1717234 (Refugee) - [2023] AATA 2409

1717234 (Refugee) [2023] AATA 2409 (16 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Alison Valerie Saunders
CASE NUMBER: 1717234

COUNTRY OF REFERENCE: Georgia
MEMBER:Senior Member G.A.F. Connolly
DATE:16 May 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision of the Department and remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 16 May 2023 at 11:28am

CATCHWORDS

REFUGEE – protection visa – Georgia – imputed political opinion – opposition to the police – murder of family member – police corruption – fear of detention – fear of killing – physical assault – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423A, 499
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Nagalingam (1992) 38 FCR 191
Nominal Defendant v Clements (1960) 104 CLR 476 at 495
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 on 19 July 2017 by a delegate of the Minister for Immigration and Border Protection (Minister’s Delegate) to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Georgia and is [age] years of age.
On 17 June 2013, the applicant was granted a Visitor (subclass 600) visa.[1]
[1] Applicant’s Statutory Declaration of 09 February 2023 at paragraph 3.
[In] July 2013, the applicant arrived in Australia.[2]
[2] Applicant’s Statutory Declaration of 09 February 2023 at paragraph 3.
On 09 August 2013, the applicant lodged an application for a protection visa.[3] In that application, the applicant stated, to summarise his claim, that he was claiming protection in Australia because he believed he was at risk of being killed in Georgia as a result of the alleged murder of his [Relative A] by Georgian state authorities – a murder that, in the applicant’s view, was being concealed by corrupt Georgian police.[4]
[3] Applicant’s Form 866C, 09 August 2013.
[4] Applicant’s Form 866C, 09 August 2013 at questions 42 to 49.
On 09 August 2013, a bridging visa A (subclass 010) was granted to the applicant.[5]
[5] Applicant’s Statutory Declaration of 09 February 2023 at paragraph 4.
What happened in the period between 2013 and 2017 to delay the progress of the applicant’s status is unclear, on the materials before 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 1717234 (Refugee)

Details

AGLC: 1717234 (Refugee) [2023] AATA 2409
Case: [2023] AATA 2409
Decision Date: 16 May 2023

CaseChat Overview and Summary

The applicant, a citizen of Georgia, sought review of a decision by the Minister to refuse to grant a protection visa. The applicant claimed to fear persecution in Georgia due to an imputed political opinion, specifically opposition to the police, stemming from the murder of a family member by police officers and subsequent police corruption. The applicant also expressed fear of detention, being killed, and experiencing physical assault.

The primary legal issue before the Court was whether the applicant had established a well-founded fear of persecution for a Convention reason, namely imputed political opinion, should they be returned to Georgia. This required the Court to assess the credibility of the applicant's claims and the objective reasonableness of their fear in light of the evidence presented.

The Court considered the applicant's account of events, including the murder of their family member by police, the alleged corruption within the police force, and the applicant's subsequent interactions with law enforcement. The Court found the applicant's evidence to be credible and concluded that the applicant had a well-founded fear of persecution based on an imputed political opinion. The Court reasoned that the applicant's opposition to the police, arising from the egregious actions of police officers and the subsequent cover-up, was a genuine concern that placed them at risk of serious harm.

The decision of the Minister to refuse the protection visa was set aside.

Orders