1828217 (Refugee) - [2024] ARTA 51

DECISION AND

REASONS FOR DECISION

1828217 (Refugee) [2024] ARTA 51 (13 November 2024)

Respondent: Minister for Home Affairs

Tribunal Number: 1828317

Tribunal:General Member J. Pennell
Date:13 November 2024

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets s 36(2)(a) of the Migration Act.

Statement made on 13 November 2024 at 12:48pm

CATCHWORDS

REFUGEE – protection visa – Afghanistan – race – Pashtun – religion – Sunni Muslim – family working for the Coalition – reporting a Taliban bomb threat – killing of the applicant’s father – returnee from a western country – decision under review remitted

LEGISLATION

Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

C v MIMA (1999) 94 FCR 366
Chan v MIEA (1989) 169 CLR 379
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
Devarajan v MIMA [1999] FCA 796
Guo v MIEA; Pan v MIEA (1996) 64 FLR 151
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Y [1998] FCA 515
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63
Prasad v MIEA (1985) 6 FCR 155
Saliba v MIMA (1998) 89 FCR 38
Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999)
Welivita v MIEA (Federal Court of Australia, Lindgren J, 18 November 1996)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 February 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 national of Afghanistan, applied for a Temporary Protection visa (Subclass 785) (TPV) on 9 November 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The IAA affirmed the delegate’s decision to refuse to grant the protection visa to the applicant.
[In] October 2018, the Federal Circuit Court declared that the review applicant was not correctly notified of the delegate’s decision to refuse his TPV. As a result, on 15 February 2019, the Department renotified the applicant of the…

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 1828217 (Refugee)

Details

AGLC: 1828217 (Refugee) [2024] ARTA 51
Case: [2024] ARTA 51
Decision Date: 13 November 2024

CaseChat Overview and Summary

The matter before the court involved an individual from Afghanistan, who was a member of the Pashtun ethnic group and a Sunni Muslim. He had sought a protection visa, citing threats to his life and safety due to his family's association with the Coalition forces, which included reporting a Taliban bomb threat. The applicant's father had been killed as a result of these activities, and the applicant feared for his own life if he were to return to Afghanistan. The case was heard by the Refugee Review Tribunal, which had initially upheld the visa cancellation but was now subject to review by the court.

The primary legal issues before the court were whether the applicant's fear of persecution on account of his race, religion, and political opinion was well-founded and whether he qualified as a refugee under the relevant legislation. The court had to consider whether the applicant's family's activities and their subsequent reporting to Coalition forces constituted a political opinion that would be recognised under Australian law. Additionally, the court had to assess whether the applicant's fear of persecution was reasonable and whether he met the criteria for a protection visa.

In its decision, the court found that the applicant's fear of persecution was well-founded. The court recognised that the applicant's family's actions in reporting a Taliban bomb threat could indeed be seen as a political opinion. The court accepted that the applicant's ethnic and religious background, combined with his family's activities, placed him at significant risk if he were to return to Afghanistan. The court determined that the applicant met the criteria for a refugee and that his fear of persecution was reasonable. Consequently, the decision to cancel the applicant's visa was set aside, and the matter was remitted to the Tribunal for further consideration in light of the court's findings.

Orders