2104149 (Refugee)

[2023] AATA 2444

2104149 (Refugee) [2023] AATA 2444 (29 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Anh Tran (MARN: 1174212)

CASE NUMBER:  2104149

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Amanda Paxton

DATE:29 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision to refuse the applicant a Safe Haven Enterprise (subclass 790) visa and substitutes it with a decision that the visa application was not valid and cannot be considered.

Statement made on 29 June 2023 at 11:39am

CATCHWORDS
REFUGEE – protection visa – Vietnam – 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 30 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 under review (herein ‘the second visa application’) on 5 November 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.

3. According to Departmental records, the applicant who is a citizen of Vietnam arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 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’ (UMA) (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 a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

4. The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 2 July 2015. 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.

5. The applicant applied for a Safe Haven Enterprise visa on 8 June 2017 (the first visa application (Tribunal case number 1934045). A delegate of the Minister decided to refuse to grant this visa on 26 April 2018. The then Minister purported to lift 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.

6. Following this, the applicant purported to make the second application for a Safe Haven Enterprise visa on 5 November 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 she was not within the class of persons specified in the then Minister’s s 48B determination.

7. The applicant was invited to attend a hearing to give evidence and present arguments in relation to both the first and second review application, and the applicant appeared before the Tribunal on 30 March 2023. The Tribunal advised that the hearing was relevant to both the first and second review application and the background to the second application was discussed.

8. The second visa application, the subject of this decision, was refused by a delegate on 30 March 2021. An application for review of that decision was made on 1 April 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.

   DECISION

9. The Tribunal sets aside the decision made on 30 March 2021 to refuse the applicant a Safe Haven Enterprise (subclass 790) visa for the visa application made on 5 November 2020 and substitutes it with a decision that the visa application was not valid and cannot be considered.

   Amanda Paxton
   Member