2103650 (Refugee)

[2023] AATA 4192

2103650 (Refugee) [2023] AATA 4192 (20 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Khanh Hoang (MARN: 2015332)

CASE NUMBER:  2103650

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Mark O'Loughlin

DATE:20 September 2023

PLACE OF DECISION:  Adelaide

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 20 September 2023 at 11:42am

CATCHWORDS
REFUGEE – protection visa – Vietnam – arrival in Australia by sea – Territory of Ashmore and Cartier Islands – section 91K bar not applicable – validity of second visa application – section 48A bar not lifted – invalid visa application – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 46, 48A, 48B, 65, 91K
Migration Regulations 1994 (Cth), r 2.07

CASES
DBB16 v MIBP (2018) 260 FCR 447
MIMA v Li; MIMA v Kundu (2000) 103 FCR 486
MIMCMSMA v CBW20 [2021] FCAFC 63
SZGIZ v MIAC (2013) 212 FCR 235
SZGME v MIAC (2008) 168 FCR 487
SZVBN v MIBP (2017) 254 FCR 393

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 15 March 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Was the application barred by s 48A of the Act?

3. Although the delegate purported to refuse to grant the visa, the issue in this case is whether there is even a valid visa application that may be considered. This is because there is evidence that the applicant has made a previous application for a protection visa.

4. 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].

5. 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.

6. Section 46(1)(d) of the Act relevantly provides that a visa application is valid only if it is not prevented by s 48A of the Act. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused (whether or not the application has been finally determined). However, there are some circumstances affecting further protection visa applications made before 28 May 2014, not relevant to this case, in which s 48A will not prevent an applicant from making a further application for a visa: SZGIZ v MIAC (2013) 212 FCR 235. There are also some circumstances, not relevant to this case, in which s 48A will not bar a ‘further’ protection visa application made before 25 September 2014 by a person who lacked capacity to make an earlier purported application: SZVBN v MIBP (2017) 254 FCR 393. For s 48A to apply, the initial application must have been a valid application: SZGME v MIAC (2008) 168 FCR 487 per Black CJ and Allsop J at [7], Moore J dissenting. The Minister has a personal discretionary power to lift the bar in s 48A if the Minister thinks it is in the public interest to do so: s 48B.

7. The applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013.

8. At that time the applicant was considered to be an Unauthorised Maritime Arrival and, in common with other asylum seekers who arrived by boat via Ashmore Reef, he was granted a temporary Humanitarian Stay visa and a bridging visa.  For the purposes of the Act the temporary Humanitarian Stay visa was a “temporary safe haven” visa.

9. The practice at the time was to grant a temporary safe haven visas (at the same time as the bridging visa) as it was thought to invoke s 91K and bar boat arrivals from applying for permanent protection visas.

10. On 13 July 2016 the Minister purported to lift the relevant statutory bar preventing the applicant from applying for a permanent protection visa.  On 5 October 2016 the applicant applied for a Safe Haven Enterprise (XE-790) visa.  That application was refused by a delegate of the Minister on 18 May 2017.

11. The applicant applied to the Immigration Assessment Authority (IAA) for review of that decision.

12. The IAA affirmed the delegate’s decision and the applicant sought Judicial Review of that affirmation on 9 April 2018. 

13. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant was understood not to have been an ‘unauthorised maritime arrival’.

14. The Minister withdrew from the Judicial Review application.  On 22 March 2019 the applicant was renotified of the delegate’s decision of 18 May 2017 and advised of his right to seek review of that decision in this Tribunal.

15. The applicant made a valid application to the Tribunal for review of that decision on 5 April 2019.

16. The Minister later purported to lift the bars in s 91K and s 48A against the making of a further Protection visa application in Australia and the department notified the applicant of the lifting of those bars by letter of 22 October 2020.

17. The applicant made the subject application (the second application) for a Safe Haven Enterprise visa on 28 October 2020.  The second application for a Safe Haven Enterprise visa was refused by the delegate on 15 March 2021.

18. On 22 March 2021 the applicant applied for review of that decision.  This decision relates to that application for review.

19. The Full Federal Court in MIMCMSMA v CBW20 [2021] FCAFC 63 found that the Temporary Safe Haven (Subclass 449 - Humanitarian Stay) visas granted in Ashmore affected cases such as the subject application, were invalid. That meant that they did not invoke the s 91K bar on applicants making valid applications for visas such as that sought in the first application.

20. The effect of this is that, because the s 91K bar did not apply to the first application, the Minister’s purported lifting of the bar in October 2020 was not valid. 

21. Further, the court found that the lifting of the s 48A bar was also invalid. 

22. This application was therefore subject to the s 48A bar and was not a valid application. 

23. On the evidence before it, the Tribunal finds that the current visa application is prevented by s 48A of the Act.

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

    DECISION

25. 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.

    Mark O'Loughlin
    Member