1822296 (Refugee) - [2023] AATA 3028

1822296 (Refugee) [2023] AATA 3028 (19 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Gursharan Singh (MARN:0640600)[1]
[1] On and from 31 March 2023. Prior to that date Mr Byron Nazer (MARN: 0747684)
CASE NUMBER:  1822296
COUNTRY OF REFERENCE:                   India
MEMBER:Mark Bishop
DATE:19 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 June 2023 at 2:21pm
CATCHWORDS
REFUGEE – protection visa – India – religion – Sikh – political opinion – political commentary by social media – anti-Modi government – pro-Khalistan separatist – new claims not originally raised before the delegate – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 417, 423A, 426, 426A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
EQU19 v MICMSMA [2022] FedCFamC2G 609
MIAC v Li (2013) 249 CLR 332
Morato v MILGEA (1992) 111 ALR 417
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 16 June 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Procedural matters prior to hearings
The Tribunal provides the following background detail:
·On 22 March 2023 the MA for the applicant contacted[2] the Tribunal and advised he did not realise it was an in-person hearing (as per the hearing invitation sent 9 February 2023). The MA confirmed to the Tribunal Officer the review applicant understood he would need to attend in person. The Tribunal agreed to the MA request for the MA to attend the hearing by video. The MA advised he had previously participated in other hearings using MS Teams. As the request from the MA was made after the close of business on the day of the hearing the Tribunal reviewed the matter the following morning. Arising out of this review the Tribunal confirmed the hearing was set down for 30 March 2023 and not 23 March 2023 as stated by the MA.
·On 29 March 2023 the applicant wrote[3] to the Tribunal and advised he was having “was having flu-like symptoms but this morning, my throat is so much in pain that I am not able to speak and also my body temperature is very high…I did covid test and it’s positive. Please advise what to do as I am not able to stand with a high temperature and sore throat with difficulty breathing…” Attached to this letter were two pictures of a temperature of 100.9 degrees F and a screenshot of a Covid-19 test device.…

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 1822296 (Refugee)

Details

AGLC: 1822296 (Refugee) [2023] AATA 3028
Case: [2023] AATA 3028
Decision Date: 19 June 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse to grant a Protection visa to the applicant, who is from India. The applicant had lodged his application in September 2015, claiming he feared significant harm upon return to India due to financial destitution and an inability to secure employment. The delegate's decision to refuse the visa was subsequently reviewed by the Tribunal. The applicant's case had a complex procedural history, including a dismissal for non-appearance, a subsequent reinstatement application, and appeals to the Federal Circuit Court of Australia.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a Protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) or the complementary protection criterion under section 36(2)(aa). This involved considering the applicant's claims of potential harm due to financial destitution and the circumstances surrounding his failure to appear at a previous Tribunal hearing, which led to a dismissal and subsequent reinstatement application. The Tribunal was also required to consider the impact of a Federal Circuit Court order directing it to reconsider the applicant's reinstatement application.

The Tribunal approached the applicant's case afresh, acknowledging its obligation to consider all relevant evidence and make an independent assessment. It noted that the applicant's initial claims focused on financial destitution, but the case also involved a dismissal for non-appearance and a subsequent application for reinstatement. The Federal Circuit Court had previously found that the Tribunal's decision to dismiss the application and refuse reinstatement was affected by jurisdictional error, specifically a failure to properly consider the applicant's reinstatement application. The Tribunal was directed to reconsider this application according to law.

Following the Federal Circuit Court's orders, a writ of certiorari quashed the Tribunal's previous decision, and a writ of mandamus directed the Tribunal to reconsider the applicant's reinstatement application. The Tribunal confirmed that the matter had been reinstated and would proceed to a formal decision on both the reinstatement application and the final decision on the Protection visa. The Tribunal indicated it would consider the relevant guidelines and country information.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 11 May 2023 the Tribunal wrote[16] to the applicant in the following terms:·I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.·The Tribunal confirms receipt of your submissions received by email on 1 May 2023 including submissions relating to the consideration of the reinstatement application pursuant to s. 426A(1B) of the Migration Act 1958 (Cth) in your related case 1609633, which was subsequently appealed to the Federal Circuit Court of Australia (FCCA).·The Tribunal has had regard to the decision in matter 1609633 and also the Orders made by the FCCA on 13 July 2018 which includes the following:2. A writ of mandamus issue directed to the second respondent requiring it to reconsider and re-determine according to law the applicant's application for reinstatement made pursuant subsection 426A(1B) of the Migration Act 1958 (Cth) on 3 April 2018.·The Tribunal has considered the material provided by the applicant and in these circumstances, the Tribunal confirms that the matter has been reinstated pursuant to s 426A(1C)(a) of the Migration Act 1958 (Cth).·The Tribunal will combine a formal decision on the reinstatement application with the final decision in this matter.·The hearing listed for 9:30am on Friday 12 May 2023 will proceed as scheduled.[16] Doc ID number 11048775CONSIDERATION OF CLAIMS AND EVIDENCE The applicant lodged an Application for a Protection Visa on 19 September 2015.[17] The delegate summarised the applicant’s claims as: ·The applicant claims he has applied for numerous jobs in India and has been unable to secure employment. He fears if he returns to India he will suffer significant harm as he will be financially destitute and unable to subsist.·It is acknowledged the applicant does not have the strongest claims to meet the relevant criteria for a Protection visa and in the case the application is refused, [the applicant] will be seeking the Minister’s intervention under s417 on the basis of unique and exceptional circumstances which engage the public interest’.[18][17] See Departmental file pages 1 to 24.[18] See decision record page 2. The [then] solicitor for the applicant provided a written submission to the Tribunal that set out the following:· [The applicant] arrived in Australia in July 2006 as the holder of Student visa. This visa was extended until 15 March 2009. [The applicant] has remained here ever since. For the past two years [the applicant] has worked as a [Occupation 1] at [Employer 1] and is a valued employee.· We believe that [the applicant] has been unlawful since the expiry of his Student visa in 2009 or sometime thereafter.· [The applicant] instructs that he has applied for numerous jobs in India and has been unable to secure employment. He fears that if he returns to India he will suffer significant harm as he will be financially destitute and unable to subsist. He articles these claims under s 36(2) (aa) of the Act.· It is acknowledged that my client does not have the strongest claims to meet the relevant criteria for a Protection (subclass 866).[19][19] See correspondence from Clothier Anderson, solicitors dated 16 September 2015 at page 26 of Departmental file.

Decision

Reasons for decision

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.Reinstatement decisionTribunal decision in matter 1609633 The delegate’s decision of 15 June 2016 now comes before a newly constituted Tribunal to be reviewed again. The FCCA has directed that the Tribunal must reconsider the Applicant’s case in accordance with the law. The Tribunal considers it appropriate to approach the Applicant’s case ‘afresh’. The Tribunal recognises that it is obliged to take into account all relevant evidence that remains current that was before the Tribunal at the previous hearing, and any further relevant material produced by the Applicant. However, as it is newly constituted, the Tribunal also recognises that is obliged to make an independent assessment as to whether the Applicant meets the primary criteria for the grant of a Protection Visa. The applicant’s application was set down for hearing by the Tribunal on 21 March 2018. The review applicant did not appear at the Tribunal and his application was dismissed on the basis that the review applicant did not appear before the Tribunal at the time and date of the scheduled hearing[10]. [10] Non-Appearance decision 21 March 2018 in Case number 1609633 See Doc ID number 4147543 The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and reasons for the decision, in accordance with the provisions of the Act. The review applicant was advised that a reinstatement application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal. The review applicant did apply for reinstatement on 3 April 2018 within the requisite 14 days and provided a written statement and medical certificates[11] confirming visits to a doctor. However, the Tribunal refused his application for reinstatement and confirmed the decision to affirm the decision under review on 4 April 2018.[12] The Tribunal gave down written reasons[13].[11] Doc ID number 4184109 in Case number 1609633.[12] [13] In particular see paragraphs 5 and 6 of the Confirmation of Dismissal. Application to Federal Circuit Court The review applicant applied to the Federal Circuit Court seeking a review of the Tribunal’s decision in matter number1609633. On 31 July 2018 August 2020 the FCCA made the following Orders:1. A writ in the nature of certiorari issue quashing the decision of the second respondent dated 4 April 2018 (Administrative Appeals Tribunal case number 1609633).2. A writ of mandamus issue directed to the second respondent requiring it to reconsider and re-determine according to law the applicant's application for reinstatement made pursuant subsection 426A(1B) of the Migration Act 1958 (Cth) on 3 April 2018.3. The first respondent pay the applicant's costs fixed in the sum of $1,650.THE COURT NOTES THAT:4. On 28 June 2016 the applicant applied to the second respondent for review of a decision by a delegate of the first respondent refusing to grant him a Protection (Class XA) (subclass 866) visa (the application).5. The applicant did not appear before the second respondent on the day on which, and at the time and place at which, he was scheduled to appear (Court Book (CB) 119-120).6. On 21 March 2018 the second respondent dismissed the application pursuant to paragraph 426A(1A)(b) of the Migration Act 1958 (Cth) (the Act) (CB 124).7. On 29 March 2018 the second respondent received an application for reinstatement pursuant to subsection 426(1B) of the Act that concerned a review application made by an unrelated third party (the third party reinstatement application) (CB 127).8. On 3 April 2018 the second respondent received an application for reinstatement pursuant to subsection 426(1B) of the Act made by the applicant (the reinstatement application) (CB 128-137).9. On 4 April 2018 the second respondent confirmed its decision to dismiss the application pursuant to paragraph 426(1C)(b) of the Act, with mistaken reference to the third party reinstatement application, and without properly considering the reinstatement application (CB 141-142).10. In the circumstances, the first respondent concedes that the decision of the second respondent to dismiss the application pursuant to paragraph 426A(1C)(b) of the Act is affected by jurisdictional error. Specifically, the first respondent concedes that the second respondent failed to carry out its statutory duty under subsection 426A(1C) of the Act to make a decision on the reinstatement application as actually made by the applicant.Application pursuant to s.426A(1B) of the Migration Act 1958.

Ratio Decidendi

Legal Principle Established

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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.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.Reinstatement decisionTribunal decision in matter 1609633 The delegate’s decision of 15 June 2016 now comes before a newly constituted Tribunal to be reviewed again. The FCCA has directed that the Tribunal must reconsider the Applicant’s case in accordance with the law. The Tribunal considers it appropriate to approach the Applicant’s case ‘afresh’. The Tribunal recognises that it is obliged to take into account all relevant evidence that remains current that was before the Tribunal at the previous hearing, and any further relevant material produced by the Applicant. However, as it is newly constituted, the Tribunal also recognises that is obliged to make an independent assessment as to whether the Applicant meets the primary criteria for the grant of a Protection Visa. The applicant’s application was set down for hearing by the Tribunal on 21 March 2018. The review applicant did not appear at the Tribunal and his application was dismissed on the basis that the review applicant did not appear before the Tribunal at the time and date of the scheduled hearing[10]. [10] Non-Appearance decision 21 March 2018 in Case number 1609633 See Doc ID number 4147543 The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and reasons for the decision, in accordance with the provisions of the Act. The review applicant was advised that a reinstatement application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal. The review applicant did apply for reinstatement on 3 April 2018 within the requisite 14 days and provided a written statement and medical certificates[11] confirming visits to a doctor. However, the Tribunal refused his application for reinstatement and confirmed the decision to affirm the decision under review on 4 April 2018.[12] The Tribunal gave down written reasons[13].[11] Doc ID number 4184109 in Case number 1609633.[12] [13] In particular see paragraphs 5 and 6 of the Confirmation of Dismissal. Application to Federal Circuit Court