1419500 (Refugee) - [2016] AATA 4048

1419500 (Refugee) [2016] AATA 4048 (3 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1419500
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:R. C. Titterton
DATE:3 July 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 03 July 2016 at 2:03pm

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 Pakistan, applied for the visa [in] March 2014. [In] November 2014 the delegate refused to grant the visa.
The applicant appeared before the Tribunal on 7 June 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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.

5.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. In SZGIZ v Minister for Immigration and Citizenship[2013] FCAFC 71, the Full Court of the Federal Court of Australia determined that s 48A does not prevent a person from making another application for a protection visa on a complementary protection grounds where the first application was made (and refused) before the commencement of the complementary protection provisions of the Act on 24 March 2012. The applicant had previously made an application for protection [in] June 2011. This was refused [in] September 2011. On 24 February 2012, the (the Refugee Review) Tribunal (differently constituted), affirmed the Department’s decision. Accordingly, the applicant was not prevented by the decision of SZGIZ from lodging his current application for protection. Therefore, his application will be considered only on complementary protection grounds.

The complementary protection criterion requires that the applicant must be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for…

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: 1419500 (Refugee) [2016] AATA 4048
Case: [2016] AATA 4048
Decision Date: 3 July 2016

CaseChat Overview and Summary

The applicant, a citizen of Iran, sought judicial review of a decision by the Refugee Review Tribunal (RRT) to affirm the Minister's refusal to grant a protection visa. The applicant claimed to have a well-founded fear of persecution for reasons of imputed political opinion and membership of a particular social group. The RRT had found that the applicant's claims were not credible and that he had not established a real chance of suffering harm amounting to persecution.

The primary legal issue before the Federal Court was whether the RRT had erred in its assessment of the applicant's claims, specifically concerning the credibility of his account and the application of the relevant legal principles for determining whether he had a well-founded fear of persecution. The court was required to consider whether the RRT had properly applied the High Court's decision in *Minister for Immigration and Ethnic Affairs v Teoh* and subsequent authorities regarding the assessment of subjective and objective elements of a well-founded fear.

The Court found that the RRT had failed to adequately explain its adverse credibility findings and had not properly considered all the evidence before it. In particular, the RRT had not given sufficient weight to certain documentary evidence that supported the applicant's account. The Court reiterated the principle that an adverse credibility finding must be based on logical and discernible reasons, and that the RRT must engage with all relevant evidence, even if it ultimately finds the evidence unconvincing. The Court concluded that the RRT's decision was affected by jurisdictional error.

The Federal Court set aside the RRT's decision and remitted the application for a protection visa to the RRT for redetermination according to law.

Orders