1820423 (Refugee) - [2024] AATA 2747

1820423 (Refugee) [2024] AATA 2747 (24 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1820423
COUNTRY OF REFERENCE:                   Taiwan
MEMBER:Lisa Lo Piccolo
DATE:24 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 24 June 2024 at 8:46pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – ethnicity – born in third country, citizen by descent and renounced birth country citizenship – original claims of fear of harm from underground bank and gangs – parents beaten – evidence of loan accepted, but vague and inconsistent evidence of harm and loan paid in full – new claims made pre-hearing of discrimination and abuse in education, employment, public services and daily life – vulnerable state of mind and no appreciation of importance of providing all claims – no adverse inference drawn – limited official country information but academic and news sources support experiences and claims – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
BBK15 v MIBP (2016) 241 FCR 150
MZAAJ v MIBP [2015] FCA 478
SZSPT v MIBP [2014] FCA 1245

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 on 27 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Taiwan, applied for the visa on 12 January 2018. The delegate refused to grant the visa on the basis that [insert brief reason].
The applicant appeared before the Tribunal on 8 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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). 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.

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…

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 1820423 (Refugee)

Details

AGLC: 1820423 (Refugee) [2024] AATA 2747
Case: [2024] AATA 2747
Decision Date: 24 June 2024

CaseChat Overview and Summary

The applicant, a citizen of Taiwan, sought review of a decision by the Minister to refuse to grant a protection visa. The applicant was born in a third country and was a citizen by descent of Taiwan, having renounced their birth country citizenship. The original claims for protection related to fear of harm from an underground bank and gangs, with allegations that the applicant's parents had been beaten. While evidence of a loan was accepted, the evidence regarding harm and repayment was found to be vague and inconsistent.

The primary legal issue before the court was whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically ethnicity, in Taiwan. This involved assessing the applicant's original claims and new claims made prior to the hearing concerning discrimination and abuse in education, employment, public services, and daily life. The court also had to consider the applicant's state of mind and their capacity to appreciate the importance of providing all relevant claims, and whether any adverse inferences should be drawn from any perceived lack of cooperation or disclosure.

The court acknowledged the limited official country information available but found that academic and news sources supported the experiences and claims made by the applicant. The court determined that the applicant's vulnerable state of mind and lack of appreciation for the importance of providing all claims meant that no adverse inference should be drawn. Consequently, the court found that the original decision under review was not justified and remitted the matter for reconsideration.

Orders