VNPC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 799

VNPC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 799 (6 February 2020)

Division:GENERAL DIVISION

File Number:          2020/0201

Re:VNPC

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member S Burford

Date:6 February 2020

Date of written reasons:        14 April 2020

Place:Perth

The decision by a delegate of the Minister, dated 3 January 2020, is set aside and remitted for reconsideration in accordance with the direction that the Applicant’s application for a protection visa be determined according to the law.

........[Sgd]................................................................

Member S Burford

CATCHWORDS

MIGRATION – refusal of protection visa under s 501(1) – effect of the Federal Court’s decision in BAL19 v Minister for Home Affairs – decision is set aside and remitted for reconsideration in accordance with the direction that the Applicant’s application for a protection visa be determined according to the law

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) - s 43(1)

Migration Act 1958 (Cth) – ss 36(1C), 501(1)

CASES

BAL19 v Minister for Home Affairs [2019] FCA 2189

REASONS FOR DECISION

Member S Burford

14 April 2020

APPLICATION

1. This is an application for review of a decision dated 3 January 2020[1] by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

   
   

   (the Minister) to refuse VNPC’s Protection (Class XA) visa application, pursuant to

   
   

   s 501(1) of the Migration Act 1958 (Cth) (the Act).

   [1] The Applicant was notified by email of the decision on 6 January 2020. The Tribunal’s original decision refers to the decision date as 6 January 2020. This was corrected by a corrigendum issued on 14 April 2020.

   THE PROCEEDINGS

2. An interlocutory hearing was held in relation to the matter on 6 February 2020. The Applicant was represented by Mr Faris from Rebus Legal. The Respondent was represented by Mr Dube from Sparke Helmore Lawyers. The interlocutory hearing considered the impact of the Federal Court decision in BAL19 v Minister for Home Affairs [2019] FCA 2189 (BAL19), in which the court concluded that s 36(1C) of the Act is a specific criteria, applicable only to an application for a protection visa. As such, it precludes the Minister from using s 501(1) of the Act or its analogues as a basis to refuse to grant a protection visa.

3. The parties both provided submissions to the Tribunal on 23 January 2020 regarding the impact of BAL19. In submissions the Respondent accepted that the Tribunal was bound by the decision in BAL19 and that because of the 84 day time limit for the Tribunal to make a decision pursuant to s 500(6L) of the Act, the Tribunal would need to make a decision on the application having regard to that authority.

   LEGISLATIVE FRAMEWORK

4. Section 501 of the Act provides:

   (1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

   Note:     Character test is defined by subsection (6).

   …

   (6)For the purposes of this section, a person does not pass the character test if:

   (a)the person has a substantial criminal record (as defined by subsection (7)); or

   …

   (7)For the purposes of the character test, a person has a substantial criminal record if:

   (a)the person has been sentenced to death; or

   (b)the person has been sentenced to imprisonment for life; or

   (c)the person has been sentenced to a term of imprisonment of 12 months or more; or

   (d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; …

   (Original emphasis.)

5. Section 36(1C) of the Act provides:

   (1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

   (a)is a danger to Australia’s security; or

   (b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

   Note:         For paragraph (b), see section 5M.

6. The circumstances of this application are analogous to those in BAL19. This was a decision made by the Minister under s 501(1) of the Act to refuse to grant the Applicant a protection visa. The Tribunal considers that it is bound by the decision of BAL19 in determining the application for review.

7. As such, the Tribunal considers that there would be no value in conducting a full hearing to review the application, given that the Federal Court’s decision in BAL19 makes it clear that a decision to refuse a protection visa under s 501(1) is not valid. In such circumstances, the Tribunal regards that the appropriate order to be made under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) is that the decision by a delegate of the Minister, dated 3 January 2020, is set aside and remitted for reconsideration in accordance with the direction that the Applicant’s application for a protection visa be determined according to the law.

   DECISION

8. The decision by a delegate of the Minister, dated 3 January 2020, is set aside and remitted for reconsideration in accordance with the direction that the Applicant’s application for a protection visa be determined according to the law.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Member S Burford

........[Sgd]................................................................

Associate

Dated: 14 April 2020

Date of hearing:	6 February 2020
Representative for the Applicant:	Mr Faris
Solicitors for the Applicant:	Rebus Legal
Representative for the Respondent:	Mr Dube
Solicitors for the Joined Party:	Sparke Helmore Lawyers