FYQV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 3768

FYQV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3768 (24 October 2022)

Division:GENERAL DIVISION

File Number:          2022/6376

Re:FYQV

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Theodore Tavoularis
Senior Member Kate Millar

Date of Decision:               24 October 2022

Date of Written Reasons:      8 November 2022

Place:Adelaide

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Tribunal sets aside the decision made by a delegate of the Respondent dated 29 July 2022 to refuse the Applicant a Protection (Class XA) visa and remits the matter to the Respondent for further consideration with the following directions:

1.The Applicant is afforded seven days in which to decide if he will proceed with his application for a Protection Visa;

2. If he proceeds with that application for a protection visa, the Tribunal directs that:

(a) The Respondent or his delegate comply with s 36A of the Migration Act 1958 (Cth); and (b) A reconsideration of the refusal of the visa under s 501(1) is to have regard to the findings made by this Tribunal.

.....................[SGD]..............................  …………[SGD]……………...

Senior Member Theodore Tavoularis         Senior Member Kate Millar

Catchwords

MIGRATION – protection visa application –refused- refusal decision for protection visa made on the same day as the non-revocation of the decision to mandatorily cancel the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa by the Respondent Minister- however Applicant was notified of each decision on consecutive days – Statement for the purposes of s36A of the Act was marked as ‘DRAFT’ – Question before the Tribunal was whether the Protection visa application was assessed in accordance of
s36A of the Act- Tribunal makes a finding that it has not- decision under review set aside and remitted back to the Department for reconsideration with directions.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)

Cases

AEW18 v Minister for Home Affairs [2018] FCCA 1842
BCR17 v Minister for Immigration and Border Protection [2019] FCA 1705
Collector of Customs (NSW) v Brian Lawlor Automotive (1979) 24 ALR 307
DQX16 v Minister for Home Affairs [2019] FCA 1705
FUS17 v Minister for Immigration and Border Protection [2019] FCCA 1179
Hands v Minister for Immigration and Border Protection [2015] FCAFC 225
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 392 ALR 186
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Minister for Immigration and Multicultural Affairs v Perth City Mission [2000] FCA 397
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 24 ALR 307

Secondary Materials

Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)

Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth)

Table of Contents

Decision

REASONS FOR DECISION

INTRODUCTION

REFUSAL UNDER SECTION 501(1) OF THE ACT

Exercising the power under s 501(1)

Incorporation of the computer record

Does the information as a whole mean that a record of satisfaction as required by s36A has been made?

Decision

Annexure A – Copy of Khalil decision

REASONS FOR DECISION

Senior Member Theodore Tavoularis
Senior Member Kate Millar

8 November 2022

INTRODUCTION

1. The Applicant, who is a citizen of Afghanistan, arrived in Australia on 2 November 2010 on a Class XB, Subclass 202 (Global Special Humanitarian) visa (‘GSH visa’).   Following his conviction for criminal offences, his GSH visa was mandatorily cancelled on 20 March 2019.  The Applicant made representations seeking the revocation of this cancellation of his visa. 

2. While the revocation was being considered, on 2 September 2020 the Applicant lodged an application for a Class XA Subclass 866 (Protection) visa (‘Protection Visa’), claiming to fear harm if returned to Afghanistan because (among other reasons) of an imputed political opinion.

3. His application was refused by a delegate of the Minister under s 501(1) of the Migration Act 1958 (Cth) (Act) on 29 July 2022 (‘the refusal decision’) which is the same day on which the Respondent Minister made a decision not to revoke the mandatory cancellation of his GSH visa (‘the non-revocation decision’).  The Applicant was notified of the above two decision on consecutive days, namely the non-revocation decision on 1 August 2022 and the refusal decision on 2 August 2022.

4. A single Tribunal was constituted to hear and decide both the non-revocation decision and the refusal of the protection visa.  The hearing of both matters was combined. In a separate decision in 2022/6377, the Tribunal has set aside the non-revocation of the cancellation of the Applicant’s GSH visa.  This is the decision and the reasons for decision on the refusal of the protection visa in 2022/6376, however should be read together with the reasons in 2022/6377. 

5. For the same reasons provided in the related case 2022/6377, a short form decision was published to the parties in this matter to ensure this Tribunal met its statutory obligations pursuant to s500(6L)(c) of the Act.[1] Attached to these reasons and marked “Annexure A” is a copy of that short-form decision. Our detailed written reasons for that short-form decision follow.

   [1] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–⁠[48].

   REFUSAL UNDER SECTION 501(1) OF THE ACT

6. Section 501(1) of the Act states that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test.

7. As was found in our decision in 2022/6377,[2] the Applicant does not pass the character test set out in 501(6) of the Act because he has a substantial criminal record as defined in s 501(7) of the Act. This enlivens the power to refuse his protection visa application under s 501(1) of the Act.

   [2] That is, the review of the non-revocation decision of the Applicant’s GSH Visa.

   Exercising the power under s 501(1)

8. Before exercising the power under s 501(1) of the Act to refuse a protection visa, the Minister must consider and make a record of whether the person meets certain criteria in
   s36 of the Act for a protection visa. Section 36A of the Act states:

   Consideration of protection obligations

   (1) In considering a valid application for a protection visa made by a non‑citizen, the Minister must consider and make a record of whether the Minister is satisfied of any of the following:

   (a)the non‑citizen satisfies the criterion in paragraph 36(2)(a) with respect to a country and also satisfies the criterion in subsection 36(1C);

   (b)the non‑citizen satisfies the criterion in paragraph 36(2)(aa) with respect to a country;

   (c)       the non‑citizen:

   (i)satisfies the criterion in paragraph 36(2)(a) with respect to a country but does not satisfy the criterion in subsection 36(1C); and

   (ii)  would satisfy the criterion in paragraph 36(2)(aa) with respect to a country except that the non‑citizen is a non‑citizen mentioned in paragraph 36(2)(a).

   (2)     The Minister must do so:

   (a)  before deciding whether to grant or refuse to grant the visa; and

   (b)  before considering whether the non‑citizen satisfies any other criteria for the grant of the visa; and

   (c)   before considering whether the grant of the visa is prevented by any provision of the Act or regulations; and

   (d)  without regard to subsections 36(2C) and (3).

   (3)  …

9. Section 36A was inserted into the Act by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (‘the Amending Act’).  The long title of this act is “An Act to amend the Migration Act 1958 to clarify obligations in relation to removal of unlawful non-citizens, and for related purposes.”  This act inserted s 36A as well as amending sections 197C and 197D of the Act.

10. The Explanatory Memorandum states the Amending Act will ensure the Minister assesses protection obligations, including where the Applicant is ineligible for a visa due to criminal conduct or risks to national security. It states:

“New subsection 36A(2) provides timing for the Minister in applying the new subsection 36A(1). The purpose of subsection 36A(2) is to further ensure that protection findings are made before considering whether the Applicant meets other requirements for the grant of a protection visa. The provision recognises that, under the Migration Act, an application for a protection visa may be refused in circumstances where Australia’s international non- refoulement obligations are engaged. However, in conjunction with the amendments to section 197C, these provisions are intended to ensure that the person is protected from involuntary removal in circumstances that reflect Australia’s international non-refoulement obligations.”[3]

[3] Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth).

11. The significance of a finding under s 36A is that if a record is made under this section that the Minister is satisfied of the matters in 36A(1)(a), (b) or (c), the obligation under s 198 of the Act to remove the Applicant as soon as practicable under s 198 of the Act does not apply (s 197C(3) and 197C(4) of the Act).

12.  The obligation not to remove a person under s 197C of the Act applies unless a finding is made under s 197D that the person is no longer a person in respect of whom a protection finding would be made.  This is to meet the legislative intention that a person is protected from involuntary removal where Australia has non-refoulment obligations in respect of that person.

13.  As the Applicant has made a valid application for a protection visa, the Minister must consider and make a record of whether the Minister is satisfied that (as it applies in this case) the Applicant satisfies the requirements of in s36(2)(a) and those in s36(1C) of the Act. 

14. The Minister must do so before deciding whether to grant or refuse to grant the visa and before considering whether the grant of the visa is prevented by s 501(1) of the Act.

Has the Minister complied with s 36A of the Act?

15.  Refusal of a protection visa is a serious matter, and the gravity of the decision demands strict compliance with the legislation.   As stated by Chief Justice Allsop in Hands v Minister for Immigration and Border Protection:[4]

“… it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality.”

[4] [2018] FCAFC 225 at [3].

16. Section 36A is part of a legislative scheme to protect a person from involuntary removal. It was inserted to prevent a person being removed from Australia where Australia has non-refoulment obligations. It is expressed in mandatory terms, and the Minister or his delegate must consider whether s 36A is satisfied before making a decision to refuse the visa. In circumstances where the consequences may be grave, strict compliance with s 36A is required.

17.  In this case, the Minister provided a document dated 23 September 2021 titled “Protection visa assessment” with a “Draft” watermark appearing on each page.[5] 

[5] G2, p 25.

18.  Under the heading “Section 36A” the delegate records:

“For the purposes of s 36A, I am satisfied the Applicant satisfies the criterion in s36(2)(a) with respect to Afghanistan and also satisfies the criterion in s 36(1C).”[6]

[6] Ibid.

19.  Under the heading “Assessment finding” the document records

“For the reasons outlined below, I recommend that [the Applicant] is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Migration Act 1958 (the Act).”[7] [Emphasis added]

[7] Ibid.

20.  As this is in part expressed as a recommendation, and the document is marked “Draft”, this brings into question whether the Minister has considered and made a record of whether s 36(2)(a) and s 36(1C) are satisfied for the purposes of s 36A of the Act. The assessment under s 36A must be conducted before an application for a protection visa is refused under s 501(1) of the Act.

21. The Minister submits that the information provided is a record of the Minister’s satisfaction in accordance with s 36A because:

·it is in the standard format of reasons for decision provided by delegates in the assessment of protection visa applications;

·under the sub-heading “Section 36A” the delegate states he is satisfied the Applicant satisfies the criterion in s 36(2)(a) and the criterion in s 36(1C);

·the delegate in the document summarises the Applicant’s claims, migration history, protection claims and the relevant visa criteria and finds that the Applicant meets the refugee criteria in s 5H(1) of the Act and also meets s 36(2)(a) of the Act.  The delegate considered and found he was not a danger to the community for the purposes of s 36(1C)(b);

·the draft reasons are signed and dated; and

·the last page indicates the “Material before the decision-maker”.

22.  The Minister also relies on the incorporation of the computer record and provided a screen shot from the Department of Home Affairs (Department) Integrated Client Service Environment (ICSE).  This records:

Event:             Refugee Determination

Qualifier:         Indicatively found to be a refugee[8]

[8] G3, Respondent’s SOFIC, [7].

23.  In the screen shot with the heading “Indicatively Met Reason (Mandatory)” it states “Political opinion”.[9]

[9] Ibid.

24.  The Minister submits that the person entering the information is the same person that signed the Protection Visa Assessment marked as ‘Draft’ and provided information to show the officer was a delegate of the Minister for the purposes of s 36A of the Act. In the same screen shot the notes record “See TRIM document CLD2021/26584612”.[10] The Minister advises this is the document marked “Draft” which was provided. 

[10] Ibid.

25. This raises two questions: one of incorporation of the computer records, and the second of whether the information as a whole means that a record of the satisfaction of the Minister that the Applicant meets s 36(2)(a) and s 36(1C) has been made for the purposes of s 36A of the Act.

Incorporation of the computer record

26.  The Minister relies on BCR17 v Minister for Immigration and Border Protection (BCR17).[11]  The Applicant in that case sought review of a decision of the Immigration Assessment Authority.  A preliminary issue was whether the jurisdiction of the Authority had been enlivened by the making and referral of a decision by the Minister.  Indicia of an unfinalised decision in that case were (1) a “Draft” watermark on the purported decision, and (2) that only one of the Applicants was referred to in the “Applicant details” section.  Notification was provided to the two Applicants on different dates, and there was a delay in referring the decision to the Immigration Assessment Authority. 

[11] [2019] FCCA 2018.

27.  Judge Driver, following the decisions in DQX16 v Minister for Home Affairs[12] (DQX) and AEW18 v Minister for Home Affairs,[13] (AEW18) found that the record of a decision can be the computer record, separate from the document setting out the decision. 

[12] [2019] FCA 1705.

[13] [2018] FCCA 1842.

28.  In DQX at [27] it is noted that screen shots of the Department’s database recorded the following:

Event:             Refused

Qualifier:         s36(2) not satisfied

Effect Date:     08/09/2016

Effect Time:     15:08

29.  The Minister also provided the decision in FUS17 v Minister for Immigration and Border Protection[14] (FUS17) which also confirms that records in the Department’s database are a “record” for the purposes of the Act. In FUS17, the screen shot from the database similarly has the event as “refused” with a qualifier “s 36(2) not satisfied.”

[14] [2019] FCCA 1179.

30.  It has been established in BCR17, DQX, AEW18 and FUS17 that a computer record is a record of a decision, and it follows that a record in ICSE can establish that the Minister or his delegate has considered the relevant elements and made a record of whether s 36(2)(a) and 36(1C) are satisfied.  

31.  In BCR17, DQX and FUS17, the event is recorded as being “refused”. These cases specify the specific provision that was not satisfied.  In AEW18 the time and date of the decision was recorded in the database as required by the legislation. 

32.  These cases do not assist the Minister for present purposes as the computer record in this case records that the Applicant was “indicatively found to be a refugee.”   It is not, as was the case in BCR17, DQX and FUS17, where the event is recorded as “refused”, a record of a decision having been made. As it applies in this case it is a record that the Applicant is “indicatively found to be a refugee”. This is not, as required by s 36A(2) of the Act, a record of whether the Minister is satisfied or is not satisfied that 36A(a), (b) or (c) are met.

33.  The Minister submits that KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[15] (KDSP) supports a finding that an indicative assessment is sufficient.  In KDSP an indicative assessment was made in relation to s 36 and the Minister relies on Justice Edelman’s statement at [55] that “The views formed by a delegate holding a delegation to make a decision under s 65, however firmly held and whether or not recorded, could only ever be preliminary or indicative views, since the relevant time for making a decision is the time at which the delegate considers all criteria together.” 

[15] (2021) 392 ALR 186.

34.  KDSP relates to a decision to refuse the grant of a protection visa, which requires all the criteria for a protection visa to be met.  The question identified by Justice Edelman in that proceeding was whether a decision made personally by the Minister under s 501A(2) of the Act was invalid. 

35. Section 36A does not require a consideration of criteria other than those specified in s 36 and cannot be equated with a question of whether a visa should be granted, which requires a consideration of a number of criteria leading to a single decision to grant or refuse to grant a visa. As noted in KDSP at [50] “[t]here is nothing in the Migration Act that prevents an officer with delegated power under s 65 from forming indicative or preliminary views prior to making a decision.” [Emphasis added]. 

36. A record of a state of satisfaction under s 36A is not a decision to grant a visa, and KDSP does not assist in resolving the question of whether there has been compliance with s 36A.

37. For the computer record to be the record of the Minister’s satisfaction in accordance with s 36A, we consider it must state that the Minister or his delegate is satisfied that the Applicant meets or does not meet s 36A(1)(a), (b) or (c), and the computer record before us does not do so.

Does the information as a whole mean that a record of satisfaction as required by s36A of the Act has been made?

38. In this case, the indicia for a delegate of the Minister having made a record of whether he was satisfied that the Applicant met the criteria in s 36(2)(a) and 36(1C) of the Act were that the delegate signed and dated a draft decision, stated he was satisfied for the purposes of s 36A that the Applicant meets s 36(2)(a) and 36(1C), of the Act and had considered the Applicant’s claims for protection. The discussion in that record was adopted in the decision to refuse the visa under s 501(1) of the Act. There is a computer record that the Applicant is “indicatively found to be a refugee”. 

39.  The document is marked as “Draft” and includes in part a mere recommendation that the relevant criteria are met.  We do not consider signing and dating the document overcomes the “draft” nature of the document, as marking the document as a draft indicates the opinion of the delegate may change.  The text under the heading “Section 36A” is immediately following by an assessment finding that merely recommends the Applicant is a person in respect of whom Australia has protection obligations in s 36(2)(a) of the Act. The computer records of the Department do not specify that any of the provisions required by s 36A of the Act are met, and records instead that the Applicant is “indicatively found to be a refugee.” 

40.  In these circumstances, we find that the Minister has not considered and made a record of whether the specified provisions were satisfied before refusing the Applicant’s application for a protection visa. 

Effect of non-compliance with s 36A of the Act

41. The Act requires compliance with s 36A of the Act before considering refusal under s 501(1) of the Act. We have found that the delegate of the Minister has not complied with s 36A of the Act.

42.  However, the enquiry does not cease there. If left at that, the Applicant’s visa would remain refused, and he may be removed under s 198 of the Act or be subject to prolonged or indefinite detention.

43. In the circumstances of this case, in 2022/6377 the Tribunal has found a delegate of the Minster has impliedly made a protection finding as defined in s 197C of the Act, and the Applicant will not be removed from Australia. If he does not hold a valid visa, the result is that he will be detained with no fixed end point under s 189 of the Act. The Tribunal is of the view that in matters such as these, where he would otherwise be liable for removal under s 198 of the Act regardless of non-refoulment obligations, applicants should not be required to argue there is an implied protection finding where there is a requirement in the Act to record a state of satisfaction under s 36A of the Act.

44. The terms of s 36A of the Act require the Minister to record whether s 36A(1)(a,)(b) of the Act, or (c) are satisfied before considering refusal. As a necessary step has not been conducted before considering the refusal of the visa under s 501(1) of the Act, it could be argued the refusal of the visa under s 501(1) has not been validly made, and the Tribunal has no jurisdiction.

45.  Since the decision in Collector of Customs (NSW) v Brian Lawlor Automotive[16] (Brian Lawlor Automotive) it has been accepted that a decision can be reviewed by the Tribunal if it is a decision that is in fact made, regardless of whether or not it is a legally effective decision.[17]  This is to avoid circumstances where “exclusion from review of decisions made without power would remove from review those decisions most in need of review”.[18]  This was recently cited with approval by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection.[19]

[16] (1979) 24 ALR 307.

[17] Ibid, at [21].

[18] Ibid.

[19] (2018) 264 CLR 217 at [39].

46.  A decision to refuse the Applicant’s protection visa has in fact been made and if left undisturbed will be deemed to be affirmed 84 days after the day on which he was notified of the decision,[20] regardless of whether it is a legally effective decision.  In accordance with Brian Lawlor Automotive, the Tribunal considers it has jurisdiction to review this decision regardless of whether it is legally effective.

[20] s 500(6L) of the Act.

Decision

47. The remedy where there has been a failure to comply with s 36A of the Act will depend on the circumstances of the case. These are matters where the person is in immigration detention and, accordingly, priority must be given to finalisation. However, there are also circumstances where, in the absence of an adequate assessment in accordance with s 36A of the Act, it becomes difficult or impossible to meaningfully apply the Direction[21] and assess the effect on the person of cancelling his or her visa.

[21] Direction 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

48.  In the related matter of 2022/6377, the Tribunal has decided that the mandatory cancellation of the Applicant’s GSH visa should be revoked.  As a result, he is no longer an unlawful non-citizen and he should have been already released from immigration detention.

49.  The circumstances of this matter are unusual in that the decision not to revoke the cancellation of his GSH visa and the decision to refuse to grant a protection visa were made on the same day whereas as the Applicant was notified of each decision on consecutive days.[22]

[22] See para [3].

50. In considering the orders to be made, the Tribunal may exercise the powers in s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). These are (1) affirming the decision, (2) varying the decision, (3) setting aside the decision and making a decision in substitution or (4) setting aside the decision and remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

51.  The Minister submits that setting aside and remitting for reconsideration only applies in circumstances where the Tribunal is unable to make, and has not made, a decision in substitution for the decision that is set aside and refers to Minister for Immigration and Multicultural Affairs v Perth City Mission.[23] The facts of that case was a decision in substitution had in fact been made by the Tribunal, however it purported to remit the decision with a direction. This is not such a case. The powers in s 43 of the AAT Act are not expressed to be limited to particular circumstances, and any submission to the contrary is rejected. It is available to the Tribunal set aside the decision and remit it for reconsideration in accordance with recommendations or directions.

[23] [2000] FCA 397.

52.  During the proceedings, the Tribunal was assisted by the Minister’s representative who provided information to the Applicant’s representative who is not a legal practitioner. In our respectful view, this displayed a high standard of compliance with the Respondent’s Model Litigant obligations and is to be commended.  In this case, the Minister’s representative was asked to provide submissions on the likely impact on the Protection Visa application if the cancellation of the GSH visa was revoked. The Minister’s representative submitted, pursuant to s 82(2) of the Act, if the cancellation of the Applicant’s GSH visa is revoked and the protection visa is subsequently granted, the GSH will cease having any operative effect. This, in turn, would remove the opportunity to apply for a Protection Visa in the future, unless the Minister were minded to lift the bar in s 48A of the Act.   

53.  The Applicant’s representative submitted that if the GSH visa is revoked and the decision to refuse the protection visa is set aside, the Applicant intends to withdraw his application for a protection visa.  The Tribunal has revoked the cancellation of the GSH visa.  While the Applicant cannot be held to his intentions, it does suggest a practical approach going forward.

54. In these circumstances, it is appropriate to set aside the decision to refuse the visa under s 501(1) of the Act and remit it for reconsideration.

55.  The Tribunal sets aside the decision refuse the Applicant a Protection (Class XA) visa and remits the matter to the Respondent for further consideration with the following directions:

1. The Applicant is afforded seven days in which to decide if he will proceed with his application for a Protection Visa;

2. If he proceeds with that application for a protection visa, the Tribunal directs that:

(a)The Respondent or his delegate comply with s 36A of the Migration Act 1958 (Cth); and

(b) A reconsideration of the refusal of the visa under s 501(1) is to have regard to the findings made by this Tribunal in related case.

We certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis and Senior Member Kate Millar

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Associate

Dated: 8 November 2022       

Date of hearing:	5, 6 and 17 October 2022
Representative for the Applicant:	Dr Timothy K Haines (Principal/Migration Agent) Emulink Migration & Intercultural Consultancies
Representative for the Respondent	Mr Jon Papalia (Senior Lawyer) Australian Government Solicitor

Annexure A – Copy of Khalil decision

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL
No: 2022/6376
General Division
Re: FYQV
Applicant
And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent

DECISION

TRIBUNAL:   Senior Member Theodore Tavoularis & Senior Member Kate Millar
DATE:            24 October 2022
PLACE:         Adelaide

DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 29 July 2022 to not grant the Applicant a Protection (Class XA) visa and remits the matter to the Respondent for further consideration with the following directions:

1. The Applicant is afforded seven days in which to decide if he will proceed with his application for a Protection Visa;

2. If he proceeds with that application for a protection visa, the Tribunal directs that:

(a) The Respondent or his delegate comply with s 36A of the Migration Act 1958 (Cth); and

(b) A reconsideration of the refusal of the visa under s 501(1) is to have regard to the findings made by this Tribunal.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

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Senior Member Theodore Tavoularis

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Senior Member Kate Millar