1816778 (Refugee) - [2019] AATA 6366

1816778 (Refugee) [2019] AATA 6366 (5 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816778
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Paul Windsor
DATE:5 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 05 September 2019 at 11:47am
CATCHWORDS
REFUGEE – protection visa – Nepal – Federal Circuit Court remittal – procedural fairness – failure to disclose s 438 certificate – particular social group – inter-caste marriage – previous protection visa application refused on refugee criterion – complementary protection criterion – credibility concerns – fraudulently altered passports – inconsistent evidence – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2
CASES
AMA15 v MIBP [2015] FCA 1424
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run
Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZRNJ v Minister for Immigration [2014] FCCA 782
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 on 5 August 2015 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
[Mr A] and [Ms A] made the application for Protection visas to the then Department of Immigration and Border Protection (the Department) on 31 December 2013. Their daughter, [Child B], who was born in [City 1] in Victoria Australia on [Date 1], was included in [the] parents’ application on 11 August 2014.
A summary of the relevant law applicable in this case is at Attachment A.
Previous Protection visa application by [Mr A]
In this case, [Mr A] has previously made an unsuccessful application for a Protection visa (in the name of [Mr C], date of birth [Date 2], the identity he used when he entered Australia). This application was lodged on 26 February 2010 and refused on 2 June 2010[1]. The date of refusal was prior to the implementation of the complementary protection provision.
[1] See folios 47-50 of Tribunal file 1816778.
As the current Protection visa application was lodged on 31 December 2013, prior to legislative amendments to section 48A of the Act that came into effect on 28 May 2014, and in light of the findings in SZRNJ,[2] section 48A of the Act did not apply to prevent [Mr A] lodging a subsequent Protection visa application on the basis of complementary…

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 1816778 (Refugee)

Details

AGLC: 1816778 (Refugee) [2019] AATA 6366
Case: [2019] AATA 6366
Decision Date: 5 September 2019

CaseChat Overview and Summary

This matter concerned a Protection visa application lodged by Mr A and Ms A, citizens of Nepal. The applicants claimed they faced danger in Nepal due to their inter-caste marriage, which occurred without Mr A's father's approval. They asserted that their lives were at risk from their parents, relatives, and the wider community, alleging threats of violence and physical harm. The delegate refused to grant the visa, finding the applicants' claims lacked credibility and that there was no real risk of significant harm if they were returned to Nepal. The delegate also considered that section 36(3) of the Act applied, as the applicants had not taken all possible steps to avail themselves of a right to reside in India. The applicants sought review of this decision by the Tribunal.

The Tribunal was required to determine whether the applicants met the criteria for a Protection visa, specifically considering claims related to complementary protection under section 36(2)(aa) and member of the same family unit criteria under subsections 36(2)(b) and (c). This was in light of the Federal Court's approach in *AMA15 v MIBP* [2015] FCA 1424, which held that where an applicant's previous visa refusal was based on the refugee criterion (s.36(2)(a)), the Tribunal should only consider claims under the complementary protection criterion and family unit criteria. The Tribunal also had to assess the credibility of the applicants' claims, including allegations of threats, violence, and the inability of authorities to provide protection.

The Tribunal affirmed the delegate's decision not to grant the Protection visas. The Tribunal found that the applicants had not satisfied the criteria for a Protection visa. While acknowledging the applicants' claims regarding their inter-caste marriage and the alleged fear of harm, the Tribunal did not find them to be credible or to establish a well-founded fear of persecution. The Tribunal noted that the applicants had not demonstrated that they met the requirements for complementary protection or as members of the same family unit as a person holding a protection visa. Consequently, the Tribunal concluded that Australia did not have protection obligations towards the applicants under the relevant provisions of the Act.

Orders

Orders of the court

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Background

Background to the litigation

As the current Protection visa application was lodged on 31 December 2013, prior to legislative amendments to section 48A of the Act that came into effect on 28 May 2014, and in light of the findings in SZRNJ,[2] section 48A of the Act did not apply to prevent [Mr A] lodging a subsequent Protection visa application on the basis of complementary protection claims and member of the same family unit criteria at subsections 36(2)(b) and (c). In this regard, while the Tribunal notes that the delegate has considered [Mr A]’s claims against both the refugee and complementary protection criteria for a Protection visa, the Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), and subsections 36(2)(b) and (c), where an applicant has previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of this authority, the Tribunal has considered [Mr A]’s claims in relation to the complementary protection criterion in s.36(2)(aa) and the member of the same family unit criteria at subsections 36(2)(b) and (c) only.[2] SZRNJ v Minister for Immigration [2014] FCCA 782.Background In the Protection visa application [Mr A] claimed to be a citizen of Nepal who was born in Nawal Parisi Nepal on [Date 3]. He stated he is a Hindu. He indicated he was married in Chitwan, Nawal Parisi [in] February 2009. He stated he entered Australia on ‘OTHERS PASSPORT’ [in] September 2009. [Ms A] claimed to be a citizen of Nepal who was born in Nawal Parisi Nepal on [Date 4]. She stated she is a Hindu. She indicated she was born on [date]. She stated she entered Australia on ‘OTHERS PASSPORT’ [in] September 2009 (as discussed below she actually entered Australia [in] September 2010).[3] [3] See folios 2-45 of the Departmental file. In the Protection visa application [Mr A] and [Ms A] claimed their lives were in danger in Nepal from their parents, relatives, other village people and society because theirs was an inter-caste marriage and [Mr A] married without his father’s approval.[4][4] See folios 20-23 and 36-39 of the Departmental file. The delegate refused to grant the visa because she found the applicants’ claims to protection were not credible and that they do not hold a genuine subjective fear of harm in Nepal; and was not satisfied that there is a real risk they would suffer significant harm if returned to Nepal. The delegate also found that s.36(3) of the Act applied in this case as she was not satisfied that the applicants had taken all possible steps to avail themselves of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia (that country being India). The applicants sought review of this decision by the Tribunal on 11 August 2015. They did not provide the Tribunal with a copy of the delegate’s decision record. On 9 December 2016 the Tribunal, differently constituted, affirmed the decision not to grant the applicants Protection visas.

Evidence

Evidence Before The Court

The applicants were represented in relation to the review by their registered migration agent. CONSIDERATION OF CLAIMS AND EVIDENCEClaims [Mr A]’s claims from his Protection visa application are summarised as follows:[6]·He could not live in Nepal because of his marriage. He faced family and societal pressure. His family threatened to destroy them and to punish and kill him because he was engaged to someone of a different caste. The situation in the village was intolerable and they had to flee for their safety.·His wife was beaten and threatened that she would be killed. She was kicked out of the house and made to live in a shed for three weeks.·His daughter is living with her grandparents.·If he goes back they will take revenge on him and may do anything, for example beat him, burn him, and punish him physically, mentally and socially. He fears his and his wife’s lives are in danger from his parents, relatives, other village people and society. In the past relatives were harmed and girls forced to marry.·The authorities won’t protect him because they do not care. These events are normal/regular and family matters are not investigated by the police.[6] See folios 36-39 of the Departmental file. [Ms A]’s claims from her Protection visa application are summarised as follows:[7]·She could not live in Nepal as she was threatened by family, relatives and villagers because of her marriage.·They were harmed a few times. She has been hurt, beaten and treated very badly. She was kicked out of the house and asked to live in the shed for three weeks.·She fears worse if she returns. They will surely beat her, punish her and may burn her alive. The village people are backing her husband’s father.·They are at risk anywhere in Nepal. She fears harm from her father and her husband’s father, relatives and other village people. Things like this happen to people in their village. There have been cases where people have been beaten to death and girls get married to the person chosen by their parents or suffer serious harm.·Her husband’s father did not like them getting married without telling him so he is doing his best to break up the marriage.·Their daughter is living with their grandparents.·They wanted a place where they could live safely without fear.·The authorities won’t protect her. They did nothing during and after the event with one of the village people so they believe they will do nothing for them. They have no protection.[7] See folios 20-23 of the Departmental file. The representative made a submission in support of the review application on 16 August 2019.[8] It is submitted that the applicants have a well-founded fear of persecution as they are members of a particular social group based on their inter-caste marriage. The representative asserts that the applicants’ fear has been generated by their own family members as a by-product of the long-standing practice (in Nepal) of not accepting inter-caste marriages. The representative states that, further, ‘the applicant as a deviant from the norms and values of the community is at real risk of persecution at the hands of his family members and community’ and that, ‘adding to the detriment of the applicant, 70% Pahadiyas (people living in hill) have been displaced in Madhesh after 2008, in the wake of new ethnic sentiment’ and thus, ‘not only as a deviant but as a member identified as a Pahadiya Community in Madhesh, the fear owed by the applicant is not ‘far-fetched’ but ‘real’’.[8] See folios 22-27 of Tribunal file 1816778.

Decision

Reasons for decision

There is no suggestion that any of the applicants satisfy 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, none of the applicants satisfy the criterion in s.36(2).DECISION The Tribunal affirms the decision not to grant the applicants Protection visas.Paul WindsorMember Relevant lawATTACHMENT A 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.Refugee criterion 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. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

Ratio Decidendi

Legal Principle Established

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