1413087 (Refugee) - [2015] AATA 3922

1413087 (Refugee) [2015] AATA 3922 (18 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1413087
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Christine Cody
DATE:18 December 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 18 December 2015 at 3:34pm

STATEMENT OF DECISION AND REASONS - APPLICATION FOR REVIEW
BACKGROUND

The applicant is a national of Fiji who seeks to be granted a Protection visa under s.65 of the Migration Act 1958 (the Act) on the grounds that she is a refugee or entitled to protection under Australia’s complementary protection provisions. After being informed that the Tribunal had insufficient evidence before it to make a favourable decision, she was invited to attend a hearing on 15 December 2015 before the Tribunal to give evidence and present arguments. She is represented by a registered migration agent. She declined to attend the hearing, without explaining her reasons why. The following background is relevant.
She first arrived in Australia [in] July 2001 as a visitor. She left Australia, then returned again as a visitor [in] May 2008. Her visa was valid until [date] May 2008, however she did not depart Australia.
She remained in the community unlawfully from [date] May 2008 until [date] July 2010. She then sought permission to lodge a carer visa onshore in August 2010, which was refused in September 2010.
She applied to the Department of Immigration for her first protection visa [in] November 2010, seeking recognition as a refugee. She claimed that she left Fiji on a tourist visa to come and visit her brother and see [Australia]. News from home says that one has to be careful of what one says or does about the government. Soldiers are heading the civil service departments and there is not much one can do. Jobs are getting scarce now in Fiji. If she goes back now, at her age, there is nothing she can do back home especially due to the law that the retiring age is now 55 years. She won’t be able to get into the work force. She thinks the soldiers may mistreat her. She has been away from Fiji and they think that people who have been away from Fiji say bad things about it, so if she goes back they will make sure that she doesn’t leave the country again. The authorities cannot protect her because they have other important things to worry about than her.
Her application was refused by the delegate in June 2011 and the applicant applied for review with the Refugee Review Tribunal (“the first Tribunal”), which was differently constituted. The first Tribunal affirmed the delegate’s decision on 14 February 2012. [In] April 2012 she applied to the Minister pursuant to s417 of the Act; the Minister refused to consider and accept her application [in] June 2012.
She then sought permission to lodge a partner visa application onshore [in] July 2012. This was refused [in] August…

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 1413087 (Refugee)

Details

AGLC: 1413087 (Refugee) [2015] AATA 3922
Case: [2015] AATA 3922
Decision Date: 18 December 2015

CaseChat Overview and Summary

The matter before the Tribunal involves an application for a protection visa by the applicant, a national of Fiji. The primary issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa as outlined in the Migration Act 1958 and the Regulations. Specifically, the Tribunal was required to determine whether the applicant met the refugee criterion under section 36(2)(a) or the complementary protection criterion under section 36(2)(aa) of the Act.

The Tribunal considered whether the applicant met the refugee criterion under section 36(2)(a), which requires the applicant to be a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal noted the conflicting case law on the issue of whether the Tribunal had jurisdiction to consider the refugee criterion in this context. However, after considering the decision in SZQTJ v MIBP, the Tribunal concluded that it did not have jurisdiction to consider the refugee criterion. Even if this conclusion was incorrect, the Tribunal found that the applicant did not meet the refugee criterion. The complementary protection criterion under section 36(2)(aa) was considered in light of the evidence and submissions made by the applicant. The Tribunal found that the applicant did not satisfy the complementary protection criterion, as there was no evidence to suggest that the applicant would face persecution or significant harm if returned to Fiji.

Based on the above findings, the Tribunal concluded that the applicant did not satisfy the criteria for a protection visa. The Tribunal did not have jurisdiction to consider the refugee criterion, and even if it had, the applicant did not meet that criterion. Furthermore, the applicant did not meet the complementary protection criterion. The Tribunal dismissed the application for a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).CONCLUSIONS There is no evidence before the Tribunal to suggest that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). The Tribunal is of the view that it does not have jurisdiction to consider whether the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention (the criterion set out in s.36(2)(a)). The Tribunal considers that even if it were wrong in that regard, the applicant does not meet the refugee criterion in s.36(2)(a). Accordingly, the applicant does not satisfy the criterion in s.36(2) for a protection visa.Christine CodyMemberANNEXURE A - RELEVANT LAW Note: this is the relevant law applicable when the Tribunal is considering all of the three criteria for a protection visa; namely refugee, complementary protection, and member of family unit of the holder of a protection visa. The Tribunal has considered this law, albeit adapted to meet the relevant criteria as set out in SZGIZ. 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.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.

Ratio Decidendi

Legal Principle Established

The Tribunal has referred to the evidence and information before it when relevant, below. The Tribunal notes that all references to the applicant’s evidence at interview are sourced from the delegate’s decision record provided to the Tribunal by the applicant, unless otherwise stated.CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONSThe Effect of SZGIZ and its relevance to this review The Tribunal’s understanding of the reasoning in SZGIZ is that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and thus should proceed on the basis that it can only consider the applicant’s claims under the Complementary Protection provisions in s.36(2)(aa) of the Act. The Tribunal notes the decision of the Federal Circuit Court in SZVCH v MIBP [2015] FCCA 2950 which indicates that in a case such as this case, where a valid application has been made to the Department, and the Department has considered claims under both the Refugee Convention in s.36(2)(a) and the Complementary Protection provisions in s.36(2)(aa) of the Act, the Tribunal should also consider claims under both. However, after the decision in SZVCH, there has been another decision of the Federal Circuit Court in SZQTJ v MIBP [2015] FCCA 3226. This case found that considered that the correct approach is to consider only claims in relation to the complementary protection criterion in s.36(2)(aa) (where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a)). The court found that, the approach in SZVCH is inconsistent with the clear words of s.48A and with SZGIZ, which makes clear that a second application can only be made relying on a different criterion. The decision in SZVCH cannot be reconciled with the binding authority of the Full Court and is wrong. As a later judgment that directly considers SZVCH, SZQTJ should be regarded as stronger authority. In light of this authority, the Tribunal found it correct to consider only the applicant’s claims only in relation to s.36(2)(aa) of the Act (however, in the event that the Tribunal is wrong in its approach to the judgement in SZGIZ, it has made alternative findings below). The relevant law, in addition to that discussed in the body of this decision, is set out in Annexure A (that Annexure also contains the law relating to the Refugee Convention criterion in s.36(2)(a)). Complementary Protection provisions in s.36(2)(aa)Country of reference The applicant produced to the Tribunal a certified copy of the identification page of her passport. The Tribunal accepts that the applicant is a national of Fiji, and that the receiving country for the purposes of her complementary protection claims, is Fiji.Concerns about the applicant’s claims The applicant claims to fear persecution and/or significant harm. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.