2109714 (Refugee)

[2023] AATA 3608

2109714 (Refugee) [2023] AATA 3608 (10 August 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Joshua Le Vay

CASE NUMBER:  2109714

COUNTRY OF REFERENCE:                   Iran

MEMBER:Mark O'Loughlin

DATE OF DECISION:  10 August 2023

DATE CORRIGENDUM

SIGNED:18 September 2023

PLACE OF DECISION:  Adelaide

AMENDMENT:  The following corrections are made to the decision:

The words “Note: The statutory bar in relation to s 48A is not applicable to a visa application made before 18 September 1995. This template/precedent is not applicable for cases affected by the Federal Court judgments in either SZGIZ or SZVBN.” preceding paragraph [3] of the decision record are to be removed.

Mark O'Loughlin
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Joshua Le Vay

CASE NUMBER:  2109714

COUNTRY OF REFERENCE:                   Iran

MEMBER:Mark O'Loughlin

DATE:10 August 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 10 August 2023 at 4:05pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – previous application for a protection visa – invalid application – purported Unauthorised Maritime Arrival – purported lifting of the s 48A bar by the Minister – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 45-48, 91
Migration Regulations 1994, r 2.07

CASES

MICMSMA v CBW20 [2021] FCAFC 63
MIMA v Li; MIMA v Kundu (2000) 103 FCR 486
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 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 5 July 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 14 September 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?

   Note: The statutory bar in relation to s 48A is not applicable to a visa application made before 18 September 1995. This template/precedent is not applicable for cases affected by the Federal Court judgments in either SZGIZ or SZVBN.

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 departed Iran and travelled to Indonesia by air using his Iranian passport.

8. By arrangement with people smugglers he was taken from Indonesia by boat which was intercepted in October 2012.  He was taken to Ashmore Reef and then to Darwin.

9. 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. It was granted on 6 December 2012.

10. 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.

11. On 30 March 2016 the applicant applied for a Safe Haven Enterprise (XE-790) visa which was refused by a delegate of the Minister on 17 August 2017.

12. The applicant sought review of that decision by the Immigration Assessment and in turn sought review of the IAA affirmation of the delegate’s decision by the Federal Circuit and Family Court.

13. On 8 November 2019 the Minister purported to make a direction under s 48B lifting the bar in s 48A on the making of visa applications by UMA’s who are in Australia, and the bar in s 91K on the making of applications for visas other than temporary safe haven visas.  Both of these bars were thought to apply to the applicant.

14. Having been advised of the purported lifting of the bar by the Minister, applicant made a further Save Haven Enterprise visa application on 14 September 2020 (the subject application).

15. However, in MICMSMA v CBW20 [2021] FCAFC 63, the Full Federal Court determined that the Temporary Safe Haven visa grants to applicants arriving in Ashmore reef were not valid so the s 91K bar does not apply and the Tribunal is entitled to undertake a substantive review of the decision relating to the first application, that of 30 March 2016.

16. The other relevant effect of that decision was that s. 46A does not operate to bar the application of 30 March 2016 and so the purported lifting of that bar on 8 November 2019 is ineffective.  In retrospect it is now evident that the subject application of 14 September 2020 is not valid under s 46A.

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

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

    DECISION

19. 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