1908754 (Refugee)

Case [2024] AATA 4029

1908754 (Refugee) [2024] AATA 4029 (5 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Artoniss Ehsani

CASE NUMBERS:  1908754 & 2211381

COUNTRY OF REFERENCE:                   Iran

MEMBER:Meena Sripathy

DATE:5 July 2024

PLACE OF DECISION:  Sydney

CASE NUMBER 1908754   The Tribunal remits the matter for reconsideration with the direction that each of the applicants satisfies s 36(2)(a) of the Migration Act.

CASE NUMBER 2211381  The Tribunal sets aside and substitutes a decision that the Temporary Protection visa application made on 12 October 2020 is invalid.

Statement made on 05 July 2024 at 9:59am

CATCHWORDS

REFUGEE – protection visa – Iran – political opinion – 2009 Green movement protests – particular social group – woman – failed asylum seeker – people with disabilities – religion – conversion to Christianity – illegal departure – detention – physical assault – torture – false passports – access to medical treatment – anti-regime protests in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 5H, 5J – 5LA, 36, 48, 65, 91, 411, 499
Migration Regulations 1994, Schedule 2

CASES

BMY18 v MHA [2019] FCAFC 189
Chan v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
DFQ17 v MIBP [2019] FCAFC 64
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo (1997) 191 CLR 559
MZZJO v MIBP (2014) 239 FCR 436
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZVTC v MIBP [2018] FCA 824

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 two decisions made by delegates of the Minister for Home Affairs on 3 November 2017 (the first protection visa application) and 12 October 2020 (the second protection visa application) to refuse to grant the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. According to Departmental records, the applicants, citizens of Iran, arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013.  Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicants are not ‘unauthorised maritime arrivals’ (as was defined in s 5AA of the Act) due to this arrival method. Accordingly, the applicants are not ‘fast track applicants’ (as defined in s 5(1)) and the subsequent decision to refuse to grant them a Safe Haven Enterprise visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.

  3. The applicants were previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 19 April 2016 by the Department,…

Continue reading 1908754 (Refugee)

Sign in free to access the full text

Details
AGLC
1908754 (Refugee) [2024] AATA 4029
Case
[2024] AATA 4029
Decision Date

CaseChat Overview and Summary

This matter concerns protection visa claims made by three applicants from Iran. The applicants, a husband, wife, and their son, alleged they faced persecution due to their involvement in anti-regime protests in Iran and their son's participation in the 2009 Green Movement protests. The husband also claimed he left Iran illegally and feared execution upon return. The Administrative Appeals Tribunal (Tribunal) was required to determine the validity and scope of the review applications before it, given a complex procedural history involving multiple visa applications and court decisions.

The primary legal issues before the Tribunal were: first, whether all three applicants were properly included in the review application for matter 1908754, despite only the first applicant being named on the form; and second, the validity of a subsequent protection visa application in matter 2111381, in light of the Federal Court's decision in *MICMSMA v CBW20*. This latter issue hinged on whether the first visa application was valid, which would render the second invalid, or vice versa, thereby determining which application the Tribunal could assess on its merits.

The Tribunal considered submissions regarding the applicants' representative's administrative error in omitting two applicants from an earlier review application, arguing there was no intention to exclude them. It also examined whether the Minister's intervention under s 91L and subsequent invitation to lodge a new visa application affected the validity of prior review applications, particularly in light of the *CBW20* decision. The Tribunal noted that if the first visa application was invalid, it could only set aside and substitute that decision as invalid, and would then assess the protection claims against the first visa application. The Tribunal ultimately set aside and substituted a decision that a Temporary Protection visa made on 12 October 2020 was invalid.

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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground Applicant 1 was born in [specified year] in Tehran, Iran and is [age] years of age now. He is a citizen of Iran and no other country and provided various identity documents in support including his birth certificate, national ID card government employment card, drivers licence and military discharge card. No issues were raised about his identity by the delegate. Applicant 2 is the wife of Applicant 1, born in [year] and Applicant 3 is their son, born in [year]. All three applicants made their own claims for protection. Applicants 1 and 2 married in 1979 and are Shia Muslim. In addition to Applicant 3, they have two sons, [Son A] and [Son B] who reside in Australia and one son in Iran. Other than his travel to Australia, Applicant 1 has travelled to Saudi Arabia in 2001 for the purposes of pilgrimage. He provided his address, employment and education history in Iran and Australia. He lived at various addresses in Tehran before Australia; is educated to [specified] school level only; and last worked as [an occupation 1] before coming to Australia. Entry interview Applicant 1 was interviewed on arrival in Australia [in] April 2013. In this interview, among other information, he provided details of his family composition and education and employment history. When asked to say (in one or two sentences) why he left his country he stated that his children were hassled by the Basij. When asked if he was hassled by the Basij also, he said yes, the last time was 7-8 years ago. Apart from this reason he said there was no other reason he came to Australia. He said he believed he would face execution if he returned because he left the country. When asked who made the arrangements for his travel to Australia, he said his son [named] helped him. Applicant 2 was interviewed on the same date. In response to why she left her country she said she came here for her children, nothing personally happened to her. She said her children were detained by the authorities (Seppah) while demonstrating against the regime. She said the last time her son, [Applicant 3], participated in the demonstrations was 8 years ago. Applicant 3 was interviewed on 27 April 2013. He referred to having been involved in a fight in the protest where he was hit in the head with a baton, and the authorities ran after his brothers, and they were after his father to arrest him. He referred to scars on his face which were caused by the Basij cutting him with glass during the protest. He said these events occurred 5-6 years ago. He was protesting because of inflation and the rising prices, and they could not do what they wanted and had no job opportunities.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In respect of matter 2211381, the Tribunal sets aside and substitutes a decision that the Temporary Protection visa made on 12 October 2020 is invalid. CONSIDERATION OF PRELIMINARY ISSUE – VALIDITY AND SCOPE OF REVIEW APPLICATIONS The Tribunal acknowledges the protracted and complex legal history affecting the current matters before it. At the hearing the Tribunal discussed preliminary jurisdiction issues arising in these matters. Firstly, it noted that only the first named visa applicant (Applicant 1) appears to be named in the review application in matter 1908754. It indicated that it is open to consider this issue further including whether there is an argument that all applicants made an application despite the second and third (Applicant 2 and Applicant 3) not being included in the form. The second issue relates to the validity of the second visa application in matter 2111381, given the judgement in MICMSMA v CBW20, the consequence of which appears be that the first visa application was in fact valid, and therefore the second protection visa application is invalid. If the Tribunal found this, it would mean that the only decision the Tribunal can make in the second matter is to set aside and substitute the decision that that application is invalid, and it would assess the protection claims against the first visa application. In a post hearing submission, on the preliminary jurisdiction issue, the representative argued that the applications relating to matter 2211381 were the only valid visa and review applications for the following reasons:·The review application submitted to the AAT on 9 April 2019 relating to the refusal of the applicants SHEV visa application lodged on 31 January 2017 was made following a re-notification of the delegate’s refusal decision on 25 March 2019. This occurred following, and as a consequence of, the decision of the Federal Court in DBB16. It was acknowledged that, by administrative error in the part of the previous representative, the second and third named visa applicants were not included on the review application form, however there was no intention to leave out the other two visa applicants. ·Subsequently, the Minister exercised his power under s91L to lift the s91K bar and invited the applicants to lodge a new SHEV application. It is submitted that this in effect voided the 9 April 2019 AAT review application. ·The representative argued that the decision of Minister for Immigration, Citizenship, Migrant Services v CBW20 (the CBW20 decision) does not apply in this matter for two reasons: firstly, because it came down after the Minister exercised his power under s91L and, secondly, there is a fundamental difference between this matter and the CBW20 case. That is that unlike in that matter, the applicants did not make a further SHEV application after the DBB16 decision because they were re-notified of the decision and therefore applied to the AAT for review of the first SHEV application. If they had been invited to make a further SHEV application at this time, then the CBW20 decision would apply and make this application invalid. In that case the 9 April 2019 AAT review would remain valid. Because that did not occur, and the further SHEV application was invited to be made after the 2019 AAT application, it is submitted that the 2019 AAT application is invalid because there was no valid visa application to seek review of in the first place as a result of the DBB16 decision. ·For this reason it is submitted that the only valid visa and review application in the present case is the application for review lodged in August 2022 relating to the SHEV application made following the Minister’s intervention under s 91L, which correctly includes all three visa applicants.