2007726 (Refugee) - [2024] AATA 4314

2007726 (Refugee) [2024] AATA 4314 (2 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2007726
COUNTRY OF REFERENCE:                   Mauritius
MEMBER:Nicole Burns
DATE:2 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 August 2024 at 2:41pm

CATCHWORDS
REFUGEE – protection visa – Mauritius – previous marriage and divorce, and sponsorship for spouse visa withdrawn – current relationship and young child – religious families, stigma of divorce and as non-practising Muslim, and threats from ex-wife’s family – economic conditions and capacity to subsist – intervention order and criminal record – inconsistent evidence – passage of time – country information – separation from partner and child not significant harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(c), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
AWC21 v MHA [2022] FCA 1568
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB [2013] FCAFC 33
SZRSN v MIAC [2013] FCA 751
WZARI v MIMAC [2013] FCA 788
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 Home Affairs on 22 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [Age]-year-old male from Mauritius who first came to Australia to study [in] June 2008. He applied for the protection visa on 26 February 2015.
The applicant appeared before the Tribunal on 22 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, [Mr A], and his fiancé, [Ms B].
The issue in this case is whether the applicant is owed protection as a refugee or based on the complementary protection provisions (detailed below). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she 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…

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 2007726 (Refugee)

Details

AGLC: 2007726 (Refugee) [2024] AATA 4314
Case: [2024] AATA 4314
Decision Date: 2 August 2024

CaseChat Overview and Summary

The applicant, who sought a protection visa, appealed a decision to the Refugee Tribunal. The applicant's claims for protection were based on his previous marriage and divorce in Australia, the subsequent withdrawal of his spouse visa sponsorship by his ex-wife, his current relationship with an Australian citizen and their young child, and concerns about religious stigma, economic hardship, and potential threats from his ex-wife's family upon return to Mauritius. He also presented evidence of an intervention order against him and a criminal record.

The Tribunal was required to determine whether the applicant would face persecution or significant harm if returned to Mauritius, specifically considering his claims of religious and social stigma due to his divorce and non-practising Muslim status, the alleged threats from his ex-wife's family, and his economic capacity to subsist in Mauritius. The Tribunal also had to assess the credibility of the applicant's evidence, including inconsistencies and the passage of time since his departure from Mauritius.

The Tribunal found that the applicant's evidence was inconsistent and that his claims of significant harm were not substantiated. It noted that the applicant had lived in Australia for a considerable period, had established a new relationship and family, and had a criminal record and an intervention order against him, which were not considered to be grounds for protection. The Tribunal concluded that the applicant had not demonstrated that he would be unable to subsist economically in Mauritius or that he would face persecution or significant harm from his ex-wife's family or due to his religious or marital status. The Tribunal affirmed the delegate's decision to refuse the protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Presently the applicant is engaged to an Australian citizen, [Ms B]. They live together in Melbourne along with their daughter who was born on [Date]. The applicant works as [occupations 1 and 2].Protection claims and evidence In the protection visa application form the applicant set out his initial claims, as follows (in summary):·He left Mauritius in 2008 when [Age] years of age to gain a better education and become [an occupation 3].·He will not be able to find a place to live if he returns as his parents will not support him.·It will be hard to get a job as he grew up in Australia and all his work experience is in Australia as are all his friends who support him.·As a Muslim who is divorced he is a disgrace. That is a hard thing for him to face as his whole family is very into religion.·He will be mistreated on return as he grew up in another country and has not followed the religion that he had as a child.·As a divorced man he will be looked at differently.·His ex-wife’s whole family lives in Mauritius. The applicant provided a typed statement dated 23 February 2015 to the Department in which he states in summary:·In Australia he met a woman called [Ms C]. They lived together and married on [Date 1].[1] His parents did not consent to the marriage. ·After marriage they decided to build a house and buy a car. [Ms C] agreed to sponsor him on a spouse visa so he could work full-time. He bought a car for her. [Ms C] abused his savings and was ill-treating him.·His wife committed adultery and when he questioned her she accused the applicant of family violence and they divorced. She later removed him from the spouse visa. ·His family are ‘high religious believers’ in Mauritius and were against him marrying a girl from a different country. They believe he should have married according to their wishes in an arranged wedding. As he ignored their objection he has been rejected from the whole family and they made a will where he does not form part of the heir of their property.·He has lived a stressful life for years without any family support and in loneliness. He wanted to go back home but will be homeless and jobless.·Although Mauritius is a good country the job market is highly corrupted and hard to enter without connections. He left at an early age and to start a new career there is mostly impossible.[1] The year appears to be a mistake. The divorce order indicates they were married on [Date 2 (different year)]. The applicant also provided to the Department a statutory declaration from a friend, [Ms D], dated 18 February 2015. In it she states, among other things, that she had lived with the applicant for almost five years; that he was generous and responsible; and he has no real contact with his family in Mauritius. Also provided was a statutory declaration from a work colleague (at a [workplace]), [Mr E], dated 18 February 2015, attesting to the applicant’s character. According to information contained in the delegate’s decision record (a copy of which the applicant provided to the Tribunal on review) the applicant was interviewed by the delegate on 1 April 2020. He told the delegate that he had received threats from [Ms C]’s relatives in Mauritius after their divorce, who also purportedly visited his parents there. Afterwards he provided further details about his work history in Australia (including as [occupations 1, 4-6]); a copy of his criminal record in Victoria; and a copy of an intervention order (IVO) issued by the [Magistrates Court] [in] October 2011 (expiring [in] October 2012) listing him as the respondent and [Ms C] as the protected person.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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