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1714037 (Refugee)

1714037 (Refugee)

Case [2021] AATA 883 8 March 2021

Judicial Review

Procedural Fairness

Statutory Construction

Immigration

Administrative Law

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1714037 (Refugee) [2021] AATA 883 (8 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1714037

COUNTRY OF REFERENCE: Brazil
MEMBER:Jane Marquard
DATE:8 March 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 March 2021 at 8:26am
CATCHWORDS
REFUGEE – protection visa – Brazil – political opinion – Partido dos Trabalhadores (Workers Party) worker – particular social group – homeless people – robbery – physical attacks – fear of killing – accommodation – employment – access to health services – return visits to Brazil – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
AGA16 v MIBP [2018] FCA 628
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
EZC18 v MHA [2019] FCA 2142
EZC18 v MHA [2019] FCCA 464
GCLV v MICMSMA [2020] FCCA 270
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MZAAJ V MIBP [2015] FCA 478
MZAAJ V MIBP [2015] FCCA
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZDCD v MIBP [2019] FCA 326
SZDSD v Minister for Immigration and Anor [2018] FCCA 1029
SZSPE v MIBP [2013] FCCA 1989
SZTAL v MIBP (2016) 243 FCR 556
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.

Migration & Refugee Division

APPLICANT:

CASE NUMBER:

HOME AFFAIRS REFERENCE(S)

STATEMENT OF DECISION AND REASONS
BACKGROUND
1.     The applicant is [an age]-year-old man from Brazil.
2.     He arrived in Australia [in] June 2014 on a [temporary] visa. He later applied for a Temporary Work (Skilled) visa (Subclass 457) which was not granted.
3. He applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 6 May 2016. A delegate of the Minister for Home Affairs refused to grant the visa on 5 June 2017.
4.     This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
SUMMARY OF DECISION
5.     The Tribunal has decided to affirm the decision under review.
6.     The Tribunal refers the matter to the Minister to be considered under s.417 of the Act.
SUMMARY OF LAW
7.     The Tribunal must determine whether the applicant meets the refugee criteria or complementary protection criteria set out in the Act.
8.     The criteria for a protection visa are set out in s.36 of the…

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 1714037 (Refugee)

Details

AGLC: 1714037 (Refugee) [2021] AATA 883
Case: [2021] AATA 883
Decision Date: 8 March 2021

CaseChat Overview and Summary

The applicant, a citizen of Brazil, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to fear persecution in Brazil due to their political opinion as a member of the Partido dos Trabalhadores (Workers Party) and their membership in a particular social group, namely homeless people. The applicant alleged they had been subjected to robbery and physical attacks, and feared being killed. The applicant also raised concerns about their ability to access accommodation, employment, and health services upon return to Brazil.

The Administrative Appeals Tribunal was required to determine whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically political opinion or membership of a particular social group, should they be returned to Brazil. The Tribunal also had to consider whether any such fear was of a kind that engaged Australia's non-refoulement obligations under the *Migration Act 1958* (Cth).

In its reasoning, the Tribunal considered the applicant's claims regarding their political affiliation and experiences as a homeless person. The Tribunal assessed the evidence presented, including the applicant's account of past events and their fears for the future. The Tribunal applied the principles established in refugee law concerning the assessment of claims for protection, including the objective and subjective elements of a well-founded fear of persecution. The Tribunal found that the applicant had not established a well-founded fear of persecution for a Convention reason. The Tribunal also considered the applicant's referral for Ministerial Intervention, noting that this process was separate from the Tribunal's review.

The Tribunal affirmed the decision under review, meaning the Minister's refusal to grant the protection visa was upheld.

Orders