1510996 (Refugee) - [2017] AATA 2210

1510996 (Refugee) [2017] AATA 2210 (13 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1510996
COUNTRY OF REFERENCE:                  Iran
MEMBER:Denis Dragovic
DATE:13 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 13 October 2017 at 9:32am

CATCHWORD
Refugee – Protection visa – Iran – Social group – Member of lay religious group – Vulnerable person – Memory Issues – Fear of harassment and arrest – Second applicant’s age of arrival
LEGISLATION
Migration Act 1958, ss 5, 36, 48A, 65, 417, 499
Migration Regulations 1994, Schedule 2 r 1.12
CASES
AMA15 v MIBP [2015] FCA 1424
SZGIZ v MIAC (2013) 212 FCR 235
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).
The applicants claim to be citizens of Iran. The Tribunal has viewed copies of their Iranian passports. The Tribunal accepts that the applicants are citizens of Iran and that Iran is their country of reference for Refugee Convention reasons and the receiving country for Complementary Protection purposes. I also find that the applicants cannot avail themselves of a right to enter and reside in a third country.
The applicants appeared before the Tribunal on 12 April, 29 May and 21 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [the second] named applicants’ wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
RELEVANT LAW
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 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a…

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 1510996 (Refugee)

Details

AGLC: 1510996 (Refugee) [2017] AATA 2210
Case: [2017] AATA 2210
Decision Date: 13 October 2017

CaseChat Overview and Summary

This matter concerned an application for protection visas by a husband, wife, and their son. The applicants, who departed Iran in July 2005, claimed they feared persecution upon return to Iran due to the primary applicant's former senior membership in a lay religious group that opposed the revolutionary government. Following the election of Mahmoud Ahmadinejad, the applicants alleged that members of their group were being targeted, arrested, and executed, leading them to remain in Australia and apply for protection visas. Their initial application was refused, and an appeal to the Tribunal was affirmed. A subsequent application was lodged in December 2013, following changes to the legal framework for protection visas.

The primary legal issue before the Tribunal was whether the applicants met the criteria for a protection visa under the relevant provisions of the Migration Act 1958 (Cth) and its associated Regulations. Specifically, the Tribunal had to consider whether the applicants could satisfy the criteria under s 36(2)(b) or (c) of the Act, which relate to being a member of the same family unit as a non-citizen who holds a protection visa. This required an examination of the definition of "member of the same family unit" as provided by s 5(1) of the Act and r 1.12 of the Migration Regulations 1994.

The Tribunal reasoned that the applicants failed to satisfy the criteria under s 36(2)(b) or (c) of the Act. This conclusion was reached after considering the evidence presented, including the primary applicant's claims of persecution and a psychiatrist's report concerning his mental health and memory. The Tribunal noted that the applicant's reported inconsistencies and lack of detail could be attributed to his mental state, but ultimately found that this did not alter the legal basis for refusing the visa. The Tribunal affirmed the decision not to grant the protection visas. However, the Tribunal recommended that the Minister consider the case of the second applicant, the son, under s 417 of the Act, given his young age upon arrival in Australia and the twelve formative years he had spent in the country.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and child.CONSIDERATION OF CLAIMS AND EVIDENCE Summary of the applicant’s claims: The applicants departed Iran [in] July 2005 a few weeks after the election of Mahmoud Ahmadinejad. The husband and wife travelled legally to Australia with their [age] year old son in 2005 for the purpose of obtaining IVF treatment. The primary applicant claimed that following the election a lay religious group that he was [an official] of was seeing its senior membership pursued by the government including board members being arrested and executed. Upon hearing this news the applicant chose not to return to Iran and instead he and his family have remained in Australia. The applicant fears that he and his family will be targeted by the opposing lay religious group and their proxies in the state security apparatus. As such they applied for a protection visa [in] September 2006. The application was refused and the decision was appealed to the Tribunal which affirmed the decision on 12 April 2007. The applicants remained on a succession of bridging visas until the legal framework changed. From 24 March 2012 a new criteria for the grant of protection visas was introduced by the Migration Amendment (Complementary Protection) Act 2011, so that a person may meet the criteria for a protection visa where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that she or he will suffer significant harm. The applicants submitted the application for the protection visa currently under review on 9 December 2013 following these changes. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Memory and Mental Health The primary applicant is [age] years old. He has spent the past [number of] years in Australia. Relevant information upon which the application is based reaches back to the early nineteen-eighties. The applicant has participated in numerous interviews and made repeated submissions over the period of his stay in Australia. In a consolidated review of past mental health examinations , [a] psychiatrist at the [Organisation 1], assessed the primary applicant in February 2015 with a particular focus on his mental health and possible memory loss. The report states that, ‘It does not appear that [the applicant] is suffering from Senile Dementia of the Alzheimer Type. I believe that his ongoing predicament contributes to his [mental] state and daily functioning, manifest primarily as[various symptoms]. There are no signs suggestive of a dementing process. In my opinion it is not inconceivable that [the applicant’s] reported inconsistencies and lack of detail may be contributed to by his mental state.’[1] [1] [File number] folio 152

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Memory and Mental Health The primary applicant is [age] years old. He has spent the past [number of] years in Australia. Relevant information upon which the application is based reaches back to the early nineteen-eighties. The applicant has participated in numerous interviews and made repeated submissions over the period of his stay in Australia. In a consolidated review of past mental health examinations , [a] psychiatrist at the [Organisation 1], assessed the primary applicant in February 2015 with a particular focus on his mental health and possible memory loss. The report states that, ‘It does not appear that [the applicant] is suffering from Senile Dementia of the Alzheimer Type. I believe that his ongoing predicament contributes to his [mental] state and daily functioning, manifest primarily as[various symptoms]. There are no signs suggestive of a dementing process. In my opinion it is not inconceivable that [the applicant’s] reported inconsistencies and lack of detail may be contributed to by his mental state.’[1] [1] [File number] folio 152 Due to his age and ‘ [mental] state’ I accept that the applicant is a vulnerable person as defined in Guidelines on Vulnerable Persons. I also note the Guidelines on the Assessment of Credibility in which it states, ‘A person may not be able to remember all the details of his or her personal history or reconstruct the chronological order of particular events. A person may remember events that affected him or her most in emotional or physical terms but not the time sequence. Such confusion and forgetfulness do not necessarily imply that person is not telling the truth.’[2][2] Migration and Refugee Division, Guidance on the Assessment of Credibility, at [30] At the hearing I noted that it appeared from the documentation that the applicant’s memory had deteriorated. For this reason at the onset of the hearing I asked to what degree he can remember the details of his claims. He responded that he feels like he has dementia as the details are forgotten. At the second hearing the applicant was unable to respond to many questions including questions that were asked and answered by him in the first hearing. He claimed that he had Alzheimer’s. I requested a doctor to certify the claim. He did not provide any submissions. I note that the most recent medical assessment states that he is not suffering from ‘Senile Dementia of the Alzheimer Type.’ Considering the considerable amount of information already available to the Tribunal from earlier interactions when the applicant was more willing to engage or his memory was serving him better I proposed to refer to his earlier submissions for any missing details. Where there was a contradiction I’d present it to him for comment. The applicant offered no objections.Evidence Submissions received A statutory declaration dated [in] October 2006[3] was submitted by the applicant. In this submission the applicant states:·The applicant was a [member] in about [year] of [a religious group]. ·The aim of [Religious group 1] was to follow Fatemeh. It grew to have a membership of about [a number of] people. Before the revolution they would hold regularly weekly meetings. The group was not clandestine. ·[Some] months after the 1979 revolution it broke into two groups. One half followed the revolution the other half of members chose to start a new group [of] which he was[a senior official], ‘the most important position within the [Religious Group 2]’. This group ‘opposed the revolutionary government and supreme leadership. We believe that the only legitimate leadership is the Lord of the Age (the Promised One) when he returns.’·The group would explain to student and business supporters that having a supreme leader was sacrilegious. ·Between 1978 and 2004 the two groups operated without significant problems or incidents·Since the election of the new [official] [Religious group 2] members had to operate on a clandestine level because [Religious group 1] began to threaten members of the applicant’s group. They tried to coerce them to join their group. They threatened them that if they didn’t join them they would be reported to the security agencies. These threats made them fearful and as a result they conducted their meetings secretly. ·Leading up to coming to Australia the applicant claims that he did not believe that his life was in danger. ·In July he was informed that the leadership of the [Religious group 2] was being targeted. He was informed that [colleagues] had been executed, one imprisoned and that the remaining [leaders] of the group had disappeared or were in hiding. He has been warned by his friends that he will be ‘persecuted, imprisoned, or executed’ if he returned. After hearing these things he told his friends not to contact him anymore. [3] [File number] folio 60

Ratio Decidendi

Legal Principle Established

It follows that all three applicants are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.RECOMMENDATION FOR CONSIDERATION OF MINISTERIAL INTERVENTION Through the process of hearing this case I recommend that the Minister consider the applicant’s case under s.417 of the Act. The second name applicant was [an age] year old child when he first came to Australia. He is now [age] years old. All he has known is Australia and the Australian way of life. He has not been interested in Iranian politics or the diaspora living in Australia, instead he grew up as what he called an ‘Aussie’ including going to the football and ‘doing Australian things’. He only learned of the circumstances surrounding his family leaving Iran when he finished [school] at which point he could no longer continue his studies nor find work due to the visa conditions imposed upon them. Despite facing a life affecting situation that may well have led others to depression or illegal activities he has had no encounters with the law and instead married an Australian woman. Through three hearings with the second named applicant I have found him to be genuine in his evidence, respectful of the authority of the Tribunal and committed to his parents and wife. While a partner visa may be an option for the applicant, being an asylum seeker without the right to work and his parents having exhausted their resources he claims it has prevented him from applying for the visa. It is possible that his wife and her family may have the assets required to apply for a visa but this matter, not being a part of the protection visa review process, was not pursued further. For the reason of the applicant’s young age upon arrival and having spent twelve of his formative years in Australia the Tribunal considers that the circumstances warrant that it recommends to the Department that it conducts an assessment of his circumstances, including a consideration of the matters raised above and, accordingly, provides an appropriate submission to the Minister for his consideration. The Tribunal is not making a recommendation for Ministerial intervention on behalf of the primary and third named applicant.DECISION The Tribunal affirms the decision not to grant the applicants Protection visas.Denis DragovicSenior Member