1801291 (Refugee)

[2020] AATA 4584

1801291 (Refugee) [2020] AATA 4584 (29 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801291

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Alison Murphy

DATE:29 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(c)(i) of the Migration Act.

Statement made on 29 October 2020 at 9:40am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – country of nationality – loss of identity documents – member of family unit – de facto partner of person holding a Temporary Protection (Class XD) visa – has two children with de facto partner – application for a protection visa which is a different class to partner’s protection visa – ‘prescribed applicant’ – not barred by the operation of s.91WB – under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5CB, 36, 45AA, 65, 91WB, 415, 425
Migration Regulations 1994 (Cth), rr 1.09, 2.03A, 2.08F

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Sri Lanka, arrived in Australia by boat [in] July 2012 and applied for the visa on 3 December 2012. The delegate refused to grant the visa on 15 April 2014, not being satisfied the applicant was a person owed protection by Australia.

3. The applicant sought a review of the delegate’s decision from this Tribunal and on 24 September 2015 the Tribunal (differently constituted) affirmed the decision to grant the applicant a protection visa. The applicant sought a review of the Tribunal’s decision from the Federal Circuit Court of Australia. In a judgment dated 13 October 2017, that court set aside the Tribunal’s decision and remitted the matter back to the Tribunal, concluding that the Tribunal failed to consider an aspect of the applicant’s claims.

4. Due to the COVID19 restrictions in force in Victoria at the time of the Tribunal’s decision, the Tribunal was unable to offer the applicant an in-person hearing. However there has been a significant change to the applicant’s circumstances since the matter was last before the Tribunal which is evidenced by both the Department’s records and material provided by the applicant. As a consequence of this new information I consider I should decide the review in the applicant’s favour on the basis of the material before me pursuant to s.425(2)(a) of the Act.

5. The applicant was represented in relation to the review by her registered migration agent.

   CRITERIA FOR A PROTECTION VISA

6. 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, the applicant 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.

7. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. 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 a protection 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 the applicant 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’).

9. A person may also meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia who is a member of the same family unit as a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) and who has been granted a protection visa of the same subclass (ss 36(2)(b) and (c)).

   Mandatory considerations

10. 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.

    ISSUE FOR DETERMINATION

11. The issue in this case is whether the applicant is 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 a person who holds a protection visa of the same class.

12. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration on the basis that the applicant is a member of the same family unit as her de facto partner, [Mr A]. [Mr A] was granted a Temporary Protection (Class XD) visa on 19 December 2017 on the basis that he satisfied s.36(2)(aa) of the Act.

13. The effect of the Tribunal’s decision is that on remittal, the applicant’s application for the Protection (Class XA) visa will be taken to be (and to always have been) an application for a Temporary Protection (Class XD) visa. As the applicant’s spouse holds a protection visa of the same subclass, the applicant will then meet the criteria in s.36(2)(c)(ii) of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. Section 36(2)(c) sets out that an applicant will meet the criteria for the grant of a protection visa in circumstances where they are a non-citizen in Australia who is a member of the same family unit as a person in respect of whom Australia has protection obligations under the complementary protection criteria and who holds a protection visa of the same class as that applied for by the applicant.

    Non-citizen in Australia

15. It is not in dispute that the applicant is a Sri Lankan national. She has produced to the department copies of her school leaving certificate, her parents’ marriage certificate and a letter from the midwife who assisted in her birth confirming her name.

16. While the applicant does not hold a national identity card (NIC) or a Sri Lankan birth certificate, both the delegate and the first Tribunal accepted that the applicant was among hundreds of thousands of people displaced by Sri Lanka’s civil war without such documents. This followed the loss of her birth certificate in a fire leaving her without the necessary documentation to obtain a NIC. The delegate recorded that the applicant was able to describe her day to day life and cultural norms in Sri Lanka in detail and spoke Tamil fluently at interview. The delegate was satisfied she is a Sri Lankan Tamil who resided in Trincomalee in Sri Lanka’s Eastern Province before travelling to Australia.

17. The Tribunal finds that Sri Lanka is the applicant’s country of nationality. There is no suggestion the applicant is also an Australian citizen and the Tribunal finds she is a non-citizen. The Department’s movement records confirm that she is in Australia.

    Member of a family unit

18. The applicant is a [age]-year-old female. She travelled to Australia on a boat which was intercepted by the Australian authorities at sea and she arrived [at Location 1] [in] July 2012. Movement and ICSE records record her port of arrival as [Location 2], on board SIEV [number].

19. The Department’s ICSE records record that the applicant is the spouse of [Mr A] born [date]. Those records confirm that she and [Mr A] have two children born in Australia, [Child 1] born [date] and [Child 2] born [date]. Each of those children has been granted a Temporary Protection (Class XD) visa as members of their father’s family unit.

20. In statutory declarations dated 12 October 2020, the applicant and [Mr A] state that the met when they travelled to Australia on the same boat in 2012. They were separated on arrival and placed in different detention centres, where they spoke on the phone regularly. After being released from detention they met up in Melbourne, moving in together towards the end of 2012. They are not formally married but live in a committed relationship with their two young children.

21. The applicant has provided the Tribunal with copies of Australian birth certificates in relation to each of the children, each of which name the applicant and [Mr A] as the parents. While [Child 2]’s birth certificate records that her parents are married, I accept that is recorded in error. [Child 2]’s birth certificate also records [Child 1] as a previous child of the relationship. I accept the applicant and [Mr A] have two children together.

22. I have had regard to letters from people known to the applicant. [Ms B], casework coordinator at [community services provider] states that she has known the applicant since June 2019 and she presents to the [provider] as a family with her partner and children. She states that [Mr A] has been listed as the applicant’s next of kin with the [provider] since January 2016 and she believes them to be genuine de facto partners.

23. [Ms C] states that she met the applicant while they were in detention together and the applicant came to live with her after she was released from detention. Her partner [Mr A] also moved into the house and they lived together as husband and wife. [Ms C] states that she is still in regular contact with the applicant, with whom she speaks three or four times a week and she knows that the applicant and [Mr A] have lived for the past eight years as husband and wife, now with two children.

24. [Ms D] states that she first met the applicant in 2012 and they have been good friends for eight years. She states that she knows the applicant and [Mr A] have been living together since 2012 and that they are a family with two children.

25. The applicant has also provided a residential tenancy agreement dated 5 November 2017 for a rental property at which she continues to reside. The applicant and her husband are named as tenants on that agreement and utilities bills also link them both to that address. I have also had regard to photographs of the applicant and her husband submitted to the Tribunal, showing them together at various family celebrations between 2013 and 2020. 

26. On the evidence before me and having had regard to the definition of de facto partner contained in s.5CB and further considerations for de facto partner in r.1.09 and r.2.03A, I am satisfied the applicant is in a de facto relationship with and the de facto partner of [Mr A]. Given my finding that the applicant is the de facto partner of [Mr A], I am satisfied that she is a member of his family unit for the purposes of s.36(2)(c)(i).

    Visa of the same class

27. Movement records in respect of [Mr A] confirm that he arrived in Australia [in] July 2012 by boat and was granted a Temporary Protection (Class XD) visa on 19 December 2017. This followed a decision dated 9 September 2016 by this Tribunal (differently constituted) that he was owed complementary protection by Australia, therefore satisfying s.36(2)(aa) of the Act.

28. As noted above, the applicant has made an application for a Protection (class XA) visa which is a different class to the visa held by her spouse. However s.45AA of the Act provides for an application for one class of visa to be converted into an application for a different class of visa.

29. Regulation 2.08F (attached) sets out the circumstances in which certain applications for a Protection (Class XA) visa are taken to be applications for a Protection (Class XD) visa.  In summary, reg.2.08F(1) sets out that a valid application for a Protection (Class XA) visa made by a prescribed applicant before 16 December 2014, will be taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Rather it will be taken to be, and to always have been, a valid application for a Temporary Protection (Class XD) visa.

30. As the applicant made a valid application for a Protection (Class XD) visa before 16 December 2014, her visa application will be converted to an application for a Temporary Protection (Class XD) visa so long as she is a ‘prescribed applicant’ for the purposes of reg.2.08F(2).

31. Reg.2.08F(2)(a)(ii) provides that an applicant is a prescribed applicant if they hold, or have ever held, a Temporary Safe Haven (Class UJ) visa. As the Department’s records confirm the applicant was granted a Class UJ visa on 14 February 2018, I am satisfied she is a prescribed applicant by virtue of reg.2.08F(2)(a)(ii). As she did not hold a valid visa at the time of her last entry into Australia, I am satisfied she is also a prescribed applicant by virtue of reg.2.08F(2)(b). As Departmental records show she was also an unauthorised maritime arrival (having entered Australia by sea arriving at an excised offshore place and not being an excluded maritime arrival), she is also a prescribed applicant by virtue of reg.2.08F(2)(c).

32. Reg.2.08F(3) sets out when reg.2.08F starts to apply. The applicant lodged the visa application on 3 December 2012 and the delegate refused to grant the visa on 15 April 2014. As a consequence of these events occurring before reg.2.08F came into effect from 16 December 2014, reg.2.08F(3)(a) does not apply in this case. However reg.2.08F(3)(b)(ii) provides that the regulation starts to apply to a pre-conversion application immediately after this Tribunal remits a matter in relation to the pre-conversion application in accordance with s.415(2)(c) of the Act.

33. It follows that as a consequence of the Tribunal’s remittal with a direction the applicant satisfies s.36(2)(c)(i) of the Act, her application for a Protection (Class XA) visa will be taken to be, and to have always been, an application for a Protection (Class XD) visa. At that point she will meet the criteria set out in s.36(2)(c)(ii) of the Act.

34. Given my findings above, it is not necessary for me to consider the applicant’s claims against s.36(2)(a) and s.36(2)(aa) of the Act.

    Other matters

35. Section 91WB provides that the Minister must not grant a protection visa to the family applicant of a person who has been granted a protection visa unless the family applicant applies for the protection visa before the family visa holder is granted a protection visa. In this case the applicant applied for the protection visa on 3 December 2012, well before [Mr A]’s visa was granted on 19 December 2017. Therefore I find that the applicant is not barred from being granted a protection visa by operation of s.91WB.

    CONCLUSIONS

36. For the reasons given above, the Tribunal is satisfied that the applicant is a member of the same family unit as a person who satisfies s.36(2)(aa). Therefore the applicant satisfies the criterion set out in s.36(2)(c)(i).

37. As a consequence of the Tribunal’s remittal, the application for the Protection (Class XA) visa will be taken to be (and to always have been) an application for a Temporary Protection (class XD) visa pursuant to reg.2.08F. At this time the applicant will also meet the criteria set out in s.36(2)(c)(ii).

    DECISION

38. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(c)(i) of the Migration Act.

    Alison Murphy
    Member

    
    

    Reg 2.08F    Certain applications for Protection (Class XA) visas taken to be applications for Temporary Protection (Class XD) visas

    Conversion regulation

    (1)  For section 45AA of the Act, despite anything else in the Act, a valid application (a pre-conversion application) for a Protection (Class XA) visa made before the commencement of this regulation by an applicant prescribed by subregulation (2) is, immediately after this regulation starts to apply in relation to the application under subregulation (3): 

    (a)  taken not to be, and never to have been, a valid application for a Protection (Class XA) visa; and

    (b)  taken to be, and always to have been, a valid application for a Temporary Protection (Class XD) visa, made by the prescribed applicant.

    . . .

    Prescribed applicants

    (2)  The following are prescribed applicants:

    (a)  an applicant who holds, or has ever held, any of the following visas:

    (i)  a Subclass 785 (Temporary Protection) visa granted before 2 December 2013;

    (ii)  a Temporary Safe Haven (Class UJ) visa;

    (iii)  a Temporary (Humanitarian Concern) (Class UO) visa;

    (b)  an applicant who did not hold a visa that was in effect on the applicant’s last entry into Australia;

    (c)  an applicant who is an unauthorised maritime arrival;

    (d)  an applicant who was not immigration cleared on the applicant’s last entry into Australia.

    When this regulation starts to apply

    (3)  This  regulation starts to apply in relation to a pre-conversion application immediately after the occurrence of whichever of the following events is applicable to the application:

    (a) if, before the commencement of this regulation, the Minister had not made a decision in relation to the pre-conversion application under section 65 of the Act — the commencement of this regulation;

    (b)  in a case in which the Minister had made such a decision before the commencement of this regulation — one of the following events, if the event occurs on or after the commencement of this regulation:

    (i)  the Administrative Appeals Tribunal remits a matter in relation to the pre-conversion application in accordance with paragraph 415(2)(c) of the Act;

    (ii) the Administrative Appeals Tribunal remits a matter in relation to the pre-conversion application in accordance with paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975;

    (iii)  a court orders the Minister to reconsider the pre-conversion application in accordance with the law;

    (iv)  a court declares or concludes (with or without formal declaration) that a decision of the Minister in relation to the pre-conversion application is invalid, void or of no effect;

    (v)  a court quashes a decision of the Minister in relation to the pre-conversion application. 

    (4)  To avoid doubt, for the purposes of subregulation (3), the Minister is taken not to have made a decision in relation to a pre-conversion visa application under section 65 of the Act if, before 16 December 2014:

    (a) the Minister had made a decision in relation to the pre-conversion application under section 65 of the Act; and

    (b)  one of the following events occurred after the Minister made that decision:

    (i)  the Refugee Review Tribunal remitted a matter in relation to the pre-conversion application in accordance with paragraph 415(2)(c) of the Act;

    (ii) the Administrative Appeals Tribunal remitted a matter in relation to the pre-conversion application in accordance with paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975;

    (iii)  a court ordered the Minister to reconsider the pre-conversion application in accordance with the law;

    (iv)  a court declared or concluded (with or without formal declaration) that a decision of the Minister in relation to the pre-conversion application was invalid, void or of no effect;

    (v)  a court quashed a decision of the Minister in relation to the pre-conversion application; and

    (c)  after the occurrence of the event mentioned in paragraph (b), the Minister had not made another decision in relation to the pre-conversion application.