1412258 (Refugee) - [2015] AATA 3167

1412258 (Refugee) [2015] AATA 3167 (14 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1412258
COUNTRY OF REFERENCE:                  Nepal
TRIBUNAL MEMBER:  David McCulloch
DATE:14 July 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 14 July 2015 at 9:35am

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 Nepal applied for the visa [in] April 2013 and the delegate refused to grant the visa [in] June 2014.
The applicant appeared before the Tribunal on 23 June 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. However, the applicant largely communicated with the Tribunal in English.
The applicant was represented in relation to the review by his registered migration agent.

CONSIDERATION OF CLAIMS AND EVIDENCE

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.
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…

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 1412258 (Refugee)

Details

AGLC: 1412258 (Refugee) [2015] AATA 3167
Case: [2015] AATA 3167
Decision Date: 14 July 2015

CaseChat Overview and Summary

The applicant, a citizen of Nepal, sought a protection visa on the basis that he was a homosexual and would face significant harm if returned to Nepal. The Tribunal was not satisfied that the applicant was homosexual, finding his claims to be inconsistent and implausible. The Tribunal considered that, even if the applicant was homosexual, there was no real risk of significant harm to him if returned to Nepal. The Tribunal found that there was no real risk of persecution or significant harm on the basis of homosexuality, family rejection, employment discrimination or police harassment. The Tribunal also found that the applicant would not face a real risk of significant harm as a consequence of the 2015 earthquakes in Nepal. The Tribunal affirmed the decision not to grant the applicant a Protection visa.

Orders