1815047 (Refugee) - [2023] AATA 3219

1815047 (Refugee) [2023] AATA 3219 (29 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1815047
COUNTRY OF REFERENCE:                   Iran
MEMBER:Member Nathan Goetz
DATE:29 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 June 2023 at 10:14am
CATCHWORDS
REFUGEE – protection visa – Iran – member of atheist group – atheist tattoo – anti-religious activities – arrest – torture – ex-wife granted protection visa – divorced – delay in protection application – criminal offences – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424A, 424AA, 425(1), 438, 499
Migration Regulations 1994 (Cth), Schedule 2, r 1.12
CASES
EZC18 v MHA [2019] FCA 2143
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 Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
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 (Cth) (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, he or she 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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and…

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 1815047 (Refugee)

Details

AGLC: 1815047 (Refugee) [2023] AATA 3219
Case: [2023] AATA 3219
Decision Date: 29 June 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to refuse a protection visa to an Iranian citizen. The applicant arrived in Australia in 2012 with his then-wife and son, initially holding temporary visas. In October 2015, the applicant applied for a protection visa, not on his own grounds, but as a member of the same family unit as his wife, who was making protection claims. The applicant and his wife separated in May 2016 and divorced in 2017. Consequently, the applicant was found no longer to be a member of the same family unit, and his former wife and son were granted protection visas in July 2017. The applicant was then invited to submit his own protection claims, which he did in September 2017.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2) of the Migration Act 1958. Specifically, the Tribunal had to determine if the applicant was a refugee or a non-citizen in respect of whom Australia had protection obligations due to a real risk of significant harm if removed from Australia. The Tribunal also considered whether the applicant qualified as a member of the same family unit as a protection visa holder, as provided for in sections 36(2)(b) and (c) of the Act.

The Tribunal's reasoning focused on the applicant's changed family circumstances. As the applicant was divorced from the protection visa holder and no longer part of the same family unit, he could not satisfy the criteria under sections 36(2)(b) or (c). The Tribunal noted that the applicant had been invited to make his own protection claims, but the decision under review was based on his failure to meet the family unit criteria at that stage. The Tribunal affirmed the delegate's decision, finding that the applicant did not satisfy the requirements for a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The most recent report on Iran is dated 14 April 2020.BACKGROUND The applicant identifies as [age]-year-old male citizen of Iran presently located in Australia. [In] May 2012 the applicant arrived in Australia holding a vocational education and training sector visa with his then-wife and son. The applicant and his son held those visas as ‘dependents’ on the applicant’s then-wife’s visa. The applicant’s visa was valid until 15 September 2015. On 26 June 2015 the applicant applied for a postgraduate research sector further stay visa with his then-wife and son. On 28 September 2015 the applicant was granted the visa. The applicant and his son held those visas as ‘dependents’ on the applicant’s then wife’s visa. The applicant’s visa was valid until 30 December 2017. On 19 October 2015 the applicant applied for a protection visa with his then-wife and son. His wife was making claims for protection, but the applicant and his son sought to be granted the protection visa only on the basis that they were members of the same family unit: s 36(2)(b) or (c). The applicant told the Tribunal hearing that he and his wife separated [in] May 2016 and the coupled divorced sometime in 2017. On 9 December 2016 the applicant, his wife and child were found by a delegate to meet the criteria for a grant of protection. On 6 July 2017 a delegate made an ‘addendum’ to the protection visa assessment. The applicant was found not to meet the requirements for the grant of the protection visa because he was no longer a member of the same family unit. On 19 July 2017 the applicant’s former wife and son were granted protection visas by a delegate of the Minister. On 24 July 2017 the delegate wrote to the applicant and noting that he was not a member of the same family unit, the applicant was invited to submit his own claims for protection. On 26 September 2017 the applicant submitted documents to the delegate raising his own protection claims. On 13 October 2017 the applicant was interviewed by a delegate concerning his protection visa application. On 15 May 2018 the delegate refused to grant the applicant the protection visa on the basis that he did not satisfy s 36(2)(a), (aa), (b) or (c) of the Act. On 23 May 2018 the applicant applied to the Tribunal for review of the decision to refuse to grant the applicant the protection visa. On 8 February 2022 the Tribunal wrote to the applicant under s 425(1) of the Act and invited him to appear at a Tribunal hearing commencing at 10:30am on 24 February 2022 via Microsoft Teams. The Tribunal was required to invite the applicant to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the issues under review because the Tribunal had considered the material and was unable to make a decision favourable to the applicant. On 24 February 2022 the applicant appeared by audio-visual link at the Tribunal hearing via Microsoft Teams. The Tribunal was satisfied that an appearance by audio-visual link was appropriate because the applicant resided in Queensland and the Tribunal Member was based at the Sydney registry.CONSIDERATION OF CLAIMS AND EVIDENCE

Evidence

Evidence Before The Court

On 24 February 2022 the applicant appeared by audio-visual link at the Tribunal hearing via Microsoft Teams. The Tribunal was satisfied that an appearance by audio-visual link was appropriate because the applicant resided in Queensland and the Tribunal Member was based at the Sydney registry.CONSIDERATION OF CLAIMS AND EVIDENCE Three protection visa application files were provided to the Tribunal. The first file concerned the protection visa applications of the applicant, his wife and his son. After the applicant and his wife had separated, it appears two new files were created. One file was for the applicant, and the other for the applicant’s wife and son. The Tribunal has considered the content of those three files. The Tribunal notes that the earlier department file contains a notification regarding the disclosure of certain information under s 438 of the Act. The notification purports to prohibit the disclosure of the information contained in folios 59-68, 71, 83, 85, 92-96 of the earlier files. It was submitted that the information contained in those folios should not be disclosed to the applicant because it contained information provided in confidence by the applicant’s now ex-wife since the couple’s separation. The Tribunal made the applicant aware of the existence of the certificate at the Tribunal hearing. The Tribunal accepts that the information was provided in confidence. Broadly speaking, it details a change in the family circumstances, the fact that a domestic violence order had been made in favour of the applicant’s now former wife against the applicant, the addendum to the earlier protection visa assessment (which the applicant would have been aware of given what the delegate wrote to him about no longer being a member of the same family unit, the applicant’s now ex-wife’s national police certificate, and the applicant’s ex-wife’s and son’s successful protection visa assessment. There was nothing contained in the folios that would be a reason, or part of the reason, for affirming the decision under review to enliven the statutory obligations under s 424A/424AA of the Act. Likewise, there was nothing contained in the folios that undermined the applicant’s claims or concerned the Tribunal to mean that, as a matter of procedural fairness, the Tribunal was required to discuss its concerns with the applicant. If there was any such evidence, and the Tribunal proposed to rely upon those concerns, the Tribunal would have raised the concerns arising from the material with the applicant and discussed those concerns with him at the Tribunal hearing.Applicant’s personal particulars The applicant’s personal particulars are detailed in the protection visa application form dated 15 October 2015 and was completed with the assistance of a registered migration. The form declared that the applicant’s statements and other information was read back to him in his own language. The applicant detailed that he was born in Tehran, Iran and that he is an Iranian citizen. He declared his ethnicity as ‘Persian,’ his religion as ‘Atheist’ and his occupation as ‘[deleted].’ He detailed that he was married [in] October 2004 in Iran. At the Tribunal hearing, the applicant told the Tribunal that he and his wife were now separated and divorced. They separated [in] May 2016 and were divorced sometime in 2017. He was unsure of the date in 2017 because the only information he had that he was divorced was what his now former wife told him. The applicant said that the couple had not applied for their marriage to be recognised as divorced in Iran.

Decision

Reasons for decision

Therefore, the applicant is not a member 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)(b) or (c) of the Act.DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Nathan GoetzMemberATTACHMENT -Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.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. The most recent report on Iran is dated 14 April 2020.BACKGROUND The applicant identifies as [age]-year-old male citizen of Iran presently located in Australia. [In] May 2012 the applicant arrived in Australia holding a vocational education and training sector visa with his then-wife and son. The applicant and his son held those visas as ‘dependents’ on the applicant’s then-wife’s visa. The applicant’s visa was valid until 15 September 2015. On 26 June 2015 the applicant applied for a postgraduate research sector further stay visa with his then-wife and son. On 28 September 2015 the applicant was granted the visa. The applicant and his son held those visas as ‘dependents’ on the applicant’s then wife’s visa. The applicant’s visa was valid until 30 December 2017. On 19 October 2015 the applicant applied for a protection visa with his then-wife and son. His wife was making claims for protection, but the applicant and his son sought to be granted the protection visa only on the basis that they were members of the same family unit: s 36(2)(b) or (c). The applicant told the Tribunal hearing that he and his wife separated [in] May 2016 and the coupled divorced sometime in 2017. On 9 December 2016 the applicant, his wife and child were found by a delegate to meet the criteria for a grant of protection. On 6 July 2017 a delegate made an ‘addendum’ to the protection visa assessment. The applicant was found not to meet the requirements for the grant of the protection visa because he was no longer a member of the same family unit. On 19 July 2017 the applicant’s former wife and son were granted protection visas by a delegate of the Minister. On 24 July 2017 the delegate wrote to the applicant and noting that he was not a member of the same family unit, the applicant was invited to submit his own claims for protection. On 26 September 2017 the applicant submitted documents to the delegate raising his own protection claims.