2007534 (Refugee) - [2023] AATA 3529

2007534 (Refugee) [2023] AATA 3529 (11 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2007534
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Jessica Henderson
DATE:11 August 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the first applicant a Protection visa.
The Tribunal otherwise remits the matter for reconsideration with the following directions:
(i)that the second named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the third named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the third named applicant.

Statement made on 11 August 2023 at 4:52pm
CATCHWORDS
REFUGEE – Protection Visa –Nepal – primary applicant has become an Australian citizen – a victim of domestic violence – suffering health problems (both physical and mental) as a result of the abuse – third applicant’s mental health conditions – third applicant is the de facto partner of the second applicant – a member of the same family unit as the second applicant – membership of the particular social group – primary care-giver fathers with disabled partners – decision in relation to the first applicant affirmed – decision in relation to the second and third named applicant under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 48, 65, 499
Migration Regulations 1994, r 2.08, Schedule 2
CASES
AMA15 v MIBP [2015] FCA 1424
SZGIZ v MIAC (2013) 212 FCR 235
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 on 27 May 2015 by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The relevant application for protection visas was made on 16 May 2014 for the primary applicant, who was born in Australia, and for his parents, the second and third applicants, who are Nepalese citizens.
The applicants appeared before the Tribunal on 12 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
BACKGROUND
The second and third applicant arrived separately in Australia in 2008 on student visas.
The third applicant made a protection visa application in February 2011, based solely on refugee criteria. The harm that she claimed to fear was said to flow from her political activity in Nepal. That protection visa application was unsuccessful, as was a request for Ministerial intervention. She is precluded from applying for a further protection visa on those refugee grounds. However, she is still able to raise complementary protection grounds and still eligible to apply as a member of the same…

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 2007534 (Refugee)

Details

AGLC: 2007534 (Refugee) [2023] AATA 3529
Case: [2023] AATA 3529
Decision Date: 11 August 2023

CaseChat Overview and Summary

This matter concerned a review of a decision by the Administrative Appeals Tribunal (AAT) regarding protection visa applications made by three applicants. The primary dispute revolved around the eligibility of the applicants for a protection visa, particularly in light of the first applicant's acquisition of Australian citizenship and the claims of the second and third applicants, who were in a de facto relationship. The decision was made by Member Jessica Henderson of the AAT.

The legal issues before the Tribunal included whether the first applicant, who had become an Australian citizen, could still satisfy the criteria for a protection visa, which requires the applicant to be a non-citizen. Additionally, the Tribunal had to consider the claims of the second and third applicants, including whether they could establish membership of a particular social group and whether they met the criteria for complementary protection, particularly in relation to their de facto relationship and the first applicant's circumstances.

The Tribunal reasoned that a protection visa can only be granted to a non-citizen, as stipulated by section 36(2) of the Migration Act 1958. Since the first applicant had acquired Australian citizenship, he could no longer satisfy this criterion, and therefore, the Tribunal affirmed the decision not to grant him a protection visa. However, the Tribunal accepted that the second and third applicants were in a de facto relationship and were the parents of the first applicant, thus forming the same family unit. The Tribunal found that the third applicant could be eligible for a protection visa based on her membership of the same family unit as the second applicant, provided other criteria were met.

Consequently, the Tribunal affirmed the decision not to grant the first applicant a protection visa. The matter was remitted for reconsideration regarding the second and third applicants, with directions that the second applicant satisfies section 36(2)(a) of the Migration Act, and the third applicant satisfies section 36(2)(b)(i) of the Migration Act on the basis of membership of the same family unit as the second applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicants appeared before the Tribunal on 12 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.BACKGROUND The second and third applicant arrived separately in Australia in 2008 on student visas. The third applicant made a protection visa application in February 2011, based solely on refugee criteria. The harm that she claimed to fear was said to flow from her political activity in Nepal. That protection visa application was unsuccessful, as was a request for Ministerial intervention. She is precluded from applying for a further protection visa on those refugee grounds. However, she is still able to raise complementary protection grounds and still eligible to apply as a member of the same family unit as a person granted the same class of visa. The second applicant lodged an application for a further student visa in March 2010, which was unsuccessful. He also sought Ministerial intervention, without success. He had not, prior to the application under review, made an application for a protection visa. The second and third applicants have been in a relationship since some time in 2011. They identify as being in a de facto relationship. The third applicant is still married to her former husband, who she believes is in Nepal. She says that they have been separated since 2009. The first applicant was born to the second and third applicants after their arrival in Australia. The application under review is his first protection visa application. The Tribunal has been provided with a birth certificate showing that the second and third applicant have another child, a son, who was born in Australia on [date]. No relevant decision has been made by the Department with respect to that child, and the Tribunal has no jurisdiction to consider any claims that the younger child may have.Procedural history The Delegate’s decision made on 27 May 2015 was previously reviewed by the Tribunal (differently constituted). The Tribunal considered the first applicant’s claim and the third applicant’s claim insofar as it related to complementary protection, and also in her capacity as a member of the first applicant’s family unit. The Tribunal affirmed the delegate’s decision not to grant the protection visa to the appellants. The applicants sought review of the Tribunal decision by the Federal Circuit Court.[1] The Federal Circuit Court affirmed the Tribunal’s decision. [1] [Deleted]. The applicants appealed from that decision to the Federal Court of Australia. By orders dated 24 March 2020 the Federal Court remitted the matter back to the Tribunal for reconsideration.[2] The error identified in the Tribunal’s reasoning was that “the Tribunal should have considered the particular fears as articulated on behalf of the child, assessed whether there was evidence to support them, considered the individual circumstances of the child and considered the circumstances of the country to which he would return.”[3] Her Honour went on to say “the Tribunal’s failure to engage with the claims or undertake the qualitative task required to assess the nature and effect of the identified feared harm comprised a constructive failure on the part of the Tribunal to carry out its statutory task, and so comprised jurisdictional error.”[2] [Deleted].[3] [68]RELEVANT LAW

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 EVIDENCE – FIRST APPLICANT Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen. Indeed, the object of the Act is to regulate the presence in Australia of non-citizens, and visas cannot be granted to Australian citizens (see s 4 and s 29 of the Act). The issue in this case in relation to the primary applicant is whether the primary applicant is now an Australian citizen. On 2 February 2023 the applicants provided the Tribunal with a completed pre-hearing attendance form. That form identified that the primary applicant has become an Australian citizen. It attached his Australian Citizenship certificate showing that he acquired Australian citizenship on [date] 2022. On 9 February 2023 the Tribunal wrote to the applicants in the following terms:At the time the review application was lodged, all three review applicants were noncitizens and the application was considered to be a Part 7 reviewable decision.In conducting the review, we have identified relevant information that Master [name] is no longer a non-citizen. The Tribunal has information from the Department of Home Affairs that he became an Australian citizenship on his 10th birthday, [date] 2022. On 2 February 2023, you provided the Tribunal with a copy of his birth certificate and Australian Citizenship Certificate confirming he had been granted Australian Citizenship.This information is relevant to the review because as he is now an Australian citizen, he is unable to satisfy the Protection visa criteria, which refers to non-citizens.Under subsection 65(1) of the Migration Act 1958 (the Act), a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen. This is consistent with the objective of the Act, which is to regulate the presence in Australia of noncitizens.As the Tribunal has information that he can no longer satisfy criteria for the grant of a Protection visa, the Tribunal may no longer have jurisdiction to review this application.You are invited to give comments on or respond to the above information in writing.

Decision

Reasons for decision

It follows that, as a member of the same family unit, the third applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.DECISION The Tribunal affirms the decision not to grant the first applicant a Protection visa. The Tribunal otherwise remits the matter for reconsideration with the following directions:a.that the second named applicant satisfies s 36(2)(a) of the Migration Act; andb.that the third named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.Jessica HendersonMember

Ratio Decidendi

Legal Principle Established

The Tribunal accepts that the second and third applicants are in a de facto relationship and are the parents of the first applicant. All three applicants are members of the same family unit.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 EVIDENCE – FIRST APPLICANT Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen. Indeed, the object of the Act is to regulate the presence in Australia of non-citizens, and visas cannot be granted to Australian citizens (see s 4 and s 29 of the Act). The issue in this case in relation to the primary applicant is whether the primary applicant is now an Australian citizen. On 2 February 2023 the applicants provided the Tribunal with a completed pre-hearing attendance form. That form identified that the primary applicant has become an Australian citizen. It attached his Australian Citizenship certificate showing that he acquired Australian citizenship on [date] 2022. On 9 February 2023 the Tribunal wrote to the applicants in the following terms:At the time the review application was lodged, all three review applicants were noncitizens and the application was considered to be a Part 7 reviewable decision.In conducting the review, we have identified relevant information that Master [name] is no longer a non-citizen. The Tribunal has information from the Department of Home Affairs that he became an Australian citizenship on his 10th birthday, [date] 2022. On 2 February 2023, you provided the Tribunal with a copy of his birth certificate and Australian Citizenship Certificate confirming he had been granted Australian Citizenship.This information is relevant to the review because as he is now an Australian citizen, he is unable to satisfy the Protection visa criteria, which refers to non-citizens.Under subsection 65(1) of the Migration Act 1958 (the Act), a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen. This is consistent with the objective of the Act, which is to regulate the presence in Australia of noncitizens.As the Tribunal has information that he can no longer satisfy criteria for the grant of a Protection visa, the Tribunal may no longer have jurisdiction to review this application.You are invited to give comments on or respond to the above information in writing.