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1820283 (Refugee)

1820283 (Refugee)

Case [2020] AATA 648 7 January 2020

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1820283 (Refugee) [2020] AATA 648 (7 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1820283
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Jason Pennell
DATE:7 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the directions that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 7 January 2020 at 2.43pm
CATCHWORDS

REFUGEE – protection visa – Stateless – Federal Court remittal – ethnicity – Faili Kurd born in Iran to Iraqi parents – discrimination, attack and threats – fear of arrest, torture and death – departed Iran on fraudulent passport – right of return – status of Faili Kurds in Iran – right to Iranian or Iraqi citizenship – religion – atheist of Shia Islamic background married to a Christian woman – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), 65, 91R
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
DZABG v MIAC [2012] FMCA 36
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Savvin (2000) 98 FCR 168
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
QAAE v MIMIA [2003] FCAFC 46
Rishmawi v MIMA (1997) 77 FCR 421
Savvin v MIMA [1999] FCA 1265
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

1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 September 2013 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).
2.The visa applicant applied for the visa on 21 November 2012. The delegate refused to grant a visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations.
3.The applicant appeared before the Tribunal on 27 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages. The Tribunal also took oral evidence from Ms [A] (‘the applicant’s wife’). The applicant was represented in relation to his review and at the Tribunal hearing by his registered migration agent.
4.The Tribunal first heard the applicant’s claims for protection on 9 December 2014. By a decision dated 24 March 2015,[1] the Tribunal, differently constituted, determined that the applicant was not owed…

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 1820283 (Refugee)

Details

AGLC: 1820283 (Refugee) [2020] AATA 648
Case: [2020] AATA 648
Decision Date: 7 January 2020

CaseChat Overview and Summary

The applicant, Faili Kurd, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerning his application for a protection visa. The applicant, born in Iran to Iraqi parents, claimed to be stateless and to have faced discrimination, attacks, and threats in Iran due to his ethnicity, religion, and his marriage to a Christian woman. He asserted a fear of arrest, torture, and death in Iran, having departed the country using a fraudulent passport. The Federal Court had previously remitted the matter for redetermination.

The primary legal issue before the court was whether the applicant had established that he would, if returned to Iran, hold a genuine fear of persecution for a Convention reason, specifically ethnicity or religion, or whether he would be stateless and thus unable to obtain protection from any other country. This involved assessing the applicant's claimed lack of right to Iranian or Iraqi citizenship, the status of Faili Kurds in Iran, and the implications of his religious beliefs and interfaith marriage.

The court considered the evidence regarding the applicant's background, including his birth in Iran, his parents' Iraqi origin, and his self-identification as an atheist from a Shia Islamic background. It examined the legal framework governing citizenship for individuals of Faili Kurd ethnicity born in Iran and the rights, or lack thereof, afforded to them. The court also analysed the potential for persecution based on his religious beliefs and his marriage, and whether these factors, individually or cumulatively, would expose him to a real chance of serious harm amounting to persecution. The court ultimately found that the applicant had not established a well-founded fear of persecution for a Convention reason, nor had he established that he would be stateless and unable to obtain protection from Iraq.

The application for review was dismissed.

Orders