1907109 (Refugee) - [2021] AATA 1530

1907109 (Refugee) [2021] AATA 1530 (16 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1907109
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Mara Moustafine
DATE:16 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 16 April 2021 at 12:12pm
CATCHWORDS

REFUGEE – Protection visa – Lebanon – no longer s.438(1) restrictions on any documents on Department file – adverse political opinion – anti-Syrian opinion – sectarian and political conflict – drug smuggling – inconsistent evidence –Insufficient information and lack of detail – applicant fabricated his claims for the purpose of obtaining a protection visa – credibility concerns – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975, s 19
Migration Act 1958, ss 5, 36, 65, 424AAA, 424, 438,499
Migration Regulations 1994, Schedule 2
CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
MZAFZ v MIBP [2016] FCA 1081
Prasad v MJEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
Procedural History
The applicant is a citizen of Lebanon and is [age] years old. He arrived in Australia [in] August 2012 on a Lebanese passport as the holder of an Australian (sponsored) Visitor visa.
The applicant applied for a Protection visa on 2 October 2012. On 18 January 2013 a delegate of the Minister for Immigration and Border Protection refused to grant the applicant a Protection visa because he was not satisfied that the applicant met the requirements for that visa.
The applicant sought review of the delegate’s decision at the Refugee Review Tribunal (RRT) on 15 February 2013. The Tribunal, differently constituted (Tribunal 1), affirmed the delegate’s decision on 19 July 2013. The applicant sought Ministerial intervention under s.417 of the Act on 16 August 2013, which was declined on 23 December 2013. He submitted a further request for Ministerial intervention on 26 February 2014, which was declined on 19 March 2014.
On 31 March 2014 the applicant sought judicial review of the RRT’s decision. [In] April 2015 the Federal Circuit Court found that the decision was affected by the fraud of the applicant’s migration agent, who had not correctly recorded the applicant’s alleged fear of harm from certain members of the Syrian intelligence service and had falsely notified the Tribunal that the applicant did not wish to attend his…

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 1907109 (Refugee)

Details

AGLC: 1907109 (Refugee) [2021] AATA 1530
Case: [2021] AATA 1530
Decision Date: 16 April 2021

CaseChat Overview and Summary

The applicant sought a protection visa, claiming to have an adverse political opinion, specifically an anti-Syrian and sectarian political opinion, and to be involved in drug smuggling. The decision under review affirmed the refusal of this visa application.

The court was required to determine whether the applicant met the criteria for a protection visa under section 36 of the Migration Act 1951 (Cth) and Schedule 2 of the Migration Regulations 1994 (Cth). This involved assessing whether the applicant qualified as a refugee under Article 1A(2) of the 1951 Convention relating to the Status of Refugees, as amended by its 1967 Protocol, or whether they were entitled to complementary protection due to a real risk of significant harm upon removal from Australia.

The Tribunal considered the applicant's claims and the supporting documents, including medical records and letters concerning his father. However, the Tribunal found inconsistent evidence and a lack of sufficient detail in the applicant's submissions. Ultimately, the Tribunal concluded that the applicant had fabricated his claims for the purpose of obtaining a protection visa, leading to significant credibility concerns. Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that the applicant did not satisfy the criteria under section 36(2) of the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant also provided supporting documents, including medical records and letters from his father’s doctors in 2017 and 2018, a letter from his mother requesting he visit his father, photographs of his father in hospital and an untranslated document which is annotated as the father’s death certificate. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complimentary protection.Relevant Law The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention). Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. 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 a protection 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 the applicant 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’). In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Credibility

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).DECISION The Tribunal affirms the decision not to grant the applicant a Protection visa.Mara MoustafineMember

Ratio Decidendi

Legal Principle Established

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