1724993 (Refugee) - [2024] AATA 2047

1724993 (Refugee) [2024] AATA 2047 (30 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1724993
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Jason Pennell
DATE:30 April 2024
PLACE OF DECISION:  Melbourne
DECISION: The Tribunal does not have jurisdiction in respect of the first applicant.
The Tribunal affirms the decision not to grant the second applicant a protection visa.

Statement made on 30 April 2024 at 10.13am

CATCHWORDS
REFUGEE – protection visa – Taiwan and Hong Kong – relationship ceased and first applicant departed Australia – no response to invitation to comment – no jurisdiction – second applicant’s reliance on first applicant’s claims – fear of harm from moneylender and gang – tracked and threatened – no explanation for fear of harm in Taiwan if returned to Hong Kong – second applicant’s loan from finance company half repaid – passage of time – vague oral evidence and no documentary evidence – country information – effective state protection measures – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (2), (5), 5L, 5LA, 36(2)(a), (aa), (2A), 65(1)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pan 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

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 22 September 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
[The first applicant] claims to be a citizen of the Republic of China (Taiwan) and [the second applicant] claims to be a citizen of the People Republic of China (Hong Kong), applied for the visas on 31 May 2017. The delegate refused to grant the visa on the basis that the applicants are not people in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and are not a members of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicants.[1]
[1] s.36(2)(b) and s 36(2)(c) of the Act
The applicants lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 13 October 2017 a copy of the delegate’s primary decision record dated 22 September…

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 1724993 (Refugee)

Details

AGLC: 1724993 (Refugee) [2024] AATA 2047
Case: [2024] AATA 2047
Decision Date: 30 April 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the applications of two applicants for a protection visa. The first applicant's relationship had ceased, and they had departed Australia, leading to a lack of jurisdiction over their application. The second applicant sought to rely on the first applicant's claims, alleging a fear of harm from a moneylender and a gang in Hong Kong, including being tracked and threatened. However, the Tribunal noted a lack of explanation for any fear of harm in Taiwan should the second applicant be returned there.

The Tribunal was required to determine whether the second applicant had established a well-founded fear of persecution for a Convention reason, and whether Australia had protection obligations towards the second applicant. This involved assessing the credibility of the second applicant's claims, the nature and likelihood of any feared harm, and the availability of effective protection from the authorities in Taiwan.

In its reasoning, the Tribunal found the second applicant's evidence to be vague and lacking in documentary support. The Tribunal noted that the second applicant's loan from a finance company was only half repaid, and that a significant passage of time had elapsed since the alleged threats. Applying country information, the Tribunal concluded that effective state protection measures were available in Taiwan. Consequently, the Tribunal was not satisfied that the second applicant had established a well-founded fear of persecution. The decision under review was affirmed.

Orders