1711688 (Refugee) - [2021] AATA 2062

1711688 (Refugee) [2021] AATA 2062 (11 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1711688

COUNTRY OF REFERENCE: Ghana
MEMBER:Anne Grant
DATE:11 May 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 11 May 2021 at 12:45pm
CATCHWORDS
REFUGEE – protection visa – Ghana – particular social group – homosexual male – physical assault – fear of killing – state protection – employment – support organisation fundraising – third country protection – Economic Community of West African States (ECOWAS) – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997)
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
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

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 a citizen of Ghana, applied for the visa on 1 September 2014 and the delegate refused to grant the visa on 5 May 2017.
The applicant appeared before the Tribunal on 27 April 2021 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. It was noted that the applicant had not attended a scheduled interview with the delegate and both the applicant and his representative indicated that they did not receive notice of the interview despite them having provided correct contact details to the Department. The applicant said if he had known about the interview he most definitely would have gone. The first he heard that a decision had been made on his protection application was when he discovered his visa was about to expire, and he then called his representative. The applicant’s agent confirmed this information to the Tribunal and it is accepted that there appears to have been a breakdown in communication around the interview arrangements. The Tribunal draws no adverse inferences from the applicant’s failure to attend the departmental interview.
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…

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 1711688 (Refugee)

Details

AGLC: 1711688 (Refugee) [2021] AATA 2062
Case: [2021] AATA 2062
Decision Date: 11 May 2021

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Ghanaian national who identified as a homosexual male. The applicant claimed to fear persecution, including physical assault and killing, if returned to Ghana. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth), specifically focusing on Australia's protection obligations under the 1951 Convention relating to the Status of Refugees.

The central legal issue before the Tribunal was whether the applicant qualified as a refugee under Article 1A(2) of the Refugees Convention, as incorporated into Australian law. This required assessing whether the applicant, being outside his country of nationality, had a well-founded fear of persecution for reasons of membership of a particular social group (homosexual males in Ghana), and whether such persecution would involve serious harm and systematic or discriminatory conduct that was official, officially tolerated, or uncontrollable by the Ghanaian authorities. The Tribunal also considered the concept of state protection, including the capacity of the Economic Community of West African States (ECOWAS) to offer protection.

The Tribunal reasoned that the applicant was outside his country of nationality and that the fear of persecution must involve "serious harm" and "systematic and discriminatory conduct" under sections 91R(1)(b) and (c) of the Migration Act. It noted that persecution could be directed at an individual or a member of a group and that the threat of harm did not need to be a product of government policy, but could arise from the government's failure or inability to protect the applicant. After considering the available country information and the applicant's evidence, the Tribunal was satisfied that the applicant met the criterion set out in section 36(2)(a) of the Migration Act.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act, meaning Australia has protection obligations towards him under the Refugees Convention.

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

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Anne GrantMember

Ratio Decidendi

Legal Principle Established

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.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Refugee criterion 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. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. The applicant in this case is a citizen of Ghana. He has provided information and evidence in support of his Ghanaian nationality. He is in Australia. The Tribunal finds that the applicant is outside the country of his nationality, Ghana. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.