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1509999 (Refugee)

1509999 (Refugee)

Case [2017] AATA 2139 17 October 2017

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1509999 (Refugee) [2017] AATA 2139 (17 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1509999
COUNTRY OF REFERENCE:                  Thailand
MEMBER:Susan Trotter
DATE:17 October 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 17 October 2017 at 4:43pm

CATCHWORDS

Refugee – Protection Visa – Thailand– Particular social group –Unaccompanied and Separated Children – Vulnerable person – Minor applicant – Domestic violence – Parents deceased – Alternative care – Referral to minister

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 417, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
BZADA v MIC and RRT [2013] FCA 1062
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chan Yee Kin v MIEA (1989) 169 CLR 379
Applicant A v MIEA (1997) 190 CLR 225
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Khawar (2002) 210 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Applicant S v MIMA (2004) 217 CLR 387
Appellant S395/2002 v MIMA (2003) 216 CLR 473
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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 [in] July 2015 to refuse to grant the applicant, [Master A] (date of birth [date of birth]), a protection visa under s.65 of the Migration Act 1958 (the Act).
[Master A] was [age] years of age as at the date of the visa application and was [age] years of age as at the date of the Tribunal hearing and will be referred to by his [nickname]throughout the remainder of these Reasons.
[Master A], who claims to be a citizen of Thailand, applied for the visa [in] February 2014.
The delegate refused to grant the visa on the basis that they were not satisfied that [Master A] is a person in…

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 1509999 (Refugee)

Details

AGLC: 1509999 (Refugee) [2017] AATA 2139
Case: [2017] AATA 2139
Decision Date: 17 October 2017

CaseChat Overview and Summary

The applicant, a minor, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to be a member of the particular social group of unaccompanied and separated children in Thailand, who were vulnerable persons facing domestic violence and whose parents were deceased. The applicant argued that they would be at risk of harm if returned to Thailand due to their vulnerability and lack of alternative care.

The primary legal issue before the court was whether the applicant met the criteria for a protection visa, specifically whether they belonged to a particular social group as defined by the *Migration Act 1958* (Cth) and relevant international conventions. This involved determining if the group of unaccompanied and separated children in Thailand, particularly those who have experienced domestic violence and have no parental support, constituted a "particular social group" for the purposes of refugee protection. The court also had to consider whether the applicant would face a real chance of persecution or significant harm if returned to Thailand.

The court considered the evidence presented regarding the circumstances of unaccompanied and separated children in Thailand and the potential risks they face, including exploitation and violence. It applied the established legal principles for identifying a "particular social group," which requires the group to be defined by characteristics that are immutable or fundamental to their identity, and that are recognised as distinct by society. The court found that the applicant's circumstances, including their status as a minor, their lack of parental care, and their vulnerability to domestic violence and exploitation in Thailand, established them as a member of a particular social group to whom Australia owed protection obligations.

The court set aside the Minister's decision and remitted the matter to the Minister for reconsideration.

Orders