2007677 (Refugee) - [2021] AATA 4467

2007677 (Refugee) [2021] AATA 4467 (12 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  2007677
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Jason Pennell
DATE:12 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal 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 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.

Statement made on 12 September 2021 at 8.55am

CATCHWORDS
REFUGEE – Protection Visa – Ethiopia – Federal Court remittal – race –ethnic Amhara – actual and imputed political opinion – supporter of Ginbot 7 or the EPPF – second applicant – race – ethnic Tigray – member of the family unit of the second applicant – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 91R, 499

Migration Regulations 1994, Schedule 2

CASES

Chan v MIEA (1989) 169CLR 379
MIEA v Guo (1997) 191 CLR 559
V v MIMA (1999) 92 FCR 355

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 Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (‘the Act’).
[Mr A] (‘the applicant’), who claims to be a citizen of Ethiopia, applied for the protection visas on 14 October 2011 and the delegate refused to grant the visas on 30 December 2011 on the basis that the first named applicant is not a person to whom Australia owes protection obligations. The protection visa application included a dependent spouse, [Mrs B] (the ‘second applicant’).
On 23 January 2012 the applicant initially applied to the Tribunal (differently constituted, Case No 1200894) (‘the First Tribunal’) for review of the delegate’s decision. On 8 April 2013 the First Tribunal affirmed the delegate’s decision not to grant the applicants protection visas.
The applicant then applied for judicial review to the Federal Circuit Court of Australia (FCCA) and on [date] March 2014. The matter was remitted by consent back to the Tribunal (differently constituted, Case No 1405173) for reconsideration (‘the Second Tribunal’).
On 24 March 2016 the Second Tribunal affirmed the delegate’s decision not to grant the applicants protection visas. The applicant then applied for judicial review to the FCCA where the case was subsequently dismissed on [date] September 2018, as the FCCA determined there was no proper basis for remitting the case back to the Tribunal for reconsideration.
Accordingly, the applicant then applied for judicial review to the Federal Court of Australia (FCA) and on [date] April 2020 the case was remitted back…

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 2007677 (Refugee)

Details

AGLC: 2007677 (Refugee) [2021] AATA 4467
Case: [2021] AATA 4467
Decision Date: 12 September 2021

CaseChat Overview and Summary

The Federal Court of Australia considered an appeal concerning the refusal of protection visas for two applicants from Ethiopia. The primary dispute revolved around whether the applicants met the criteria for a protection visa, specifically whether they held a well-founded fear of persecution based on their race, ethnicity, or imputed political opinion. The decision under review had been remitted to the Court for further consideration.

The central legal issues before the Court were whether the first applicant, an ethnic Amhara, held a well-founded fear of persecution due to their actual or imputed political opinion, specifically as a supporter of the Ginbot 7 movement or the Ethiopian People's Patriotic Front (EPPF). Additionally, the Court had to determine whether the second applicant, an ethnic Tigray, and their family unit held a well-founded fear of persecution based on their race or ethnicity.

The Court's reasoning focused on applying the principles established in refugee law to the facts presented. It examined the evidence regarding the political situation in Ethiopia, the persecution faced by members of specific ethnic groups, and the potential for individuals to be targeted based on their perceived political affiliations. The Court considered the credibility of the applicants' claims and the objective country information to assess the likelihood of persecution. The decision under review was remitted, indicating that the Court was to reconsider the merits of the protection visa applications.

Orders