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Tribunal: Senior Member N A Manetta

The AAT granted the applicant a safe haven enterprise visa (subclass 790). This review sets aside and substitutes a new decision for the original decision made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Department).

The applicant, a citizen of Afghanistan of Hazara ethnicity, arrived in Australia in 2012 and four years later applied for a type of protection visa called a safe haven enterprise visa.[1] He claimed protection on the basis that his work with the Afghan National Army and Department of Education made him easily identifiable, to the Taliban, as a government supporter.

The Department accepted the factual basis for his claim for this visa and found he would be at risk of harm if he were to return to Afghanistan.

The Department refused the visa application under section 501 of the Act on the grounds that the applicant failed the character test.[2] He had been convicted and sentenced to approximately 21 months’ in prison for intentionally causing harm during an assault in which another person died. The Tribunal noted it was not clear the injuries inflicted by the applicant led to the other person’s death. The Department found he was not presently a danger to the Australian community.

After the Departmental decision refusing the visa, the Federal Court handed down a decision that held the Minister could not use section 501 to refuse protection visa applications.[3] Section 36(1C) was the only relevant test to be applied in respect of the refusal of a protection visa.[4]

The Department accepted before the AAT that its decision had to be set aside given the Federal Court decision. The Department further submitted that the Tribunal did not have jurisdiction to grant a protection visa even though all preconditions for its grant were satisfied.

The AAT rejected that submission and followed what it took to be binding Federal Court authority holding that the Tribunal did have jurisdiction under s 43 of the AAT Act to substitute a new decision.[5]

As there were no outstanding issues to be addressed by the original decision maker, the AAT held it ought to grant the visa rather than remit the matter to the respondent for further consideration.

Read the full decision

N.B. This matter was the subject of a further application by the applicant with a decision published in March 2020: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394 (17 March 2020).

 

 

[1] Migration Act 1958 (Cth), s 35A.

[2] Migration Act, s 501(1).

[3] BAL19 v Minister for Home Affairs [2019] FCA 2189.

[4] Migration Act, s 36(1C).

[5] Administrative Appeals Tribunal Act 1975 (Cth), s 43.