1604099 (Refugee) - [2019] AATA 5704

1604099 (Refugee) [2019] AATA 5704 (22 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1604099
COUNTRY OF REFERENCE:                   Mongolia
MEMBER:Christopher Smolicz
DATE:22 May 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 22 May 2019 at 1:32pm

CATCHWORDS
REFUGEE – protection visa – Mongolia – domestic violence – sexual violence – fears serious harm by uncles – family conflict – property dispute – inconsistent evidence – police corruption – fear of harm not well-founded – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MZAFZ v MIBP [2016] FCA 1081
SZTYV v MIBP [2018] FCA 1076
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 and Border Protection 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 Mongolia, applied for the visa on 3 December 2014 and the delegate refused to grant the visa on 26 February 2016.
The applicant appeared before the Tribunal on 30 April 2019 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.
The applicant was represented in relation to the review by her registered migration agent.
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…

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 1604099 (Refugee)

Details

AGLC: 1604099 (Refugee) [2019] AATA 5704
Case: [2019] AATA 5704
Decision Date: 22 May 2019

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a person from Mongolia. The applicant claimed to fear serious harm from her uncles due to family conflict and a property dispute, alleging domestic and sexual violence, and also raised concerns about police corruption in her home country. The review was conducted by Christopher Smolicz, a member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa as set out in section 36 of the Migration Act 1958 (Cth) and Schedule 2 of the Migration Regulations 1994 (Cth). This involved assessing whether the applicant was a refugee under Article 1A(2) of the Refugees Convention, or whether she qualified for complementary protection under section 36(2)(aa) of the Act due to a real risk of significant harm upon removal from Australia. The Tribunal was also required to consider relevant Ministerial Directions and guidelines, including those concerning complementary protection and refugee law, as well as country information assessments.

The Tribunal considered the applicant's claims and evidence, noting that the applicant did not suggest she satisfied the criteria by being a member of the same family unit as a person who held a protection visa. After reviewing the evidence, the Tribunal concluded that the applicant did not satisfy the criteria for a protection visa. Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.

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 was represented in relation to the review by her registered migration agent. 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 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Section 438 certificate As a preliminary issue the Tribunal notes that there are two certificates issued by a delegate of the Minister under s.438 of the Act located on the Department of Immigration and Border Protection’s file which have been provided to the Tribunal.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Christopher SmoliczMember

Ratio Decidendi

Legal Principle Established

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