1720879 (Refugee) [2023] AATA 2157 (12 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Richard Hardy
CASE NUMBER: 1720879
COUNTRY OF REFERENCE: Philippines
MEMBER:Jane Marquard
DATE:12 April 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Statement made on 12 April 2023 at 4:30pm
CATCHWORDS
REFUGEE – protection visa – Philippines – particular social group – women – victim of family violence from father – trauma from repeated violent behaviour – fear of killing – complementary protection – reasonable internal relocation – effectiveness of law enforcement – decision under review remitted
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 on 11 August 2017 to refuse to grant the applicant a protection visa…
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.
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AGLC
1720879 (Refugee) [2023] AATA 2157
Case
[2023] AATA 2157
Decision Date
CaseChat Overview and Summary
This matter concerns an application for review of a delegate's decision to refuse to grant the applicant, a woman from the Philippines, a protection visa. The applicant claimed to fear domestic and family violence from her father, alleging a history of violent, abusive, and alcoholic behaviour. The delegate accepted that the applicant had been a victim of such violence throughout her life but refused the visa on the grounds that internal relocation within the Philippines would be safe and that her father's capacity for violence had diminished with age.
The Tribunal was required to determine several key issues. These included whether the domestic and family violence occurred as described, whether there was a real chance of serious harm to the applicant from her father, and whether any such harm related to all areas of the Philippines. Crucially, the Tribunal also had to consider whether the applicant met the complementary protection criteria, specifically assessing the reasonableness of internal relocation within the Philippines.
The Tribunal accepted the applicant's personal particulars and background information, finding it to be consistent and credible. It was satisfied that the applicant was a national of the Philippines, which was the relevant "receiving country" for the purposes of the legislation. The Tribunal's reasoning regarding the delegate's decision to refuse the visa was not fully elaborated in the provided text, but it indicated that the decision under review was remitted.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND TO THE REVIEW The applicant is [an age]-year-old woman from Legazpi City, Philippines. She is unmarried and has no children. She first arrived in Australia [in] November 2012 on a [Visitor] visa. She was granted a number of other visitor visas after the expiry of this visitor visa. She applied to the Department of Home Affairs (the Department) for the visa the subject of this review on 25 March 2015. She claimed that she feared domestic and family violence from her father, whom she describes as violent, abusive and alcoholic. The delegate of the Department accepted that the applicant had been a victim of domestic and family violence her whole life. The delegate refused to grant the visa on the basis that the applicant could have safely relocated within the country, noting her sister and brother-in-law in Australia could provide financial support. The delegate also noted that in old age, the father’s capacity to commit violence had diminished. SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.[1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611. Australia acceded to the 1951 Convention relating to the Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions.[4] For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[5][2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).[3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).[4] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).[5] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
Evidence
Evidence Before The Court
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.EVIDENCE The applicant appeared before the Tribunal on 14 February 2023 to give evidence and present arguments. The applicant was represented in relation to the review and her representative appeared at the hearing. The Tribunal has taken into consideration evidence at the hearing on 14 February 2023 and other evidence provided to the Department and to this Tribunal. The Tribunal has also taken into consideration independent information about the Philippines. The evidence and material before the Tribunal is referred to where relevant in the findings. Not all the evidence is referred to in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[9][9] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.KEY ISSUES FOR DETERMINATION BY THIS TRIBUNAL In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:·Whether domestic and family violence took place as described (findings of fact)·Whether there is a real chance of serious harm from the applicant’s father·Whether the harm relates to all areas of the country·Whether the applicant meets the complementary protection criterion, including whether relocation would be reasonable. These issues and other threshold issues are discussed below.FINDINGS AND REASONS OF THIS TRIBUNALNationality For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’. For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country. The applicant has a passport from the Philippines, which expired [in] 2015. The Tribunal is satisfied on the basis of her passport and testimony that the applicant is a national of the Philippines, and that the Philippines is the receiving country for the purposes of the legislation.Personal particulars and the applicant’s background The Tribunal accepts the personal particulars and background information provided by the applicant as follows. This information has been consistently provided and there is no reason to doubt the evidence.