1417806 (Refugee) - [2016] AATA 3654

1417806 (Refugee) [2016] AATA 3654 (30 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1417806
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Rachel Homan
DATE:30 March 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 30 March 2016 at 10:37am

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 the Tribunal accepts is a citizen of Fiji, applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] September 2014. The applicant previously applied for a protection visa on the basis that she met the definition of a refugee [in] March 2010. That application was refused [in] July 2010.
The applicant appeared before the Tribunal on 26 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing.
The issues in this case are whether the Tribunal is satisfied that the applicant is owed protection obligations as a refugee; and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 (SZGIZ) held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to…

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 1417806 (Refugee)

Details

AGLC: 1417806 (Refugee) [2016] AATA 3654
Case: [2016] AATA 3654
Decision Date: 30 March 2016

CaseChat Overview and Summary

In this case, the matter before the Tribunal involved a non-citizen who had applied for a protection visa. The applicant contested the decision by the Minister for Immigration and Border Protection to deny their application. The case was heard in the Migration and Refugee Division of the Tribunal. The key issue that the Tribunal needed to determine was whether the applicant qualified for a protection visa under either the refugee criterion in section 36(2)(a) of the Migration Act 1958 or the complementary protection criterion in section 36(2)(aa). The Tribunal was also required to consider whether section 48A of the Act applied to bar the applicant from making a further application for a protection visa due to a prior refusal.

The Tribunal examined the criteria for a protection visa, noting that the applicant must satisfy either the refugee or complementary protection criteria. The Tribunal found that the applicant did not meet the refugee criterion under section 36(2)(a) as they did not fulfil the obligations under the Refugees Convention. The Tribunal also found that the applicant did not satisfy the complementary protection criterion under section 36(2)(aa). Additionally, the Tribunal acknowledged the impact of section 48A but decided to consider both criteria due to ongoing judicial uncertainty. Consequently, the Tribunal affirmed the Minister's decision to deny the applicant a protection visa.

The Tribunal concluded that the applicant did not satisfy the criteria for a protection visa under either section 36(2)(a) or (aa) and, therefore, the decision not to grant the applicant a protection visa was affirmed. The Tribunal did not find it necessary to make any further orders as the decision stood affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.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 48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 (SZGIZ) held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. Following SZGIZ, the Tribunal’s approach has been 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 Federal Circuit Court in SZVCH v MIBP & Anor [2015] FCCA 2950 (SZVCH) held that the effect of s.48A and the judgment in SZGIZ is that in circumstances such as those arising in the present case, a further protection visa application can only be validly made on the basis of the complementary protection criterion, and there is in general no obligation on either the Minister or the Tribunal to consider the refugee criterion. The Minister and the Tribunal are not, however, prevented from considering the refugee criterion where a valid visa application has been made on the basis of the complementary protection criterion. The judgment in SZVCH was considered and not followed in SZQTJ v MIBP [2015] FCCA 3226. The approach taken in SZVCH has also been rejected by the Federal Court in AMA15 v MIBP [2015] FCA 1424 (Markovic J, 15 December 2015) at [48]. However, as there remains a level of judicial uncertainty on this issue, the Tribunal has considered it appropriate to consider the applicant’s claims against both s.36(2)(a) and s.36(2)(aa). 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).

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).DECISION The Tribunal affirms the decision not to grant the applicant a Protection visa.Rachel HomanMember

Ratio Decidendi

Legal Principle Established

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