1820805 (Refugee) - [2020] AATA 895

1820805 (Refugee) [2020] AATA 895 (6 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1820805
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Shahyar Roushan
DATE: 6 April 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the first named applicant a protection visa.
The Tribunal does not have jurisdiction with respect to the other applicant on the basis that there is no valid application for review.

Statement made on 06 April 2020 at 10:20am
CATCHWORDS
REFUGEE – protection visa – Iraq – Federal Circuit Court remittal – religion – Christian – particular social group – widowed Christian women in Iraq – moderate risk of official and societal discrimination and violence – right to enter and reside in a third country – Greece – implications of the EU’s temporary restrictions on non-essential travel in response to the COVID-19 pandemic – racially motivated violence against migrants and refugees – fear of Black Shirts and other right-wing extremist groups – access to health care services in light of the COVID-19 pandemic – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMAC v SZRHU (2013) 215 FCR 35
V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408
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 applicants protection visas under s.65 of the Migration Act 1958 (the Act).
Background
The first named applicant (the applicant) is a [age]-year-old national of Iraq. She is Christian and of Armenian ethnicity. She departed Iraq with the second named applicant (the applicant’s husband) and their [children] in 1994 and, following a short stay in [Country 1], moved to Greece, where she continued to reside.
The applicant’s Iraqi passports contain a number of ‘Family Reunification’ and ‘Residence Permit for Family Reunification’ visas, dated between 2004 and 2008; and a ‘Ten-Year Residence Permit’, valid [from] 2012 [to] 2022.
The applicant husband’s Iraqi passports show a number of short term ‘Employment’ visas issued between 2003 and 2008; two ‘Residence Permit for Exceptional Reasons’ visas issued between 2008 and 2010; and a ‘Ten-Year Residence Permit’, valid [from] 2010 [to] 2020.
Following their daughter’s move to Australia, the applicant and her husband travelled to Australia in June 2014 on visitor visas. Subsequently, one of their sons migrated to Australia, whilst the other has continued to reside in Greece.
On 29 July 2014, the applicant applied for a protection visa. Her husband was included in the application as a member of her family and did not make his own claims. On 9 December…

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 1820805 (Refugee)

Details

AGLC: 1820805 (Refugee) [2020] AATA 895
Case: [2020] AATA 895
Decision Date: 6 April 2020

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse protection visas for an Iraqi national and her husband. The applicants, who are Christian of Armenian ethnicity, fled Iraq in 1994 and subsequently resided in Greece for many years before travelling to Australia in 2014. The first applicant applied for a protection visa, with her husband included as a family member. The delegate refused the application, a decision affirmed by the first Administrative Appeals Tribunal. The matter was remitted to the Administrative Appeals Tribunal by the Federal Circuit Court for reconsideration. Tragically, the second applicant passed away in October 2018.

The primary legal issue before the Tribunal was whether the first applicant met the criteria for a protection visa under the Migration Act 1958, specifically whether she was a refugee within the meaning of Article 1A(2) of the Refugees Convention, or alternatively, whether she qualified for complementary protection under s.36(2)(aa) of the Act. This involved assessing her well-founded fear of persecution for reasons of race, religion, or membership of a particular social group, and the risk of significant harm if returned to Iraq. The Tribunal also had to consider the implications of the COVID-19 pandemic on her ability to access healthcare and her general vulnerability.

The Tribunal affirmed the delegate's decision not to grant the first applicant a protection visa. It found that the applicant did not meet the criteria for a protection visa, nor did she establish a well-founded fear of persecution or a real risk of significant harm. The Tribunal also determined that it had no jurisdiction with respect to the second applicant, as his application for review had lapsed due to his death.

Orders

Orders of the court

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Background

Background to the litigation

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 applicants protection visas under s.65 of the Migration Act 1958 (the Act).Background The first named applicant (the applicant) is a [age]-year-old national of Iraq. She is Christian and of Armenian ethnicity. She departed Iraq with the second named applicant (the applicant’s husband) and their [children] in 1994 and, following a short stay in [Country 1], moved to Greece, where she continued to reside. The applicant’s Iraqi passports contain a number of ‘Family Reunification’ and ‘Residence Permit for Family Reunification’ visas, dated between 2004 and 2008; and a ‘Ten-Year Residence Permit’, valid [from] 2012 [to] 2022. The applicant husband’s Iraqi passports show a number of short term ‘Employment’ visas issued between 2003 and 2008; two ‘Residence Permit for Exceptional Reasons’ visas issued between 2008 and 2010; and a ‘Ten-Year Residence Permit’, valid [from] 2010 [to] 2020. Following their daughter’s move to Australia, the applicant and her husband travelled to Australia in June 2014 on visitor visas. Subsequently, one of their sons migrated to Australia, whilst the other has continued to reside in Greece. On 29 July 2014, the applicant applied for a protection visa. Her husband was included in the application as a member of her family and did not make his own claims. On 9 December 2014, a delegate of the Minister refused the protection visa application. On 22 December 2014, the applicant applied for a review of the delegate’s decision and, on 28 June 2016, a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision. On 25 July 2016, the applicant applied to the Federal Circuit Court of Australia for a review of the first Tribunal’s decision. On 17 July 2018, the Court remitted the matter to the Tribunal by consent to be reconsidered and determined according to law. On 28 October 2018, the applicant’s husband unfortunately passed away. The matter is now before the presently constituted Administrative Appeals Tribunal (the Tribunal) pursuant to the order of the Court.Claims before the Department The application In a statement attached to her protection visa application, the applicant made the following claims. She was born in Baghdad, Iraq. She and her husband are Armenian Christians. Her husband was a [Occupation 1] in Baghdad. In the course of an altercation with a customer, her husband was physically beaten, verbally abused, and detained. As a result of the physical torture he endured, her husband’s hearing was affected and, subsequently, his business failed. The applicant also suffered a miscarriage due to extreme fear. They later became aware that the customer was an associate of Saddam Hussein. [In] April 1994, they fled Iraq and stayed in [Country 1] for about two months. [In] June 1994, they moved to Greece. They did not apply for protection because they were afraid that the regime would find out and harm their relatives in Iraq, and that they would be deported back to Iraq.

Evidence

Evidence Before The Court

It was further submitted that, as a consequence of the COVID-19 pandemic, there are lockdowns and other preventive measures in place in Greece. The health system is struggling to cope with the number of those infected. The applicant falls within a vulnerable group, being over the age of [age], with underlying physiological and mental health issues related to the death of her husband and her uncertain future. She has no support in Greece and she is unable to get the medical help that may otherwise be available to her in Australia.CONSIDERATION OF CLAIMS AND EVIDENCEThe relevant law 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.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.

Decision

Reasons for decision

On the basis of a death certificate submitted to the Tribunal, the Tribunal accepts that the second named applicant passed away in Australia [in] October 2018. It follows that the review application in relation to the second named applicant lapses and there is no valid application for review. The Tribunal, therefore, does not have jurisdiction with respect to the second named applicant.DECISION The Tribunal affirms the decision not to grant the first named applicant a protection visa. The Tribunal has no jurisdiction with respect to the other applicant.Shahyar RoushanSenior Member

Ratio Decidendi

Legal Principle Established

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