1905046 (Refugee) - [2023] AATA 4686

1905046 (Refugee) [2023] AATA 4686 (14 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATIONS FOR REVIEW:               Applications for review of two separate decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection visa subclass XE-790 Safe Haven Enterprise Visa (‘SHEV’) under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:        Unrepresented
CASE NUMBERS:  1905046 + 2108606
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Kate Chapple
DATE:14 December 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal:
a.    affirms the delegate’s decision 26 April 2018 to refuse to grant the applicant a SHEV (Tribunal review case number 1905046).
b.    sets aside the delegate’s decision dated 28 June 2021 to refuse to grant the applicant a SHEV (Tribunal review case number 2108606) and substitutes it with a decision that the associated SHEV application was not valid.

Statement made on 14 December 2023 at 1:34pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – arrival by sea – temporary safe haven visa and statutory bar – not ‘unauthorised maritime arrival’ and ‘fast track applicant’ as defined – first application valid, so second application invalid – religion – Roman Catholic – youth organiser, student for priesthood and participant in protests – attacked and threatened by thugs – friends arrested and summons issued for applicant – claimed association with high-profile activist – new claim of attendance at Viet Tan meetings in Australia – vague and inconsistent evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AA, 5AAA(2), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 48A, 48B, 65, 91K, 423A(2)
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
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.
BACKGROUND

These are applications for review of two separate decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a SHEV under s 65 of the Act.
The applicant is a citizen of Vietnam.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of Act). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a SHEV is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 15 October…

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 1905046 (Refugee)

Details

AGLC: 1905046 (Refugee) [2023] AATA 4686
Case: [2023] AATA 4686
Decision Date: 14 December 2023

CaseChat Overview and Summary

The applicant sought review of decisions made by a delegate of the Minister to refuse to grant a Safe Haven Enterprise Visa (SHEV). The dispute concerned two separate SHEV applications made by the applicant, one in 2017 and a subsequent one in 2020. The court was required to determine the validity of the second SHEV application and, if valid, to review the delegate's refusal of that application. The court also had to consider the review of the refusal of the first SHEV application.

The primary legal issue before the Tribunal was whether the applicant's second SHEV application was valid, given that section 48A of the Migration Act 1958 (Cth) imposes a bar on further applications in certain circumstances. The Tribunal also had to determine whether the applicant met the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth), specifically whether he was a refugee or met complementary protection grounds, or was a family member of such a person.

The Tribunal reasoned that the applicant's first SHEV application, lodged in 2017, was valid. Consequently, the applicant was not permitted to make a second SHEV application under section 48A of the Migration Act 1958 (Cth). As the second application was invalid from its inception, the Tribunal lacked jurisdiction to review the delegate's refusal of that application. The Tribunal affirmed the delegate's decision to refuse the first SHEV application, finding no evidence that the applicant satisfied the criteria for a protection visa under section 36(2)(a) or (aa) of the Act, nor under section 36(2)(b) or (c) as a family member.

The Tribunal affirmed the delegate’s decision dated 26 April 2018 to refuse to grant the applicant a SHEV (Tribunal review case number 1905046). The Tribunal set aside the delegate’s decision dated 15 February 2022 to refuse to grant the applicant a SHEV (Tribunal review case number 2202283) and substituted it with a decision that the associated SHEV application was not valid.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The second SHEV was refused by the delegate on 28 June 2021. The applicant made an application for review of the second SHEV refusal decision on 1 July 2021 (case number 2108606). However, the second SHEV application is, and always was, barred under s 48A. Accordingly, the second SHEV application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second SHEV and substitute it with a decision that the second SHEV application is invalid.EVIDENCE BEFORE THE TRIBUNALSHEV applications SHEV application lodged 3 August 2017. Applicant’s statement dated 3 August 2017. SHEV application dated 4 November 2020. Applicant’s statement dated 6 April 2021. Catholic priest’s unsigned statement dated 24 June 2021. Refugee Advice & Casework Service (‘RACS’) submission dated 24 June 2021. Decision records relating to the delegates’ refusal decisions. Departmental interview audio files. Internal departmental records relating to the applicant.Application for review case number 1905046 Application for review lodged 4 March 2019. The Tribunal wrote to the applicant inviting him to attend a hearing on 12 December 2023 and to provide pre-hearing submissions. Prior to the hearing, the applicant provided to the Tribunal confirmation that he intended to participate in the hearing with the assistance of an interpreter. The applicant did not submit any further statements or documents in support of his case.The Hearing The applicant appeared before the Tribunal at a hearing conducted via video link on 12 December 2023, with the assistance of an interpreter (also via video link) in the Vietnamese and English languages. The applicant was unrepresented. At the start of the hearing, the Tribunal summarised for the applicant the status of his applications for review as follows:You made your first SHEV application to the department on 3 August 2017. The decision to refuse the SHEV was made on 18 February 2019. You then lodged an application for review of that refusal decision with the Tribunal on 4 March 2019.For legal reasons, you were subsequently invited by the department to make a further SHEV application. You made your second SHEV application to the department on 4 November 2020. The decision to refuse that SHEV was made on 28 June 2021. You then lodged an application for review of that refusal decision with the Tribunal on 1 July 2021.At the time of your second SHEV application, it was understood that you were in a category of applicants that were permitted to make a second application on the basis that your first SHEV application was invalid.However, it has subsequently been determined that your first SHEV application was in fact valid, and on that basis you were never entitled under Australian law to make the second SHEV application. Consequently your second SHEV application was and remains invalid, and on that basis the Tribunal does not have jurisdiction to review the related refusal decision. That is Tribunal case number 2108606.Today’s hearing therefore is a review of your first SHEV application. That is Tribunal case number 1905046.

Decision

Reasons for decision

There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.DECISIONS The Tribunal affirms the delegate’s decision dated 26 April 2018 to refuse to grant the applicant a SHEV (Tribunal review case number 1905046). The Tribunal sets aside the delegate’s decision dated 15 February 2022 to refuse to grant the applicant a SHEV (Tribunal review case number 2202283) and substitutes it with a decision that the associated SHEV application was not valid.Kate ChappleMemberATTACHMENT ASummary of applicable lawThe criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B).Relevant extracts from Migration Act 19585 (1) Interpretationcruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.36 Protection visas – criteria provided for by this Act(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

Ratio Decidendi

Legal Principle Established

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