2113375 (Refugee)

[2023] AATA 2075

2113375 (Refugee) [2023] AATA 2075 (15 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2113375

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Peter Papadopoulos

DATE:15 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision made on 30 September 2021 to refuse the applicant a Safe Haven Enterprise visa and substitutes it with a decision that the visa application was not valid.

Statement made on 15 June 2023 at 3:41pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – 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 September 2021 to refuse to grant the visa applicant a Subclass 790 Safe Haven Enterprise Visa (Class XE) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. [The applicant] is a [age] year old male, who claims to be a citizen of Bangladesh. [The applicant] applied for the visa on 24 September 2020. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.

3. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] January 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 Act. Accordingly, the applicant is not a ‘fast track applicant’, as defined in s 5(1) of the Act, 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 8 May 2013. At the time, this was thought to trigger a statutory bar in s 91K of the Act 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 (CBW20), 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 16 August 2016 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. 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. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 24 September 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 they were not within the class of persons specified in the then Minister’s s 48B determination.

6. The second visa application was refused by a delegate on 30 September 2021. An application for review of that decision was made on 1 October 2021. However, the second visa application is, and always was, barred under s 48A.

7. The decisions in relation to each of the first visa application and second visa application are currently before the Tribunal.  The Tribunal case number for the review application relating to the first visa application is 1907885.  The Tribunal case number for the review application relating to the first visa application is 2113375.  As these two review applications have been made by the same applicant, the reviews have been combined.  However, given the discrete issue relating only to the second visa application’s invalidity, the Tribunal determined that, in the interests of fairness, it would proceed by way of initially addressing this issue with the applicant before further considering the remainder of his matters.  This approach was also taken because the applicant was unrepresented in relation to review relating to the second visa application but represented in relation to the other review.  

8. Accordingly, on 29 May 2023, the Tribunal wrote to the applicant inviting him to a hearing to give evidence and present arguments in relation to the issue that the second visa application was not valid, because it had been barred under s48A, and therefore it appeared that the Tribunal’s only option was substitute the delegate’s decision of 30 September 2021 with a new decision that the second visa application was not a valid visa application and therefore cannot be considered.  The invitation clearly specified that the hearing would take two hours and commence at 9.30am (NSW time) on 15 June 2023.

9. The applicant did not appear before the Tribunal between 9.30am and 11.30am (NSW time) on 15 June 2013.  No reasons have been given to the Tribunal for the applicant’s non-appearance at the hearing.  Accordingly, the Tribunal has proceeded to determine the application for review without taking any further action to enable the applicant to appear before it.

10.  As stated above, the second visa application is, and always was, barred under s 48A.  Accordingly, the Tribunal finds that the second visa application was not valid.  On that basis, the Tribunal has no option other than to set aside the decision to refuse the second visa application and substitute it with a decision that the visa application was not valid.

DECISION

11.  The Tribunal sets aside the decision made on 30 September 2021 to refuse the applicant a Safe Haven Enterprise visa and substitutes it with a decision that the visa application was not valid.

Peter Papadopoulos
Member