1731667 (Refugee) - [2021] AATA 2894

1731667 (Refugee) [2021] AATA 2894 (2 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731667
COUNTRY OF REFERENCE:                   Kenya
MEMBER:Michael Hawkins AM
DATE2 June 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 June 2021 at 4:58pm

CATCHWORDS
REFUGEE – protection visa – Kenya – religion – Sufi Islam – race – Hawiye tribe – particular social group – Silcis Gorgaate clan – fear of harm from extremist militias – attacks and threats, family members killed – fabricated identity, false or misleading information and bogus documents – no reasonable explanation – born in one country, citizen of another, permanent resident of third – concession of some information and some parts of claims – denial of identity established by document check and continued assertion of fabricated identity – right of return to permanent residence country – refoulement to birth or citizenship countries – COVID-19 travel restrictions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36(2)(a), (3), 65(1), 91WA(1), 438, 487ZI
Migration Regulations 1994 (Cth), Schedule 2, cl 866.211
CASES
MIAC v SZRHU [2013] FCAFC 91
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
V856/00A v MIMA (2001) 114 FCR 408
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 4 December 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (“the Act”).
The applicant who claims to be a citizen of Somalia, applied for the visa on 17 February 2014. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).
The delegate also refused to grant the visa under subsection 91WA(1) of the Act on the basis that the applicant has fabricated his claimed identity and failed to acknowledge his real identity, and that he has failed to provide a reasonable explanation for providing a bogus document as evidence of his identity, nationality or citizenship.
CRITERIA FOR A PROTECTION VISA
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),…

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 1731667 (Refugee)

Details

AGLC: 1731667 (Refugee) [2021] AATA 2894
Case: [2021] AATA 2894
Decision Date: 2 June 2021

CaseChat Overview and Summary

This matter concerned an application for a Protection visa by an individual claiming to be a Somali citizen and a Sufi Muslim, fearing harm from extremist militias. The applicant arrived in Australia in December 2013, claiming to have used a fabricated identity and passport. However, departmental investigations revealed the applicant had arrived using a Kenyan passport in a different name, had previously visited Australia, and held permanent residency in a third country. The Administrative Appeals Tribunal was required to determine if the applicant met the refugee criterion or was entitled to complementary protection, and crucially, whether the grant of the visa was prevented by section 91WA(1) of the Act due to the provision of a bogus document without a reasonable explanation.

The Tribunal considered three primary legal issues. Firstly, whether the applicant met the criteria for a protection visa, including the assessment of his claims of persecution based on religion and tribal affiliation. Secondly, whether the applicant was entitled to complementary protection. Thirdly, and of central importance, the Tribunal had to determine if the applicant had provided a bogus document as evidence of his identity, nationality, or citizenship, and if so, whether he had provided a reasonable explanation for doing so, as required by section 91WA(1) and (2) of the Act. A further consideration was whether the applicant possessed a presently existing right to enter and reside in Kenya or the third country, which could potentially exclude him from Australia's protection obligations.

The Tribunal reasoned that the applicant had failed to provide a reasonable explanation for the discrepancies in his identity and the provision of documents that were found to be bogus. Despite claiming to be a Somali citizen only, evidence indicated he had arrived in Australia under a different identity using a Kenyan passport and held permanent residency in a third country. The applicant's initial claims and subsequent concessions, coupled with the lack of a credible explanation for his fabricated identity and the use of false documents, led the Tribunal to conclude that section 91WA(1) was engaged and that the exceptions under section 91WA(2) did not apply. Consequently, the Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Another issue in this case is whether the grant of the visa is prevented by s.91WA(1) because the applicant has not provided a reasonable explanation for providing a bogus document as evidence of his identity, nationality or citizenship. A further issue the Tribunal had to consider is whether or not the applicant had a presently existing right to enter and reside in another country, being either Kenya or [Country 1], and that if he did, then he may be excluded from Australia’s protection obligations and that he would be unable to obtain a Protection Visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND:(as summarised in the delegate’s decision)Identity Assessment:Claimed identity The applicant claims to be [applicant name], born [date]. The applicant claims he is a citizen of Somalia only. The applicant claims to be a Sufi Muslim. On 17 February 2014, the applicant applied for a Class XA, Subclass 866 (Protection) visa in his claimed identity [applicant name] with assistance from [Legal Service 1]. The applicant provided a certified copy of a Somali birth certificate with an English translation as evidence of his claimed identity. The applicant later submitted the original document for examination along with a laminated card purporting to be an international driver’s licence issued by the Somali Ministry of Transport.Claimed method of arrival in Australia The applicant claimed that he left Somalia on [Date 1] December 2013, travelling by plane to [Country 2] on a Somali passport. The applicant claimed he found a people smuggler in [Country 2], who accompanied him by plane to Brisbane. The applicant claimed that he arrived in Australia on [Date 2] December 2013 as an imposter using a passport in the name ‘[Alias 1]’. The applicant claimed he could not recall the country that issued this passport.Actual method of arrival in Australia Departmental investigations revealed that the applicant in fact arrived in Australia on [Date 3] December 2013 and was immigration cleared as the holder of a [Visitor] visa issued against a Kenyan passport in the name '[Alias 2]'. The Department further discovered that [Alias 2] had previously visited Australia on a [Tourist] visa from [August] 2012 to [September] 2012, and that he held a [Country 1] permanent residence permit.First protection visa interview with the delegate conducted on 3 February 2015 The applicant was twice interviewed by the Department in relation to this protection visa application. At the first interview on 3 February 2015, the applicant claimed that he was a citizen of Somalia only and did not have permanent residency in another country. When it was put to the applicant that the Department had discovered his true method of arrival, as well as his apparent prior travel to Australia and his [Country 1] permanent residency, the applicant did not immediately respond. The Departmental officer gave a natural justice break, during which his agent from [Legal Service 1] withdrew his appointment and left.

Evidence

Evidence Before The Court

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.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Another issue in this case is whether the grant of the visa is prevented by s.91WA(1) because the applicant has not provided a reasonable explanation for providing a bogus document as evidence of his identity, nationality or citizenship. A further issue the Tribunal had to consider is whether or not the applicant had a presently existing right to enter and reside in another country, being either Kenya or [Country 1], and that if he did, then he may be excluded from Australia’s protection obligations and that he would be unable to obtain a Protection Visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND:(as summarised in the delegate’s decision)Identity Assessment:Claimed identity The applicant claims to be [applicant name], born [date]. The applicant claims he is a citizen of Somalia only. The applicant claims to be a Sufi Muslim. On 17 February 2014, the applicant applied for a Class XA, Subclass 866 (Protection) visa in his claimed identity [applicant name] with assistance from [Legal Service 1]. The applicant provided a certified copy of a Somali birth certificate with an English translation as evidence of his claimed identity. The applicant later submitted the original document for examination along with a laminated card purporting to be an international driver’s licence issued by the Somali Ministry of Transport.Claimed method of arrival in Australia The applicant claimed that he left Somalia on [Date 1] December 2013, travelling by plane to [Country 2] on a Somali passport. The applicant claimed he found a people smuggler in [Country 2], who accompanied him by plane to Brisbane. The applicant claimed that he arrived in Australia on [Date 2] December 2013 as an imposter using a passport in the name ‘[Alias 1]’. The applicant claimed he could not recall the country that issued this passport.Actual method of arrival in Australia Departmental investigations revealed that the applicant in fact arrived in Australia on [Date 3] December 2013 and was immigration cleared as the holder of a [Visitor] visa issued against a Kenyan passport in the name '[Alias 2]'. The Department further discovered that [Alias 2] had previously visited Australia on a [Tourist] visa from [August] 2012 to [September] 2012, and that he held a [Country 1] permanent residence permit.First protection visa interview with the delegate conducted on 3 February 2015

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Under s.65(1) of the Act, the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is prevented by s.91WA. Section 91WA(1) requires the Minister to refuse to grant a protection visa to an applicant who provides a bogus document as evidence of their identity, nationality or citizenship, or has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship. However, that requirement will not apply if the applicant has a reasonable explanation for the provision, destruction or disposal, and either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s.91WA(2). Section 91WA and the definition of ‘bogus document’ 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.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Another issue in this case is whether the grant of the visa is prevented by s.91WA(1) because the applicant has not provided a reasonable explanation for providing a bogus document as evidence of his identity, nationality or citizenship. A further issue the Tribunal had to consider is whether or not the applicant had a presently existing right to enter and reside in another country, being either Kenya or [Country 1], and that if he did, then he may be excluded from Australia’s protection obligations and that he would be unable to obtain a Protection Visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND:(as summarised in the delegate’s decision)Identity Assessment:Claimed identity The applicant claims to be [applicant name], born [date]. The applicant claims he is a citizen of Somalia only. The applicant claims to be a Sufi Muslim. On 17 February 2014, the applicant applied for a Class XA, Subclass 866 (Protection) visa in his claimed identity [applicant name] with assistance from [Legal Service 1]. The applicant provided a certified copy of a Somali birth certificate with an English translation as evidence of his claimed identity. The applicant later submitted the original document for examination along with a laminated card purporting to be an international driver’s licence issued by the Somali Ministry of Transport.Claimed method of arrival in Australia The applicant claimed that he left Somalia on [Date 1] December 2013, travelling by plane to [Country 2] on a Somali passport. The applicant claimed he found a people smuggler in [Country 2], who accompanied him by plane to Brisbane. The applicant claimed that he arrived in Australia on [Date 2] December 2013 as an imposter using a passport in the name ‘[Alias 1]’. The applicant claimed he could not recall the country that issued this passport.Actual method of arrival in Australia