1511316 (Refugee) - [2017] AATA 2840

1511316 (Refugee) [2017] AATA 2840 (13 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1511316
COUNTRY OF REFERENCE:                  Libya
MEMBER:Christopher Smolicz
DATE:13 November 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 13 November 2017 at 2:42pm

CATCHWORDS
Refugee – Protection Visa – Libya – Imputed political opinion – Supporter of Muammar Gaddafi – Libyan Revolutionary Committee – Al Linge Al Thawriah – Senior academic – Ethnicity – Mashashiya – Fear of persecution – Fear of violence – Militia groups – Lack of state protection – Third country protection – Arab Maghreb Union
LEGISLATION
Migration Act 1958, ss 36, 65, 425, 499
Migration Regulations 1994, Schedule 2
CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
WAGH v MIMIA (2003) 131 FCR 269
Applicant C v MIMA [2001] FCA 229
Kola v MIMA [2001] FCA 630
MIMA v Applicant C (2001) 116 FCR 154
Kola v MIMA (2002) 120 FCR 170
Suntharajah v MIMA [2001] FCA 1391
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 who claim to be citizens of Libya, applied for the visas [in] October 2013 and the delegate refused to grant the visas [in] August 2015.
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…

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 1511316 (Refugee)

Details

AGLC: 1511316 (Refugee) [2017] AATA 2840
Case: [2017] AATA 2840
Decision Date: 13 November 2017

CaseChat Overview and Summary

The applicants, who claimed to be citizens of Libya, sought protection visas after their applications were refused by the delegate. The matter came before the Tribunal for consideration of whether the applicants met the criteria for a protection visa under section 36(2) of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was to determine whether the first applicant satisfied the criteria for a protection visa, specifically whether there was a well-founded fear of persecution. This involved assessing whether the applicants met the definition of a refugee under Article 1A(2) of the 1951 Convention relating to the Status of Refugees, as incorporated into Australian law by section 36(2)(a) of the Act, or alternatively, whether they qualified for complementary protection under section 36(2)(aa) of the Act.

The Tribunal was required to consider the applicants' claims of fear of persecution based on imputed political opinion, specifically their alleged association with Muammar Gaddafi and the Libyan Revolutionary Committee, as well as their ethnicity. The Tribunal was to assess whether these fears were well-founded, considering the risk of violence from militia groups and the availability of state protection in Libya. In making its determination, the Tribunal was directed to have regard to policy guidelines from the Department of Immigration and country information assessments from the Department of Foreign Affairs and Trade.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicants who claim to be citizens of Libya, applied for the visas [in] October 2013 and the delegate refused to grant the visas [in] August 2015. 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 has taken 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Issue The first issue in this case is for the Tribunal to determine whether the first named applicant (the applicant) satisfies one or more of the criteria for a protection visa prescribed by s.36(2) (well-founded fear of persecution).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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