1724639 (Refugee) - [2022] AATA 5154

1724639 (Refugee) [2022] AATA 5154 (3 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1724639
COUNTRY OF REFERENCE:                   USA
MEMBER:Damian Creedon
DATE AND TIME OF
ORAL DECISION AND REASONS:         3 March 2022 at 9:58 am (WA time)
DATE OF WRITTEN RECORD:                10 February 2023
PLACE OF DECISION:  Perth
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 10 February 2023 at 1:50pm
CATCHWORDS
REFUGEE – protection visa – United States of America – born in third country to mother from that country and father from USA – US citizen by descent and not eligible for citizenship of birth country – father abandoned applicant and mother at young age – mother’s physical and mental health – applicant cared for by grand-mother in birth country then aunt in Australia – application for orphan relative visa unsuccessful – father now dead and no other relatives willing or able to care for applicant – family, education and integration into community – no claim of persecution or well-founded fear – complementary protection – risk of irreparable harm and best interests of child – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZSPT v MIBP [2014] FCA 1245
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.
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 15 September 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).
Background
The applicant, a citizen of the USA,[1] is [age] years old[2] and was born in [Country 1]. He first arrived in Australia [in] December 2015 holding a Visitor (UD601) visa. He applied for a protection visa on 17 March 2017.
[1] US Passport [number].
[2] At the time of the hearing.
Protection visa application
Among the materials provided to the Tribunal by the applicant was the delegate’s decision record dated 15 September 2017. The decision record notes the following relevant information:
The applicant lodged an application for an Orphan Relative visa in January 2016 ([File Number 1]). The department’s delegate refused the visa on the basis that the applicant’s mother was not so adversely affected by her medical conditions as to be unable to care for the applicant, and did not accept that the applicant’s father was ‘deceased, incapacitated or whereabouts unknown’.
The Tribunal, in affirming the delegate’s decision, found that 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 1724639 (Refugee)

Details

AGLC: 1724639 (Refugee) [2022] AATA 5154
Case: [2022] AATA 5154
Decision Date: 3 March 2022

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse the applicant, a United States citizen born in another country, a protection visa. The applicant had arrived in Australia on a visitor visa and subsequently applied for a protection visa. The applicant's father, a US citizen, had abandoned the family, and the applicant's mother was unable to care for him due to health issues. The applicant had been cared for by his grandmother and then his maternal aunt in Australia, who had obtained legal guardianship. An earlier application for an orphan relative visa had been unsuccessful.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth). This involved determining if Australia had protection obligations towards the applicant, either under the "refugee" criterion (section 36(2)(a)) or the "complementary protection" criterion (section 36(2)(aa)). The Tribunal was required to assess whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or alternatively, whether there was a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.

The Tribunal found that the applicant did not meet the "refugee" criterion as there was no claim of persecution or a well-founded fear of persecution. However, the Tribunal was satisfied that the applicant met the "complementary protection" criterion under section 36(2)(aa). This was based on the assessment that as a US citizen with no legal right of return to his country of birth, no one to care for him there, and the potential for serious harm if placed in the foster care system in the US, there was a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia. The Tribunal also considered the best interests of the child in its assessment.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(aa) of the Migration Act.

Orders

Orders of the court

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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 15 September 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).Background The applicant, a citizen of the USA,[1] is [age] years old[2] and was born in [Country 1]. He first arrived in Australia [in] December 2015 holding a Visitor (UD601) visa. He applied for a protection visa on 17 March 2017.[1] US Passport [number].[2] At the time of the hearing.Protection visa application Among the materials provided to the Tribunal by the applicant was the delegate’s decision record dated 15 September 2017. The decision record notes the following relevant information:The applicant lodged an application for an Orphan Relative visa in January 2016 ([File Number 1]). The department’s delegate refused the visa on the basis that the applicant’s mother was not so adversely affected by her medical conditions as to be unable to care for the applicant, and did not accept that the applicant’s father was ‘deceased, incapacitated or whereabouts unknown’.The Tribunal, in affirming the delegate’s decision, found that the applicant’s mother – in having the care of the applicant’s younger half-brother – was not incapable of looking after the applicant. The Tribunal noted the Australian Red Cross had made an unsuccessful attempt to trace the applicant’s father and so focused solely on the capacity of the applicant’s mother to care for the applicant. The Tribunal noted that the applicant’s maternal aunt, with whom he was residing, had not taken steps to adopt the applicant which bypassed certain legal requirements that must ordinarily be met through the intercountry adoption process and ensure Australia met its obligations under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.The applicant’s claims for protection and supporting evidence are contained in [File Number 2]. The applicant’s claims for protection are summarised below:·The applicant arrived in Australia in December 2015 on a visitor visa and is currently residing with his maternal aunt in Perth. His aunt is an Australian permanent resident in Australia with her husband and infant child.·The applicant’s aunt was given legal guardianship of the applicant by the Ecclesiastical Court of First Instance in [Country 1] in August 2016. The applicant’s maternal grandmother previously had guardianship of the applicant in [Country 1] but was no longer able to care for him after developing breast [cancer and falling very ill.·The applicant was born in [Country 1] but is not a [Country 1] citizen as citizenship passes through the father and the applicant’s father is a citizen of the USA. The applicant’s father passed his US citizenship to the applicant; the applicant holds a US passport.·The applicant has no legal right of return to [Country 1] and is considered a foreigner. The applicant would be required to apply for a visa to gain entry to [Country 1] and would have no one to care for him as his mother will not take custody of him.·The applicant does not know the whereabouts of his father as the applicant has not had contact since his father left his mother in 2007. The applicant has no one in the US to care for him and would be forced to enter the foster or other care system which would cause him serious harm.

Evidence

Evidence Before The Court

Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.CONSIDERATION OF CLAIMS AND EVIDENCEThe 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 of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she 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. 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 because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b). Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.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.Analysis reasons and findings

Decision

Reasons for decision

Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(aa).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act. Damian CreedonMember

Ratio Decidendi

Legal Principle Established

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