1611861 (Refugee) [2020] AATA 5604 (22 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1611861
COUNTRY OF REFERENCE: Zambia
MEMBER:Simone Burford
DATE:22 December 2020
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 22 December 2020 at 2:29pm
CATCHWORDS REFUGEE – protection visa – Zambia – fear of harm from ex-husband and respective families – particular social group – single, divorced woman in Zambia – former bigamist – credibility concerns – delay in seeking protection and migration history – providing false information regarding marital status – delay in notifying the Department of change in relationship status – country information – situation of single women in Zambia and employment prospects – bigamy laws in Zambia – decision under review affirmed
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 on 6 July 2016 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 Zambia, applied for the visa on
22 December 2014. The delegate refused to grant the visa on the basis that that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in the Act and was not a member of the same family unit as a non-citizen in respect of whom Australia has protection obligations.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 2 August 2016. She provided a copy of the delegate’s decision to the Tribunal.
The applicant attended an initial hearing before the Tribunal on 19 December 2019. Further hearing of the application was delayed by the closing of the Tribunal Registry due to the COVID-19 Pandemic. The applicant attended further hearings on 19 August 2020 and 1 September 2020 following the recommencement of in person hearings at the Tribunal.
At the initial hearing the Tribunal outlined for the applicant the issues it was considering and confirmed that the applicant did not have any changes to make to her claims for protection. The Tribunal also took evidence regarding the applicant’s background and whether there were any changes to her personal circumstances since the application was filed. The applicant’s claims for protection and the evidence on which she was seeking to rely in support of her calims were discussed at the second and third hearings.
The applicant was…
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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AGLC
1611861 (Refugee) [2020] AATA 5604
Case
[2020] AATA 5604
Decision Date
CaseChat Overview and Summary
The applicant sought judicial review of a decision by the Refugee Review Tribunal (RRT) that affirmed the delegate's decision to refuse her protection visa. The applicant, who had arrived in Australia on a student visa, claimed to fear persecution upon return to her home country.
The central legal issue before the court was whether the RRT had erred in law by failing to adequately consider the applicant's claims of harm and by not properly assessing the evidence presented. Specifically, the court was required to determine if the RRT had given sufficient weight to the applicant's personal circumstances, the supporting documentation, and the country information relevant to her situation.
The court found that the RRT had not adequately explained its reasoning regarding the applicant's fear of harm, particularly in light of the evidence presented. The Tribunal's statement that poorer economic circumstances in the applicant's home country were unlikely to constitute a well-founded fear of harm, without further detailed analysis of how this applied to the applicant's specific circumstances and the evidence before it, was considered insufficient. The court noted that the RRT had a duty to provide a clear and comprehensive explanation of its findings and the basis for its conclusions, which it had failed to do in this instance.
The court ordered that the decision of the Refugee Review Tribunal be set aside and remitted to the Tribunal for redetermination according to law.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The information contained in the material and the applicant’s responses to it are discussed further below.Evidence The applicant submitted a number of documents in support of her application to both the Department and the Tribunal. Relevant to the issues before the Tribunal, the applicant submitted the following documents to the Department:·a Personal Statement from the applicant;·Statement of Attainment printed 11 June 2016 and a Record of Results printed 11 June 2016 from [Institution 2];·a set of photographs headed ‘March 2014 holiday trip back home’;·a set of photographs headed ‘[Country 2] Mission Trip 2011’;·a set of photographs headed ‘[Country 1] Mission Trip 2010’;·a document titled ‘Compelling reasons leading towards the cancellation of my student visa’;·an offer of admission to the Bachelor [degree] program from [University 3] dated 2 May 2012;·a letter of support from [Mr C], Social Worker Member AASW, dated 13 August 2012;·a letter of support from [Mr D], [health services provider], Psychologist, dated 10 August 2012;·a document titled ‘a BRIEF Account of my Family’;·copies of text messages with hand annotations purporting to be between the applicant and her mother from August 2014, September 2014, March 2015 and November (year not indicated), and the applicant and her sisters from September 2014 and October 2014; ·copies of an email from the applicant’s sister dated ‘9/15/15’; ·divorce documents for the applicant and [Mr A] filed with the High Court for Zambia from July 2014;·an undated letter of support from [Ms E];·various academic awards, statements of attainment and certificates from [Institution 1 and various other institutions and organisations]. Additional identity documents and documents relating to the applicant’s financial circumstances in Australia were also submitted to the Department. Before the Tribunal, in addition to a copy of the delegate’s decision, the applicant submitted the following documents:·an undated letter of support from [Paster F] from [Church 1];·a letter of support from [Dr G], President, [community organisation] dated 14 November 2019;·various photographs headed ‘Community Involvement’;·written submissions from the applicant dated 26 August 2020 attaching a highlighted copy of the document titled ‘Compelling reasons leading towards the cancellation of my student visa’ which was submitted to the Department, which the submissions indicate was prepared on 14 August 2012, and a highlighted version of the undated letter of support from [Ms E];·a letter of support from [Ms H] dated 25 August 2020;·an undated letter of support from [Mr I];·copies of email correspondence between the applicant and [Mr A] from various dates between November 2010 and December 2012. At the first hearing the Tribunal explained to the applicant that the relatively poorer economic circumstances in Zambia would be unlikely to give rise to a cognisable, well-founded fear of harm, for the purposes of the refugee criteria, in the absence of other considerations. The Tribunal also explained that at the next hearing it would discuss some of the findings in the delegate’s decision, country information and any concerns it had about the applicant’s claims.