant's second application for a Protection visa filed on 2 October 2020 is not valid and the Tribunal has no power to consider it.

DECISION

1. 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.

L. Symons Member