2009656 (Refugee) - [2024] AATA 2881

2009656 (Refugee) [2024] AATA 2881 (29 July 2024)
DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Isobel McGarity
CASE NUMBER:  2009656
COUNTRY OF REFERENCE:                   Iran
MEMBER:Senior Member G.A.F. Connolly
DATE:29 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 29 July 2024 at 11:58am
CATCHWORDS
REFUGEE – protection visa – Iran – race – Faili Kurd – imputed political opinion – opposition to the government – education – employment – people smuggling conviction – detention – medical condition – risk of double jeopardy – fear of torture – decision under review remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 104, 423, 499
Migration Regulations 1994, Schedule 2
CASES
Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278
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

The applicant is an Iranian citizen who is [an age]-year-old male, who is, by descent and religious faith, a Faili Kurd and a Shia Muslim.
The applicant applies to this Tribunal for review of a decision made by a delegate of the Minister for Home Affairs (Minister's Delegate) on 20 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act).[1]
[1] Applicant’s Protection Visa Decision Record of 20 May 2020.
While the precise history of this Iranian applicant is not (at all) clear despite the most strenuous efforts having been made to assemble the story of this applicant's life from materials contained in the files of the Department of Home Affairs (Department) and this Tribunal, this extract from the decision appealed against does seem to be correct in terms of the applicant's life and how he came to arrive in Australia[2]:
·     He is a Faili Kurd (also spelled as Feyli) and Shia Muslim who was born in [City 1], Kurdistan, Iran, and is an Iranian citizen. He moved with his family to Tehran when he was approximately [age] years of age and resided there until he was arrested in [Country 1] in 2013.
·     He experienced discrimination in Iran in terms of education and employment because Iranian society considered that Kurdish people were 'not Iranian' and didn't belong in Iran, as well as believing they were against the Iranian regime/government. He was not able to extend his education beyond [grade] and some schools would not accept him due to his race. Employers would often refuse to employ him due to his race.
·     Due to restrictions in obtaining employment he…

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 2009656 (Refugee)

Details

AGLC: 2009656 (Refugee) [2024] AATA 2881
Case: [2024] AATA 2881
Decision Date: 29 July 2024

CaseChat Overview and Summary

This decision concerned an application for a protection visa by a Faili Kurd from Iran. The applicant sought review of a decision that he did not meet the refugee criterion under section 36(2)(a) of the *Migration Act 1958* (Cth). The applicant also sought to rely on the complementary protection criterion under section 36(2)(aa) of the Act.

The primary legal issue before the Tribunal was whether the applicant faced a real risk of significant harm if removed from Australia, thereby satisfying the complementary protection criterion. This involved considering the applicant's background, including his ethnicity, imputed political opinion, past dealings with authorities, and any potential risks upon return to Iran or a third country. The Tribunal was also required to consider the meaning of "significant harm" as defined in the Act and the circumstances under which a person would not be taken to face such a risk.

The Tribunal acknowledged its constitutional position within the Executive Government of the Commonwealth, noting that executive power is vested in the Crown and exercised by the Governor-General. It emphasised the importance of understanding the Crown's role and prerogatives in the Australian constitutional order. In applying the law to the facts, the Tribunal considered Ministerial Direction No. 84, the Refugee Law Guidelines, Complementary Protection Guidelines, and country information. The Tribunal ultimately remitted the decision for reconsideration, indicating that the applicant may meet the criteria for the grant of the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Migration 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. It is important to set out this Tribunal’s constitutional position within the Executive Government of the Commonwealth of Australia. Australia is a monarchical polity in which the Constitution (via s 61) vests the executive power in the Crown, to be exercised by the Governor-General as the monarch’s representative.[5] The monarch is the head of the federal executive[6] and the Governor-General is charged with the “execution and maintenance” of the Australian Constitution.[7] As both Sir Owen Dixon[8] and W. Anstey Wynes[9] wrote, the Crown was (and is) the central element of the Constitution and the Crown predominates every aspect of Australian governmental power. The Crown’s role and its prerogatives are crucial to an understanding of the Australian constitutional order and the the Executive Government. [5] “The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”[6] Professor John M. Williams, “The Crown: its Nature and Role”, in Martin Hinton and John Williams (Editors), The Crown: essays on its manifestation, power, and accountability (2018) University of Adelaide Press, Adelaide (SA), at 2. [7] Constitution, s 61.[8] Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 at 304 per Dixon J.[9] W A Wynes, Legislative, Executive, and Judicial Powers in Australia, (1962) at 89. While focus may understandably be drawn to the elected Parliament (Chapter I) or to the Judicature (Chapter III), the Crown occupies this central and unitary position as the foundation and apex of the Executive Government under our Constitution (Chapter II). In this respect, the Crown is both a source of loyalty and allegiance, as well as the Executive Government. The proper understanding of the Crown’s roles in the constitutional order is essential. As the preamble to the Constitution lays out, Australians unite, first, under the Crown and, only then, under the Constitution – and in that order of the ‘two unders’:WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established… The proper understanding of the Crown, and its emanations, such as this Tribunal, require a return to a rigorous study of constitutional history and what the Crown has historically done. In this respect, I would adopt what Professor Adrian Vermeule of Harvard University wrote in his latest work on the classical legal tradition – a tradition which underlies both the civil law and common law traditions – and which tradition helped create the written and entrenched Australian Constitution: “We have first to understand the law as it really is; only then can we understand where we have abandoned the law as it really is, and how to recover it.”[10] This recovery is part of our shared inheritance of Roman Law: “To jurisprudence the Romans gave the same definition as the Greeks gave to wisdom.”[11][10] Adrian Vermeule, Common Good Constitutionalism: Recovering The Classical Legal Tradition (Polity Books, Cambridge (UK): 2011), at 179.[11] D.R. Kelley, “The Influence of Roman Law”, in The Oxford Handbook of the History of Political Philosophy (Oxford University Press: 2011) at 156.