1701786 (Refugee) - [2019] AATA 1229

1701786 (Refugee) [2019] AATA 1229 (7 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701786
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Paul Millar
DATE:7 January 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 07 January 2019 at 12:59pm
CATCHWORDS

REFUGEE – protection visa – Federal Circuit Court remittal –Afghanistan – Shia Hazara – claims of being pursued by Taliban – Pashtun – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 36, 65 and 499
Migration Regulations 1994 Schedule 2
CASES
CAE15 v Minister for Immigration and Anor [2017] FCCA 66
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 the Tribunal finds to be a citizen of Afghanistan, applied for the visa [in] September 2012 and the delegate refused to grant the visa on 2 January 2013.[1] That decision was affirmed by the former Refugee Review Tribunal (‘the first Tribunal’) but the case was remitted by the Federal Circuit Court on the basis that the first Tribunal had misunderstood the applicant’s evidence.[2] The applicant appeared before the Tribunal on 14 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearing by telephone.
[1] The Tribunal’s finding on citizenship is based on a copy of the applicant’s Taskera at folio 1 of Department [file deleted].
[2] See CAE15 v Minister for Immigration and Anor [2017] FCCA 66, 18 January 2017. The court found that the Tribunal misunderstood the applicant's evidence about the location of a business he set up and which brought him into contact with the Taliban; contact on which his protection claims are based.
RELEVANT 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.
Section 36(2)(a) provides that a criterion for a protection visa…

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 1229
Decision Date: 7 January 2019

CaseChat Overview and Summary

The applicant sought review of a decision by the Refugee Review Tribunal (RRT) to affirm the refusal of a protection visa. The applicant, a member of the Shia Hazara ethnic group from Afghanistan, claimed to be pursued by the Taliban and identified as Pashtun. The Federal Circuit Court had previously remitted the matter for reconsideration.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2) of the *Migration Act 1958* (Cth). Specifically, the Tribunal had to determine if the applicant satisfied the requirements of section 36(2)(a) or (aa), which relate to claims of persecution.

The Tribunal affirmed the decision not to grant the protection visa. It found that the applicant did not satisfy the criterion in section 36(2) of the *Migration Act 1958* (Cth), as there was no suggestion that the applicant qualified on the basis of being a family member of someone who held a protection visa and satisfied section 36(2)(a) or (aa). The decision under review was therefore affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).DECISION The Tribunal affirms the decision not to grant the applicant a Protection visa.Paul MillarMember

Ratio Decidendi

Legal Principle Established

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