1903213 (Refugee) - [2021] AATA 936

1903213 (Refugee) [2021] AATA 936 (5 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1903213
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Angela Cranston
DATE:5 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise visa) visa.

Statement made on 05 March 2021 at 4:40pm

CATCHWORDS

REFUGEE – cancellation – Subclass 790 (Safe Haven Enterprise visa) visa – Iraq – an imputed Shia Muslim religion –criminal conviction – homosexual – history of substance abuse – applicant has displayed remorse for offending – self-harm – drug addiction – non-refoulement obligations – mental health issues– decision under review set aside

LEGISLATION

Migration Act 1958, ss 46, 48, 116, 189, 195, 359,

Migration Regulations 1994, r 2.43, Schedule 2

CASES

AEM20 v Minister for Home Affairs [2020] FCA 623
AJL20 v Commonwealth of Australia [2020] FCA 1305
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448

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 dated 15 January 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 790 (Safe Haven Enterprise Visa) visa under s.116 of the Migration Act 1958 (the Act).

The claims and evidence are below. The Tribunal’s reasoning for decision is at paragraph 36 and following.

The applicant arrived in Australia [in] November 2012. In his protection visa application, the applicant stated the following:
I was born in Baghdad Iraq on [date]
In 1980 our family left Iraq. This is because the Iraqi government at the time led by Saddam Hussein was targeting Faili Kurds, by forcing them to go to Iran or by killing them. My ancestors on my father's side with family Kurds and my father could speak Kurdish. One of my father's friends told him that our family's name were on a government list and that we were therefore at risk of harm. This is why we fled Iraq and went to around.
In Iran, our family were given green cards, but my parents had difficulty finding employment because they were not citizens and they were from Iraq. For this reason our family found it difficult to subsist in Iran.
At the end of 2004 we returned to Iraq. When we left Iran, we returned our green cards to the reigning government because we were required to do so. My father had owned land and a factory in Iraq but when we returned the land and the factory were owned and being used by other people.
In 2005 my brother [Mr A] disappeared. One day he left home to get his birth certificate at a government…

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.

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Details

Case: [2021] AATA 936
Decision Date: 5 March 2021

CaseChat Overview and Summary

The applicant, who had been granted a Subclass 790 (Safe Haven Enterprise visa) in relation to Iraq, sought judicial review of a decision to cancel that visa. The grounds for cancellation included a criminal conviction, an imputed Shia Muslim religion, and a history of homosexual conduct and substance abuse. The applicant had also experienced self-harm, drug addiction, and mental health issues.

The primary legal issue before the court was whether the Minister's decision to cancel the applicant's visa was affected by jurisdictional error, particularly in light of the applicant's non-refoulement obligations. This required the court to consider whether the cancellation decision had failed to properly assess and give effect to Australia's international obligations to protect individuals from persecution or harm.

In her decision, Cranston J found that the delegate had failed to adequately consider the applicant's mental health issues and history of substance abuse in the context of the cancellation decision. The court determined that the delegate had not properly assessed the risk of harm to the applicant should they be returned to Iraq, particularly in light of their imputed religious identity and past experiences. The reasoning applied emphasised the importance of a holistic assessment of an individual's circumstances when considering the application of non-refoulement obligations.

Consequently, the decision under review was set aside.

Orders