1807655 (Refugee) - [2020] AATA 813

1807655 (Refugee) [2020] AATA 813 (18 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1807655
COUNTRY OF REFERENCE:                   India
MEMBER:Catherine Carney-Orsborn
DATE:18 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 18 March 2020 at 12:26pm
CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit Court remittal – scope of reconstituted review – delay in applying for protection – possibility of being joined in parents’ application for review – child of an inter-faith and inter-caste marriage – fear of family members – fear of Hindu fundamentalists – credibility concerns – inconsistent evidence from applicant’s parent – voluntary travel and stay in India – daughter of same marriage living unharmed in India – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 19A
Migration Act 1958 (Cth), ss 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
SZEPZ v MIMA (2006) 159 FCR 291
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 dependant.
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 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 India, was born to parents of Indian citizenship. The applicant’s parents arrived in Australia [in] April 2009 as the holders of [student] visas. The applicant’s mother departed Australia [in] August 2009, and returned [in] May 2010. The applicant’s parents applied to the Department of Home Affairs (the Department) for protection visas on 23 December 2011. The delegate refused to grant the visas on 30 May 2012, and the Refugee Review Tribunal affirmed the decision on 4 December 2012. The applicant’s parent’s application for judicial review was denied by the Federal Magistrate’s Court [in] June 2014, and denied by the Federal Court [in] June 2013. An application for ministerial intervention was denied on 23 April 2014.
The applicant applied to the Department for the Protection visa on 10 June 2014. On 18 March 2015, the delegate refused to grant the visa on the basis that there were inconsistencies with evidence from the parents’ application for protection and the applicant’s parents failing to include the applicant in their request for ministerial intervention. The applicants applied to the Tribunal for review of that decision on 14 April 2015.
The Tribunal affirmed the decision under review on 29 September 2016. The basis for the Tribunal’s decision was due to inconsistencies in evidence, concerns about the credibility of the applicant’s mother, and the delay in lodging an application for protection for the…

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 1807655 (Refugee)

Details

AGLC: 1807655 (Refugee) [2020] AATA 813
Case: [2020] AATA 813
Decision Date: 18 March 2020

CaseChat Overview and Summary

The applicant sought a protection visa, claiming Australia had obligations to protect them under either the refugee criterion or the complementary protection criterion. The dispute concerned whether the applicant met the requirements for a protection visa, specifically under s.36(2)(a) (refugee criterion) or s.36(2)(aa) (complementary protection criterion) of the Migration Act 1958 (Cth). The matter came before the Tribunal for review.

The Tribunal was required to determine if the applicant qualified as a refugee under Article 1A(2) of the Refugees Convention, which involves a well-founded fear of persecution for specific reasons, or if they would face significant harm as a necessary and foreseeable consequence of removal from Australia, thereby meeting the complementary protection criterion. The Tribunal also considered whether the applicant was a member of the same family unit as a person who met these criteria.

The Tribunal's reasoning focused on the evidence presented regarding the applicant's claims of fear from family members and Hindu fundamentalists, stemming from an inter-faith and inter-caste marriage. It noted credibility concerns arising from inconsistent evidence provided by the applicant's parent and the fact that the applicant's daughter, from the same marriage, was living unharmed in India. The Tribunal also considered the applicant's voluntary travel and stay in India. Ultimately, the Tribunal found that the applicant did not satisfy the criteria for a protection visa, including not being a member of the same family unit as a person who held a protection visa.

The Tribunal affirmed the decision not to grant the applicant a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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). Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. 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’). In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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. The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complimentary protection.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).DECISION The Tribunal affirms the decision not to grant the applicant a Protection visa.Catherine Carney-OrsbornMember

Ratio Decidendi

Legal Principle Established

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