1615381 (Refugee) - [2018] AATA 3917

1615381 (Refugee) [2018] AATA 3917 (28 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1615381
COUNTRY OF REFERENCE:                  India
MEMBER:Nicola Findson
DATE:28 August 2018
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 28 August 2018 at 11:09am

CATCHWORDS

REFUGEE – Protection visa – India – Political opinion – Affiliation with Shiromani Akali Dahl (SAD Badal) party – Relative of victim of a politically motivated murder – Member of Gram Panchayat – Fear of harm from Indian National Congress Party (INC) – Fear of retribution by INC – Police corruption – Member of the same family unit – Third country protection – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473

Chan v MIEA (1989) 169 CLR 379
MIAC v SZRHU [2013] FCAFC 91
MIMA v Respondents S152/2003 (2004) 222 CLR 1
MIMAC v SZRHU (2013) 215 FCR 35
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZRUT v MIBP [2015] FCCA 262
SZTPK v MIBP [2014] FCCA 2259
SZTQO v MIBP [2014] FCCA 2636
V856/00A v MIMA [2001] FCA 1018

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of India, applied for the visas on 4 December 2014 and the delegate refused to grant the visas on 25 August 2016.

3. The first named applicant (hereinafter referred to as the applicant) appeared before the Tribunal on 12 October 2017, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicants were represented in relation to the review by their registered migration agent.

5. The application for review was submitted, coupled with a copy of the delegate’s decision record, which the Tribunal accepts as being submitted for the purposes of the application for review.

6. The secondary applicants are included in this application as members of the first named applicant’s family unit.

RELEVANT LAW

7. The criteria for a protection visa are set out in s.36 of the Act and…

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

AGLC: 1615381 (Refugee) [2018] AATA 3917
Case: [2018] AATA 3917
Decision Date: 28 August 2018

CaseChat Overview and Summary

The applicant, an Indian national, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to fear persecution from members of the Indian National Congress Party (INC) due to his affiliation with the Shiromani Akali Dal (SAD Badal) party and his role as a member of the Gram Panchayat. He also alleged that a relative had been a victim of a politically motivated murder and that police corruption was prevalent, rendering him unable to seek protection from the authorities.

The primary legal issue before the court was whether the applicant had established a well-founded fear of persecution for reasons of his political opinion, as defined by the *Migration Act 1958* (Cth). This required the court to assess the credibility of the applicant's claims regarding his political affiliation, the threats he faced from the INC, the alleged police corruption, and the potential for protection in a third country. The court also had to consider whether any harm feared was persecution and whether it was for a Convention reason.

In her reasons, Ms. Findson considered the evidence presented by the applicant, including his membership in the SAD Badal party and his position within the Gram Panchayat. She assessed the plausibility of his fear of retribution from the INC, particularly in light of the alleged politically motivated murder of a relative and the claims of police complicity. The court applied the established legal principles for assessing claims of persecution, including the need for a real chance of harm and the consideration of whether the applicant could avail himself of the protection of the authorities in his home country.

Ultimately, Ms. Findson found that the delegate's decision did not adequately consider certain aspects of the applicant's claims, particularly concerning the potential for harm and the availability of protection. Accordingly, the decision under review was remitted to the Minister for reconsideration.

Orders