1802143 (Refugee)

Case [2024] AATA 2834

1802143 (Refugee) [2024] AATA 2834 (25 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Farid Popal

CASE NUMBER:  1802143

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Simone Burford

DATE:25 June 2024

PLACE OF DECISION:  Perth

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

Statement made on 25 June 2024 at 1:09pm

CATCHWORDS
REFUGEE – protection visa – Afghanistan – irregular maritime arrival – imputed political opinion – worker for foreign NGO, son of government worker and returned failed asylum seeker – father killed, applicant shot, beaten and tortured, and brothers kidnapped – fear of harm from Taliban – adverse information – travel history not declared, including detention, temporary asylum and applications for and refusals of permanent asylum – inconsistent dates, claims and evidence – advice from people smuggler and agent – significant incorrect information conceded – authenticity of supporting documentation – mental health – work for NGO worker, father’s work and brothers’ disappearance plausible – cumulative aspects of profile – country information – worsening human rights situation – real chance of serious harm – wife and children living in another country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (3), 45AA, 65, 91R(1), 438(1)
Migration Regulations 1994 (Cth), r 2.08F, Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
Appellant S395/2002 v MIMA (2003) 216 CLR 473
BEH15 v MIBP [2019] FCAFC 184
Chand v MIEA [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
DAO v MIBP [2018] FCFCA 2
Guo Wei Rong and Pan Run Juan v MIEA (1996) 40 ALD 445
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v Li [2013] HCA 18
MIBP v SZMTA [2019] HCA 3
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Rajalingam (1999) 93 FCR 220
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZTYV v MIBP [2018] FCA 1076

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 Home Affairs to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

    Background

  2. The applicant claims to be an ethnic Pashtun of Sunni religion, born in [Location], [District], Paktia Province, Afghanistan. He is [Age]-years-old.

  3. The applicant arrived in Australia as an Irregular Maritime Arrival (IMA) [in] July 2012.

    Protection claims

    Protection visa application

  4. The applicant applied for a protection visa on 18 February 2013. The applicant applied…

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Details
AGLC
1802143 (Refugee) [2024] AATA 2834
Case
[2024] AATA 2834
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse the applicant a Protection visa. The applicant, an Afghan national who arrived in Australia as an irregular maritime arrival, claimed to fear harm from the Taliban upon return to Afghanistan. His claims were based on his work for a foreign non-governmental organisation, his father's assassination by the Taliban, and his own alleged persecution, including being shot, beaten, tortured, and having his brothers kidnapped.

The court was required to determine whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically imputed political opinion. This involved assessing the applicant's credibility, considering the adverse information that emerged regarding his travel history, including undeclared periods of detention and asylum applications, and the inconsistencies in his claims and supporting documentation. The court also had to consider the cumulative impact of the applicant's profile, the country information regarding the worsening human rights situation in Afghanistan, and whether there was a real chance of serious harm.

The court applied principles of credibility assessment for asylum seekers, acknowledging the difficulties they face and the need for a reasonable approach, including giving the benefit of the doubt to generally credible applicants unable to substantiate all claims. The court found that while some aspects of the applicant's profile, such as his work for an NGO and his father's work, were plausible, significant discrepancies and incorrect information in his claims and migration history were conceded. Despite these issues, the court considered the cumulative aspects of the applicant's profile in light of the country information. The decision under review was remitted.

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 Home Affairs to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).Background The applicant claims to be an ethnic Pashtun of Sunni religion, born in [Location], [District], Paktia Province, Afghanistan. He is [Age]-years-old. The applicant arrived in Australia as an Irregular Maritime Arrival (IMA) [in] July 2012.Protection claimsProtection visa application The applicant applied for a protection visa on 18 February 2013. The applicant applied for a Protection (Class XA) visa. However, by operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. The applicant’s claims for protection in his application and when interviewed by the Department on 9 January 2014 were summarised in the delegate’s decision as follows:·The applicant claims to fear returning to Afghanistan because he fears harm, including arrest, detention, physical assault and death at the hands of the Taliban because he has worked as a driver for an [NGO, Full name, including Country 1] and for being the son of [an occupation] who was recently targeted and assassinated by the Taliban. ·The applicant claims that the Taliban had targeted him due to his imputed political opinion, i.e. supporting the Afghan Government and International Forces (ISAF).·The applicant’s initial claims centre on the death of his father, who was allegedly killed [in] January 2011 and the applicant’s own alleged kidnapping by the Taliban [in] March 2011. ·The applicant claimed he left Afghanistan [in] April 2011 where he travelled to Pakistan briefly before travelling to Australia. The delegate’s decision notes that following the interview, an initial assessment was made recommending the applicant was a person in respect of whom Australia has protection obligations under the Convention. However, adverse information regarding the applicant’s claimed migration history became available to the Department (detailed below) following the assessment in the process of conducting identity checks. The applicant was invited to comment on the discrepancies in September 2017. As part of his response the applicant corrected his claims as follows:·In relation to threats the family received threat letters from the Taliban due to his father’s work for the [Employer 1]: This occurred in September or October 2007 and not after 2008 as initially claimed.·His father was killed [in] December 2007 and not [January 2011] as initially claimed.·The applicant was attacked and kidnapped by the Taliban in early January 2008 and not [March] 2011 as he initially claimed. The applicant’s migration history and adverse information

Evidence

Evidence Before The Court

The applicant did not make claim to face a risk of persecution on the basis of his mental health on return to Afghanistan, however the Tribunal accepts this forms part of his personal profile.Assessment of evidence and claims The Tribunal has carefully considered the claims of the applicant in his original application for protection and his subsequent application to this Tribunal, individually and then cumulatively. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[3] [3] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]–[70] per Nicholls J. The courts have made it clear that it is important that the Tribunal be sensitive to the difficulties faced by asylum seekers and that it adopt a reasonable approach in making its findings of credibility.[4] Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[5] [4] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; Abebe v The Commonwealth of Australia (1999) 197 CLR 510; Randhawa v MILGEA (1994) 52 FCR 437; Selvadurai v MIEA & Anor (1994) 34 ALD 347; Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445; Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.[5] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[6] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[7] [6] MIMA v Rajalingam (1999) 93 FCR 220.[7] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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