Roe v Minister for Immigration - [2005] FMCA 283

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROE v MINISTER FOR IMMIGRATION

[2005] FMCA 283

MIGRATION – Migration Review Tribunal – visa – whether the Applicant had previously been refused a visa – whether the decision in Dranichnikov v Minister for MIMA [2001] FCA 769 applies only to s.48A of the Migration Act 1958 (Cth) and does not carry over into s.48 – provisions of s.91X of the Migration Act apply where the Applicant’s wife had previously applied for a protection visa.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.48, 48A, 91X

Dranichnikov v Minister for Immigration and Multicultural Affairs [2001] FCA 769
Doe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 818
Fafita v Minister for Immigration and Multicultural Affairs [2001] FCA 1719
NACN v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCAFC 299
Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324

Applicant:

RICHARD ROE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 175 of 2003

Delivered on:

24 February 2005

Delivered at:

Sydney South

Hearing date:

26 September 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Hurley

Solicitors for the Applicant:

Armstrong Ross

Counsel for the Respondent:

Mr Gray

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That a Writ of Certiorari issue, quashing a decision of Michael Saville, manager decision support Melbourne, made on 28 January 2003.
That a Writ of Prohibition issue, prohibiting the respondent from acting on the decision of 28 January 2003.
That a Writ of Mandamus issue requiring the respondent to cause the application for a visa lodged by the applicant on 1 July 1998 to be considered and determined according to law.
The time for lodging an appeal is not to run until the publication of written reasons for decision.
All other applications, save as to costs, are dismissed.
I will remove the application from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

MLG 175 of 2003

RICHARD ROE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application to review a decision of one Michael Saville who is the manager of the Residence Decision Support in the Melbourne office of the Respondent Minister. Or, who was, at least, on 28 January 2003.
The decision under review is this:
(a)To refuse to determine the application by the Applicant of

1 July 1998 for a visa as ordered by the Migration Review Tribunal on 29 November 2002. Alternatively,
(b)To decide that the application by the Applicant of 1 July 1998 for a visa was not a valid application for the purposes of s 48 of The Migration Act.
The orders that the Applicant seeks are these:
(1)An order in the nature of prohibition to prohibit the Respondent and his servant and agents from acting on Mr Saville's decision.
(2)An order in the nature of Mandamus to require the Respondent himself and by his servants and agents to cause the application by the Applicant for a visa lodged on 1 July 1998 to be considered and determined according to law.
(3)An order in the nature of certiorari to quash Mr Saville's decision on the ground that he did not have jurisdiction to make it, or because it was based on a jurisdictional error, being an error of law, being:
(a)Mr Saville erroneously concluded that the reasoning of the Full Court of the Federal Court in Dranichnikov and the Minister for Immigration and Multicultural Affairs [2001] FCA 769, applies only to s.48A of the Migration Act and does not carry over into s.48.
(b)The erroneous conclusion that the application of 1 July 1998 for a visa was not a valid application.
(c)The erroneous conclusion that the application for a visa made on 1 July 1998 was not a valid application for a visa.
(4)Such further or other relief and declarations that may be appropriate.
(5)Costs.
The background to the application is set out, conveniently, in the affidavit of the Applicant, and also, in the decision of the delegate of the Minister dated 7 March 2002.
The Applicant and his wife are citizens of Sri Lanka. On 4 June 1995 they entered Australia. On 18 August 1995 the Applicant's wife applied for a protection visa. The Applicant was included as a member of his wife's family unit in this application.
That application was refused on 26 April 1996. That decision was affirmed by the Refugee Review Tribunal on 3 December 1996. An application was made to the Minister under s.417 of the Migration Act on 31 January 1998, but the Minister declined to act.
On 30 June 1997 the Applicant's wife made a second application for a visa. Again, the Applicant was referred to as a member of the Applicant's wife's family. The Minister decided not to exercise the powers that the Minister had under s.48B of the Migration Act in respect of that application. That decision was also taken on 30 January 1998.
On 1 July of that year, the Applicant himself applied for a permanent visa on the grounds of being a special need relative. A delegate of the Respondent refused his application on 7 March 2002. The Applicant then sought a review from the Migration Review Tribunal on 3 April of that year.
On 29 November 2002 the Migration Review Tribunal concluded that no primary decision had been made about his visa application. The Tribunal ordered the matter to be remitted to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration.
What then happened is that on 28 January 2003 the Department wrote to the Applicant referring to his application for permanent residence visa on special need relevant grounds.
The relevant parts of the letter I will quote almost in full, except that I will omit the name of the Applicant's wife and refer to her by the pseudonym Jane Roe. The reason for this, as I will explain shortly, is that the Applicant's wife had applied for a protection visa and s.91X of the Migration Act applies.
The relevant parts of the letter as amended say as follows:
The first page of application for that you completed shows clearly that the Applicants (you and your wife, Jane Roe), were applying for a family residence visa class AO. As the Migration Review Tribunal has recently found, the Department incorrectly made a decision on a change of circumstance residence and visa, class AG, although you have not made an application for such a visa. Therefore, no legal decision has been taken on the purported application for a class AO visa. The MRT noted that in a case called Dranichnikov, the Federal Court had found that a secondary applicant for a protection visa had not, quote: "Made an application for a protection visa" for the purposes of s.48A of the Migration Act.
It seems that the Tribunal believed that this also meant that a secondary applicant for a protection visa had not made an application for the purposes of s.48 of the Act either, but its decision findings were limited to the conclusion that no legal primary decision had been made in this case.
The Department is of the view that the Federal Court's findings in Dranichnikov are applicable only to s.48A and do not carry over into s.48. Accordingly, I must find that you and your wife are unable to make a valid application for a class AO visa, because on the date of lodgment you had been refused protection visas and therefore fell within the scope of s.48 of the Migration Act, which prevents persons who do not hold a substantive visa and who have been refused a visa since their last arrival in Australia (which was your situation on 1 July 1998), from applying for anything but prescribed classes of visas.
On the date in question, class AG was a prescribed class, but class AO was not. Therefore, your purported class AO application of 1 July 1998 was not a valid application.
Turning further to the delegate's decision of 7 March 2002, the delegate referred to the Applicant's wife's application for a protection visa. The delegate pointed out that the Applicant's wife, having had her application refused, that it made an application for review to the Refugee Review Tribunal. During the process of that review, Jane Roe, as I will call her, underwent a psychological assessment and the report stated:
The consultations with Jane Roe have revealed that since being physically and sexually assaulted, she has been unable to live a normal and happy life because she is continually living in a world of suspicion, fear of danger and extreme sadness and anxiety, which has come to hinder her personal, social and occupational functioning.
The report goes on to mention that Jane Roe stated that she constantly thinks about her terrifying experiences, and often has flashbacks and nightmares, which awaken her and causes significant anxiety. She suffers from major sleep disturbances.
The psychologist diagnoses Jane Roe as suffering from a major depressive disorder, dysthymic disorder, post traumatic stress disorder, which was chronic, and a paranoid personality disorder.
Jane Roe had applied for a sub-class 435 Sri Lankan Humanitarian temporary visa which was granted and it was valid until 31 July 1997. The Refugee Review Tribunal, however, still affirmed the Department's decision to refuse the Applicant's wife a protection visa.
The Applicant, as I said, applied for permanent residence in Australia on the grounds of being a special need relative to his sister, and her two children. The sister I will refer to as J and the children I will refer to as S and L. He included his wife as a dependant in this application.
The Applicant said that his sister and her children have emotional and psychological needs which require his support. At that stage, in a psychological report, the Applicant's sister J was described as having two children, L who was 17 and S who was 15. The younger child, S, was diagnosed with a medical condition that made him prone to breakage of his bones. This has resulted in significant amounts of time in hospital and rehabilitation. He requires a lot of care and attention.
The other child, L, got involved in drugs and was expelled from school. She had obtained treatment and was progressing well.
When the Applicant arrived in Australia in 1995, he developed a very good relationship with L, and has provided a great deal of assistance in her progress with her treatment. He also, in looking after the child, provides his sister and her husband with some time out, because they are suffering anxiety and depression at levels that require quite serious attention.
It basically relates to the substantive claim that the Applicant has as a special needs relative.
As the Applicant's wife had, as I said, originally applied for a protection visa, and the Applicant was named as a member of her family unit, I have described the Applicant by a pseudonym rather than by his real name, in order to comply with requirements of s.91X of the Migration Act. Section 91X requires that in circumstances such as this, the Court must not publish in electronic form or otherwise in relation to proceedings the Applicant's name. The Applicant, having been included in an application for a protection related visa, comes within the definition in subsection 3 which says that:
In this section, application for a protection related bridging visa means an application for bridging visa where the applicant for the bridging visa is or has been an applicant for a protection visa.
The situation is, therefore, as I decided in the matter of Doe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA818 handed down on 8 November 2004, the extent of s.91X is so wide that the Applicant and his family should be referred to by pseudonyms.
The letter to the Applicant by the Department on 28 January is the one that gave rise to this application.
On behalf of the Applicant Mr Hurley of counsel submitted that the Applicant was a non-citizen. He is required to hold a visa to be lawfully present in Australia. The Act provides for the regulations to provide for these as with prescribed criteria. The Act required the Respondent to decide whether the prescribed criteria are satisfied:
After considering a valid application for a visa.
I refer to s.65(1)(a)(iii).
The Act provides for a valid visa application by the operation of subsection 46(1), s.47 and s.48. The Applicant submits that the decision which the Respondent purported to make on reconsideration contradicts the basis on which the Migration Review Tribunal made its decision.
The Migration Review Tribunal concluded that the Applicant's application of 1 July 1998 was not caught by s.48(1) of the Migration Act, and that is why the Migration Review Tribunal remitted the matter to the Department.
In the MRT decision at page 162 of the Court Book, the member quoted the provisions of s.48. That section says that:
A non-citizen in the migration zone who
(a) does not hold a substantive visa, and
(b) either
(i) After last entering Australia was refused a visa other than the bridging visa for which the non-citizen had applied, whether or not the application has been finally determined, or
(ii) Held a visa that was cancelled under s 109 (incorrect information), s.116 (general power to cancel), s.134 (business visas), or 501 (special power to refuse or cancel),
may subject to the regulations apply for a visa of a class prescribed for the purpose of this section, but not for a visa of any other class.
The Tribunal went on to say that s.48 prevents persons from making further applications, except prescribed classes set out in Regulation 2.12. The classes of visa prescribed by Regulation 2.12 do not include Family (Residence) Class AO. They do, however, include change in circumstances residence class AG. Consequently, if s.48 applies to the visa Applicant, he was barred from applying for a class AO visa as the delegate was of a view that s.48 did apply to the visa Applicant, it appears that his application was regarded as a class AG visa, which Regulation 2.12 and s.48 allowed him to make.
The Tribunal also said:
At the time of application on 1 July 1998 the visa Applicant did not hold a substantive visa. The last substantive visa that he held was the subclass 435 visa that was valid until 31 July 1997. Section 48(a) was therefore satisfied. As the visa Applicant had not held a visa that was cancelled under any of the specified provisions of the Act, s.48(b)(2) was not satisfied. Section 48(b)(i) applies to a non-citizen who has been refused a visa for which the non-citizen had applied. The visa applicant's spouse was refused a permanent visa on 26 April 1996. The visa Applicant was included in that application as a member of her family unit.
The Tribunal referred to the decision of Dranichnikov v the Minister for Immigration and Multicultural Affairs & Others, the citation to which I have already given.
The Tribunal said that in that case the full Federal Court had found that a secondary Applicant for a protection visa had not "applied" for a visa and was therefore not precluded by s.48A of the Act, a companion provision to s.48, from applying for a further protection visa in their own right.
The Court found that as a criterion for a protection visa, that that as a criterion for a protection visa was that the Applicant was a person (non-citizen) to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, see s.36 of the Act in clause 866.221 of the Regulations, and as Mrs Dranichnikov had not claimed refugee status in her own right, she had not, quote:
Made an application for a protection visa -
for the purpose of s.48A.
Section 36 of the Act was subsequently amended to expressly include a spouse or a dependant to the holder of a protection visa.
The Tribunal went on to say, quote:
Applying the reasoning in Dranichnikov, the Tribunal finds that the visa Applicant was refused a substantive visa after last entering Australia, but it was not a visa for which he had "applied." Section 48(b)(1) is not satisfied and consequently s.48 does not apply to the visa Applicant. It follows that the delegate was in error in assessing and refusing the visa Applicant a change in circumstance residence class AG visa, when he had applied for a Family (Residence) Class AO visa. It also follows that no primary decision has been made regarding the valid visa application for a Family (residence) Class AO visa that was lodged by the visa applicant on 1 July 1998.
Although the requirements for a subclass 806 visa in class AO are identical to those in class AG, there has been no decision to grant or refuse the application for a class AO visa. Subsection 47(2) of the Act provides that the requirement to consider an application for a visa continues until certain defined events occur, and as none of those defined events have yet occurred, the proper course is for the Tribunal to remit the valid visa application to the department for consideration.
The Tribunal did just that. As Mr Hurley of counsel pointed out, as the application was not caught by s.48 of the Migration Act, the MRT remitted it.
Mr Hurley submitted that on reconsideration the decision maker concluded, contrary to the MRT's view, that on the date of the application the visa Applicant had been:
refused a visa -
within s.48(1)(b)(i) of the Migration Act.
The visa or visas for which he had been refused an application were those applied for by his wife on 18 August 1995, and 30 June 1997. As Mr Hurley submitted, contrary to the reasoning of the MRT, the decision maker concluded the presence of the Applicant as a:
secondary person -
in the applications made by his wife, constituted a person who was refused a visa.
It was the Applicant's submission that the Tribunal was correct and the decision of the Respondent was not, in holding that the Applicant was not a person who was refused a visa in s.48(1)(b)(i), not being a person who made a specific claim under the Refugee's Convention, within Migration 119 Regulations clause 866.211A, nor being an Applicant for a protection class XA visa within clause 806.211(b)(ii), as the Applicant has never applied for a visa.
I am referred to the decision of Fafita v Minister for Immigration and Multicultural Affairs [2001] FCA 1719, and the judgment of Sackville J at paragraph 11. In short, the Applicant submits that he has never been refused a visa. He submits the decision of 28 January was a jurisdictional error, which was an incorrect application of the law. The Applicant also submitted that the decision under review was one which was reviewable for jurisdictional error. It cannot be reviewed by the MRT, as it is not a decision to refuse a visa. It is a decision not to process an application.
The Applicant's counsel referred the Court to NACN of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCAFC 299. That decision accepted that a decision similar to this could be reviewed, even though in that case the Applicants were unsuccessful on the merits.
Counsel for the Respondent, Mr Gray, submitted that the principal legal question raised by the proceeding was quite limited and it concerns s.48 of the Migration Act, and the applicability of Dranichnikov v the Minister for Immigration. In my view that is a correct summary of the issues. Mr Gray submitted that it is important to note the manner in which the provisions of Schedule 1 and Schedule 2 fit into the structure of the Migration Regulations 1994 and of the Act.
Schedule 1, he said, prescribed visa classes and Schedule 2 prescribed visa subclasses. The provisions as to visa class and Schedule 1 prescribed threshold requirements and validity, including the circumstances and manner in which applications for visas are to be made.

The provisions as to visa subclass prescribed the criteria at which the Minister must be satisfied before granting a visa pursuant to s.65 of the Act. Here, there are competing arguments as to whether the Applicant lodged an application for a visa of class AO, described by item 1115 of Schedule 1 as:
Family (residence) -
or class AG described by item 1107 of schedule 1 as:
Change in circumstances (residence).
The important point, it is submitted, is that whether the application is for one or the other, the criteria to be considered were the same. In other words, they were the criteria prescribed by subclass 806 Family.
Mr Gray submits that the issues are these: (a) does s.48(1)(b)(i) of the Act apply to a person who previously applied for a visa in the sense that he was included in the application of his spouse, as a member of her family unit for a protection visa, which application was refused; (b) regardless of whether s.48 applies or not, should the Court exercise its discretion to grant relief in circumstances where a delegate applying the criteria of a visa that is sought, set out in sub-class 806, was not satisfied that the Applicant satisfied the criteria, and that finding was not disturbed by the Migration Review Tribunal, which purported to determine the view on a different basis.
Counsel for the Respondent submitted that if the application lodged by the Applicant on 1 July 1998 was to be a valid application for a visa, it could only have been an application for a class AG visa. That is because at all times after the refusal of the application for a protection visa of 18 August 1995 on 26 April 1996, and affirmed by the Refugee Review Tribunal on 3 December 1996, that the Applicant was a person to who s.48 of the Act applies.
Dealing with the operation of s.48, Mr Gray submitted that where a person attempted to apply for a visa but was prevented from doing so by s.48, the application would not be a valid application for a visa. Section 46 relevantly provided:
(1) Subject to subsections 1A and 2, an application for a visa is visa is valid if and only if:
(d)It is not prevented by s.48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 91K (temporary safe haven visa), 91P (non-citizens with access to protection from third countries), 161 (criminal justice), 164D (Enforcement visa), 195 (detainees), or 501E (visa refused or cancelled on character grounds).
The Respondent said, at s.47(3) of the Act, said that the Respondent should not consider an application for visa that was not a valid application.
Mr Gray pointed out that Regulation 2.12 relevantly provided:
(1)For s.48 of the Act, which limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused, the following classes of visa are prescribed:
(a) Change in circumstances (residence)(class AG).
When the Applicant lodged papers with the Department, including an application to remain permanently in Australia, the enclosing letter said:
Section 48 applies to our client as our client is making an application under subclass 806 family, who meets the requirements of regulation 2.12. If so, satisfies s 48.
Mr Gray says that inconsistently with the statement in the form 887, the section entitled:
Change in circumstances (residence) class.
That was not marked and the section entitled:
Family (residence) class -
was selected.
The delegate in the first instance, in a decision dated 7 March 2002, took the view that s.48 applied to the applicant but that the application dated 1 July 1998 was not barred by s.48 because it was an application for a visa in the change of circumstances residence class AG class, one of the classes prescribed in Regulation 2.12.
The delegate proceeded to consider the merits of the application for the visa by reference to the criteria of subclass 86, and then refused the application on the merits.
On review by the Migration Review Tribunal, the Tribunal took the view that Dranichnikov applied to the case, with the result that s.48 did not apply to the Applicant. On that basis the Tribunal decided that the application should have been treated as an application for a class AO visa. Although the Tribunal acknowledged that the identical criteria under subclass 806 applied, the Tribunal was of the view that:
No primary decision has been made regarding valid visa applications for a family residence class AO visa. There has been no decision to grant or refuse the application for a class AO visa. The proper course is for the Tribunal to remit the valid visa application to the department for consideration.
Mr Gray submitted that the basis on which the Tribunal formed the view that Dranichnikov applied to the case was incorrect and it was submitted that the question raised by s.48(1)(b)(i) is different from the question which was raised by s.48A and which was considered in Dranichnikov.
The Respondent also submitted that the question raised by s.48(1)(b)(i) is whether the Applicant applied for a visa, which was then refused. The question raised by s.48A, on the other hand, and calling for determination by the Full Court in Dranichnikov, was not whether the Applicant had previously applied for a protection visa, which was then refused.
In the judgment of Dranichnikov, Mr Gray submits that the Full Court makes it quite clear that it was not considering the broader question in the proceedings (b), and it was a narrow question.
The Full Court considered the secondary application had applied for a visa, albeit not a protection visa. It is the conclusion of the Court in Dranichnikov was simply that the decision to refuse to accept the Applicant's application for a protection visa was not authorised. The ratio of the Court leading to this conclusion was that the delegate was in error in treating: (1) the Applicant's earlier application for a visa as a member of the family unit of the person applying for a visa as being (2) itself an application for a protection visa in the meaning of s.36 and s.48A. The ratio was not that the Applicant had not previously applied for a visa.
Mr Gray submitted that the decision in Dranichnikov lends support to the Minister's contention that a person who is being included as a member of a family unit of a person applying for a protection visa has:
Applied for a visa.
Mr Gray submitted to the Respondent that the delegate was correct to distinguish Dranichnikov, and decide that the purported application for a class AO visa was invalid. Therefore, he submits the delegate's decision of the purported application for a class AO visa is not a valid application, it is not vitiated by jurisdictional error and was therefore a privative clause decision under the protection of s.474 of the Act.
In the alternative he submitted that if the application for a class AO visa was not invalid in any event, the substance of the application, the criteria of subclass 806 had been considered by the delegate on

7 March and the grant of the visas with such criteria has been refused.
This submission was that in that case the application raised is only a technical error and should be dismissed in the exercise of the Court's discretion to refuse relief where relief would be futile.
I heard lengthy and detailed oral submissions from counsel. I will not repeat those in detail. For the Applicant, Mr Hurley referred me to the decision in Dranichnikov and submitted that the question was whether Mrs Dranichnikov was a non-citizen who, whilst in the migration zone, made an application for a protection visa where the grant of the visa had been refused, because if she was she could not make a further application.
The Full Court, he said, basically said that Mrs Dranichnikov was not such a person, because the application had been made by the husband. She was included in it as a member of the family unit, but she had made no claims for a protection visa herself. So she had not made an application for the grant within the proper construction of s.48A.
Mr Hurley took issue with the Respondent's contention that that only applied to protection visas and said that the logic in s.48A applies directly to the section immediately before it, s.48. The question is whether the person has been refused the visa for which the non-citizen has applied.
If he said Mrs Dranichnikov was not a person who had made an application within s.48A because her husband was the relevant Applicant, then it applies even more so in s.48 where the protection visa application was applied for by the Applicant's wife and was refused. The Applicant was refused because he was a family member.
The reasoning of the Full Court in Dranichnikov was cited at some length, and I do not propose to repeat that. Basically, what the Full Court held was that s.48A, that Mr Dranichnikov was a person who had made an application for a visa, the grant of which had been refused, but Mrs Dranichnikov was not a person who had made an application for a protection visa.
The logic of that, therefore, and the basis of the submission was that if Mrs Dranichnikov had not made an application, even though she is included in it, neither did the applicant in this case, Mr Roe, make an application for the visa, even though he was included as part of the family members, because he made no claims.
The authority of Dranichnikov, it is submitted, was accepted by the Full Court of the Federal Court in Soondur v the Minister for Immigration and Multicultural Affairs, a decision handed down on

25 October 2002, the citation being [2002] FCAFC 324.
In the Respondent's submission, Mr Gray of counsel agreed that the principal question was whether s.48 applied. He was of a view that it did. He pointed out that one cannot lawfully remain in Australia without a visa. He submitted that s.189 of the Act provides that if an officer of the Department reasonably suspects someone to be an unlawful non-citizen - that is, a person without a visa who is a non-citizen, that person must be detained.
It is a clear statutory regime that every species of permission to remain in Australia is a visa, and lawfulness depends on obtaining and holding the visa. Section 14 defines what an unlawful citizen is. The point was, that when dealing with the family unit provisions in applying for a visa, a person who is included in a family unit is thereby applying for a visa because they must obtain a visa in order to remain lawfully in Australia.
In its final decisions Mr Hurley of counsel for the Applicant said the situation was this. The Applicant's wife was refused a visa. The Applicant was not granted a visa in 1995, but the fact that the Applicant's wife was refused one and he was not granted one does not mean that he was refused.
I have considered the submissions. In my view the matter does turn on whether or not the Applicant can accurately describe this person who was refused a visa in the meaning of s.48(1)(b). Put simply, I am of the view that the Applicant's contention is correct, and that he is not. It can be recalled that the Applicant contended that the Migration Review Tribunal was correct in holding the Applicant was not a person who was refused a visa within s.48(1)(b)(i), and who was not being a person who had made a specific claim under the Refugees Convention within clause 866.211A of the Migration Regulations 1994, nor, being an application for a protection class XA visa within clause 806.211B, as the Applicant had never applied for a visa.
I am satisfied that in the circumstances the Applicant can be described as never having been a person who was refused a visa, and it must therefore follow that as the Applicant has not previously been refused a visa, the decision of 28 January 2003 is incorrect.
The decision is not correct because the decision maker has incorrectly applied the substantive law. This incorrect application of law is a jurisdictional error, and I propose to grant the application for relief.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 14 March 2005