1411073 (Refugee) - [2015] AATA 3618

1411073 (Refugee) [2015] AATA 3618 (16 October 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1411073
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Filip Gelev
DATE:16 October 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 16 October 2015 at 4:25pm

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] December 2012 and the delegate refused to grant the visa [in] June 2014.
The applicant appeared before the Tribunal on 8 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto 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 91R and 91S of the Act…

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 1411073 (Refugee)

Details

AGLC: 1411073 (Refugee) [2015] AATA 3618
Case: [2015] AATA 3618
Decision Date: 16 October 2015

CaseChat Overview and Summary

The matter before the court involves a claimant from Afghanistan who applied for refugee status in Australia. The Tribunal was required to determine if the claimant had a well-founded fear of persecution for a Convention reason or if there was a real risk that he would suffer significant harm for any reason. The Tribunal affirmed the decision under review, concluding that the applicant did not meet the criteria for refugee status.

The primary legal issue was whether the applicant had a present right to enter and reside in any country other than Afghanistan, which would prevent him from protection in Australia. The court also needed to assess if the applicant had a well-founded fear of persecution or a real risk of significant harm if returned to Afghanistan. The court had to consider the credibility of the applicant’s claims, the evidence provided, and the reports published post-hearing.

The court found that the applicant’s identity and nationality were credible based on the evidence presented, including his national ID card and fluent Pashto language skills. The court accepted that the applicant was a Sunni Muslim and a Pashtun by ethnicity, born in Kandahar, Afghanistan. The court accepted the applicant’s claim that he and his brother fled Afghanistan due to the Taliban’s murder of their father-in-law, who was working for the American forces. However, the court found that the applicant did not provide sufficient evidence to support his claims of a well-founded fear of persecution or a real risk of significant harm if returned to Afghanistan. The court determined that the applicant was not prevented from protection in Australia by section 36(3) of the Act.

The court affirmed the decision to deny refugee status to the applicant. The applicant’s claims did not meet the threshold for refugee status under Australian law. The court concluded that the applicant did not have a well-founded fear of persecution or a real risk of significant harm if returned to Afghanistan.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The reports which came out in September 2015 post-date the hearing in this matter. [In] September 2015 the Tribunal wrote to the applicant, to his representative’s email address, and attached copies of both reports which were published on 18 September 2015. The Tribunal invited comments within 14 days of the date of the email. As of the date of the decision no comments have been received. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant has a well-founded fear of persecution for a Convention reason or there is real risk he will suffer significant harm for any reason. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Identity and country of reference Having regard to the copy of the applicant’s national ID (Taskera) card he provided to the Department of Immigration the applicant’s ability to speak the Pashto language fluently and his oral and written evidence, the Tribunal accepts the applicant’s identity as claimed. The Tribunal further accepts that the applicant is a national of Afghanistan. Based on the above, the Tribunal finds that the country of reference for the assessment of protection claims in this case is Afghanistan. On the evidence before it, the Tribunal finds the applicant does not have a present right to enter and reside in any other country than Afghanistan. The Tribunal therefore finds the applicant is not prevented from protection in Australia by s.36(3) of the Act.Claims The applicant has consistently maintained and the Tribunal accepts that he is a Sunni Muslim and a Pashtun by ethnicity; that he was born [in District 1] an area of Kandahar city Afghanistan; that he is married and has [children]; and that he arrived in Australia by boat from [another country], with his brother [Mr A] (who also applied for protection, AAT case number 1412684) [in] August 2012. The Tribunal further accepts that the applicant is practically illiterate, having only been taught some very basic reading skills by his father; and that he ran a [type of business] with his brother [Mr A] in Kandahar from about 2001 up until the time of their departure from Afghanistan. The applicant set out his claims for protection in a statutory declaration, dated [in] December 2012 (no further statutory declaration was provided either to the Department of Immigration or to the Tribunal). He claimed that he and [Mr A] left Afghanistan because their father-in-law, [Mr B], had been killed by the Taliban for working as a truck driver for the American forces in Afghanistan. He used to transport goods, such as furniture and general living items “between the airports of the foreign forces”. At the time of his death the applicant’s father-in-law had been doing this job for about two years. The father-in-law was living with the applicant [Mr A] and their respective wives (the two brothers married two sisters which explains why both brothers were [Mr B]’s sons-in-law). The applicant’s father-in-law was at work and he had just left the Kandahar base when he was stopped by the Taliban and brutally murdered. The Taliban set his truck on fire. The authorities found his body and identified him by his taskera, which was in his pocket.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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