1700793 (Refugee) - [2019] AATA 6743

1700793 (Refugee) [2019] AATA 6743 (30 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700793
COUNTRY OF REFERENCE:                   China
MEMBER:Anne Grant
DATE:30 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 30 September 2019 at 2:05pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – wholly fabricated by purported 'agent' – particular social group – homosexual woman – dresses in a masculine manner – low level official and societal discrimination – mental health condition – credible witness – unique or exceptional circumstances – circumstance not anticipated by relevant legislation – victim of an unconscionable ‘agent’ – acted beyond scope of actual or ostensible authority – prejudiced visa applicant’s migration status – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 4, 5, 36, 65, 91R, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kaur & Anor v Minister for Immigration & Anor [2016] FCCA 736
Maharjan v MIBP [2017] FCAFC 213
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 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 citizen of China, applied for the visa on 16 October 2014 and the delegate refused to grant the visa on 19 December 2016.
The applicant appeared before the Tribunal on 27 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages, though the applicant chose to give evidence in English. The applicant was assisted by her migration agents, [Mr B] and [Mr C].
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…

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: [2019] AATA 6743
Decision Date: 30 September 2019

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a citizen of China. The applicant claimed she feared persecution in China due to her religion and her identity as a homosexual woman who dresses in a masculine manner. The applicant also alleged she was the victim of an unconscionable migration agent who lodged a protection visa application instead of a student visa, thereby prejudicing her migration status and ability to complete her studies in Australia. The applicant sought Ministerial Intervention.

The court was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) or (aa) of the Migration Act 1958 (Cth), which includes assessing whether she had a well-founded fear of persecution for reasons of religion or membership of a particular social group, or whether there was a real risk of significant harm if removed from Australia. Additionally, the court had to consider whether the actions of the migration agent constituted unique or exceptional circumstances that warranted special consideration, particularly in light of the applicant's mental health condition and the agent's conduct.

The Tribunal found the applicant's evidence regarding the migration agent to be compelling and credible. While the agent's conduct did not amount to fraud sufficient to invalidate the application under the principles in *Maharjan v MIBP* [2017] FCAFC 213, it was found to be more serious than a mere failure to lodge an application on time. The agent's actions, including impersonating a registered agent and lodging an incorrect visa application without the applicant's full knowledge, prejudiced her migration status and ability to study. The Tribunal also considered the psychologist's report, which indicated that the applicant would likely experience negative impacts on her mental health due to discrimination and social intolerance in China, even if she attempted to conceal her sexuality. Despite finding that the applicant did not meet the threshold for persecution or significant harm under the protection criteria, the Tribunal was satisfied that there was some risk of discrimination and deterioration in her mental health upon return.

The Tribunal concluded that the applicant's circumstances, taken together, amounted to unique and exceptional circumstances as contemplated by Ministerial guidelines. The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant appeared before the Tribunal on 27 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages, though the applicant chose to give evidence in English. The applicant was assisted by her migration agents, [Mr B] and [Mr C].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.84, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration - Complementary Protection Guidelines and 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.

Decision

Reasons for decision

In reaching this conclusion, I have had regard to the following considerations:·I found the applicant’s evidence about being the victim of an unconscionable ‘migration agent’ to be compelling and credible. I note the submissions of her representative, referred to above, that the agent was not acting within his actual or ostensible authority in lodging an incorrect visa application. The applicant has been unable to locate the agent and would be highly unlikely to be in a positon to prove that he has acted fraudulently, given that fact. It seems, based on her evidence, that the applicant may have signed the application for a protection visa without properly checking its’ content. In Maharjan v MIBP [2017] FCAFC 213, the court addressed the issue of fraud on the part of an agent invalidating the visa application process, finding that fraud would first need to be established and then that it would need to stultify the processes the Act prescribes in order for the visa application to be invalid. ·I do not consider that the actions of the agent rise to the level of fraud so as to invalidate the visa application. Nonetheless, the agent’s conduct in lodging a protection visa application instead of a student visa has had the effect of inhibiting the applicant’s capacity to travel to and from China and barring her capacity to renew her student visa and to complete her studies in Australia. ·The actions of the ‘migration agent’ are more serious than simply failing to lodge an application for the applicant’s student visa ‘on time’. It appears that the applicant has been misled by a person impersonating a qualified (and competent) migration agent who charged her $25,000 but did not provide the services for which he was paid. By filing a protection (not further student visa) application and failing to tell her that he had done so, critical time limits were exceeded with the applicant in complete and understandable ignorance of the true nature of her visa status, and thinking she had acted within time frames as needed and in accordance with Australia’s visa requirements for student visas. Whilst the legislation may anticipate that agents may fail to act in a timely fashion from time to time, this is not the same as agents pretending to be registered migration agents and taking large sums to lodge one visa and then lodging entirely another, prejudicing the visa applicant’s migration status. Such a situation is not anticipated by the legislation, and satisfies the requirements under the guideline at bullet point four above.·The psychologist report makes clear the writer’s opinion that the applicant does not fully recognise or appreciate the difficulties and harms she will encounter in China if she returns and decides to keep her sexuality hidden from her friends and family as she anticipates. The psychologist acknowledges that the applicant will have to deal with some of those issues even whilst in Australia – but considers that having to do so in the socially constricting and intolerant atmosphere in China will nonetheless potentially negatively impact on her mental health. Even though I have taken the ongoing low level discrimination and the probability of coming into conflict with her family into account in assessing the application under the protection criteria and found that there is not a real chance that the applicant will suffer serious harm or that there is a real risk that she will suffer significant harm in China, I am nonetheless satisfied that there is some chance and some risk that she will experience some discrimination and potential deterioration in her mental health on return to China. ·I consider that the applicant’s circumstances, when considered together, amount to unique and exceptional circumstances as mandated by the Ministerial guidelines.DECISION

Ratio Decidendi

Legal Principle Established

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