1502803 (Refugee)

Case [2016] AATA 4172

1502803 (Refugee) [2016] AATA 4172 (28 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502803

COUNTRY OF REFERENCE:                  India

MEMBER:Brendan Darcy

DATE:28 July 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 28 July 2016 at 1:34pm

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

  1. 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).

  2. The applicant who claims to be a citizen of the Republic of India, applied for the visa [in] May 2014 and the delegate refused to grant the visa [in] January 2015.

  3. The applicant appeared before the Tribunal on 19 July 2016 to give evidence and present arguments.

    RELEVANT LAW

  4. 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

  5. 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).

  6. 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.

  7. 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.

  8. There are four key elements to…

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1502803 (Refugee) [2016] AATA 4172
Case
[2016] AATA 4172
Decision Date

CaseChat Overview and Summary

The applicant, an Indian national, sought judicial review of a decision by the Refugee Tribunal. The applicant had applied for a Protection visa after his student visa was refused and subsequent appeals were unsuccessful, leading to his status as an unlawful non-citizen. The Tribunal had affirmed the Department's refusal of the applicant's student visa application.

The primary legal issue before the court was whether the Refugee Tribunal had erred in law when affirming the Department's decision to refuse the applicant's Protection visa application. This involved considering whether the Tribunal had properly taken into account relevant policy guidelines and country information as mandated by Ministerial Direction No. 56, and whether its assessment of the applicant's claims was reasonable and supported by evidence.

The court's reasoning focused on the Tribunal's obligation to consider specific policy guidelines, including those related to complementary protection and refugee law, as well as any relevant country information assessments prepared by the Department of Foreign Affairs and Trade. The court examined whether the Tribunal had adequately addressed the applicant's claims in light of these materials and whether its findings were logically derived from the evidence presented. The court noted that the applicant had not attended a scheduled hearing before the Tribunal and had subsequently withdrawn his appeal to the Federal Court before the current judicial review.

The provided text does not contain the final orders or outcome of the judicial review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant claims to be born in Vadodora in the Indian state of Gujarat on [date] and to be a citizen of the Republic of India. The applicant submitted a certified copy of his birth certificate and his valid passport to the Department indicating that the applicant is a citizen of India. The applicant claims to be able to speak, read and write in English, Gujarati and Hindi; that his ethnicity is Gujarati; that his religion is Hindu; and that his caste identification is [name]. The applicant claims both his parents are extant and living in Vadodora; that his father was a former [occupation] at a [workplace] but is now a pensioned retiree in his [age]; and that his mother is in her [age]. The applicant has never married or has been engaged and has no children. The applicant claims to have [a sibling] who qualified for and is [occupation]. Visa History The applicant was granted a class TU subclass 573 student for higher education [in] November 2007. The visa was valid until [September] 2011. The applicant applied to study for a [tertiary course]. [In] February 2008, the applicant arrived in Australia. [In] March 2008, the applicant applied for another class TU subclass 573 visa that was granted that day and was valid until [September] 2011. [In] September 2011, the applicant submitted an application for a class TU subclass 572 visa for vocational education and was granted an associated Bridging visa with a work limitation. [In] October 2011, the applicant submitted a 956 form notifying the department that his migration agent was from [agency]. [In] January 2012, the student visa application was refused. [In] February 2012, the applicant appealed the decision to the Tribunal, differently constituted and on 6 September 2013, the MRT affirmed the Department's decision. As discussed during the hearing, the applicant did not attend the scheduled hearing in this instance. [In] October 2013, the applicant submitted an appeal to the Federal Court and was granted an associated bridging visa without work rights. According to the decision record which was submitted by the applicant to the Tribunal, the applicant continued to be assisted and represented by [agency] throughout the appeals process. [In] April 2014, the applicant withdrew his appeal to the Federal Court. [In] May 2014, the applicant's bridging visa expired. After becoming an unlawful non-citizen, the applicant submitted an application for a Protection visa [in] May 2014 and was granted an associated Bridging E visa without work rights after complying with a request to approach the Compliance counter to obtain a Bridging visa [in] March 2014. Written Claims for Protection

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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