1421008 (Refugee) - [2017] AATA 155

1421008 (Refugee) [2017] AATA 155 (27 January 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1421008
COUNTRY OF REFERENCE:                  Mongolia
MEMBER:Louise Nicholls
DATE:27 January 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 27 January 2017 at 5:26pm

The applicant in this review claims he is a citizen of Mongolia and is [age]. He is seeking review of a decision made [in] December 2014 to refuse his application for a protection visa.
The applicant claimed he would suffer significant harm if he was removed from Australia to Mongolia because of his bi sexual orientation.
The applicant arrived in Australia [in] January 2011. He first applied for a protection visa [in] April 2011 and his application was refused. He sought merits review in the Refugee Review Tribunal and the Tribunal affirmed the refusal decision.
[In] July 2013 the applicant made a second application for a protection visa which was initially determined to be invalid but accepted as a valid application following the decision in SZRNJ v MIAC [2014] FCCA 782. He provided a number of documents including
·Copies of applicant’s identification card and passport extract.
·Statutory Declarations made by the applicant [in] June 2011 and [in] December 2012.
·Submissions made by the applicant’s representative to the delegate [in] August and [in] December 2011.
·Submissions made by the applicant’s representative to the Refugee Review Tribunal in October 2012.
·Submissions made by the applicant’s representative to the Ministerial Intervention Unit [in] November 2012.
·Medical Reports from [a doctor] [in] November 2011; [in] August 2012; [in] December 2012.
·Pathology [Report] [in] July 2011.
·Letter from [names] [in] December 2012.
The applicant attended an interview with the delegate [in] October 2014 and the applicant’s representative made submissions following that interview ([in] November 2014).
[In] December 2014 the delegate of the Minister for Immigration refused to grant the visa protection visa under s.65 of the Migration Act 1958 (the Act). The delegate found that the applicant did not meet the criteria for a protection visa.
This is an application for review of that decision. The applicant gave the Tribunal a number of documents to the Tribunal including;
·Statutory declaration of the applicant made [in] September 2016.
·Statutory declaration of [Mr A] made [in] September 2016.
The applicant appeared before the Tribunal on 28 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages. The applicant gave evidence about his background and claims at the hearing.
An earlier hearing was postponed at the request of the applicant. The mother of the applicant’s [Child 1] ([Ms B]) and his [Child 1] had separately applied for protection visas and he wanted to await the outcome of their applications before attending a Tribunal hearing.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. Following the hearing…

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

Case: [2017] AATA 155
Decision Date: 27 January 2017

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a bisexual man from Mongolia. The applicant had previously applied for a protection visa in 2011, which was refused, and his subsequent review application was also unsuccessful. The current application was made in July 2013, and the Tribunal was required to consider whether the applicant met the complementary protection criterion.

The primary legal issue before the Tribunal was whether the applicant qualified for a protection visa under the complementary protection provisions, specifically s.36(2)(aa) of the Migration Act 1958 (Cth). This required determining if Australia had protection obligations towards the applicant on grounds other than those covered by the Refugee Convention. The Tribunal also had to consider the application of s.48A of the Act, which imposes a bar on further protection visa applications in certain circumstances, and whether the applicant's previous application and review impacted his ability to make a further claim.

The Tribunal affirmed the decision not to grant the applicant a protection visa. It found that the applicant's previous application had been refused, and while the current application was made before the amendments to s.48A in May 2014, the Tribunal considered the principles established in cases like *SZRNJ v MIAC* and *SZGIZ v MIAC*. These cases indicated that a further application based on complementary protection could be valid even if a prior application had been refused, provided it did not simply duplicate the same essential criterion. However, the Tribunal concluded that the applicant did not satisfy the criteria for a protection visa, nor was he a member of the same family unit as a person who held a protection visa. Therefore, the Tribunal affirmed the decision to refuse the protection visa.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal has considered the evidence relating to the applicant’s sexual orientation and how it is expressed and it has also considered the evidence relating to the current treatment of Lesbian, Gay, Bisexual and Transgender (LGBT) individuals in Mongolia.Background The applicant gave oral evidence he is [age] and was born in [Mongolia]. His parents are still alive and living in Ulan Bataar, the capital of Mongolia. He has [siblings]. He keeps in contact with his family by telephone and SKYPE. He claims he is a Shamanist and his parents are Buddhists. The applicant attended school in Ulan Bataar and then studied [course] in college. After a year of working as a [occupation] he returned to college to complete [another] qualification. In 1997 he set up a [business] which traded in [goods]. He operated this business until he departed Mongolia in 2011. He lived at his parents’ home until 2009 when he purchased his own apartment in Ulan Bataar. When he came to Australia he borrowed money from his brother to pay for travel and living expenses. After he came to Australia he transferred the apartment to his brother to repay his debt. He explained that when he left Mongolia he first travelled to [Country 1] and he then travelled to [Country 2]. He stayed in [Country 1] and [Country 2] for some time before he departed for Australia. He claimed he wanted to come to an English-speaking country which did not discriminate against homosexuality.What is the applicant’s sexual orientation? The applicant stated that he married his first wife in 1997 when he was [age]. The applicant and his first wife met whilst they worked at the same [workplace] and they knew each other for 3 years. He claimed that he and his wife had a sexual relationship, she became pregnant and they married. His parents encouraged him to marry; however, the marriage only lasted for [number] months. They lived with their parents during the marriage. The applicant claimed that the marriage broke down when the applicant told his wife that he was bi-sexual. She was shocked by this disclosure and they separated in 1997 and divorced in 2005. He and his wife had a [Child 2] who is now [age] and he told the Tribunal that he has not had any contact with his [Child 2] except for one occasion when [Child 2] was [age]. His wife refused to allow him contact; however, he told the Tribunal he did not take any action in the courts to have greater contact with his [Child 2]. He claimed his mother was told he had sexual contacts with other men. He denied he was interested in men but she tried to use a “Buddhist monk” to cure him on one occasion. He told the Tribunal that he considered himself to be bi-sexual and is attracted to men and women. He stated that Mongolia has a small population and society does not accept homosexuality or bi-sexuality. He claimed that it was difficult to be open about sexuality and he had to hide his attraction to men in Mongolia because it was not socially acceptable. He stated that he had sexual contact with a few foreigners in Mongolia and a secret relationship with [someone] who was married with a family. He did not have any long-term relationships.

Evidence

Evidence Before The Court

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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.Louise NichollsSenior Member 27 January 2017ATTACHMENT ARELEVANT 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 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.

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION The issue in this case is whether the applicant meets the complementary protection criterion. How does the Tribunal deal with a further protection visa application made before 28 May 2014? The applicant applied for a protection visa [in] July 2013. In answer to Question 2 in Form B of the application he stated that he had previously applied for a protection visa [in] April 2011 File no CLF [number]. At the Tribunal hearing the applicant stated that he arrived in Australia in January 2011 and previously applied for his protection visa in April 2011. There is no dispute that his first application was refused and his application for review was unsuccessful. The decision by the Refugee Review Tribunal affirming the decision to refuse the protection visa considered both the refugee and complementary criterion even though the delegate had not considered the complementary protection criterion. Taking all of the above into account the Tribunal considers that the applicant made a protection visa application in 2011 and his first application was refused. He made a further application [in] July 2013 and that is the subject of this review. Where an application made on the basis of the refugee criterion was refused by the Department without considering complementary protection, an applicant may still apply again on the basis of the complementary protection criterion, even if the Tribunal considered the complementary protection criteria in affirming the refusal.[1][1] In SZRNJ v MIAC [2014] FCCA 782 (Judge Cameron, 17 April 2014), the Federal Circuit Court held that a further protection visa application based on complementary protection was valid, notwithstanding that the Tribunal had addressed complementary protection in its review of the earlier decision. The Court drew a distinction between the delegate’s decision and the Tribunal’s decision for the purposes of s.48A, finding that the Tribunal’s decision was irrelevant to the question of when an application has been ‘refused’: at [22]-[23]. Where a further application for a protection visa was made before 28 May 2014, s.48A applies as it was before amendment by the Migration Amendment Act 2014. Before this amendment, s.48A(2) provided that an ‘application for a protection visa’ included ‘an application for a visa, a criterion of which is mentioned in s.36(2)(a), (aa), (b) or (c)’, which respectively relate to being either a person in respect of whom Australia has protection obligations under the Refugees Convention, a person in respect of whom Australia has protection obligations under the ‘complementary protection’ criterion, or a member of the same family unit of either such person. In SZGIZ v MIAC, the Full Federal Court held that the operation of the statutory bar in s.48A was confined to a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application.[2] That is, it did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) or the family membership criteria in s.36(2)(b) or (c) while he or she remained in the migration zone.[2] SZGIZ v MIAC (2013) 212 FCR 235 at [38].