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1833723 (Refugee)

1833723 (Refugee)

Case [2024] AATA 4288 18 March 2024

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1833723 (Refugee) [2024] AATA 4288 (18 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Hassan Izadnia (MARN: 1571846)
CASE NUMBERS:  1833723 & 2215116
COUNTRY OF REFERENCE:                  Iran
MEMBER:Jason Pennell
DATE:18 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the second applicant satisfies s 36(2)(a) of the Migration Act 1958 (the Act); and
(ii)that the first applicant, third applicant and fourth applicant satisfy s 36(2)(b) of the Act based on membership of the same family unit as the second applicant.

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Statement made on 18 March 2024 at 9.44am

CATCHWORDS
REFUGEE – protection visa – Iran – father’s previous arrival by boat, application for protection refused and voluntary departure – parents’ arrival by boat – members of family unit Australia-born children – combined hearing and decision of separate applications by parents and children – ethnicity, political opinion, religion and membership of particular social groups – Ahwazi Arabs – father a member and employee of organisation who leaked information about organisation’s involvement in attack – house searched and brother arrested and questioned – brother now holds protection visa – conversion from Islam to Zoroastrianism – community cultural activities and anti-government protests in Australia – vague claims and limited supporting evidence – mother’s claim as westernised woman – children’s education and physical health – country information – systematic and discriminatory treatment and real risk of harm – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5(1), 5H(1)(a), 5J(1)(a), 5L, 36(2)(a), (b), 65

Migration Regulations 1994 (Cth), r 1.12(2), (4)

CASES

C v MIMA (1999) 94 FCR 366

Calado v MIMA (1998) 81 FCR 450

Chan v MIEA (1989) 169 CLR 379

MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo (1997) 191 CLR 559

MIMA v Darboy [1998] FCA 931

MIMA v Khawar (2002) 210 CLR 1

MIMA v Y [1998] FCA 515

Nagalingam v MILGEA (1992) 38 FCR 191

Pei Lan He v MIMA [2001] FCA 446

Prasad v MIEA (1985) 6 FCR 155

Saliba v MIMA (1998) 89 FCR 38

Savvin v MIMA [1999] FCA 1265

VCAD v MIMIA [2004] FCA 1005

WZAOO v MIAC (2012) 134 ALD 332

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 13 November 2018 to refuse to grant the applicants Temporary Protection (XD-785) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicants, who claim to be citizens of Iran, applied for the visa on 19 February 2016. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom…

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 1833723 (Refugee)

Details

AGLC: 1833723 (Refugee) [2024] AATA 4288
Case: [2024] AATA 4288
Decision Date: 18 March 2024

CaseChat Overview and Summary

The applicant, an Iranian national, sought review of a decision by the Minister for Immigration and Border Protection to refuse to grant a protection visa. The applicant's husband had previously arrived in Australia by boat, had his protection visa application refused, and had voluntarily departed. The current application concerned the applicant, her husband, and their Australia-born children, who were considered a family unit for the purposes of the application. The claims for protection were based on the applicant's ethnicity as an Ahwazi Arab, her husband's alleged membership and employment in an organisation that leaked information about an attack, leading to a search of their home and the arrest and questioning of his brother (who now holds a protection visa), the husband's conversion from Islam to Zoroastrianism, and their participation in community cultural activities and anti-government protests in Australia.

The Administrative Appeals Tribunal was required to determine whether the applicant and her family unit held well-founded fears of persecution for reasons of race, religion, political opinion, or membership of a particular social group, or whether they would suffer significant harm if returned to Iran. This involved assessing the credibility of the claims made, the weight to be given to the limited supporting evidence, and the current country information regarding the treatment of Ahwazi Arabs, converts to Zoroastrianism, and individuals involved in anti-government activities in Iran. The Tribunal also had to consider the specific circumstances of the children, including their education and physical health, in the context of the family's overall claim.

The Tribunal found that while some aspects of the claims were vague and lacked substantial supporting evidence, the country information indicated a systematic and discriminatory treatment of Ahwazi Arabs in Iran, and a real risk of harm for individuals engaging in anti-government activities or converting from Islam. The Tribunal also considered the mother's claim as a "westernised woman" and the potential implications for her and her family. Ultimately, the Tribunal concluded that the decision under review was not well-founded and that the matter should be remitted for reconsideration.

Orders