1807055 (Refugee) - [2020] AATA 6035

1807055 (Refugee) [2020] AATA 6035 (8 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1807055
COUNTRY OF REFERENCE:                   Zimbabwe
MEMBER:Dr Colin Huntly
DATE AND TIME OF
ORAL DECISION AND REASONS:         8 July 2020 at 10:30 am (WA time)
DATE OF WRITTEN RECORD:                15 February 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the decision under review with the direction that the applicant satisfies s.36(2)(a) of the Act.

Statement made on 15 February 2021 at 2:36pm
CATCHWORDS
REFUGEE – protection visa – Zimbabwe – particular social group – women in Zimbabwe without resources, support or protection with particular vulnerabilities – gender-based violence – domestic violence at the hands of first husband – right to enter and reside in third countries – burden of providing primary care to a dependant child – state protection – behaviour modification and relocation – third country protection in New Zealand based on child’s citizenship entitlement – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Iyer v MIMA [2000] FCA 52
SZFDV v Minister for Immigration & Citizenship [2007] HCA 41
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 on 19 February 2018 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).
At the hearing on 8 July 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS
Attached to this decision record is a corrected transcript of the oral reasons for decision delivered to the applicant at the time of their delivery in person.
DECISION
The Tribunal remits the decision under review with the direction that the applicant satisfies s.36(2)(a) of the Act.
Dr Colin Huntly
Member

Corrected Transcript
ORAL DECISION OF MEMBER HUNTLY [09.55 am]
BACKGROUND
The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994 (the Regulations). An applicant, to meet the requirements of the visa, must either be a person in respect of whom Australia has protection obligations under the refugee criteria or on complementary protection grounds.
Where relevant, the Tribunal has taken into account the policy guidelines prepared by the Department relating to refugee and complementary protection, together with any country information assessment prepared by the Department of Foreign Affairs (DFAT), as is required by Ministerial Direction No.84.
The applicant, who claims to be a citizen of Zimbabwe, applied for the Protection visa on 8 December 2016. On 19 February 2018 a…

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 1807055 (Refugee)

Details

AGLC: 1807055 (Refugee) [2020] AATA 6035
Case: [2020] AATA 6035
Decision Date: 15 February 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) reviewed a decision to refuse a protection visa to an applicant from Zimbabwe. The applicant had applied for the visa in December 2016, and a delegate of the Minister refused the application in February 2018, finding that the applicant did not meet the criteria for refugee protection under section 36(2)(a) of the Migration Act 1958 (Cth). The applicant sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa under section 36(2)(a) of the Act, which concerns Australia's protection obligations under refugee law. This involved assessing whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group. The Tribunal also considered whether the delegate had adequately addressed the alternative criteria for complementary protection under section 36(2)(aa) of the Act.

Member Colin Huntly reasoned that the applicant did satisfy the criteria for a protection visa under section 36(2)(a) of the Act. While the delegate had not accepted the applicant's claimed political persecution, the Tribunal found that the applicant belonged to a particular social group: women in Zimbabwe without resources, support, or protection, who face particular vulnerabilities, including gender-based violence and domestic violence. The Tribunal considered the applicant's circumstances, including her need to provide primary care to a dependant child and the lack of effective state protection in Zimbabwe, which might involve behaviour modification and relocation. The Tribunal also noted the possibility of third-country protection in New Zealand based on the child's citizenship entitlement.

The Tribunal remitted the decision under review with a direction that the applicant satisfies section 36(2)(a) of the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Attached to this decision record is a corrected transcript of the oral reasons for decision delivered to the applicant at the time of their delivery in person.DECISION The Tribunal remits the decision under review with the direction that the applicant satisfies s.36(2)(a) of the Act.Dr Colin HuntlyMemberCorrected TranscriptORAL DECISION OF MEMBER HUNTLY [09.55 am]BACKGROUND The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994 (the Regulations). An applicant, to meet the requirements of the visa, must either be a person in respect of whom Australia has protection obligations under the refugee criteria or on complementary protection grounds. Where relevant, the Tribunal has taken into account the policy guidelines prepared by the Department relating to refugee and complementary protection, together with any country information assessment prepared by the Department of Foreign Affairs (DFAT), as is required by Ministerial Direction No.84. The applicant, who claims to be a citizen of Zimbabwe, applied for the Protection visa on 8 December 2016. On 19 February 2018 a delegate of the Minister refused to grant a visa on the basis that they did not accept the applicant’s claimed political persecution in that country for the purposes of s.5J(1)(a) of the Act (as these relate to s.36(2)(a) of the Act). It is unclear to me from the delegate’s decision record on what basis the delegate did not subsequently find that the applicant engaged Australia’s protection obligations by reference to the alternative criteria at s.36(2)(aa) of the Act. It may be that this finding was inferred by the delegate from the credibility finding they had previously made relating to the previous refugee assessment. The applicant was represented throughout the review by a registered migration agent. The applicant applies to this tribunal for a review of that decision. I also note that, with respect to refugee protection, that a decision-maker is entitled to consider whether or not an applicant subjectively holds a genuine fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is subjectively held. The applicant appeared at hearing with the Tribunal on three occasions to give evidence and present arguments. The first two hearings were in person in the Perth registry of the Tribunal on 12 August 2019 at which time the applicant was in an advanced stage of pregnancy. Following the safe delivery by the applicant of a [child] on [date] – which child is not an applicant for protection under the present review – the second hearing was held on 6 April 2020. The final hearing was held on 8 July 2020 via video conference due to the COVID-19 pandemic restrictions. PRESIDENT’S DIRECTION I have had regard to the President’s Direction COVID-19 Special Measures Practice Direction, Migration and Refugee Division 27 April 2020. I have also had regard to the President’s Direction Conducting Migration and Refugee Reviews 1 August 2018. In particular: · That Members are to take all reasonable steps to complete cases allocated to them as quickly as possible;[1] and · That generally, in reviewing a decision to refuse the grant of a protection visa, Members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.[2] [1]Consistent with the AAT Act 1975, s.33(1)(b) at [2.1].[2]At [8.1].COVID-19 RELATED ISSUES

Ratio Decidendi

Legal Principle Established

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