2108655 (Refugee) - [2023] AATA 4081

2108655 (Refugee) [2023] AATA 4081 (4 December 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Mr Bernie Carrick

CASE NUMBER: 2108655

COUNTRY OF REFERENCE: Pakistan

MEMBER: Nora Lamont

DATE: 4 December 2023

PLACE OF DECISION: Melbourne

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 04 December 2023 at 10:23am

CATCHWORDS

REFUGEE – protection visa – Pakistan – 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, 5H, 36, 48A, 48B, 65, 91K
Migration Regulations 1994 (Cth), Schedule 2

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 June 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

The applicant applied for the visa on 6 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

The applicant claims to be a citizen of Pakistan.

According to Departmental records, the applicant 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’ (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.

The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 11 July 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2108655 (Refugee)

Details

AGLC: 2108655 (Refugee) [2023] AATA 4081
Case: [2023] AATA 4081
Decision Date: 4 December 2023

CaseChat Overview and Summary

The applicant, a citizen of Pakistan, sought review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerning his application for a protection visa. The applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. The Administrative Appeals Tribunal (AAT) was tasked with reviewing the Minister's decision.

The primary legal issues before the AAT were whether the applicant was barred from making a valid application for a protection visa under section 48A of the *Migration Act 1958* (Cth), and if so, whether any exceptions to this bar applied. The AAT also considered the applicability of section 91K of the *Migration Act 1958* (Cth) in the context of the applicant's arrival.

The AAT found that the applicant's arrival at the Territory of Ashmore and Cartier Islands meant that section 91K of the *Migration Act 1958* (Cth) did not apply to prevent him from making a valid application for a protection visa. However, the AAT determined that the applicant was subject to the bar imposed by section 48A of the *Migration Act 1958* (Cth), as he had previously had a visa application refused. Crucially, the AAT found that no exceptions to the section 48A bar were applicable in this instance. Consequently, the AAT concluded that the applicant's second visa application was invalid.

The AAT substituted its own decision for that of the Minister, finding that the applicant did not satisfy the criteria for a protection visa because his application was invalid.

Orders