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 16 July 2024 at 4:21pm
CATCHWORDS REFUGEE – protection visa – Afghanistan – arrival by sea – not unauthorised maritime arrival or fast-track applicant as defined, and statuary bar inapplicable – first application not invalid so second application invalid – ethnicity, religion and membership of particular social group – Hazara Shi’a living in other countries from young age and returned failed asylum seeker – fear of harm from extremist groups and authorities – significant inconsistencies in information – identity, family composition and authenticity of documentation – mental health and memory lapses – nationality and ethnicity accepted – wife may be Pakistani citizen but children are not, and applicant is not eligible – country information – Taliban takeover, volatile security situation, strict interpretation of Sharia law and repression of all forms of opposition – decision under review remitted
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 Home Affairs on 3 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [Age]-year-old who claims to be a citizen of Afghanistan. He claims to be ethnically Hazara and a Shi’a Muslim. He claims to have left Afghanistan for Pakistan with his family when he was around 2 or 3 years old. He claims to be married and have [children]. His wife and children reside in Quetta, Pakistan.
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 the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable…
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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AGLC
1909910 (Refugee) [2024] AATA 4260
Case
[2024] AATA 4260
Decision Date
CaseChat Overview and Summary
This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse the applicant a protection visa. The applicant, who claimed to be an Afghan citizen of Hazara ethnicity and Shi’a Muslim faith, arrived in Australia by sea in April 2013. He had previously been granted a Temporary Safe Haven visa. The applicant lodged his protection visa application on 8 June 2017, which was initially refused, then renotified, and subsequently validly applied for review by the Administrative Appeals Tribunal.
The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) as a refugee, or alternatively under section 36(2)(aa) as a person in respect of whom Australia has protection obligations due to a real risk of significant harm if removed from Australia. The Tribunal was required to consider the applicant's claims regarding his identity, nationality, ethnicity, religion, and his fear of persecution from extremist groups and authorities in Afghanistan, taking into account significant inconsistencies in his statements, mental health, memory lapses, and the authenticity of documentation.
The Tribunal found that while the delegate had concerns about the applicant's identity, they were satisfied he was an ethnic Hazara born in Afghanistan. The Tribunal explored these identity concerns and invited further information. Crucially, the Tribunal determined that the applicant was not an unauthorised maritime arrival, meaning a statutory bar under section 91K of the Act did not apply to his protection visa application. After considering the applicant's claims cumulatively and in light of country information regarding the volatile security situation in Afghanistan, the strict interpretation of Sharia law, and the repression of opposition, the Tribunal was satisfied that Australia had protection obligations towards the applicant under section 36(2)(a) of the Act.
The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act 1958* (Cth).
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).Background The applicant is a [Age]-year-old who claims to be a citizen of Afghanistan. He claims to be ethnically Hazara and a Shi’a Muslim. He claims to have left Afghanistan for Pakistan with his family when he was around 2 or 3 years old. He claims to be married and have [children]. His wife and children reside in Quetta, Pakistan. 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 the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa 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 16 July 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. Therefore, the application for a Safe Haven Enterprise visa is not subject to the s 91K bar. The applicant made an application for a Safe Haven Enterprise Visa (the protection visa) on 8 June 2017. That application was initially refused by the delegate on 3 May 2018. That refusal was initially referred to the Immigration Assessment Authority as the applicant was wrongly considered to be a ‘fast track applicant’. The applicant was renotified of the refusal of the protection visa on 2 April 2019 and made a valid application for review to the Tribunal on 20 April 2019. For the following reasons, the Tribunal has concluded that the decision of the delegate refusing to grant the visa should be remitted for reconsideration.Protection claimsProtection visa application The applicant who claims to be a citizen of Afghanistan, applied for the visa on 8 June 2017. In a statement of claims accompanying his application he claimed he was born [Year] in the village of [Village] in Jaghori District, Ghazni Province, Afghanistan. He moved to Pakistan with his family when he was about two or three years old. His step-mother told him his family’s home area had fallen to Kuchis and there was a lot of killing of Hazaras to get control of their land and cattle. His father travelled to Afghanistan in 2004 and was missing until 2007 when he was found dead.
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 EVIDENCEAnalysis, reasons and findings The applicant has made a number of claims which the Tribunal has considered, both individually and cumulatively. These claims were discussed with the applicant at the hearing.Identity, country of reference and third country protection The applicant claims to be an Afghan citizen. As noted above, the delegate detailed significant concerns regarding the applicant’s claimed identity. Ultimately, the delegate was not satisfied as the applicant’s identity but was satisfied that he was an ethnic Hazara born in Afghanistan. The delegate assessed the applicant’s claims on that basis. The Tribunal explored the applicant’s background and concerns regarding his identity with the applicant at the hearing and invited the applicant to provide further information regarding his identity and that of his claimed family members following the hearing. According to the delegate’s decision, the applicant stated during his protection visa application interview that he was originally named [Original name] by his parents, but they changed his name to [the applicant] because he kept getting ill when he was very young. The applicant said that when he first arrived in Australia the Department had incorrectly spelt his first name as [incorrect spelling], and the correct spelling is [correct spelling]. The applicant confirmed at the hearing that this information was correct. He said [Surname] was a family name. The delegate’s decision noted that the applicant submitted uncertified photocopies of documents purporting to be his father’s taskera and his father’s Iranian refugee card as evidence of his identity, nationality and citizenship. The English translation for the taskera provides the registration place as [Village] in Jaghori District, Ghazni Province and states the holder’s name as [Mr E – Name 1] whose father’s name was [Mr F – Name 1] and his age was [Age] years old in 1354 of the Afghan solar calendar, which relates to a period covering 21 March 1975 to 20 March 1976 in the Gregorian calendar. The English translation for the Iranian refugee card states the holder’s name as [Mr E – Name 2], his father’s name as [Mr F – Name 2] and indicates it was issued in Chahar Mahal State on 10 August 1988. According to the delegate’s decision, during entry and protection visa interviews the applicant stated he was born on [Date] in the village of [Village], which is located in Jaghori District, Ghazni Province, Afghanistan. The applicant stated during his protection visa interview that his family moved from [Village] to Pakistan when he was about two or three years old. He lived in Pakistan with his family until about 2004 when he travelled to Iran to investigate whether it would be good for his family and to find a wife. He returned to Pakistan in 2008 and remained living there until he commenced his journey to Australia [in] March 2013.
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) of the Act.DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Simone BurfordSenior MemberATTACHMENT - 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 EVIDENCEAnalysis, reasons and findings The applicant has made a number of claims which the Tribunal has considered, both individually and cumulatively. These claims were discussed with the applicant at the hearing.Identity, country of reference and third country protection The applicant claims to be an Afghan citizen. As noted above, the delegate detailed significant concerns regarding the applicant’s claimed identity. Ultimately, the delegate was not satisfied as the applicant’s identity but was satisfied that he was an ethnic Hazara born in Afghanistan. The delegate assessed the applicant’s claims on that basis. The Tribunal explored the applicant’s background and concerns regarding his identity with the applicant at the hearing and invited the applicant to provide further information regarding his identity and that of his claimed family members following the hearing. According to the delegate’s decision, the applicant stated during his protection visa application interview that he was originally named [Original name] by his parents, but they changed his name to [the applicant] because he kept getting ill when he was very young. The applicant said that when he first arrived in Australia the Department had incorrectly spelt his first name as [incorrect spelling], and the correct spelling is [correct spelling]. The applicant confirmed at the hearing that this information was correct. He said [Surname] was a family name. The delegate’s decision noted that the applicant submitted uncertified photocopies of documents purporting to be his father’s taskera and his father’s Iranian refugee card as evidence of his identity, nationality and citizenship. The English translation for the taskera provides the registration place as [Village] in Jaghori District, Ghazni Province and states the holder’s name as [Mr E – Name 1] whose father’s name was [Mr F – Name 1] and his age was [Age] years old in 1354 of the Afghan solar calendar, which relates to a period covering 21 March 1975 to 20 March 1976 in the Gregorian calendar. The English translation for the Iranian refugee card states the holder’s name as [Mr E – Name 2], his father’s name as [Mr F – Name 2] and indicates it was issued in Chahar Mahal State on 10 August 1988.