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1827638 (Refugee)

1827638 (Refugee)

Case [2023] AATA 2683 19 June 2023

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Immigration

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1827638 (Refugee) [2023] AATA 2683 (19 June 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Patrick O'Connor
CASE NUMBER:  1827638
COUNTRY OF REFERENCE:                  Stateless
MEMBER:Jason Pennell
DATE OF DECISION:  19 June 2023
DATE CORRIGENDUM
SIGNED:12 July 2023
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:
-In the final sentence of paragraph [68], delete the words ‘her race as an ethnic Hazara’, and replace with ‘his race as an ethnic Kurd’.
Jason Pennell
Senior Member
Statement made on 12 July 2023 at 1.54pm

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Patrick O'Connor
CASE NUMBER:  1827638
COUNTRY OF REFERENCE:                  Stateless
MEMBER:Jason Pennell
DATE:19 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(c)(i) of the Migration Act based on his membership of the same family unit as his children.

Statement made on 19 June 2023 at 10.20am
CATCHWORDS
REFUGEE – protection visa – stateless/Iran – original claims as stateless Faili Kurd and secondary applicant to wife’s application – later declaration to be Kurdish Iranian citizen – discrimination and capacity to subsist – political opinion – participation in Green Movement protests – religion – non-practicing Muslim with tattoo – returned failed asylum seeker – mental health – vague and inconsistent claims and evidence – country information – no harm to family members – no conversion or religious activity – applicant and wife separated – wife and children’s application remitted after separate review – violence, controlling behaviour and threats to take custody if returned – not a member of family unit of wife but member of family unit of children – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5H(1), 5J(1)(a), (4), 36(2)(a), (aa), (b)(i), (c)(i), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
C v MIMA (1999) 94 FCR 366
Calado v MIMA (1998) 81 FCR 450
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MIMA v Darboy [1998] FCA 931
MIMA v Y [1998] FCA 515
Saliba v MIMA (1998) 89 FCR 38
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 dependants.
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 Home Affairs on 17 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicant who claims to be a citizen of Iran, applied for the visa on 26 September 2017 as a secondary applicant to his wife’s application. The delegate refused to grant the visa on the basis that the applicant is not…

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 1827638 (Refugee)

Details

AGLC: 1827638 (Refugee) [2023] AATA 2683
Case: [2023] AATA 2683
Decision Date: 19 June 2023

CaseChat Overview and Summary

The applicant, a stateless Faili Kurd from Iran, sought a protection visa. He initially claimed to be stateless and later declared himself to be a Kurdish Iranian citizen. The dispute concerned whether he met the criteria for a protection visa, with claims relating to discrimination, capacity to subsist, political opinion stemming from participation in Green Movement protests, and religious beliefs as a non-practicing Muslim with a tattoo. The decision under review was made by the delegate of the Minister for Immigration and Border Protection.

The court was required to determine whether the applicant had established a well-founded fear of persecution for a convention reason, specifically political opinion or membership of a particular social group. It also needed to consider whether the applicant would be at risk of serious harm if returned to Iran, taking into account country information, his mental health, and the circumstances of his separation from his wife and children. The court also had to assess the applicant's claims regarding violence, controlling behaviour, and threats to take custody of his children.

The court considered the applicant's mental health, noting vague and inconsistent claims and evidence. It examined country information which indicated no harm to his family members and no evidence of religious conversion or activity. The court found that while the applicant was not a member of his wife's family unit, he was a member of his children's family unit. The court remitted the decision under review, noting that the wife and children's application had been remitted after a separate review.

Orders