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1707822 (Refugee)

1707822 (Refugee)

Case [2019] AATA 6695 26 September 2019

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1707822 (Refugee) [2019] AATA 6695 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1707822
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Simone Burford
DATE:26 September 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 26 September 2019 at 1:38pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – separation from child – post election political unrest – single mother – divorced women – incorrect and inconsistent information – credibility issues – sole custody of child – prevented from taking child overseas – would not face economic harm – no risk of significant harm – no risk of being failed asylum seeker – failed to demonstrate harm – Ministerial Intervention requested – decision under review affirmed
LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K-LA, 36, 65, 104, 417, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASES

Iyer v MIMA [2000] FCA 52
MIAC V SZQRB (2013) 210 FCR 505
MIMA v Rajalingam (1999) 93 FCR 220
SZRSN v Minister for immigration and Anor [2013] FMCA 78
SZSKC v MIBP [2014] FCCA 938

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 on 6 April 2017 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 national/citizen of Indonesia, applied for the visa on 16 July 2015, and the delegate refused to grant the visa on 6 April 2017.
The applicant appeared before the Tribunal on 20 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], a friend of the applicant. Having taken evidence from the applicant and [Mr A] the Tribunal adjourned the hearing to enable the applicant the opportunity to obtain advice from a registered migration agent regarding her visa options and to consider whether she wished to ask the Tribunal to request Ministerial intervention in the event her application was unsuccessful.
A further hearing was held on 3 September 2019. At that hearing the applicant appeared again before the Tribunal to give evidence and present arguments. At that hearing the applicant indicated that she had not obtained advice from a registered migration agent, however, she had received information on how much it would cost to obtain advice and how much it would cost to file an application for a parent visa. She indicated she did want to ask the Tribunal to request Ministerial intervention in the event her application was unsuccessful. That request is dealt with further below.
The applicant was not represented in relation to this application.…

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 1707822 (Refugee)

Details

AGLC: 1707822 (Refugee) [2019] AATA 6695
Case: [2019] AATA 6695
Decision Date: 26 September 2019

CaseChat Overview and Summary

The applicant, a single mother and divorced woman, sought a protection visa, claiming she would face harm if returned to Indonesia due to post-election political unrest and her status as a divorced woman with sole custody of her child. She alleged she was prevented from taking her child overseas and that her information provided to the Department was inconsistent and inaccurate, raising credibility issues. The Minister had intervened in the decision-making process.

The primary legal issue before the court was whether the applicant had demonstrated a real chance of suffering significant harm, as defined by the *Migration Act 1958* (Cth), if returned to Indonesia. This involved assessing the credibility of her claims regarding political unrest, her personal circumstances as a divorced single mother, and the alleged prevention from leaving the country with her child. The court also considered whether she faced a risk of being a "failed asylum seeker" in a broader sense, although the primary focus remained on the risk of harm in Indonesia.

The court affirmed the decision under review, finding that the applicant had failed to demonstrate a real chance of suffering significant harm. It was not persuaded by her claims of political unrest posing a direct threat to her safety. Furthermore, the court found no evidence to support her assertion that she would face economic harm or that her personal circumstances as a divorced woman with sole custody would place her at risk of significant harm in Indonesia. The court concluded that the applicant had not met the threshold for protection under the relevant provisions of the *Migration Act*.

Orders