2104013 (Refugee)

[2024] AATA 3369

2104013 (Refugee) [2024] AATA 3369 (20 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Jenny Tran (MARN: 1806722)

CASE NUMBER:  2104013

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Nicole Burns

DATE:20 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision refusing to grant a Temporary Protection visa and substitutes a decision that the visa application is not valid and cannot be considered.      

Statement made on 20 May 2024 at 11:58am

CATCHWORDS
REFUGEE – protection visa – Vietnam – arrival by sea – assessed as unauthorised maritime arrival and fast-track applicant and granted temporary safe haven visa – statutory bar applied and application for safe haven visa considered to be invalid – statutory bar lifted and applicant invited to apply for protection visa – Federal Court decision means applicant not unauthorised maritime arrival and fast-track applicant as defined and bar does not apply – first application not invalid, so second application invalid – no power for tribunal to substantively consider claims – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5AAA, 65, 91K

Migration Regulations 1994 (Cth), Schedule 1, Item 1404(3)(e)

CASES

DBB16 v MIBP (2018) 260 FCR 447

MICMSMA v CBW20 (2021) 285 FCR 667

MIMA v Li; 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 15 March 2021 to refuse to grant the applicant a (Class XD) (Subclass 785) Temporary Protection visa (TPV) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 August 2020. This followed an earlier application for a (Class XE) (Subclass 790) Safe Haven Enterprise visa (SHEV) made on 28 June 2017 which was initially deemed by the Department to be invalid.

3. The applicant appeared before the Tribunal on 20 May 2024. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review. The representative attended the hearing. 

   Background and procedural history

5. According to Departmental records, the applicant – who is from Vietnam - arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 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)).

6. In DBB16 v MIBP[1], 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.

   [1] (2018) 260 FCR 447

7. The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 15 October 2014.  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.

8. The applicant applied for a SHEV on 28 June 2017 which was considered to be invalid because of the statutory bar triggered by the grant of the Subclass 449 visa.  It appears the Minister then had decided to lift the statutory bar to allow the applicant to make a valid visa application and the applicant was invited to lodge an application for a further TPV or a SHEV.

9. On 18 August 2020 the applicant made an application for the TPV which was refused by a delegate on 15 March 2021: the subject of the current review.

10. Subsequently, the Full Court of the Federal Court of Australia delivered its judgment in CBW20[2] 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, it appears the Department has accepted that he too was never an unauthorised maritime arrival and his SHEV application was also valid.

    The review application

    [2] (2021) 285 FCR 667

11. On review the Tribunal reached a preliminary view that the TPV application appears to be invalid. This is because it is a requirement for a valid application for a TPV in Item 1404(3)(e) of Schedule 1 to the Migration Regulations 1994 (Cth) that either:

    (i)The applicant has not made a valid application for a Safe Haven Enterprise (Class XE) visa (a SHEV); or

    (ii)the applicant has made a valid application for a SHEV and the SHEV application has been refused (whether or not it has been finally determined) or withdrawn; or

    (iii)a SHEV has been granted to the applicant.

12. In the applicant’s case, as the first protection visa application was for a SHEV which has now been assessed as a valid application, and that application was not refused or withdrawn at the time the TPV application was made, it appears to the Tribunal that the requirements in Item 1404(3)(e) of Schedule 1 to the Migration Regulations 1994 (Cth) are not met and the TPV is not a valid visa application.

13. By letter dated 3 April 2024 the Tribunal wrote to the applicant (via his representative) advising him of this issue and inviting his comments or response by 17 April 2024, with the view to then set down a hearing to discuss the issue.  In response the Tribunal received an email from the representative on 14 April 2024[3] with a letter attached in which she sets out the applicant’s immigration history and acknowledges that he now has a valid SHEV application.  The representative states that the applicant received a letter from the Department advising of such dated 12 May 2023.

    [3] The attached letter from the representative is dated ’20 July 2023’ which appears to be a mistake. 

14. At hearing the applicant and representative acknowledged that they understood the issue in this matter.

    Findings about the validity of the TPV application

15. Departmental records indicate the applicant has a valid application for a SHEV awaiting determination by the Department that was lodged prior to the application for the TPV.

16. Item 1404 of the regulations (as it appeared at the date of application) sets out the requirements for a valid TPV application. Relevantly, item 1404(3)(e) prescribes the circumstances that must exist as set out above (paragraph 11). 

17. As the applicant had a SHEV application that had not been refused, granted or withdrawn when the TPV application was made, the application requirements in 1404(3)(e) were not met.

18. This means the applicant did not satisfy the requirements in item 1404 of Schedule 1 to the Regulations at the time he made the TPV application and that visa application was invalid at the time it was made.

19. For these reasons the Tribunal finds 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 TPV application and that visa application is invalid.

20. In these circumstances the Tribunal has no power[4] to substantively consider the applicant’s claims for protection set out in the TPV application (and contained within submissions provided to the Tribunal), rather it must set aside the decision refusing to grant the applicant the TPV and substitute a decision that the visa application is not valid and cannot be considered.

    [4] MIMA v Li; MIMA v Kundu (2000) 103 FCR 486, and SZGME v MIAC (2008) 168 FCR 487 per Black CJ and Allsop J at [30]

    DECISION

21. The Tribunal sets aside the decision refusing to grant a TPV and substitutes a decision that the visa application is not valid and cannot be considered.

    Nicole Burns
    Member

    
    

    ATTACHMENT  -  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

    …

    (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.

    …