1613506 (Refugee) - [2017] AATA 1801

1613506 (Refugee) [2017] AATA 1801 (9 August 2017)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613506
COUNTRY OF REFERENCE:                  Zimbabwe
MEMBER:Jane Marquard
DATE OF DECISION:  9 August 2017
DATE CORRIGENDUM
SIGNED:17 October 2017
PLACE OF DECISION:
AMENDMENT:  The following corrections are made to the decision:

In error:
The date listed of 8 August 2017 is incorrect on the decision record cover page.
Should read:
DATE OF DECISION: 9 August 2017
Jane Marquard
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613506
COUNTRY OF REFERENCE:                  Zimbabwe
MEMBER:Jane Marquard
DATE:8 August 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the second-named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the first-named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second-named applicant.

Statement made on 09 August 2017 at 9:16am
CATCHWORDS
Refugee – Protection visa – Zimbabwe – Social group – Disabled people – Women – No state protection
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 36, 65, 91R, 91S, 438, 499
Migration Regulations 1994, Schedule 2, r 1.12
CASES
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Mima v Haji Ibrahim (2000) 204 CLR 1
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
VSAI v MIMIA [2004] FCA 1602
MZAFZ v MIBP [2016] FCA 1081
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

The applicants are citizens of Zimbabwe. The first-named applicant is the mother of the second-named applicant, who is [age] years old.
The first-named applicant first arrived in Australia [in] June 2006 on a [temporary] visa. She departed Australia [in] June 2008.
She arrived in Australia the second time [in] July 2008, and departed [in] February 2011.
She arrived in Australia the third time [in] May 2011 and departed [in] September 2011.
She arrived in Australia the fourth time [in] October 2011 and departed [in] December 2012.
She arrived in Australia the fifth time [in] January 2013. [In] June 2013 she was granted a [temporary] Visa valid to [December] 2014.
[In] December 2014 the applicants applied for protection visas under s.65 of the Migration Act 1958 (the Act).
A delegate of the Minister for Immigration (the Department) refused to grant the visas [in] August 2016.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
The first-named applicant provided the following information to the Department:
·She was born in [Village 1], Mashonaland in [year]. The second-named applicant was born in…

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 1613506 (Refugee)

Details

AGLC: 1613506 (Refugee) [2017] AATA 1801
Case: [2017] AATA 1801
Decision Date: 8 August 2017

CaseChat Overview and Summary

This matter concerned a review by the Administrative Appeals Tribunal of a decision regarding a protection visa application made by two applicants from Zimbabwe. The first applicant provided extensive evidence detailing experiences of carjacking, threats from war veterans, and concerns about her daughter's medical condition and the collapse of healthcare facilities in Zimbabwe. She also raised fears related to witchcraft, her husband's family, and potential harm due to her past employment and perceived sympathies. The second applicant, her daughter, was diagnosed with significant medical conditions requiring ongoing treatment.

The primary legal issue before the Tribunal was whether the applicants met the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth). This involved determining if the second applicant qualified as a refugee under Article 1A(2) of the Refugees Convention, considering well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal also had to consider whether the first applicant was a member of the same family unit as the second applicant, as defined by section 36(2)(b)(i) of the Act.

The Tribunal found that the first applicant was a member of the same family unit as the second applicant. Consequently, the outcome of the first applicant's application was dependent on the second applicant satisfying the criteria for a protection visa. The Tribunal remitted the matter for reconsideration, directing that the second applicant be found to satisfy section 36(2)(a) of the Migration Act, and that the first applicant be found to satisfy section 36(2)(b)(i) on the basis of her family unit membership with the second applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).CLAIMS AND EVIDENCE The first-named applicant provided the following information to the Department:·She was born in [Village 1], Mashonaland in [year]. The second-named applicant was born in [year]. They are of Shona ethnicity and are Catholics;·Her parents were living in Harare and both [worked]. Her mother was [an occupation], and her father was [an occupation]. She has [siblings];·She finished school in [year] in Harare. She then attended [an educational institution] in Harare from [year] to [year];·She met her husband [in] 1996 and was married in 2000;·Her mother-in-law did not like her as she earned more than her husband and her family were Catholics, not Presbyterians;·She and her husband eventually moved to Harare. From 1997 to 2002 she worked at [Company 1] in [a section]. Around 1999 the country descended into chaos under Mugabe;·[In] June 2000 she was carjacked in Harare. She was driving a car with an anti-hijack device, so that it could not start without using the key in a particular way. She ran to her [relative]’s gate and two men caught her and hacked her hair with a knife. The carjackers eventually worked out how to start the car, and took off. The police were nonchalant and provided no help;·There was legal immunity for war veterans. Around 2001 she was working at [Company 1] as a [section] officer. One morning the war veterans arrived at their offices. War veterans had been trying to take over white firms and businesses. The manager and two Black partners went down to try and diffuse the situation. Some of the veterans asked to see her and [her colleague], as they had heard reports that they were “in the pocket of the white man”. This was because she and [her colleague] had recently investigated one of their workers who had stolen a laptop. This worker dobbed them in to the war veterans. She and [her colleague] were taken away in a car. She was terrified of being raped and killed, especially because war veterans were often stoned or drunk. They went to an office in [a certain] Street. Her secretary had called her parents, who in turn called [a relative] who worked high in [an] intelligence agency. Through this, they were released;·From 2002 to 2003 she was unemployed;·Her daughter [was] born on [date]. She was living alone at the time as [her husband] had gone to [Country 1] [in] August 2002. She had not gone with him because she was pregnant. [Her husband] has remained primarily in [Country 1] and had little involvement in their lives;·In December 2003, when [her daughter] was [age] she was taken to hospital. After having numerous medical problems, in 2005 she was diagnosed with [medical conditions]. Her treatment started in Zimbabwe and continued in Australia. She has [treatment] every 6 [months]. [Details of treatment deleted]. She was told that when she turned [age] that they could re-assess treatment. She is concerned about [her daughter]’s treatment if she returned to Zimbabwe;·Unemployment is high in Zimbabwe and she has no husband or family to help her. Her father has passed away and her mother is unemployed;·In 2003 she took her mother-in-law to see a witchdoctor. The witchdoctor sacrificed a chicken and bathed in its blood. In October 2005 she told her husband’s cousin, [that] her pad bag had gone missing. She jokingly asked him if his father who was a witchdoctor could find it, and he became very angry. The next morning, she found used sanitary pads and several pairs of her underwear in his room. She did not know how witchcraft worked, but wondered if it was a kind of curse. It was weird and disturbing;·If she returns she fears witchcraft and threats from her husband’s family. She fears it will be used as revenge. The authorities have no control over witchcraft;·In January 2006 the applicants were carjacked again. A man with a wrench came to the back passenger window. She was in the car with [her daughter], her [brother] and a [maid]. [Her maid] undid her daughter’s seatbelt and they dropped to the ground. [Her brother] jumped out of the car and chased him away, but the man had grabbed the baby bag;·In 2011 she returned to Zimbabwe for three months because her father was ill and she wanted to help her mother. During this time she was confronted by her mother-in-law who said that she was angry that she was divorcing her son and that she would “deal with her” if she went through with it. Her mother-in-law said she had rights to [her granddaughter], even though she had nothing to do with it, and the applicant feared she would take her;·She was divorced [in] August 2014;·Her daughter is young and needs treatment. Medical facilities in Zimbabwe have collapsed and she could not afford treatment. Zimbabwe’s health system remains inefficient, corrupt and plagued by shortages of even the most essential medicines. [Medication 1] is not considered an essential medicine and its availability is limited. There is corruption in the health services and long distances between healthcare facilities;·There are negative and superstitious attitudes towards disability in Zimbabwe. Children born with disabilities are thought to bring bad omens to families. The existence of disability is sometimes ascribed to witchcraft or immoral behaviour by the child’s mother, such as promiscuity. It can also be viewed as a spiritual punishment;·The second-named applicant fears discrimination and marginalisation. She also fears sexual abuse;·Crime is also out of control and she would be vulnerable as a single woman living alone with a child, without anyone to take care of them. Violence against women is a significant problem;·She also fears her husband’s family would be violent to her;·She fears being harmed as a white sympathiser due to her employment with white owned corporations and the incident where she was almost killed by anti-White militia; and·The police cannot protect her or her daughter.

Decision

Reasons for decision

The Tribunal is satisfied that the first-named applicant is a member of the same family unit as the second-named applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the second-named applicant’s application. It follows that the first-named applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.DECISION The Tribunal remits the matter for reconsideration with the following directions:(i)that the second-named applicant satisfies s.36(2)(a) of the Migration Act; and(ii)that the first-named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second-named applicant.Jane MarquardMemberAttachment ARELEVANT 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.

Ratio Decidendi

Legal Principle Established

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