1823098 (Refugee) - [2024] AATA 3533

1823098 (Refugee) [2024] AATA 3533 (23 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Morag Milton
CASE NUMBER:  1823098
COUNTRY OF REFERENCE:                   Iran
MEMBER:Denis Dragovic
DATE:23 April 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 23 April 2024 at 1:59pm
CATCHWORDS
REFUGEE – Protection Visa – Iran – religion – Faili Kurd – Kurdish ethnicity – applicant is a citizen of Iran – physical and sexual assault – imputed political opinion having being identified as a sympathiser of Kurdish separatists – a returned failed asylum seeker – frail mental state – satisfied that the applicant is a person in respect of whom Australia has protection obligations – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 46, 65, 424, 499
Migration Regulations 1994, Schedule 2
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 Home Affairs on 31 July 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 Iran, applied for the visa on 23 May 2016.
The delegate refused to grant the visa on the basis that they found the applicant to be lacking credibility and did not accept the bases of claims put forward by the applicant.
The applicant appeared before the Tribunal on 19 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.
The applicant was represented in relation to the review.
MIGRATION VISA HISTORY
The applicant has had a long engagement with the Australian government that has repercussions to this decision and as such I am revisiting the applicant’s travel history.
The applicant arrived in Australia via Christmas Island on [date] July 2010. He undertook what was then a routine series of interviews and assessments including a Refugee Status Assessment, Protection Obligation Determination, and Independent Merits Review. At each stage he was found not to be owed protection. Appeals were lodged first to the Federal Magistrates Court and subsequently through the Full Federal Court and on to the High Court. At the High Court the Minister won ending the series of appeals in June 2015.
In April 2016 a request was made to lift the s 46A bar preventing the applicant from making an application for protection. This was granted by the Minister and the applicant was allowed to apply for the visa that is currently being considered before this Tribunal.

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 1823098 (Refugee)

Details

AGLC: 1823098 (Refugee) [2024] AATA 3533
Case: [2024] AATA 3533
Decision Date: 23 April 2024

CaseChat Overview and Summary

The applicant, a citizen of Iran and claiming to be a Shia Faili Kurd, sought a protection visa. The dispute concerned whether Australia had protection obligations towards the applicant, who alleged he had experienced physical and sexual assault, and was imputed with a political opinion due to alleged sympathies with Kurdish separatists. The matter came before the Tribunal for review of a previous decision.

The Tribunal was required to determine the applicant's identity, specifically whether he was a stateless Faili Kurd, and to assess the credibility of his account of his life in Iran, including his statelessness, inability to attend schooling, lack of access to healthcare, and history of illegal employment. Further, the Tribunal needed to consider the applicant's mental health status and its impact on his ability to recall events, as well as his extensive migration visa history, which included previous unsuccessful protection claims culminating in a High Court decision in favour of the Minister in 2015.

The Tribunal acknowledged the applicant's frail mental state and adopted a cautious approach by providing him with notice of any adverse information, as suggested by his representative. While noting minor inconsistencies in the applicant's statements regarding his parents' ages and the timing of their deaths, the Tribunal accepted that his parents were deceased. The Tribunal also considered the applicant's prior unsuccessful attempts to obtain protection in Australia, noting that a request to lift the bar preventing further applications had been granted in 2016, allowing the current application to proceed.

The Tribunal concluded that the decision under review should be remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence and findings of fact In the applicant’s 2017 statement accompanying his protection visa application he writes, ‘This statement should be read in addition to my previous statements and my submission dated 22 July 2015.’ To avoid doubt I note that the submissions include a written submission made by the applicant for his 2010 Refugee Status Assessment, another for his 2015 July submission for the purposes of an International Treaty Obligations Assessment and written material for his 2017 protection visa application which includes a written statement and submissions made to the current Tribunal. The status of the statements submitted to the Department prior to the current visa application and review process beginning was discussed at the second hearing with the representative. When put to the applicant that the above quoted statement could be read as meaning that the material has become a part of this hearing the representative said that it would be preferable for the applicant to be on notice of any adverse material as he is unlikely to recall what was said and in order for her client to be able to respond appropriately that the Tribunal treat the information as extraneous from this current review process and as such if relevant be provided under s424A/AA. In an abundance of caution, noting the applicant’s mental health status, I adopted the suggested pathway of the applicant’s representative and advised the applicant of any adverse information by way of the provisions in s424AA. The applicant is claiming to be a Shia Faili Kurd. He is a man of [age] years who stated that he had lived his whole life in [a] village, Ilham province, Iran. Central to the applicant’s claims are his identity and specifically whether he is a stateless Faili Kurd as claimed. Relevant to this question of identity is whether the applicant has provided a convincing narration of his life in Iran. The applicant detailed his early years in his written statements which included in summary that he was unable to attend schooling due to being stateless but that he had a friend teach him the basics of reading and writing in Farsi. He claimed to have been unable to access health care, and that he did not have official permission to work. He claimed that he worked illegally as a farm hand and labourer since the age of [age] years for a variety of farmers or alternatively since he was [age] years old. This minor discrepancy is not relevant. The applicant claimed that his parents were also farm workers. It was noted in the Departmental decision that at the biodata interview stage upon arrival to Australia the information provided was that his parents were of a certain age, which could be inferred that they were alive but at the entry interview he said that they died when he was [age] years of age. This was a point of contention for the delegate. The applicant claimed that his parents were born in Baghdad, Iraq, but expelled in 1978 because they were Faili Kurds. He claims that they died in a car accident when he was[age] years old and since their passing the applicant is claiming to have lived with his maternal uncle who is also claimed to be stateless and the uncle’s seven children, the uncle’s wife, and the uncle’s mother (the applicant’s grandmother). I accept that the applicant’s parents are deceased and do not engage further with the apparent inconsistency arising from the biodata interview.At the hearing further details were provided

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant was represented in relation to the review. MIGRATION VISA HISTORY The applicant has had a long engagement with the Australian government that has repercussions to this decision and as such I am revisiting the applicant’s travel history. The applicant arrived in Australia via Christmas Island on [date] July 2010. He undertook what was then a routine series of interviews and assessments including a Refugee Status Assessment, Protection Obligation Determination, and Independent Merits Review. At each stage he was found not to be owed protection. Appeals were lodged first to the Federal Magistrates Court and subsequently through the Full Federal Court and on to the High Court. At the High Court the Minister won ending the series of appeals in June 2015. In April 2016 a request was made to lift the s 46A bar preventing the applicant from making an application for protection. This was granted by the Minister and the applicant was allowed to apply for the visa that is currently being considered before this Tribunal.APPLICANT’S MENTAL HEALTH A lengthy history of the applicant’s mental health challenges was provided to the Tribunal on the eve of the first hearing. In addition to the medical documents the applicant’s representative provided a summary which is reproduced in an abridged version here:a.2011 the applicant begins to self-harm and abstains from eating while in detention.b.2013 the applicant self-harms while in community detention.c.2014 the applicant engages with Foundation House and the subsequent report is the only one on the applicant’s mental health that is available to the Tribunal.d.2017 the applicant chooses to manage his own mental health challenges without professional assistance.e.2023 [a] Support Coordinator provides details about the applicant’s ongoing mental health challenges. This material was used in shaping how the hearing would be conducted and as noted below in weighing the evidence. Materials not before the Tribunal The applicant’s representative in her 2023 submission and in oral discussions at the first hearing noted that some documents remain unavailable to them. We discussed these documents and their relevance including specifically those that the representative has sought through FOI. Three specific types of documents were identified: the applicant’s International Treaty Obligations Assessment (ITOA), documents relating to lifting the bar and those relating to Ministerial processes. I noted that I have only received the applicant’s submission to the ITOA but not the assessment. The representative confirmed that they have access to this same submission. That the document detailing the assessment by another decision maker is not available is not relevant to this proceeding. Regarding documents relating to the lifting of the bar, I noted that it is not often that I see more than a letter that simply states that the bar is lifted which in of itself does not contribute to the necessary considerations of the matter before this Tribunal.