1417464 (Refugee) - [2016] AATA 3298

1417464 (Refugee) [2016] AATA 3298 (5 February 2016)
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DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1417464
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Christine Cody
DATE:5 February 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 05 February 2016 at 8:23pm
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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act). The relevant law is set out in Annexure A. In accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessment prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report Malaysia, 3 December 2014 (“the DFAT report”).
The applicants are a mother (hereafter referred to as “the applicant”) and her two children ([name] aged [age] and [name] aged [age]). They claim to be citizens of Malaysia. The father of the children is a Malaysian man of Malay ethnicity (a Muslim), who remains in Malaysia.
The applicants applied for the visas [in] March 2014[1], making refugee and complementary protection claims on the basis of religion. The delegate refused to grant the visas [in] October 2014.
[1] The third-named applicant was joined as an applicant after her arrival in Australia [in] August 2014.
The Tribunal has before it the Departmental file and the Tribunal file. The claims made to the Department were set out in the application form and a statement of the applicant. Supporting documentation was provided. The applicant attended an interview with the delegate. The delegate did not accept that the applicant faced persecution or significant harm. The delegate did not deal with any claims of the children other than as members of the family unit of the applicant whose claims had been unsuccessful.
The application for review was lodged [in] October 2014. No other documents were provided to the Tribunal at that time. The Tribunal informed the applicants that on the basis of the material before it, it was not satisfied that their application should be granted, and invited them to a hearing.
The applicants appeared before the Tribunal on 27 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [name], a [Church 1] leader who has known the applicants in Australia. At hearing the Tribunal was provided with a number of supporting documents attesting to the applicants’ Christian faith, as well as country information relating to apostasy, religious tensions between Muslims and Christians including because of attempts by Christians to convert Muslims, and…

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 1417464 (Refugee)

Details

AGLC: 1417464 (Refugee) [2016] AATA 3298
Case: [2016] AATA 3298
Decision Date: 5 February 2016

CaseChat Overview and Summary

The case of 1417464 (Refugee) involved an application for a protection visa under the Migration Act 1958 (Cth) by applicants who claimed to be refugees as defined under the 1951 Convention Relating to the Status of Refugees. The matter was considered by the Tribunal, which was tasked with determining whether the applicants met the criteria for a protection visa and whether Australia had protection obligations towards them under the Refugees Convention.

The primary legal issue before the Tribunal was whether the applicants qualified as refugees under the Convention, thus triggering Australia's protection obligations. This involved examining the definition of a refugee under Article 1A(2) of the Convention, which necessitates that an individual must be outside their country of nationality and have a well-founded fear of persecution due to specific reasons such as race, religion, or political opinion. The Tribunal also had to consider the supplementary provisions in the Migration Act that interpret and apply the Convention definition to the applicants' circumstances.

Upon review, the Tribunal concluded that the applicants were indeed refugees as defined under the Convention. The Tribunal found that the applicants were outside their country of nationality and had a well-founded fear of persecution based on the evidence provided. Consequently, the Tribunal determined that Australia had protection obligations towards the applicants. The Tribunal thus remitted the matter for reconsideration with the direction that the applicants satisfy the criterion set out in section 36(2)(a) of the Migration Act.

The Tribunal's decision was that the applicants met the criteria for a protection visa, and the matter was remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons given above, the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention, therefore they do satisfy the criterion set out in s.36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.Christine CodyMemberANNEXURE A – 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.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 qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Ratio Decidendi

Legal Principle Established

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