2119696 (Refugee)

[2023] AATA 2442

2119696 (Refugee) [2023] AATA 2442 (29 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Monir Hossain (MARN: 0958158)

CASE NUMBER:  2119696

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:L. Symons

DATE:29 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 29 June 2023 at 6:03pm

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 9 December 2021 to refuse to grant the applicant a Safe Haven Enterprise visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 27 October 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. On 21 December 2021, he applied to the Tribunal for a review of that decision.

3. The applicant claims to be a citizen of Bangladesh.

   BACKGROUND

4. According to the records of the Department of Home Affairs (the Department) the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on 25 February 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) 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.

5. 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 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.

6. The applicant applied for a Safe Haven Enterprise visa on 23 June 2016 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. The then Minister purported to life 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.

7. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 27 October 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.

8. The first application for a Safe Haven Enterprise visa filed on 23 June 2016 was refused by the delegate on 20 July 2018. The delegate refused to grant this visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations. An application for review of that decision was made to the Tribunal on 6 August 2018.

9. The second visa application was refused by a delegate on 9 December 2021 on the basis that the applicant was not a person in respect of whom Australia has protection obligations. An application for review of that decision was made to the Tribunal on 21 December 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.

   CONCLUSION

10. For the reasons given above, the applicant's second application for a Safe Haven Enterprise visa filed on 27 October 2020 is not valid and the Tribunal has no power to consider it.

    DECISION

11. The Tribunal sets aside the decision refusing to grant a Safe Haven Enterprise visa and substitutes a decision that the Safe Haven Enterprise visa application is not valid and cannot be considered.

    L. Symons
    Member