2006884 (Refugee)

Case [2021] AATA 5199

2006884 (Refugee) [2021] AATA 5199 (1 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2006884

COUNTRY OF REFERENCE:                   United Kingdom

MEMBER:Jane Marquard

DATE:1 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 November 2021 at 10:28am

CATCHWORDS

REFUGEE – Protection visa – United Kingdom – persecution from ex-partner’s family – sexual assault – issues with social services and the law – mental health issues – marriage to Australian citizen – decision under review affirmed

LEGISLATION

Acts Interpretation Act 1901, ss 15AA, 15AB

Migration Act 1958, ss 5AAA, 36, 65, 91R(1)(a), 499

CASES
Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
AGA16 v MIBP [2018] FCA 628
Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
BVT20 v MICMSA [2020] FCAFC 222
Chan v MIEA (1989) 169 CLR 379
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MZAAJ v MIBP [2015] FCCA 151
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

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

  1. The applicant is a citizen of the United Kingdom. She was born in [year]. She first arrived in Australia [in] January 2015 on a Subclass 651 E-visitor visa. This visa ceased on 28 April 2015. She then remained in Australia unlawfully for a period of 10 months.

  2. On 4 February 2016 she lodged an application for a Subclass 820/801 partner visa, which was refused on 30 August 2016 as she did not meet Criterion 3001 of Schedule 3 of the Migration Regulations 1994 (Cth) (the Regulations). Specifically, she did not apply for the visa within 28 days of the last substantive visa held.

  3. The applicant applied for a protection visa under s 65 of the Migration Act 1958 (the Act) on 27 February 2017. She claims to fear harm from her ex-partner’s family if she returns to the UK. She also fears that she will be homeless and that her mental health will decline.

  4. A delegate of the Minister for Home Affairs refused to grant the visa on 25 March 2020. The delegate refused the visa on the basis that the harm she feared was not for one of the reasons set out in the legislation, and she could obtain protection in the United Kingdom.

  5. The Tribunal must determine whether the applicant…

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AGLC
2006884 (Refugee) [2021] AATA 5199
Case
[2021] AATA 5199
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a woman who claimed to be fleeing persecution in the United Kingdom. The applicant alleged she had suffered sexual assault, violence, and threats to her life from ex-partners and their families, leading to homelessness and significant mental health issues. She had travelled to Australia to be with her Australian citizen husband, with whom she had been married for two years. The decision under review affirmed a previous decision, indicating the protection visa application had been refused.

The primary legal issue before the court was whether the applicant met the criteria for a protection visa, specifically whether she was a person in respect of whom Australia had protection obligations. This involved assessing the credibility and sufficiency of her claims of persecution in the United Kingdom, including the alleged sexual assaults, threats, and the risk of homelessness and mental health deterioration upon return. The court also considered the applicant's responsibility to provide sufficient evidence to establish her claim, and the Tribunal's role in assessing that evidence against relevant legal guidelines and country information.

The court applied the principle that the onus rests on the applicant to specify all particulars of their claim and provide sufficient evidence. The Tribunal is not obligated to specify or assist in establishing the claim, as per section 5AAA of the Act. In its determination, the Tribunal was mandated to consider Ministerial Direction No. 84, which requires regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines', as well as country information from the Department of Foreign Affairs and Trade. While Departmental policy is not binding, it must be considered for consistency. The Tribunal also applied Australian principles of statutory interpretation, including the *Acts Interpretation Act 1901* (Cth), favouring constructions that conform to Australia's international treaty obligations. International guidance, such as the UNHCR Handbook, was also considered, though not binding. The Tribunal had regard to relevant President's Directions concerning practice and procedure.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal has considered evidence and submissions made to the Department, other Departmental records pertaining to the applicant, evidence to this Tribunal and relevant independent sources about the United Kingdom. Summary of evidence in Department files The applicant provided details of her claims in an application form to the Department, as well as supporting documents. There was also information contained in the Department file pertaining to her spouse visa application. A summary of her evidence follows. She was born in [Scotland] in [year]. Her parents were both from Scotland and are currently living there. She also has a sister living in Scotland, and a son, born in [year]. She said that she is in contact with them every day. She attended school in Scotland until [year]. From 2003 to 2005 she was at [an educational institute in] West Lothian. She is a Catholic. She listed her occupation as ‘unemployed’. She said that she travelled to [Country 1] on holiday for a month in 2007. She claimed that she left the UK as she had ‘hard times’, due to Social Services telling her that she must no longer remain in her ex-partner’s house. She said that she was ‘ordered’ to be with her current partner or face losing her son for good. She also claimed that she was the victim of rape and abuse by two men in places she lived. She was facing homelessness so came to Australia to be with her husband of two years. She said that there were threats to her life, safety and well-being. She described the harm she suffered as follows:The harm I received violence on me. I was beat up nearly threw onto oncoming train and busy traffic on road. Kidnapped me from leaving home, the man threatened to kill if told anybody his name is [Mr A]. The second was while staying at my ex’s house – he stalked me and while skyping my current partner he aggressively held me down and assaulted me. Ever since I had nightmare. His name is [Mr B]. She said that if she returns to the UK, she would most certainly be subject to ‘being fully homeless’. She said that she would be very frightened and unstable, and her mental health would ‘go downhill’ due to malnourishment. She claimed to fear seeing her abusers who would threaten to kill her if they saw her. She said that if she returned there would be a high risk of her son being removed from his father, herself and her family. She said that he is thriving with his father, and at a special needs school. The applicant claimed that the police helped her, but they were only able to ban the offenders from the town where she lived or visited, which is where her family lived – [named areas], Scotland. She said that she would be harmed by her ex’s family and be in ‘never-ending fear’, and her mental health would suffer due to homelessness and financial stress. She said that the rapists are still at large. She said that she met her current husband online, and they married [in] February 2015 in [Victoria], Australia. Her husband, [Mr D], was born in [another country], but has Australian citizenship. In her spouse visa application, she said that he received the disability pension from Centrelink and was doing casual work.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. Mandatory considerations In accordance with Ministerial Direction No.84,[1] made under s 499 of the Act, the Tribunal must take account of the 'Refugee Law Guidelines'[2] and 'Complementary Protection Guidelines' [3] 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. While the Tribunal should have regard to policy as there is public interest in achieving consistency, Departmental policy is not binding on the Tribunal.[4][1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84, Consideration of Protection Visa applications, 24 June 2019.[2] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).[3] Department of Home Affairs, Policy – Refugee and humanitarian - Complementary Protection Guidelines.[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.Principles of interpretation The Tribunal must apply Australian principles of statutory interpretation and in particular, the Acts Interpretation Act 1901 (Cth) (the Interpretation Act).[5] Section 15AA of the Interpretation Act requires that regard must be had to the purpose or object of the Act, and s 15AB permits recourse to extrinsic materials including the explanatory memorandum or second reading speech and any treaty or other international agreement referred to in the Act. Australian courts will favour a construction of the Act and Regulations which conforms to Australia’s obligations under an international treaty, or convention.[6] [5] MIMIA v QAAH of 2004 (2006) 231 CLR 1 at [34].[6] MIMIA v QAAH of 2004 (2006) 231 CLR 1 at [34]; MIEA v Teoh (1995) 183 CLR 273 at 287–8. International jurisdiction can provide guidance[7], as can the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (the Handbook)[8] although the Handbook is not binding.[9][7] See for example Chan v MIEA (1989) 169 CLR 379 at 392, Somaghi v MILGEA (1991) 31 FCR 100 at 117, NBGM v MIMIA (2006) 150 FCR 522 at [158]–[160].[8] UNHCR, re-issued February 2019.[9] SZOXA v MIAC [2011] FMCA 298 at [47].President’s Direction The Tribunal has had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020 and the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.[10] [10] Issued under Section 18B of the Administrative Appeals Tribunal Act 1975 (Cth).