1416535 (Refugee) - [2016] AATA 4552

1416535 (Refugee) [2016] AATA 4552 (7 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1416535
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Filip Gelev
DATE:7 October 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 07 October 2016 at 4:49pm

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] January 2013 and the delegate refused to grant the visa [in] September 2014.
The applicant appeared before the Tribunal on 3 May 2016 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.

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Details

AGLC: 1416535 (Refugee) [2016] AATA 4552
Case: [2016] AATA 4552
Decision Date: 7 October 2016

CaseChat Overview and Summary

This matter concerns an application for protection by an individual claiming to be a national of Afghanistan of Pashtun ethnicity, originating from Kandahar. The applicant arrived in Australia in August 2012, having departed Afghanistan in December 2011. The dispute centres on whether Australia owes protection obligations to the applicant. The Tribunal was required to consider the applicant's claims in light of Ministerial Direction No. 56, which mandates the consideration of relevant policy guidelines and country information assessments prepared by government departments.

The primary legal issue before the Tribunal was to determine if Australia has protection obligations towards the applicant. This required an assessment of the applicant's claims of persecution and whether these claims met the criteria for protection under Australian law, taking into account the specified policy guidelines and country information.

The Tribunal's reasoning focused on the applicant's account of events following his father's death. His father, who had worked for an agency associated with the government, was killed by the Taliban after receiving threats. Subsequently, the applicant alleged he was arrested and interrogated by the Taliban on four occasions between April 2011 and his departure from Afghanistan. These interrogations concerned accusations of working for the government, which the applicant denied. The Tribunal noted that the applicant claimed to have suffered mistreatment during these detentions, including being blindfolded and receiving minimal food, and that he developed an eye disorder as a result of one detention. The Tribunal concluded that the decision under review should be affirmed, indicating that the applicant's claims did not establish a basis for protection.

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 issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. According to a statutory declaration dated [in] December 2012, the applicant is a national of Afghanistan or Pashtun ethnicity. He is from Kandahar. He said that his wife is in Pakistan. The applicant left Afghanistan in December 2011 and from there he travelled to Australia to seek protection. He finally arrived in Australia in August 2012. According to the statutory declaration “in prior to 2010” his father was a self-employed [occupation 1] for 3-4 years who was “basically” working for [Agency 1]. He [travelled for work] from Kabul to Kandahar Airport. The father received 2-3 warning from the Taliban to stop working “with the government”. However, he continued. The last threat was received almost eight months before he was targeted and killed whilst [travelling for Agency 1 work] to Kandahar (as part of a larger [team]). He was actually [physically attacked] by the Taliban in his [vehicle]. [Other workers with him] were murdered as well. He said that before his father was killed, the applicant was working in [Town 1, location]. It is on the highway between Quetta and Kandahar city.[1] He travelled regularly between [Town 1] and home. He did not have any particular “safety risks” while his father was alive. His problems with the Taliban started after the death of his father. [1] [Deleted.] He was stopped and arrested by the Taliban on four occasions. The first incident was in or about April 2011. He was going home from [Town 1] and three Taliban stopped him in an area called [Area 1]. He was “blindfolded and escorted into a container”. He was detained for two days and interrogated a few times about his activities with the government. They accused him of working for the government as his father had. The applicant denied any association with the government. The captors fed him very little food on the first day and nothing on the second day. When they failed to establish any link between him and the government, they released him. A few weeks later he was arrested again by some Taliban in an area called [name]. They “transferred” him to a place that was some two hours away. On this occasion they detained him for a week. He was interrogated repeatedly and he was blindfolded for the whole time. Once more, the applicant denied any allegation with the government and he was released in [a location] in Kandahar. He developed an eye “disorder” as a result of being blindfolded for a week.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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