Federal Court (Full Court). If, following the affirmed refusal by the Tribunal of a protection visa application, the Minister intervenes under s 417(1) of the Migration Act 1958 (Cth), does the protection visa application remain refused, with the result that the bar under s 48A prevents a further protection visa application being made while the non-citizen is in the migration zone?
The plurality of the Full Court of the Federal Court (FCAFC) described the relevant facts as follows:
10 The appellant applied for a protection visa on 24 December 2013: PJ [2]. That application was refused by a delegate of the Minister on 23 July 2014: PJ [3], with the Administrative Appeals Tribunal (Tribunal) dismissing a challenge to that decision, and affirming it, on 11 September 2015 (Tribunal’s Decision): PJ [3].
11 On 12 September 2017, the Assistant Minister for Immigration and Border Protection (Assistant Minister) exercised his power under s 417(1) of the Migration Act 1958 (Cth) (Migration Act) to substitute another decision for that of the Tribunal, being to grant the appellant a Visitor (Subclass 600) visa for three months with a no further stay condition (Condition 8503) (visitor visa) (Assistant Minister’s Decision): PJ [4].
12 On 12 October 2017, the appellant made a second application for a protection visa: PJ [6]. On 25 October 2017, the Delegate found that application to be invalid on the basis that it was barred by the operation of s 48A of the Migration Act (Delegate’s Decision): PJ [6]. It is this decision which is the subject of these proceedings.
Some of the questions to the FCAFC were as follows:
Question 1: If, following the affirmed refusal by the Tribunal of a protection visa application, the Minister intervenes under s 417(1) of the Migration Act 1958 (Cth), does the protection visa application remain refused, with the result that the bar under s 48A prevents a further protection visa application being made while the non-citizen is in the migration zone?
Question 2: Section 415(3) provided that “the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister”. Is a decision to affirm a decision of a delegate or the Minister not taken to be a decision of the Minister, as the original decision is neither varied nor substituted?
Question 3: Does the Tribunal decide under s 65 whether to grant or refuse to grant a visa?
The FCAFC answered those questions as follows: