1932478 (Refugee) - [2023] AATA 2737

1932478 (Refugee) [2023] AATA 2737 (23 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Ejaz Khan (MARN: 0213478)
CASE NUMBER: 1932478

COUNTRY OF REFERENCE: Nepal
MEMBER:Sean Baker
DATE:23 May 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 23 May 2023 at 9:54am
CATCHWORDS
REFUGEE – protection visa – Nepal – Federal Circuit Court remittal – particular social group – homosexual – political opinion – opposition to the Maoists – forced marriage to a woman – physical assault – employment – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
MIMIA v VBAO of 2002 (2004) 139 FCR 405
SZRNJ v Minister for Immigration [2014] FCCA 782
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 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 Nepal, applied for the visa on 2 May 2014 and the delegate refused to grant the visa on 9 December 2014.
The case was affirmed by the Tribunal (differently constituted). The court remitted the matter back to the Tribunal. The reasons for this are discussed below.
The applicant appeared before the Tribunal on 3 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant was represented in relation to the review. His representative did not attend the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
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, 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,…

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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Details

Case: [2023] AATA 2737
Decision Date: 23 May 2023

CaseChat Overview and Summary

The applicant, a national of Nepal, sought a protection visa in Australia. The dispute concerned whether Australia had protection obligations towards the applicant under the *Refugees Convention* or complementary protection grounds. The matter came before the Tribunal for review following a remittal from the Federal Circuit Court.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for reasons of his homosexuality or political opinion, or whether there was a real risk of significant harm if he were returned to Nepal, thereby engaging Australia's protection obligations. The applicant claimed he feared persecution from the Maoists due to his homosexuality and alleged he was forced into a marriage with a woman, which he concealed while maintaining a homosexual relationship.

The Tribunal considered the criteria for a protection visa under section 36 of the *Migration Act 1958* (Cth) and Schedule 2 of the *Migration Regulations 1994* (Cth), including the definition of a refugee under the *Refugees Convention* and the grounds for complementary protection. The Tribunal noted that the applicant had previously applied for and been refused a protection visa, with the refusal affirmed by the Tribunal and the Federal Circuit Court on earlier occasions. The most recent remittal by the Federal Circuit Court was based on the previous Tribunal's failure to adequately engage with the evidence of the applicant's then-partner. Despite efforts to ascertain if the applicant's relationship with his partner continued and if the partner would provide evidence, no response was received by the Tribunal. The Tribunal concluded that the applicant did not satisfy the criteria for a protection visa.

The Tribunal affirmed the decision not to grant the applicant a Protection visa.

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

The applicant was represented in relation to the review. His representative did not attend the hearing.CONSIDERATION OF CLAIMS AND EVIDENCE 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, 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. The issue in this case is whether there is a real chance the applicant will be persecuted or a real risk he will suffer significant harm if returned to Nepal. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Nationality

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.Sean BakerMember

Ratio Decidendi

Legal Principle Established

The applicant has provided a copy of his Nepalese passport. On the basis of this passport and his testimony, I accept that he is a national of Nepal and that Nepal is the receiving country.Migration history The applicant arrived in Australia [in] January 2010 on a fraudulently obtained visa. Following an investigation by the Department they had no identity concerns in relation to the applicant, who has been able to provide a Nepalese passport in his own name. I have no identity concerns. On 5 October 2010 the applicant applied for a Protection visa. On 14 February 2012 the applicant’s Protection visa application was refused by the Department. On 16 October 2012, the refusal decision was affirmed by the Refugee Review Tribunal. [In] April 2014 the Federal Circuit Court upheld the decision of the Refugee Review Tribunal. Following the decisions of SZGIZ and SZRNJ v Minister for Immigration [2014] FCCA 782, the applicant was able to apply for a further protection visa. This application was refused by a delegate on 9 December 2014. On 28 November 2016, the refusal was affirmed by the Tribunal, differently constituted. [In] October 2019, the Federal Circuit Court remitted the decision to the Tribunal on the basis that there was no evidence of the Tribunal analysing the current partner’s claims and evidence to support the conclusion that they should be given no weight. The court concluded this despite the general credibility finding because this was a case where the Tribunal itself identified that there were alleged inconsistencies with the third party’s evidence in respect of which none were identified by the Tribunal in respect of the current partner and the court held that there was not a real and meaningful intellectual engagement with the corroborative evidence of the current partner. Given the reason for remittal and the centrality of the evidence of the applicant’s then partner, prior to the hearing, I wrote to the applicant’s migration agent asking if the applicant were still in a relationship with [Partner A] and whether they would give evidence at a combined hearing. No response was received.Claims The applicant claims in his application to fear return to Nepal as he is homosexual and fears harm from the Maoists. The applicant claimed to have had a homosexual relationship with a friend from his village in Nepal. This relationship lasted for two years. He claims he was forced to marry a woman by his family. He hid his sexuality from his wife and everyone else. In 2008 the applicant went to [Country 1] on a work visa and stayed for over a year, working in [Industry 1]. He returned to Nepal and then departed for Australia in January 2010 because he could not tolerate living with his wife and hiding his sexuality. On arrival in Australia, he was living with his brother and hid his sexuality. Due to his lack of knowledge and shyness he did not explore the homosexual activities and environment in Australia. Because of these circumstances he kept his sexual orientation in Australia a secret until he met his homosexual partner, [Partner B] at the end of July 2011. He met [Partner B] through work, the relationship started as a friendship and developed gradually.