1500666 (Refugee) - [2016] AATA 4200

1500666 (Refugee) [2016] AATA 4200 (25 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1500666
COUNTRY OF REFERENCE:                  Jordan
MEMBER:Shahyar Roushan
DATE:25 July 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 25 July 2016 at 2:02pm
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).
Application for a protection visa
The first named applicant (the applicant), a [age] year old citizen of Jordan and a Muslim, arrived in Australia [in] August 2013 on a [particular visa]. She applied to the Department of Immigration (the Department) for a Protection visa [in] June 2014. The second named applicant (the applicant daughter) has relied on her membership of the applicant’s family.
In a statement attached to her application for a protection visa, the applicant made the following claims:
She was born in [City 1] and grew up in [City 2] and [City 3]. She has completed [number] years of education and was employed as a [occupation] in Jordan.
In Jordan, the applicant was engaged to [Mr A], whom she met in 2004 at [location]. They were ‘in love’ for four years before becoming engaged (entering into an Islamic marriage contract (katb al-kitab), but not consummating the marriage) in 2008. After she was diagnosed with a [medical] condition in 2009, the engagement was broken off by [Mr A] and she was ‘divorced in absence’. As a result, she became ‘socially stigmatised’. Her friends, at the instigation of their parents, stopped talking to her and young men did not want to approach her.
The applicant then met [Mr B] online. He was a Facebook friend of one of her distant relatives. He was studying [overseas] at the time but he visited her in Jordan. She felt compelled to ‘accept’ him because of her ‘status as a divorced woman’. She told him about her previous relationship, as well as her [medical] condition. He asked her not disclose her previous relationship to his parents.
[Mr B] is [a particular sect] and [they] do not like to marry ‘from outside’. Their attitudes and lifestyle is also different to other Jordanians. When [Mr B] posted a photo of him kissing the applicant, his [sibling] called him to tell him that this was inappropriate. They also…

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 1500666 (Refugee)

Details

AGLC: 1500666 (Refugee) [2016] AATA 4200
Case: [2016] AATA 4200
Decision Date: 25 July 2016

CaseChat Overview and Summary

This matter concerned an application for review of a decision regarding a protection visa. The applicants, represented by a registered migration agent, sought to satisfy the criteria for a protection visa as set out in section 36 of the *Migration Act 1958* (Cth) and Schedule 2 to the *Migration Regulations 1994* (Cth). The primary dispute revolved around whether the applicants met the requirements for protection obligations under either the 'refugee' criterion or 'complementary protection' grounds.

The legal issues before the Tribunal were whether the applicants were persons in respect of whom Australia had protection obligations under the *1951 Convention relating to the Status of Refugees* as amended by the *1967 Protocol* (the Refugees Convention), or alternatively, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia, they would suffer significant harm. The Tribunal was also required to consider the criteria for family members applying for a protection visa.

The Tribunal considered the definition of a refugee under Article 1A(2) of the Refugees Convention, which requires a well-founded fear of persecution for specific reasons, leading to an inability or unwillingness to avail oneself of the protection of their country of nationality. It also examined the complementary protection criterion, which requires a real risk of significant harm upon removal. The Tribunal was directed to take account of relevant policy guidelines and country information.

The Tribunal concluded that one applicant satisfied the criterion under section 36(2)(a) of the *Migration Act*. However, it was not satisfied that the other applicant met the refugee or complementary protection criteria independently. Nevertheless, the Tribunal found that the other applicant was a member of the same family unit as the first applicant, satisfying section 36(2)(b)(i). Consequently, the Tribunal remitted the matter for reconsideration, directing that the first applicant satisfied section 36(2)(a) and the other applicant satisfied section 36(2)(b)(i) based on family membership.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.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 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. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). 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.Analysis, Reasons and Findings For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

Decision

Reasons for decision

The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in s.36(2)(a) or (aa). However, the Tribunal is satisfied that she is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application. As the first named applicant satisfies the criterion set out in s.36(2)(a), it follows that the other applicant will be entitled to a protection visa provided she meets the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa.DECISION The Tribunal remits the matter for reconsideration with the following directions:(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.Shahyar RoushanSenior Member

Ratio Decidendi

Legal Principle Established

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