1504947 (Refugee) - [2017] AATA 923

1504947 (Refugee) [2017] AATA 923 (18 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1504947
COUNTRY OF REFERENCE:                  Cambodia
MEMBER:Sydelle Muling
DATE:18 May 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 18 May 2017 at 6:05pm

CATCHWORDS
Refugee – Protection visa – Cambodia – Particular social group – Women – Victims of sexual violence – Victims of crime – Effective protection – Delay in applying for protection – Social ostracism – Ministerial Intervention request

LEGISLATION
Migration Act 1958, ss 36, 65, 345, 351, 391, 417, 424AA, 454, 499, 501J
Migration Regulations 1994 Schedule 2

CASES
Selvadurai v MIEA & Anor (1994) 34 ALD 346
Andaraj Subramaniam v MIMA [1998] FCA 305
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 Cambodia, applied for the visa [in] December 2013 and the delegate refused to grant the visa [in] March 2015.
The applicant appeared before the Tribunal on 11 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [the applicant’s husband]. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
The applicant was represented in relation to the review by her registered migration agent.
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…

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 1504947 (Refugee)

Details

AGLC: 1504947 (Refugee) [2017] AATA 923
Case: [2017] AATA 923
Decision Date: 18 May 2017

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a citizen of Cambodia. The applicant sought review of a decision not to grant her a protection visa. The core of the dispute revolved around whether the applicant met the criteria for a protection visa under Australian law, specifically concerning Australia's protection obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, or alternatively, under complementary protection grounds.

The legal issues before the Tribunal were whether the applicant was a refugee as defined by the Convention, or whether there were substantial grounds for believing that she would suffer significant harm if removed from Australia, thereby engaging Australia's complementary protection obligations. The Tribunal was required to consider the applicant's claims in light of the criteria set out in section 36 of the Migration Act 1958 and Schedule 2 of the Migration Regulations 1994, as well as relevant Ministerial Directions and Departmental guidelines.

The Tribunal considered the applicant's claims and the relevant ministerial guidelines concerning discretionary powers. While the specific reasoning for affirming the decision not to grant the visa is not detailed, the Tribunal ultimately affirmed the original decision. The Tribunal then referred the matter to the Department, indicating a further step in the process, though the outcome of that referral is not specified.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant was represented in relation to the review by her registered migration agent. 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. The applicant claims to be a citizen of Cambodia who was born in Kompong Cham, Cambodia on [date]. According to her protection visa application, the applicant’s ethnicity is Khmer and her religion, Buddhism. She resided in [her home town in] Kampong Cham province. She completed [number] years education and is fluent in Khmer. The applicant described her occupation before coming to Australia as student. She departed Cambodia legally [in] June 2012. She was married [in] September 2013 in [town]. Her parents [and specified family members] are living in Cambodia. She is in phone contact with her relatives.

Decision

Reasons for decision

The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ and will refer the matter to the Department.DECISION The Tribunal affirms the decision not to grant the applicant a Protection visa.Sydelle MulingSenior Member

Ratio Decidendi

Legal Principle Established

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