1907296 (Refugee) - [2021] AATA 5179

1907296 (Refugee) [2021] AATA 5179 (31 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1907296
COUNTRY OF REFERENCE:                   Iran
MEMBER:Frances Simmons
DATE:31 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 31 October 2021 at 8:30pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – applicant rejected Islam and converted to Christianity – limited activity in home country – arrested and mistreated for unrelated reasons – some activity in Australia – relationship with Australian citizen – fear of harm from authorities and family – mental health – serious mental illness, little or no insight into condition, refusal to engage with service providers and guardianship order – returned failed asylum seeker – country information – real chance of attracting adverse attention of authorities on grounds of mental health – claim on grounds of religion not considered further – procedural history – no appearance at hearing – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), (4), (5), 36(2)(a), (aa), 65, 91K
Migration Regulations 1994 (Cth), Schedule 2
CASES
AGA16 v MIBP [2018] FCA 628
DBB16 v MIBP [2018] FCAFC 178; (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
Prashar v MIMA [2001] FCA 57; (2001) 115 FCR 197
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a citizen of Iran who was born on [Date]. He claims to have rejected Islam and to have converted to Christianity. He first applied for a protection visa on 5 January 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was owed protection obligations.
The complicated history of this matter has given rise to a situation where the applicant now has now made two protection visa applications. The first application was made in January 2017 and the second application was made in October 2020. For the reasons that are given below, the Tribunal finds that it has jurisdiction to determine the application to review the decision of the delegate on 4 April 2017 to refuse to grant the applicant a protection visa.
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

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 1907296 (Refugee)

Details

AGLC: 1907296 (Refugee) [2021] AATA 5179
Case: [2021] AATA 5179
Decision Date: 31 October 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the protection visa application of an Iranian citizen who claimed to be a Christian convert. The applicant arrived in Australia in 2013 and was diagnosed with delusional disorder in 2020, subsequently being released into the community under a guardianship order. The dispute concerned whether the applicant met the criteria for a protection visa, with claims relating to his religious beliefs and fear of harm from authorities and family.

The Tribunal was required to determine if the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, which pertains to being a refugee, or alternatively, under section 36(2)(aa), which concerns complementary protection obligations due to a real risk of significant harm upon removal from Australia. This involved assessing the applicant's fear of persecution based on his claimed religious conversion and considering the impact of his mental health condition and the potential for adverse attention from Iranian authorities.

The Tribunal applied the principles of Ministerial Direction No. 84, the Refugee Law Guidelines, and Complementary Protection Guidelines. While the applicant's claim based on religion was not fully considered, the Tribunal found that due to his serious mental illness and lack of insight, there was a real chance he would attract the adverse attention of Iranian authorities. This finding led the Tribunal to be satisfied that Australia had protection obligations towards the applicant under section 36(2)(a) of the Migration Act.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is a [Age]-year-old Iranian citizen who first arrived in Australia in May 2013. He is unmarried and has no children. He claims to be a Christian convert. Before he sought asylum in Australia he lived in Tehran where he obtained a diploma in [Subject] and has undertaken work as [an Occupation]. His parents still reside in Tehran as does his brother. According to the protection visa application he made in October 2020 he is in a relationship with an Australian citizen. [Health services provider] records before the Tribunal indicate that in January 2020 [the applicant] voluntarily approached NSW police reporting that he had been homeless for around a year and was worried about his health. [The applicant] was directed to approach status resolution where he was taken into immigration detention. On 22 January 2020, shortly after he began residing in immigration detention, [the applicant] was diagnosed with “delusional disorder with systematised delusions of a persecutory nature” by [a Health services provider] psychiatrist. At this time, [the applicant] declined antipsychotic medication. A s referral letter dated 14 May 2020 by [Dr A], psychiatrist and [Health services provider] Mental Health Medical Director, provides information about this diagnosis and the applicant’s interactions with [Health services provider] medical practitioners. The letter records that [the applicant] had declined access [Health services provider] medical services on multiple occasions. On 26 May 2020, [Dr A] applied for a guardianship order in relation to [the applicant]. [The applicant] was subsequently released into the community following the appointment of a Public Guardian [in] August 2020. [The applicant] is currently the subject of a guardianship order made by the NSW Civil and Administrative Tribunal (NCAT) [in] August 2021. To make a guardianship order, NCAT must be satisfied that the person has a decision-making disability which means that the person is partially or wholly incapable of managing themselves and there is a need for a guardian. The guardianship order made [in] August 2021 is a limited 12-month guardianship order which gives the Public Guardian custody of the applicant to the extent necessary to carry out the functions in relation to health care and legal services. The Public Guardian also has the function of making ‘all necessary decisions in relation to visa related matters that would ordinarily be made by [the applicant], including giving, requesting or receiving information and making representations on his behalf’. Procedural history

Decision

Reasons for decision

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Frances SimmonsMemberATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel 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

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), which are extracted in the attachment to this decision.Mandatory considerations 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is a [Age]-year-old Iranian citizen who first arrived in Australia in May 2013. He is unmarried and has no children. He claims to be a Christian convert. Before he sought asylum in Australia he lived in Tehran where he obtained a diploma in [Subject] and has undertaken work as [an Occupation]. His parents still reside in Tehran as does his brother. According to the protection visa application he made in October 2020 he is in a relationship with an Australian citizen. [Health services provider] records before the Tribunal indicate that in January 2020 [the applicant] voluntarily approached NSW police reporting that he had been homeless for around a year and was worried about his health. [The applicant] was directed to approach status resolution where he was taken into immigration detention. On 22 January 2020, shortly after he began residing in immigration detention, [the applicant] was diagnosed with “delusional disorder with systematised delusions of a persecutory nature” by [a Health services provider] psychiatrist. At this time, [the applicant] declined antipsychotic medication. A s referral letter dated 14 May 2020 by [Dr A], psychiatrist and [Health services provider] Mental Health Medical Director, provides information about this diagnosis and the applicant’s interactions with [Health services provider] medical practitioners. The letter records that [the applicant] had declined access [Health services provider] medical services on multiple occasions. On 26 May 2020, [Dr A] applied for a guardianship order in relation to [the applicant]. [The applicant] was subsequently released into the community following the appointment of a Public Guardian [in] August 2020.