1705233 (Refugee) - [2022] AATA 5161

1705233 (Refugee) [2022] AATA 5161 (15 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1705233
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Jason Pennell
DATE:15 December 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 15 December 2022 at 12.55pm

CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – person who fears the mafia in Thailand – claimed debt owed to mafia – promise of work in Australia – required to pay debt off by working in brothel – vague evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant S v MIMA (2004) 217 CLR 387
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 on 28 February 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
[The first applicant] and [the second applicant] (‘the applicants’) claim to be citizens of Thailand. The applicants made application for a protection visa on 29 April 2016. The delegate refused to grant the applicant’s a visa on the basis that he was not satisfied they were people to whom Australia has protection obligations as outlined in s. 36(2)(a) or (aa) of the Migration Act 1958 (the Act).
The applicants lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 19 March 2017 and provided the Tribunal with a copy of the delegate’s decision record.
The applicants were invited to appear before the Tribunal in-person on 14 June 2022 to give evidence and present arguments. On 31 May 2022, the Tribunal received from the applicants a completed hearing response form outlining that they would not participate in the hearing and would consent to the Tribunal deciding the application for review on the papers without taking further steps to allow her to appear. This was confirmed by the applicants via email on 31 May 2022, and as a result the hearing was cancelled. The Tribunal had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick.…

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 1705233 (Refugee)

Details

AGLC: 1705233 (Refugee) [2022] AATA 5161
Case: [2022] AATA 5161
Decision Date: 15 December 2022

CaseChat Overview and Summary

The applicant sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant, who claimed to fear the mafia in Thailand due to an alleged debt, asserted that they were a member of a particular social group. The applicant's case was that they were promised work in Australia and required to repay a debt by working in a brothel. The decision under review was made by the delegate of the Minister.

The primary legal issue before the court was whether the applicant had established that they belonged to a particular social group for the purposes of the *Migration Act 1958* (Cth). This involved considering whether the alleged debt to the mafia and the purported obligation to work in a brothel constituted a characteristic that defined the applicant as a member of a particular social group, and whether the applicant faced a well-founded fear of persecution based on that membership.

The court found that the evidence presented by the applicant regarding the debt and the circumstances of their proposed work in Australia was vague and lacked sufficient detail to establish a well-founded fear of persecution. The court applied the principles established in refugee law concerning the definition of a "particular social group," which requires a characteristic that is immutable or fundamental to identity, or one that is so integral to a person's identity that they should not be compelled to shed it. The court concluded that the applicant had not discharged the onus of proving they met the criteria for a protection visa.

The application for judicial review was affirmed, and the decision of the Minister was upheld.

Orders