1514349 (Refugee) - [2018] AATA 3957

1514349 (Refugee) [2018] AATA 3957 (28 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514349
COUNTRY OF REFERENCE:                  Venezuela
MEMBER:Nicole Burns
DATE:28 August 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 28 August 2018 at 11:17am
CATCHWORDS
REFUGEE – Protection visa –Venezuela – Political opinion – Actively involved in anti–government activities in Venezuela and Australia – Father worked for opposition leadership – Particular social group – Homosexual – Significant mental health issues – Third country protection – Holder of valid temporary visa for third country – Whether visa provides right to reside permanently – Decision under review remitted for reconsideration
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 438, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMAC v SZRHU (2013) 215 FCR 35.
SZMWQ v MIAC (2010) 187 FCR 109
SZQRM v MIAC [2013] FCCA 772
SZQRM v MIBP [2013] FCA 1297
SZRTC v MIBP (2014) 224 FCR 570
SZRTC v MIBP (2014) 224 FCR 570
WAGH v MIMIA (2003) 131 FCR 269
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).
The applicant, who claims to be a citizen of Venezuela, applied for the visa on [date] March 2014 and the delegate refused to grant the visa on [date] October 2015 on the basis that they were not satisfied the applicant had a well-founded fear of persecution or faced a real risk of significant harm in Venezuela under s.36(2)(a) and s.36(2)(aa) of the Act. As such, although the delegate indicated in his decision record the applicant may have third country protection in [Country 1] because he holds a valid [Country 1] visa (discussed further below), the delegate did not consider it necessary to make findings in this respect.
The applicant appeared before the Tribunal on 15 March 2018 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
The issue in this case is whether Australia has protection obligations with respect to the applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
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…

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 1514349 (Refugee)

Details

AGLC: 1514349 (Refugee) [2018] AATA 3957
Case: [2018] AATA 3957
Decision Date: 28 August 2018

CaseChat Overview and Summary

The applicant, a national of Venezuela, sought a protection visa in Australia. He claimed he could not return to Venezuela due to his homosexuality, his past active protests against the Venezuelan government both in Venezuela and Australia, and the political activities of his father who had worked for an opposition leader. The applicant also cited a fear of criminals due to the high crime rate in Venezuela, detailing past attacks and a kidnapping incident. Furthermore, he had significant mental health issues, including diagnoses of [Mental Health Condition 1], [Mental Health Condition 2], and [Mental Health Condition 3], and had been hospitalised in Venezuela for these conditions.

The legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group (homosexuals) or for reasons of political opinion, and whether Australia had protection obligations towards him under the Refugees Convention. The Tribunal was also required to consider the applicant's claims regarding fear of common criminals and the impact of his mental health conditions on his ability to seek protection. The Tribunal was directed to take into account relevant Ministerial Directions and guidelines, including those concerning complementary protection and refugee law, as well as country information assessments.

The Tribunal found that the applicant had established a well-founded fear of persecution. It accepted that his homosexuality placed him within a particular social group and that his past protests constituted a political opinion. The Tribunal also considered the harassment his father faced due to his opposition to the government, which placed the applicant at risk. While acknowledging the prevalence of crime and the applicant's mental health issues, the primary basis for the protection finding rested on the claims of persecution related to his homosexuality and political opinion.

The Tribunal was satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention, thus meeting the criterion set out in s.36(2)(a) of the Migration Act. Consequently, the Tribunal remitted the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.CONSIDERATION OF CLAIMS AND EVIDENCEBackground and nationality The applicant is a [age]-year-old male from Caracas, Venezuela who first came to Australia as [an occupation] from [date] January 2012 to [date] August 2013 when he moved to [Country 1]. In [Country 1] he lived with an aunt and his grandmother before returning to Australia as the holder of a [temporary] visa on [date] January 2014. He applied for a protection visa shortly thereafter. The applicant provided to the Department of Immigration (the Department) copies of his Venezuelan passport and a translated copy of his birth certificate. On this basis, and given the delegate had no concerns about the applicant’s claimed nationality, the Tribunal accepts the applicant is a national of Venezuela and has assessed his protection claims accordingly. Claims and evidence In summary the applicant claims he cannot return to Venezuela as a gay man, who used to study [a particular discipline] and who has actively protested against the Venezuelan government in Venezuela and Australia. He claims to have been assaulted in the past because of his homosexuality. He is also at risk, it is submitted, because his father used to operate a [business] in Venezuela (and in that role worked for an opposition leader, Henrique Capriles) and was monitored and harassed by the authorities as a result. The applicant also claims to fear criminals, given the prevalence of violent crime in Venezuela. He claims to have been attacked by criminal elements a number of times in Venezuela in the past and after a kidnapping incident in 2010. He was diagnosed with [Mental Health Condition 1], [Mental Health Condition 2] and [Mental Health Condition 3] and spent time as an inpatient at a mental health facility in Venezuela. The applicant set out his claims initially in his protection visa application and a supplementary statement[1] provided to the Department. In his supplementary statement the applicant stated, among other things, that his father was [an Occupation 1] who was openly opposed to socialism in Venezuela and was involved in various projects considered anti-government, for example [details of project deleted] for the opposition movement. As a consequence the applicant’s father and his family noticed police following them, targeted because of their political ideas. At the review stage the applicant reiterated and expanded upon his claims in detail in a statutory declaration[2] provided to the Tribunal. He also provided copies of a number of reports and articles about human rights concerns and crime in Venezuela.[1] Received by the Department on 12 March 2014.[2] Dated 5 March 2018.

Decision

Reasons for decision

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Nicole BurnsMember

Ratio Decidendi

Legal Principle Established

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