1506629 (Refugee) - [2017] AATA 796

1506629 (Refugee) [2017] AATA 796 (24 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1506629
COUNTRY OF REFERENCE:                  Cambodia
MEMBER:Sydelle Muling
DATE:24 April 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 24 April 2017 at 12:45pm

CATCHWORDS
Refugee – Protection visa – Cambodia - Refusal of marriage proposals – Threats of violence – Social unrest at future elections – Single mother – Australian born children - Delay in application – Family violence in Australia – Request for Ministerial intervention
LEGISLATION
Migration Act 1958, ss 36(2)(a), (aa), (b), (c), 65, 417
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Selvadurai v MIEA & Anor
(1994) 34 ALD 346

Andaraj Subramaniam v MIMA
[1998] FCA 305
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] February 2014 and the delegate refused to grant the visa [in] April 2015.
The applicant appeared before the Tribunal on 5 April 2017 to give evidence and present arguments. 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 any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality,…

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 1506629 (Refugee)

Details

AGLC: 1506629 (Refugee) [2017] AATA 796
Case: [2017] AATA 796
Decision Date: 24 April 2017

CaseChat Overview and Summary

The applicant, a citizen of Cambodia, sought review of the decision not to grant her a protection visa. The dispute concerned whether Australia had protection obligations towards her under the Migration Act 1951 (Cth) and the Refugees Convention. The applicant claimed to fear persecution in Cambodia due to her refusal of marriage proposals and threats of violence, as well as concerns about social unrest at future elections. She also raised issues concerning her Australian-born children and family violence experienced in Australia. The matter was heard by Sydelle Muling of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1951 (Cth) (the refugee criterion) or section 36(2)(aa) (the complementary protection criterion). This involved assessing whether she had a well-founded fear of persecution for a Convention reason or whether there was a real risk of significant harm if she were removed from Australia. Additionally, the Tribunal considered a request to refer the case to the Minister for consideration under section 417 of the Act, which allows the Minister to substitute a more favourable decision if it is in the public interest.

The Tribunal affirmed the decision not to grant the protection visa. While acknowledging the applicant's claims and the evidence submitted, including documents relating to family violence and intervention orders, the Tribunal found that the applicant did not meet the criteria for a protection visa. The Tribunal also considered the ministerial guidelines regarding discretionary powers but decided not to refer the matter to the Minister under section 417, noting that the applicant could still make a direct request to the Minister.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 [a] village, [name] commune, Steung Trang district, 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] December 2009. She has been in a de facto relationship since January 2013. Her parents and [sibling] are living in Cambodia. She is in phone contact with her parents.

Decision

Reasons for decision

At the conclusion of the hearing, the applicant’s adviser requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant’s adviser raised issues regarding the applicant’s children who were both born in Australia and whose father is an [nationality] citizen resident here. According to the applicant’s adviser, the applicant’s relationship with her children’s father had broken down as a result of family violence. Following the hearing the Tribunal received a number of documents including an application for [country] citizenship for the applicant’s children; the children’s birth certificates; the applicant’s marriage certificate; a notice of hearing in respect of a family violence complaint at [name] Magistrates’ Court [in] May 2016; an intervention order issued by the [name] Magistrates’ Court [in] May 2016 and a statement made by the applicant to police [in] July 2016. 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)’ but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.DECISION The Tribunal affirms the decision not to grant the applicant a Protection visa.Sydelle MulingMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.