1512002 (Refugee) - [2017] AATA 1823

1512002 (Refugee) [2017] AATA 1823 (9 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512002
COUNTRY OF REFERENCE:                  Palestinian Terr. (W.Bank/Gaza)
MEMBER:Denis Dragovic
DATE:9 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 09 October 2017 at 8:54am
CATCHWORDS
Refugee – Protection visa – Palestinian Territories – Ethnicity – Palestinian – Social group – Stateless – Homosexual – United Nations Relief and Works Agency (UNRWA) – Family and general threats
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
CASES
Tjhe Kwet Koe v Minister for Immigration & Ethnic Affairs & Ors [1997] FCA 912
MIMA v WABQ (2002) 121 FCR 251
WACG v MIMA [2002] FCAFC 332
Appellant S395/2002 v MIMA (2003) 216 CLR 473
SZSWB v MIBP [2014] FCCA 765
MZAIV v MIBP [2015] FCCA 2782
BBS16 v MIBP [2017] FCCA 4
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).
Regarding the applicant’s country of reference, the delegate referred to Tjhe Kwet Koe v MIEA[1] in which it was determined that the wording, ‘country of his former habitual residence’ as constructed in the Refugee Convention does not have to be a state. The delegate summarised the court’s decision as being that a territory may constitute a ‘country’ if it has a distinct area with identifiable borders, enjoys a degree of autonomy in relation to its administration and is considered a country as a matter of every day usage. Based upon this the delegate determined that the Palestinian Territories is the applicant’s country of reference for the purpose of assessing his claims under the Refugees Convention and that it is the applicant’s receiving country as defined in section 5 of the Migration Act for the purpose of assessing the complementary protection criteria. I have reviewed the same material and concur with the delegate’s ultimate finding that the applicant has no nationality and therefore is stateless. As such I have considered the applicant’s country of former habitual residence, a term considered in Tjhe Kwet Koe v MIEA and found by Tamerlin J to not be restricted to independent sovereign states. As such I consider the Palestinian Territories as the applicant’s country of former habitual residence for the purpose of the Refugee Convention and receiving country for the purpose of complementary protection.
[1] Tjhe Kwet Koe v Minister for Immigration & Ethnic Affairs & Ors [1997] FCA 912 (8 September 1997)
The…

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.

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Details

Case: [2017] AATA 1823
Decision Date: 9 October 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa. The applicant, a Palestinian national from the Palestinian Territories, claimed to fear persecution based on his ethnicity, his membership in a particular social group (homosexuals), and general violence within his community. The Tribunal was tasked with determining whether the applicant met the criteria for a protection visa under Australian law, specifically whether he had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

The Tribunal was required to assess the applicant's claims of persecution in light of the definition of a refugee under Article 1A(2) of the Refugees Convention, as incorporated into Australian law by the Migration Act 1958 and Migration Regulations 1994. This involved determining if the applicant had a well-founded fear of serious harm and systematic and discriminatory conduct, and whether such harm was official, officially tolerated, or uncontrollable by the authorities. The Tribunal also had to consider whether the applicant's fear was motivated by something perceived about him or attributed to him by his persecutors.

The Tribunal accepted the applicant's narrative regarding his upbringing in a refugee camp, the general violence he witnessed, and a specific incident where he was attacked by individuals he believed to be Jewish fanatics. It also accepted his account of being beaten by his father due to his homosexual relationships. However, the Tribunal ultimately affirmed the decision under review, indicating that the applicant did not meet the threshold for a protection visa. The specific reasons for this conclusion, particularly in relation to the elements of persecution and well-founded fear, were not detailed in the provided text.

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 noted to the psychiatrist that he has had thoughts of self-harm. This led to the Tribunal fast tracking the hearing upon receipt of the medical report.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence and Findings of Fact The applicant was born in [Refugee Camp 1] [where] he grew up and attended a [school] until he was [age] years old. UNRWA provides services to the camp but is not responsible for administering or policing them which falls under the ‘host authorities’.[10] The applicant claimed that he witnessed much of the war as he was growing up, a statement that aligns with evidence that [Refugee Camp 1] was severely affected during the second intifada by ‘incursions, arrests, raids and curfews.’[11] I accept that the applicant was born, grew up, attended school and was witness to the events that transpired over the years in [Refugee Camp 1].[10] [Source deleted]. [11] [Source deleted]. The applicant has [siblings]. [The siblings] are in [another country]. [Other] brothers live in [Refugee Camp 1]. [One brother] spent time in jail, and [the other brother] recently graduated but the applicant was not sure if he had a job. The last time they talked was two years ago. Of his sisters, [number] are married with one residing in [Refugee Camp 1], one near [City 1] and another near [another city]. The last sister is still living with her parents who are both still alive. I accept this narrative of his family structure. He explained how he would spend his days prior to coming to Australia. His father wanted him to work alongside him and so he would join him at the shop. Sometimes, for reasons the applicant stated were related to his father knowing that he had gay relationships, he would be beaten in front of his mates and reprimanded by his father not to join them. His main responsibilities were to monitor the shop and call his father, when out on a job, if someone came to buy something. The camp was a small place and so it was easy to get around quickly. He explained that his father thought that he was a bludger. I accept that this occurred. In July 2012 he was walking with his friend when he claimed that Jewish fanatics attacked him. They were hiding behind trees near the Wall and attacked him with glass or bottles. He believes that they came from a nearby Jewish settlement. He sustained an injury to [a part of his body]. He had to be taken to a hospital where he claims they refused to do any surgery. When his mother tried to organise for medical help they couldn’t get any because he didn’t have any insurance or money. He was then transferred to [a hospital]. Because of the delays he has permanent damage to [his body]. I accept that this occurred. I asked if he has experienced any other general violence in the West Bank. He said that he has seen everything—killing, shooting, violence in the camp, all the parties are fighting against each other. Young people die. He sees blood every day. Tanks at the doorsteps. During the first twelve years of his life he lived in fear. Every party wants to dominate the camp, until today there is no control, just fighting for domination, Fatah v Hamas. I put to him that it was my understanding that Hamas’ influence in West Bank diminished substantially. He responded that in the camp there are many groups fighting against each other, everybody wants to dominate and that it is constant. I accept that as a resident of [Refugee Camp 1] the applicant has seen considerable generalised violence.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.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.Refugee criterion 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. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Ratio Decidendi

Legal Principle Established

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