1406399 (Refugee) - [2015] AATA 3169

1406399 (Refugee) [2015] AATA 3169 (6 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1406399
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Christopher Smolicz
DATE:6 July 2015
PLACE OF DECISION:  Adelaide
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 06 July 2015 at 11:22am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431(2) 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
1. 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).
2.      The applicant who claims to be a citizen of Afghanistan, applied for the visa [in] June 2013 and the delegate refused to grant the visa [in] March 2014.
3.      The applicant appeared before the Tribunal on 11 June 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
4.      The applicant was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
5. 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.
6. 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).
7.      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…

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 1406399 (Refugee)

Details

AGLC: 1406399 (Refugee) [2015] AATA 3169
Case: [2015] AATA 3169
Decision Date: 6 July 2015

CaseChat Overview and Summary

The case involved an application for review by a citizen of Afghanistan, who had arrived in Australia as an illegal maritime arrival in July 2012, seeking a Protection visa under section 65 of the Migration Act 1958. The delegate of the Minister for Immigration had previously refused to grant the visa in March 2014. The applicant, who identified as a Hazara Shia Muslim, argued that he had a well-founded fear of persecution due to his ethnicity, religion, imputed political opinion, and a land dispute. The applicant claimed that he was unable to return to Waras district, Bamyan Province, as the Sayed family, who had taken over his family land, would suspect him of wanting to reclaim the land and would kill him. The applicant also claimed that the Behishti family, who had connections with the Taliban, considered him an enemy.

The legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for a Convention reason and if he met the criteria for a protection visa under the Migration Act. The Tribunal assessed the applicant's claims of fear of persecution in Afghanistan against Waras district, Bamyan Province, as his home area. The Tribunal found that the applicant's fear of persecution due to the land dispute and his fear of the Sayed family and the Behishti family was not well-founded. However, the Tribunal concluded that the applicant, as a Hazara Shia Muslim, faced a real chance of serious harm if he returned to his home area.

The Tribunal determined that the applicant's need to find accommodation, work, and potentially travel out of his home area would place him at a real chance of serious harm from the Taliban. The Tribunal found that the harm the applicant feared from the Taliban was for reasons of his religion and ethnicity, and that it amounted to serious harm as it included a threat to life or liberty, significant physical harassment, or ill-treatment.

The Tribunal also considered the possibility of relocation within Afghanistan, specifically to Kabul, as a means of avoiding the risk of Convention-based persecution. However, the Tribunal found that it was not reasonable for the applicant to relocate to Kabul to avoid the risk of persecution, given his lack of family, tribal, or clan ties in Kabul, limited work experience, and absence of assets to assist in his return to Afghanistan.

Based on the findings, the Tribunal concluded that the applicant satisfied the criterion set out in section 36(2)(a) of the Migration Act. The Tribunal remitted the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Orders