1619684 (Refugee) - [2017] AATA 681

1619684 (Refugee) [2017] AATA 681 (26 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619684
COUNTRY OF REFERENCE:                  China
MEMBER:David McCulloch
DATE:26 April 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 26 April 2017 at 3:17pm

CATCHWORDS
Refugee – Protection visa – Federal Court remittal – China – Religion – Falun Gong – Social group – Black child – Changes in family planning policy – Credibility issues
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R(1)(c), 424A, 438(1)(a), 499
Migration Regulations 1994, Schedule 2, r 1.12
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Cabal v MIMA [2001] FCA 1806
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
MIMA v Lim (2001) 112 FCR 589
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437.
SZGIZ v MIAC (2013) 212 FCR 235
Yao-Jing Li v MIMA (1997) 74 FCR 275

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of China, applied for the visas [in] November 2013 and the delegate refused to grant the visas [in] June 2014.
This review had previously been considered by the Tribunal, differently constituted, resulting in a decision dated 5 April 2016 (‘first Tribunal decision’) which upheld the delegate’s decision. By consent, [in] November 2016, the Federal Circuit Court remitted the matter to the Tribunal to re-determine according to law for reasons outlined further below.
The first and second named applicants appeared before the Tribunal on 11 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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…

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

Case: [2017] AATA 681
Decision Date: 26 April 2017

CaseChat Overview and Summary

This matter concerned the review of a decision to refuse a protection visa application made by the first and second named applicants, who are husband and wife, and their child. The applicants, who arrived in Australia in 2008, had lodged an initial protection visa application in August 2008, which was refused by a delegate in October 2008. The applicants did not attend their scheduled interview or Tribunal hearing, and the Refugee Review Tribunal upheld the delegate's decision in December 2008. A subsequent application by their child in 2011 was also refused and affirmed by the Tribunal. The Federal Court remitted the matter for a fresh decision, allowing the first applicant to make a further application under the complementary protection criterion, given his prior application was refused before the commencement of that criterion. The Tribunal was required to consider the claims of the first and second applicants, with the second applicant's claims to be assessed under both the Refugees Convention criterion and the complementary protection criterion.

The primary legal issues before the Tribunal were the credibility of the first and second applicants, and whether, on the accepted claims, they met the criteria for a protection visa under either the Refugees Convention or the complementary protection provisions. Specifically, the Tribunal had to determine if the first applicant had established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or if there were substantial grounds for believing that removal from Australia would result in a real risk of significant harm. For the second applicant, the Tribunal needed to assess her claims under both the Convention and complementary protection, and also consider her status as a member of the same family unit as the first applicant.

The Tribunal considered 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). These criteria include obligations under the Refugees Convention and complementary protection grounds. The Tribunal noted that the first applicant's claims under the Refugees Convention had been determined, and the current review focused on the complementary protection criterion. The second applicant's claims were to be assessed under both the Convention and complementary protection. The Tribunal heard evidence from the first and second applicants with the assistance of an interpreter. The Tribunal's ultimate decision was to affirm the delegate's decision to refuse the protection visa.

Orders

Orders of the court

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Background

Background to the litigation

The issue in this case is the credibility of the first named applicant and the second named applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background and scope of review The decision of the delegate, a copy of which has been provided by the applicants to the Tribunal, indicates as follows in relation to the first named applicant (‘the applicant’). The applicant arrived in Australia [in] July 2008. He arrived on a [temporary] visa that was valid until [date] August 2008. He remained thereafter, until [date] February 2009, on a Bridging visa. The applicant was unlawful from that point until a further Bridging visa was granted [in] August 2011. Based on other evidence, the second named applicant (‘the applicant wife’) arrived in Australia at the same time as the applicant. The applicant lodged an initial claim for a Protection visa [in] August 2008. The applicant made claims of harm in his own right. The applicant wife was included the application on the basis of being a member of the same family unit as the applicant, without making claims of her own. That application was refused by a delegate of the Minister [in] October 2008. The applicants did not attend the scheduled interview to discuss the claims. Review was sought by the Refugee Review Tribunal which upheld the refusal on 30 December 2008. The applicant and the applicant wife did not appear at the scheduled Tribunal hearing. The claims were assessed based on the Refugees Convention criterion, prior to the implementation of the complementary protection criterion. The third named applicant, (‘the applicant child’), made a separate application for a Protection visa [in] December 2011. Her application was refused by the delegate [in] May 2012. A review by the Refugee Review Tribunal affirmed the decision on 30 October 2012. This application by the applicant child was considered under both the Refugees Convention criterion and the complementary protection criterion. In relation to the applicant, the current application is allowed as a result of the Federal Court decision of SZGIZ v MIAC (2013) 212 FCR 235, dated 3 July 2013. This allows a further protection visa application to be made before 28 May 2014 under the complementary protection criterion in a situation whereby the person’s prior protection visa application was made and refused prior to the commencement of the complementary protection criterion on 24 March 2012. This means that the Refugee Convention aspect of the applicant’s claims has been determined and the matter before the Tribunal relates only to complementary protection criterion (section 36(2)(aa) of the Act). However, given that the applicant wife did not make her own claims for a Protection visa in the 2008 application, her claims are to be considered under both the Refugees Convention criterion and the complementary protection criterion. The Federal Circuit Court, in the remittal by consent, quashed the first Tribunal decision dated 5 April 2016 on the basis that the Tribunal erred in determining that the claims of the applicant wife were only to be considered under the complementary protection criterion.

Evidence

Evidence Before The Court

The first and second named applicants appeared before the Tribunal on 11 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.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’). Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse dependent children.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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