1620593 (Refugee) - [2017] AATA 2143

1620593 (Refugee) [2017] AATA 2143 (31 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620593
COUNTRY OF REFERENCE:                  Liberia
MEMBER:Christopher Smolicz
DATE:31 October 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
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Statement made on 31 October 2017 at 11:25am

CATCHWORDS
Refugee – Protection Visa – Liberia – Federal Circuit Court dismissal – Federal Court remittal – Imputed political opinion – Liberian Civil War – Justice against war criminals – Torture – Fear of persecution – Fear of violence – Bogus documents – Economic Community of West African States
LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
AZAFH v MIBP [2016] FCA 1363
SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43
WAGH v MIMIA (2003) 131 FCR 269
Applicant C v MIMA [2001] FCA 229
Kola v MIMA [2001] FCA 630
MIMA v Applicant C (2001) 116 FCR 154
Kola v MIMA (2002) 120 FCR 170
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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Liberia, applied for the visa [in] June 2013 and the delegate refused to grant the visa [in] January 2014.
The applicant applied to the Refugee Review Tribunal (RRT) to review the delegate’s decision. On 9 July 2014 the RRT affirmed the Department’s decision not to grant the applicant a Protection visa (first Tribunal decision).[1]
[1] RRT decision file ref.1402017
The applicant sought judicial review of the RRT decision to the Federal Circuit Court of Australia. The Federal Circuit Court dismissed the application for judicial review.
The applicant applied to the Federal Court of Australia. [In] November 2016 the Federal Court set aside the decision. The Federal court held the first Tribunal fell into jurisdictional error because it misunderstood the appellant’s evidence and therefore the basis on which he claimed to fear persecution or serious harm. The court found the first Tribunal failed to correctly construe and consider an essential integer of the appellant’s claim, namely, that the past attacks were targeted against him. If the integer was accepted this may have justified concluding that he had established that his fear was well founded.[2]
[2] AZAFH v MIBP [2016] FCA 1363 Federal Court of Australia, Perry J, SAD 167 of 2016, 17 November 2016
Accordingly, having been remitted to the Tribunal from the Federal Court the matter was brought back before the Tribunal for…

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 1620593 (Refugee)

Details

AGLC: 1620593 (Refugee) [2017] AATA 2143
Case: [2017] AATA 2143
Decision Date: 31 October 2017

CaseChat Overview and Summary

The Tribunal considered the case of an applicant seeking a protection visa, whose claims were advanced on the basis of an imputed political opinion. The central dispute revolved around whether the applicant met the criteria for a protection visa under the *Migration Act 1958* (Cth), specifically concerning Australia's obligations under the Refugees Convention or complementary protection grounds.

The legal issues before the Tribunal were whether the applicant qualified as a refugee under Article 1A(2) of the Refugees Convention, or alternatively, whether Australia had complementary protection obligations due to a real risk of significant harm upon removal. This involved assessing the applicant's fear of persecution for reasons of imputed political opinion, and considering the practical implications of the Economic Community of West African States (ECOWAS) protocols on freedom of movement for Liberian nationals.

The Tribunal's reasoning focused on the applicant's ability to enter and reside in other ECOWAS countries. While ECOWAS protocols theoretically provide for free movement, the Tribunal found, based on evidence and submissions, that the applicant did not possess a genuine Liberian passport and that his purported "Official passport" was a bogus document. Consequently, the Tribunal concluded that the applicant would face difficulty obtaining a new passport and therefore lacked the right to enter or reside in another ECOWAS country. Despite this finding regarding ECOWAS, the Tribunal was satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criterion set out in s.36(2)(a) of the *Migration Act 1958* (Cth).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.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 policy guidelines prepared by the Department of Immigration –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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Issue The central issue advanced by the applicant is whether he meets the refugee criteria or comes within Australia’s complementary protection obligations because of his imputed political opinion.

Decision

Reasons for decision

In theory the ECOWAS treaties and protocols provide member states with formal guarantees of free movement and residency between countries within the ECOWAS region.[31] The ECOWAS protocols permit nationals of ECOWAS countries visa-free entry and the right to work and reside in all ECOWAS countries provided they have valid travel documents, an international health certificate and are otherwise not inadmissible.[32] [31] ‘Protecting refugees and other persons on the move in the ECOWAS space’, IOM and UNHCR, 1 January 2011, CIS22697, p.23, < of "Across Artificial Borders: An assessment of labour migration in the ECOWAS region" - Liberia country report’, ACP Observatory on Migration, 1 January 2014, CIS2F827D92317 , < ‘Protecting refugees and other persons on the move in the ECOWAS space’, IOM and UNHCR, 1 January 2011, CIS22697, p.42, <>However, reports indicate that some ECOWAS member states may not adhere to the full freedom of movement and rights outlined in the protocols due to incompatibilities with their own domestic laws.[33] [33] ‘Annex of "Across Artificial Borders: An assessment of labour migration in the ECOWAS region" - Ghana country report’, ACP Observatory on Migration, 1 January 2014, CIS2F827D92316, p.46 & 47, < refugees and other persons on the move in the ECOWAS space’, IOM and UNHCR, 1 January 2011, CIS22697, p.27, < ‘New Issues in Refugee Research: Promoting integration through mobility: free movement and the ECOWAS Protocol’, United Nations High Commissioner for Refugees, 1 December 2007, CIS20876, p.9 &11, <>The applicant’s representative referred the Tribunal to a UNHCR report which provides the following information on the implementation of the ECOWAS treaty and protocols in practice:Only the first phase of the ECOWAS framework for regional integration – visa-free entry for 90 days – has been fully implemented, although there has been progress in the partial implementation of many other commitments. National laws and policies very often do not conform with the ECOWAS protocols, even when they have been adopted to implement commitments under the protocols. Among the challenges noted as of 2009 were that: “two of the 15 member states have not ratified the supplementary protocol on the right of residence and the right of establishment; regional travel documents have not been distributed in half the countries; and in most countries West African passports are not available; harassments at border control posts continues and racketeering has increased on international routes.”[34][34] Un High Commission for Refugees (UNHCR), UNHCR and IOM – Nationality, Migration and Statelessness in West Africa, June 2015, available at P86.The UNHCR report continues:At the same time, although ECOWAS Member States generally display a tolerant attitude to nationals of other ECOWAS countries with irregular migration status, expulsions do occur and frequently do not follow the requirement to be carried out “solely on strictly legal grounds”….. The Protocol on the Definition of a Community Citizen has remained unaddressed in national laws and policies; indeed, its provisions are for the most part not implementable for lack of clarity on what is required. The various protocols have not resulted in any agreement or action to resolve the situation of individuals whose nationality is in doubt, nor to provide access to nationality for migrants and their children.[35][35] Ibid, p87.An April 2008 report from the Ghana News Agency, appearing on the Government of Ghana Official Website, refers to a meeting between “Representatives of civil society, the private sector and the media from the ECOWAS member-states” held in Accra, Ghana, that attempted “to fashion out practical ways to stem harassment on the highways and borders within the region”. The report further commented on restrictions to ‘free movement’ between ECOWAS member states, such as “illegal barriers and roadblocks”, “the extortion of money from travellers”, “systematic racketeering”, and some “immigration officers refused to recognise national identity cards as a valid intra-ECOWAS travel document”.[36][36] ‘Ghana Hosts ECOWAS Meeting On Border Harassment’ 2008, Ghana News Agency, 3 April >As stated above the delegate found that the applicant had a genuine Liberian passport and therefore was legally able to enter on of ECOWAS countries. The applicant’s representative submits that the applicant’s passport expired in 2014 and thus he would be required to return to Liberia to obtain a current passport. The Tribunal was referred to Article 3 of the Protocol Relating to Free Movement of Persons, which makes it a requirement of entry to any ECOWAS state that the applicant possess a valid travel document and international health certificate. [37] The Tribunal finds the applicant does not have a genuine Liberian passport. The Tribunal further finds that that the applicant would experience difficulty obtaining a new Liberian passport since his “Official passport” is a bogus document that was issued under false pretences. The Tribunal finds that without a Liberian passport the applicant does not have the right to enter or reside in ECOWAS country.[37] Protocol A/P.1/5/79 Relating to Free Movement of Persons, Residence and Establishment, ECOWAS, 29 May 1979, >The Tribunal has considered the evidence and submissions advanced by the applicant’s representative and is satisfied that the applicant does not have a right to temporarily or permanently enter and reside in any country, other than Liberia and that s.36(3) does not apply in the applicants’ case. For these reasons the Tribunal is not satisfied that the applicant has a right to enter and reside in another country based on Liberia being a member of ECOWAS. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).DECISIONThe Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Christopher SmoliczMember

Ratio Decidendi

Legal Principle Established

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