2008756 (Refugee) - [2024] ARTA 895

2008756 (REFUGEE) [2024] ARTA 895 (4 DECEMBER 2024)
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2008756

Tribunal:General Member S Nyabally
Place:Melbourne
Date:4 December 2024
Statement made on 11 December 2024 at 12:49pm

CORRIGENDUM
Date of Corrigendum: 11 December 2024

Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alteration is made to the statement of reasons for the decision:
1.Paragraph [66] of the decision is omitted.

DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2008756
Tribunal:General Member S Nyabally
Date:4 December 2024

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 04 December 2024 at 1:56pm
CATCHWORDS
REFUGEE – protection visa – Somalia – ethnicity and returnee from Western country – Madhiban tribe – member of minority tribe considered inferior – father and uncle killed and mother and siblings in refugee camp in another country – fear of harm from militia and other tribes – study in other countries and returns to home country – relationship ceased and partner visa application refused – post-traumatic stress and mental health treatment – long residence overseas and no family or support in home country – discrepancies in family composition and travel history – reasonable explanation and no adverse inference drawn – country information – minority tribes disproportionately at risk and state protection not available – treaty right to enter and reside in neighbouring countries limited in practice – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (c), (2), (5), 5LA(1), 36(2)(a), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
AGA16 v MIBP [2018] FCA 628
MIMAC v SZRHU (2013) 215 FCR 35
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
APPLICATION FOR REVIEW
The applicant first arrived in Australia [in] March 2012 as the holder of a Prospective Marriage (subclass 300) visa. He has not subsequently departed Australia.
On 9 May 2012, the applicant applied for Partner (subclass 820/801) visas, based on his marriage to his (now estranged) wife. The subclass 820 visa was granted on 27 June 2012, and expired on 15 April 2015. The subclass 801 visa was refused on 2 April 2015.
The applicant applied for the protection visa on 6 May 2015. The delegate refused to grant the protection visa on 18 May 2020.
The applicant applied for review of the delegate’s decision on 25…

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 2008756 (Refugee)

Details

AGLC: 2008756 (Refugee) [2024] ARTA 895
Case: [2024] ARTA 895
Decision Date: 4 December 2024

CaseChat Overview and Summary

The case involves a Somali national who has applied for a protection visa in Australia, appealing against the delegate's refusal. The applicant claims that he would face serious harm if returned to Somalia due to his membership of the Madhiban tribe, his extended period living in a Western country, and his lack of a family or social network in Somalia. The central legal issues revolved around whether the applicant's fears of harm were well-founded and if he met the criteria for a protection visa. The Tribunal considered the applicant's background, the country information on the risks faced by the Madhiban tribe, and the applicant's personal experiences, including the murder of his father and uncle, and his failed attempts to reunite with his family in Somalia.

The Tribunal found that the applicant's claims about his tribe's marginalisation and the associated risks were supported by country information. It accepted that the Madhiban tribe faces disproportionate risks in Somalia, and that state protection is often unavailable to them. The Tribunal also noted that the applicant's extended absence from Somalia and lack of support network there would exacerbate these risks. Despite some discrepancies in the applicant's family composition and travel history, the Tribunal accepted his explanations and did not draw adverse inferences. The Tribunal concluded that the delegate had erred in not accepting the applicant's claims about the risks he faced in Somalia.

The Tribunal set aside the delegate's decision and remitted the matter for reconsideration. It found that the delegate had not adequately considered the specific risks faced by the Madhiban tribe and the impact of the applicant's lack of a support network in Somalia. The Tribunal emphasised that the applicant's personal experiences, including the murders of his father and uncle, provided a compelling context for his fear of returning to Somalia.

Orders

Orders of the court

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Background

Background to the litigation

The applicant has provided a copy of his passport from Somalia. He has consistently claimed to be from Somalia. There are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a citizen of Somalia. The Tribunal is satisfied that Somalia is his receiving country and has assessed his claims against that country. Background The applicant was born on [Date] in Mogadishu. He was one of [Number] children. He is of Madhiban ethnicity and Sunni Muslim religion. The applicant, his mother and siblings remained in Somalia after his father’s death in [Year], but moved homes frequently for their safety. In [Year], the applicant’s uncle was killed in what the applicant believed to be a politically-motivated attack. His uncle’s murder was the catalyst for his family’s departure from Somalia. The applicant and his family travelled to [City 1] in [Year]. He has no ongoing contact with anyone in Somalia, and does not know if he has any extended family remaining there. The applicant completed his secondary education in [Country 1] in [Year]. He moved to [Country 2] in 2001, where he completed a Bachelor of [Subject]. The applicant moved to [Country 3] in 2009 to complete further study, residing there until 2012. On 1 March 2012, the applicant was granted a Prospective Marriage visa sponsored by his (now estranged) wife, [Ms C]. He arrived in Australia on 21 March 2012, and married [Ms C] on 12 April 2012. The applicant and [Ms C] subsequently separated, and the applicant’s Partner (Residence) (subclass 801) visa was refused on 2 April 2015. The Tribunal accepts the above matters to be true.The applicant’s claims for protection In his 2018 statutory declaration and 2024 statement, the applicant has consistently claimed (amongst other things) that if he returns to Somalia, there is a real chance that he will be seriously harmed because he is from the minority Madhiban tribe, because of the significant time he has spent living in a Western country, and because of his lack of a family or social network in Somalia. At the hearing, the applicant explained that he has returned to Somalia 3 times since his family fled in [Year].[3] The first time was in 2001, where he remained in Somalia briefly prior to his travel to [Country 2]. The second time was in 2003, when [Mr A] encouraged the applicant to return to the north of Somalia to try and visit his family in [City 1]. The applicant travelled from [Country 2] to [Country 4], then to Hargeisa in Somaliland. He remained in Hargeisa for 3 days, but was unable to see his mother over that period as he was stopped at the [Country 1] border and prevented from entering the country. The third time was in 2004, when [Mr A] again encouraged the applicant to try and see his mother. The applicant travelled to Hargeisa and remained there for about 2 weeks while he attempted to reunite with his mother and siblings. After about 2 weeks in Hargeisa, the applicant was approached by someone who told him that it was not safe for him to stay in the area. The applicant was fearful of the warning, which triggered memories of his father’s murder, and departed Hargeisa without seeing his family. [3] The delegate’s decision record identifies some discrepancies in the applicant’s travel history. As with his family composition, the Tribunal accepts that any inconsistencies are attributable to errors by [Ms C] in completing his subclass visa application forms, and accepts his travel and residence history to be that outlined in these reasons.

Evidence

Evidence Before The Court

The applicant appeared before the Tribunal on 26 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of the applicant’s representative and an interpreter in the Somali and English languages.CLAIMS AND EVIDENCEBefore the Department The applicant claims to be a [Age]-year-old Somali citizen who was born and raised in Mogadishu, Somalia. In a 2018 statutory declaration provided to the Department, the applicant claimed that he was from the Madhiban (also known as the Midgan)[2] clan, a minority tribe considered to be inferior in Somalia. The applicant’s father was murdered by political opponents in [Year], and his younger brother died when the applicant was about 3 or 4 years old. The applicant’s mother and [remaining siblings] live in a refugee camp in [City 1, Country 1].[2] also spelled: Madhibaan, Madiban, Mahdiban, Madibhan; also known as Gaboye, Gabooye, Gabooyo, Midgan, Midgaan, and Musse Deriyo. See the Research Directorate, Immigration and Refugee Board of Canada, ‘Djibouti: Situation of members of the Madhiban caste, including treatment by society and authorities; state protection and services’, DJI104633.E (25 October 2013), available at Martin Hill, ‘No Redress: Somalia’s Forgotten Minorities’, Minority Rights Group International (2010), available at p8. When he was about 16 years old, the applicant, his mother and surviving siblings fled Somalia by truck, settling in a refugee camp in [City 1]. While living in the refugee camp, a friend of the applicant’s father named [Mr A] paid for him to attend school. In 2001, [Mr A] assisted the applicant to obtain a visa to study in [Country 2]. The applicant lived in [Country 2] from 2001 to 2009, and in [Country 3] from 2009 to 2012, before travelling to Australia. The applicant claimed (amongst other things) that if he returned to Somalia, he would be killed by the Al Shabaab militia and/or people of other clans because he was a Madhiban, he would be easily identifiable as a returnee from the West, and because he had no contacts and no tribal protection in Somalia. He would be unable to obtain protection from the authorities because the government had no power, and he could not relocate because he had no contact with any friends or relatives in Somalia, and it was impossible to live anywhere in Somalia without clan protection. In their decision record, the delegate did not accept that there was a real chance or risk that the applicant would be harmed for the above reasons. Relevantly, the delegate accepted that the applicant came from the Madhiban minority group, but did not accept that he had no immediate or extended family members in Somalia as claimed. The delegate found that the applicant had given inconsistent information about his family composition, and did not accept as plausible his claim that his mother and siblings lived in [Country 1], as they had evidence that the applicant regularly transmitted money to Somalia. While the delegate accepted that the applicant may experience some degree of marginalisation or discrimination as a Madhiban, it was not satisfied that this would amount to persecution or significant harm. The delegate was not satisfied that the applicant would have no support network in Somalia, and placed weight on country information which stated that there was no evidence that people outside the dominant clans (such as the Madhiban) were systematically subjected to violence in the applicant’s home city of Mogadishu.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.Country of nationality The applicant has provided a copy of his passport from Somalia. He has consistently claimed to be from Somalia. There are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a citizen of Somalia. The Tribunal is satisfied that Somalia is his receiving country and has assessed his claims against that country. Background The applicant was born on [Date] in Mogadishu. He was one of [Number] children. He is of Madhiban ethnicity and Sunni Muslim religion. The applicant, his mother and siblings remained in Somalia after his father’s death in [Year], but moved homes frequently for their safety. In [Year], the applicant’s uncle was killed in what the applicant believed to be a politically-motivated attack. His uncle’s murder was the catalyst for his family’s departure from Somalia. The applicant and his family travelled to [City 1] in [Year]. He has no ongoing contact with anyone in Somalia, and does not know if he has any extended family remaining there. The applicant completed his secondary education in [Country 1] in [Year]. He moved to [Country 2] in 2001, where he completed a Bachelor of [Subject]. The applicant moved to [Country 3] in 2009 to complete further study, residing there until 2012. On 1 March 2012, the applicant was granted a Prospective Marriage visa sponsored by his (now estranged) wife, [Ms C]. He arrived in Australia on 21 March 2012, and married [Ms C] on 12 April 2012. The applicant and [Ms C] subsequently separated, and the applicant’s Partner (Residence) (subclass 801) visa was refused on 2 April 2015. The Tribunal accepts the above matters to be true.The applicant’s claims for protection In his 2018 statutory declaration and 2024 statement, the applicant has consistently claimed (amongst other things) that if he returns to Somalia, there is a real chance that he will be seriously harmed because he is from the minority Madhiban tribe, because of the significant time he has spent living in a Western country, and because of his lack of a family or social network in Somalia. At the hearing, the applicant explained that he has returned to Somalia 3 times since his family fled in [Year].[3] The first time was in 2001, where he remained in Somalia briefly prior to his travel to [Country 2]. The second time was in 2003, when [Mr A] encouraged the applicant to return to the north of Somalia to try and visit his family in [City 1]. The applicant travelled from [Country 2] to [Country 4], then to Hargeisa in Somaliland. He remained in Hargeisa for 3 days, but was unable to see his mother over that period as he was stopped at the [Country 1] border and prevented from entering the country. The third time was in 2004, when [Mr A] again encouraged the applicant to try and see his mother. The applicant travelled to Hargeisa and remained there for about 2 weeks while he attempted to reunite with his mother and siblings. After about 2 weeks in Hargeisa, the applicant was approached by someone who told him that it was not safe for him to stay in the area. The applicant was fearful of the warning, which triggered memories of his father’s murder, and departed Hargeisa without seeing his family. [3] The delegate’s decision record identifies some discrepancies in the applicant’s travel history. As with his family composition, the Tribunal accepts that any inconsistencies are attributable to errors by [Ms C] in completing his subclass visa application forms, and accepts his travel and residence history to be that outlined in these reasons.