1316668 (Refugee) - [2015] AATA 3366

1316668 (Refugee) [2015] AATA 3366 (3 September 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1316668
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Magda Wysocka
DATE:3 September 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 03 September 2015 at 4:18pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Afghanistan, applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] October 2013.
The applicant appeared before the Tribunal on 1 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1316668 (Refugee)

Details

AGLC: 1316668 (Refugee) [2015] AATA 3366
Case: [2015] AATA 3366
Decision Date: 3 September 2015

CaseChat Overview and Summary

The case before the Tribunal concerns a Hazara Shia Muslim applicant from Afghanistan who arrived in Australia as an unauthorised maritime arrival. The applicant claims that he has spent most of his life in [Country 1] and fears returning to Afghanistan due to his Hazara Shia identity, his time spent outside Afghanistan, and his status as a failed asylum seeker. The Tribunal was required to consider whether the applicant's home area was Mazar e Sharif, whether he faced a real chance or risk of serious or significant harm if returned to Afghanistan, and whether he could reasonably relocate within Afghanistan. The Tribunal was bound to take into account the relevant policy guidelines and country information assessments in making its decision.

The central legal issues revolved around the applicant’s identity, specifically his home area and ethnic background, and the risk of harm he would face if returned to Afghanistan. The Tribunal had to determine whether the applicant’s claims about his life and the threats he faced were credible and whether the delegate’s assessment of his risk of harm upon return was correct. The Tribunal also needed to assess whether the applicant could reasonably relocate within Afghanistan to avoid the alleged risks.

The Tribunal found that the applicant was a credible witness overall, despite some inconsistencies in his testimony. It accepted that the applicant was a Hazara from Afghanistan and that his claims against that country were valid. However, the Tribunal concluded that the delegate’s assessment of the applicant’s home area and risk of harm was flawed. The Tribunal found that the applicant’s fear of harm due to his Hazara Shia identity and his status as a failed asylum seeker was credible. The Tribunal determined that the delegate had not properly considered the applicant’s claims and the relevant country information, and therefore, the matter should be remitted for reconsideration.

The Tribunal remitted the matter to the delegate for reconsideration in light of its findings. It directed the delegate to reassess the applicant's claims, particularly in relation to his home area, the risk of harm he faces upon return to Afghanistan, and his ability to reasonably relocate within Afghanistan.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant arrived in Australia as an unauthorised maritime arrival. His claims are summarised as follows. He is a Hazara Shia Muslim born in Mazar e Sharif in [year]. His family had fled to Mazar from their home area of Behsood due to conflict with Kuchis. When the applicant was [very young], his family again fled to [Country 1]. The applicant had legal documentation to remain in [Country 1] however this was taken away from him after he and other [Afghanis] against the killing of Afghan refugees by the [Country 1] government. The applicant continued to live and work undocumented in [Country 1] for several years. In approximately 2011 he reconnected with [an] Afghan woman, [Ms A], he loved before he married, who had separated from her husband. They began an affair that ended when her brother caught them together and beat up the applicant. He fears returning to Afghanistan as a Hazara Shia who has spent considerable time outside of Afghanistan and as a failed asylum seeker/westernised returnee. He also fears harm from [Ms A]’s powerful relatives in Afghanistan because he entered into a relationship with a [woman]. The delegate assessed the applicant’s home area as Mazar e Sharif and did not accept that he faced any risk of harm due to his profile upon his return. The issues in this case are (1) what the applicant’s home area is; (2) does he face a real chance or risk of serious or significant harm there; and (3) whether he can reasonably relocate. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. The applicant claims that he is a Hazara born in Afghanistan but has spent the majority of his life in [Country 1]. He has consistently claimed to be from Afghanistan, has demonstrated some knowledge of that country (bearing in mind that he has never lived there) and was also able to discuss in detail his life as an Afghan refugee in [Country 1]. He also bears some of the common physical traits of Hazaras. As a result the tribunal accepts that the applicant is a Hazara from Afghanistan and has assessed his claims against that country. The applicant appeared to give generally forthright, spontaneous and consistent evidence in relation to his claims, with the exception of certain matters put to him at the hearing. Nevertheless, despite these inconsistencies, the tribunal accepts that the applicant is a generally credible witness and, for the reasons set out below, has found them not to be material to the assessment of his future risk of harm.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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