1709680 (Refugee)

Case [2020] AATA 5610

1709680 (Refugee) [2020] AATA 5610 (30 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1709680

COUNTRY OF REFERENCE:                   Libya

MEMBER:Dr Colin Huntly

DATE:30 November 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that Applicant 4 satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the applicant named at (i) above.

Statement made on 30 November 2020 at 8:33am

CATCHWORDS

REFUGEE – protection visa – Libya – particular social group – returnee with special vulnerabilities – Westernized or progressive girls – imputed political opinion – Government programs – members of the family unit – sexual and gender based violence – fear of abduction – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 104, 423
Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Iyer v MIMA [2000] FCA 1788
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
MZYPW v MIAC (2012) 289 ALR 541
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLGP v MIC [2008] FCA 1198
SZSHV v MIBP [2014] FCA 253

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 April 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

  2. Applicants 1, 2, 4, 5 and 6 claim to be citizens of Libya alone, while Applicant 3 claims joint-[Country 1] and Libyan citizenship.  

    BACKGROUND

    Applicant migration history

  3. Applicants 1, 2 and 3 first entered Australia [in] January 2011, travelling on a [Student] visa. 

  4. The family’s travel to Australia was partly funded by a scholarship from the former Gaddafi Government, which is referred to colloquially in the relevant country information as a ‘Gaddafi Scholarship’.  Evidence before the…

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AGLC
1709680 (Refugee) [2020] AATA 5610
Case
[2020] AATA 5610
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Minister for Immigration and Citizenship to refuse a protection visa. The applicants, a family unit, claimed to be citizens of Libya, with one applicant also claiming joint Libyan and [Country 1] citizenship. The applicants had entered Australia on a student visa and had subsequently had children born in Australia. The protection visa application was initially refused by a delegate of the Minister, leading to the present review before the Tribunal.

The Tribunal was required to determine whether the applicants met the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth) and Schedule 2 of the Migration Regulations 1994. This involved assessing whether Australia had protection obligations towards the applicants, either on refugee or complementary protection grounds, and considering the implications of the third country exclusion provision for the applicant with dual citizenship. The Tribunal also had to assess the credibility of the applicants' claims, taking into account any inconsistencies or omissions in their evidence, and the principles established in relevant High Court and Federal Court decisions regarding the assessment of asylum seeker claims.

The Tribunal applied the principles outlined in the Refugee Law Guidelines and Complementary Protection Guidelines, as well as country information assessments. It acknowledged the importance of a sensitive and reasonable approach to assessing applicant credibility, noting that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all claims. The Tribunal considered the applicants' claims regarding imputed political opinion, generalised violence, membership of a particular social group, and fears for their children's welfare due to the lack of services in Libya.

The Tribunal remitted the decision to the department for reconsideration. It directed that Applicant 4 satisfied section 36(2)(a) of the Migration Act due to her particular vulnerabilities, and that the other applicants satisfied section 36(2)(b)(i) of the Act on the basis of their membership in the same family unit as Applicant 4.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Applicants 1, 2, 4, 5 and 6 claim to be citizens of Libya alone, while Applicant 3 claims joint-[Country 1] and Libyan citizenship. BACKGROUNDApplicant migration history Applicants 1, 2 and 3 first entered Australia [in] January 2011, travelling on a [Student] visa. The family’s travel to Australia was partly funded by a scholarship from the former Gaddafi Government, which is referred to colloquially in the relevant country information as a ‘Gaddafi Scholarship’. Evidence before the Tribunal indicates that the applicants have at all times, complied with the relevant visas issued to them. On [date] Applicant 4 was born in Australia and was added to the Student visa. [In] January 2012, Applicants 1, 2, 3 and 4 departed Australia and returned to Libya on the Student visa. These applicants returned to Australia [in] April 2012. On [date] Applicant 5 was born in Australia and was added to the Student visa. [In] March 2015, the [Student] visa was re-issued to the applicants. On [date] Applicant 6 was born in Australia and was added to the Student visa. On 11 February 2016, Applicant 1, on behalf of the family unit, applied for the protection visa which forms the basis of this review. [In] April 2016 the Minister allowed Applicant 3 (a citizen of [Country 1] with joint-Libyan citizenship rights) to be included in the family unit protection visa application. The applicants attended a Protection visa interview with a delegate of the Minister for Immigration and Citizenship on 6 October 2016. The application was refused by the delegate by written decision dated 21 April 2017. The applicants seek review of this decision by the Tribunal as presently constituted.Proceedings before the Tribunal The applicants appeared before the Tribunal on two occasions. First, on 29 October 2020 by telephone, and then on 18 November 2020 to give evidence and present arguments. The applicants were represented in this application by a registered migration agent. All hearings were held with the assistance of interpreters fluent in the English and Arabic standard languages.Identity Applicant 1 and Applicant 2 are married. Applicants 3, 4, 5, and 6 are all children born to this relationship. All members of the family unit claim to be citizens of Libya. As noted above, Applicant 3 claims to jointly hold Libyan and [Country 1] citizenship. I have reviewed the evidence contained in the Departmental file, including the relevant passports, and I find on the basis of the evidence that all applicants are citizens of Libya as asserted by the applicants, which is also the receiving country for the purposes of the refugee and complementary protection assessments. On the basis of relevant evidence in the Department file, I am also satisfied that Applicant 3 is a citizen of both Libya and [Country 1]. Accordingly, while Libya is potentially a receiving country for the purposes of refugee and complementary assessments for Applicant 3, some differential consideration of the third country exclusion provision at s.36(3) of the Act is necessary with respect to this applicant.

Evidence

Evidence Before The Court

With respect to contradictions, inconsistencies and omissions, the Guidelines state:Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[25][25]At [27]–[28].New claims and evidence Section 5AAA of the Act clarifies that it is the responsibility of applicants to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. On this view the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for applicants to make their own case.[26][26]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187]. Applicants are also expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. Two obligations here are particularly relevant:i.The ongoing requirement under s.104 of the Act for applicants to ensure that their relevant details are correct and then to change any incorrect information at the first reasonable opportunity; andii.Section 423A of the Act requires the Tribunal to draw an adverse inference about the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such cases, if the Tribunal is satisfied that applicants do not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision, the Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence. Applicants are, therefore, required to present all claims and evidence to the primary decision-maker unless they have a reasonable explanation for not doing so.INTRODUCTIONHearingsFirst hearing At the first hearing I advised the applicants and their representative what documents I had in my possession and it was confirmed that I had all the relevant material before me. Also at the start of the hearing I confirmed with the applicants and their representative the summary of the claims for protection contained at page 5 of the delegate’s record of decision, which is as follows:· The applicant fears persecution on the grounds of his imputed political opinion as being perceived a pro-Gaddafi supporter because he was a recipient of a Gaddafi Scholarship. He also claims that in 2011 he participated in a rally in [Australia] in support of the uprising in Libya. The Applicant fears that because of his participation he will be perceived as being an anti-Gaddafi activist. The Applicant also claims that during the uprising his brother was smuggling weapons for anti-Gaddafi groups.· The applicant also fears his family will suffer harm (kidnapped and killed) due to generalised violence in Libya.· The Applicant fears that he and his family will be targeted on the grounds of their belonging to a particular social group (PSG) “returnees from the West”.· The Applicant claims that [City 1], his place of residence in Libya, is controlled by a militia that persecutes women by making them to wear a burqa. He stated that while his wife wears a hijab, she might be compelled to wear a burqa.· The Applicant also fears general insecurity in Libya. He claims that his children will suffer significant harm because of the lack of education and health services in Libya.

Decision

Reasons for decision

For the following reasons, I have concluded that the decision under review should be remitted to the department for reconsideration with the direction that that Applicant 4 satisfies s.36(2)(a) of the Migration Act because of her particular vulnerabilities and that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as Applicant 4.DECISION-MAKING FRAMEWORK The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994. Extracts of the relevant legislative provisions are attached to this decision below. An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria or on complementary protection grounds.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.President’s Direction I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020. I have also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:· that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[1] and· that ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[2][1]At [2.1] (consistent with the Administrative Appeals Tribunal Act 1975 s.33(1)(b)).[2]At [8.1].Applicant credibility The Tribunal’s task of fact-finding may involve an assessment of applicant credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[3] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. [3]E.g.: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

Ratio Decidendi

Legal Principle Established

The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994. Extracts of the relevant legislative provisions are attached to this decision below. An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria or on complementary protection grounds.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.President’s Direction I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020. I have also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:· that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[1] and· that ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[2][1]At [2.1] (consistent with the Administrative Appeals Tribunal Act 1975 s.33(1)(b)).[2]At [8.1].Applicant credibility The Tribunal’s task of fact-finding may involve an assessment of applicant credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[3] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. [3]E.g.: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic AffairsandMcIllhatton,[4] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’[5] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. [4](1996) 40 ALD 445.[5]At (482).