1926329 (Refugee) - [2022] AATA 745

1926329 (Refugee) [2022] AATA 745 (3 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1926329
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Jason Pennell
DATE:3 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 3 February 2022 at 3.21pm

CATCHWORDS
REFUGEE – protection visa – Thailand – fear of the political and economic situation – no evidence of harm suffered – applicant is of little or no interest to the authorities – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 65

Migration Regulations 1994, Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559

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 Home Affairs on 4 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Thailand, applied for the visa on 7 October 2018. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s 36(2)(a) or (aa) of the Act. The applicant provided the Tribunal with a copy of the delegate’s decision on 19 September 2019.
The Tribunal wrote to the applicant on 29 October 2021 to invite the applicant to a hearing scheduled for 15 November 2021. The applicant responded by email on 7 November 2021 with a completed ‘Response to hearing invitation’ in which he stated that he would not participate in the hearing and ticked the box consenting to the Tribunal deciding his application for review on the papers without a hearing. As a result, based on the applicant’s correspondence the Tribunal was satisfied that the applicant had provided the necessary consent to enliven the Tribunals power to determine the application without a hearing.[1]
[1] In Minister of immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572 per Spender, French and Cowdroy JJ at [65] and [74]
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of the Act 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…

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 1926329 (Refugee)

Details

AGLC: 1926329 (Refugee) [2022] AATA 745
Case: [2022] AATA 745
Decision Date: 3 February 2022

CaseChat Overview and Summary

The applicant, a citizen of Thailand, sought review of a decision by the Minister for Immigration and Border Protection to refuse to grant a protection visa. The applicant claimed to fear returning to Thailand due to the country's political and economic situation, and alleged that they would suffer harm upon return. The delegate of the Minister had refused the application, finding that the applicant had not established a well-founded fear of persecution.

The primary legal issue before the court was whether the applicant had established a well-founded fear of persecution for a reason specified in section 5 of the *Migration Act 1958* (Cth). This required the court to assess whether the applicant had a genuine subjective fear and whether there were objective grounds to support that fear, considering the real chance of harm occurring. The court also had to determine if the applicant was of such little or no interest to the Thai authorities that they would not be subject to persecution.

In reaching its decision, the court considered the evidence presented by the applicant regarding the political and economic conditions in Thailand. However, the court found that the applicant had failed to provide sufficient evidence to demonstrate that they would personally suffer harm upon return. The court noted that the applicant had not suffered any harm in the past and that there was no indication that they were of any particular interest to the Thai authorities. Consequently, the court concluded that the applicant had not established a well-founded fear of persecution.

The court affirmed the decision under review, meaning the Minister's refusal to grant the protection visa was upheld.

Orders