1715048 (Refugee) - [2019] AATA 6684

1715048 (Refugee) [2019] AATA 6684 (9 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1715048
COUNTRY OF REFERENCE:                   Iran
MEMBER:Jason Pennell
DATE:9 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) and s.36(2)(aa) of the Migration Act.
Statement made on 9 December 2019 at 4.18pm

CATCHWORDS
REFUGEE – protection visa – Iran – Federal Circuit Court remittal – imputed political opinion – arrest as passer-by at political protest – detention and mistreatment by police – travel to another country and return without issue – religion – conversion to Christianity in Australia – belief and church membership and activity – wife on own protection visa, with Australian-born child as dependant – country information – status of Muslim converts to Christianity – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), 36, 65

CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Y [1998] FCA 515
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Saliba v MIMA (1998) 89 FCR 38

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

1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 August 2014 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).
2.The visa applicant applied for the visa on 1 July 2013. The delegate refused to grant the visa on the basis that the applicant is not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.
3.On 16 June 2016 the Tribunal affirmed the delegate’s decision to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa. By an order dated [July] 2017 the Federal Circuit Court of Australia remitted the applicant’s application for review to the Tribunal for determination according to law.
4.The applicant appeared before the Tribunal on 7 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
5.The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
6.For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicant satisfies s.36(2)(a) and s.36(2)(aa) of the Migration…

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 1715048 (Refugee)

Details

AGLC: 1715048 (Refugee) [2019] AATA 6684
Case: [2019] AATA 6684
Decision Date: 9 December 2019

CaseChat Overview and Summary

The applicant, an Iranian national, sought review of a decision by the Minister to refuse to grant a protection visa. The matter was remitted to the Federal Circuit Court by the Federal Court. The applicant claimed to fear persecution based on imputed political opinion and his conversion to Christianity.

The primary legal issues before the Court were whether the applicant had a well-founded fear of persecution for reasons of imputed political opinion or religion, and whether he would be owed protection under the *Migration Act 1958* (Cth). Specifically, the Court had to consider the applicant's arrest and mistreatment by police after being a passer-by at a political protest, his subsequent travel and return to Iran without issue, and his conversion to Christianity in Australia, including his belief, church membership, and activities. The Court also had to consider the country information regarding the treatment of Muslim converts to Christianity in Iran, and the circumstances of his wife and Australian-born child who were on their own protection visas.

The Court found that the applicant's fear of persecution based on imputed political opinion was not well-founded, noting that his arrest and detention were not linked to any actual political activity or opinion. However, the Court was satisfied that the applicant had a well-founded fear of persecution for reasons of religion. This was based on evidence of his genuine conversion to Christianity, his active participation in church life in Australia, and the country information indicating that converts to Christianity in Iran faced significant risks of detention, mistreatment, and discrimination. The Court also considered the potential impact on his wife and child.

The Court set aside the Minister's decision and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders