2001850 (Refugee) - [2024] AATA 4193

2001850 (Refugee) [2024] AATA 4193 (7 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Adrian Joel
CASE NUMBER:  2001850
COUNTRY OF REFERENCE:                   South Africa
MEMBER:Donald Gordon
DATE:7 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 07 August 2024 at 4:21pm
CATCHWORDS
REFUGEE – Protection Visa – South Africa – a member of particular social group – a frail elderly sick woman alone with no accommodation and support – being an elderly – medical condition including PTSD – a white female – no other familial or monetary support – having the sole care of her disabled daughter – there is a real risk the applicant will suffer significant harm – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 46, 65, 423, 499
Migration Regulations 1994, Schedule 2
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 31 January 2020 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 South Africa, applied for the visa on 7 April 2019.
The delegate refused to grant the visa on the basis that:
a.With respect to the refugee criterion set out in s 36(2)(a) of the Act, the delegate was not satisfied that the applicant has a well-founded fear of persecution, in that there is not a real chance that, if the applicant returned to their country of nationality, the applicant would be persecuted on account of their race, religion, nationality, particular social group or political opinion.
b.With respect to the complementary protection criterion set out in s 36(2)(aa) of the Act, the applicant is not a person 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 their country of nationality, there is a real risk that the applicant will suffer significant harm.
The applicant appeared before the Tribunal on 2 August 2024 to give evidence and present arguments.
The Tribunal also received oral evidence from Miss [A].
The applicant was represented in relation to the review by her solicitor Mr Joel. Her solicitor attended the Tribunal hearing and made submissions on the applicable law.
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…

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 2001850 (Refugee)

Details

AGLC: 2001850 (Refugee) [2024] AATA 4193
Case: [2024] AATA 4193
Decision Date: 7 August 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the protection visa application of a woman from South Africa. The applicant sought protection on the basis of fearing harm, including rape and murder, in her home country. Her claims were informed by past experiences of break-ins, a carjacking, and being targeted during riots, alongside her status as an elderly, white female with a medical condition including PTSD, lacking familial or monetary support, and being the sole carer of her disabled daughter.

The central issue before the Tribunal was to determine if the applicant qualified for protection obligations under Australian law. This involved assessing whether she met the refugee criterion under s 36(2)(a) of the Act, or alternatively, the complementary protection criterion under s 36(2)(aa) of the Act. The Tribunal also considered whether she qualified by virtue of being a family member of someone who met these criteria, as per ss 36(2)(b)-(c). The Tribunal noted that s 36(3) of the Act was not applicable as the applicant did not have a right to reside in any country other than South Africa.

The Tribunal reasoned that even if the applicant did not meet the refugee criterion, she might still be granted a visa if Australia had protection obligations due to a substantial ground for believing that, as a necessary and foreseeable consequence of removal, she would suffer significant harm. The Tribunal acknowledged the sensitive nature of the terminology used, such as racial descriptors, but explained their necessity in analysing the applicant's claim within the context of South Africa's socio-political realities. The Tribunal also confirmed that it had taken into account relevant guidelines and country information as mandated by Ministerial Direction No. 84.

Ultimately, the Tribunal concluded that the decision under review should be remitted for reconsideration.

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 EVIDENCEISSUE The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:a.The refugee criterion in s 36(2)(a) of the Act; or b.The complementary protection criterion in s 36(2)(aa) of the Act; or c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non‑citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.COUNTRY OF NATIONALITY The Tribunal finds the applicant’s identity and nationality are confirmed by their passport and recorded personal particulars. The Tribunal finds that the applicant is a citizen of South Africa, which is also their receiving country for the purpose of their protection claims and assessments. The Tribunal queried with the applicant whether she has a right to enter and reside in [Country 1] which she answered in the negative. In the absence of any contrary evidence before it, the Tribunal finds the applicant does not have a right to reside in a country other than South Africa, and therefore s 36(3) of the Act is not applicable.TERMINOLOGY The Tribunal foreshadows the reasons given below employs strong descriptive terms such as ‘[a type of disability]’, ‘black’ and ‘white’ to analyse the applicant’s claim. These terms are not words of disrespect, discrimination, insensitivity or racism. These words arise from the realpolitik of South Africa, the abhorrent practice of apartheid and colonialism, corruption, gendered violence, crime and the applicant’s personal life. The Tribunal means to cause no offence or disrespect and must engage logically with these terms to ensure a correct decision is made on the application of law and facts. PROTECTION APPLICATION AND TRIBUNAL PRE-HEARING INFORMATION FORM The applicant’s protection visa application form sought protection based on fearing harm in South Africa including rape and murder. The applicant had been involved in break-ins to her home between 2015 to 2017, a carjacking on 30 May 2017 and also was targeted as part of the [staff] during the violent riots at [Workplace 1] from 2015 to 2018. Implicit in this claim were relevant integers such as her being an elderly, her medical condition including PTSD, a white female, no other familial or monetary support, having the sole care of her [disabled] daughter, and that her past harm were from black people.

Decision

Reasons for decision

Full text does not contain this section.

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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEISSUE The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:a.The refugee criterion in s 36(2)(a) of the Act; or b.The complementary protection criterion in s 36(2)(aa) of the Act; or c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non‑citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.COUNTRY OF NATIONALITY The Tribunal finds the applicant’s identity and nationality are confirmed by their passport and recorded personal particulars. The Tribunal finds that the applicant is a citizen of South Africa, which is also their receiving country for the purpose of their protection claims and assessments. The Tribunal queried with the applicant whether she has a right to enter and reside in [Country 1] which she answered in the negative. In the absence of any contrary evidence before it, the Tribunal finds the applicant does not have a right to reside in a country other than South Africa, and therefore s 36(3) of the Act is not applicable.TERMINOLOGY The Tribunal foreshadows the reasons given below employs strong descriptive terms such as ‘[a type of disability]’, ‘black’ and ‘white’ to analyse the applicant’s claim. These terms are not words of disrespect, discrimination, insensitivity or racism. These words arise from the realpolitik of South Africa, the abhorrent practice of apartheid and colonialism, corruption, gendered violence, crime and the applicant’s personal life.